Preventable Claims: Understanding the Family and Medical Leave Act

May 2014 | 0 Comments  Average 5 out of 5

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The Family and Medical Leave Act (FMLA) provides eligible employees up to 12 workweeks of unpaid leave per year to address medical issues or care for loved ones. Qualified activities include a serious health condition, childbirth, adoption, foster care, and caregiving for an immediate family member (spouse, child, or parent) with a serious health condition. FMLA can also be used to meet qualifying needs arising from an employee’s spouse, child, or parent serving on active military duty. When employees on FMLA return to work, they are to be reinstated in the same position or in a job of equal pay and responsibilities.

Although FMLA provides valuable lenience to employees who need a flexible schedule and understanding employers, the complicated law can raise costly liability concerns for educational institutions. The following tips can help your institution avoid some of the most common types of FMLA claims (e.g., retaliation, insufficient documentation) that United Educators (UE) has seen:

  • Ensure clear, consistent communication between human resources (HR) and supervisors. In addition to including an FMLA policy in your institution’s handbook or manual, institutions should train supervisors to recognize situations that may trigger FMLA leave and notify a centralized source in HR department. Watch for red flags such as a chronic health problem that requires two or more visits per year, three consecutive days of absence, pregnancy/birth of a child, and family members who may need care. Preliminarily designate an employee’s leave as FMLA leave if you are unsure whether it qualifies.
  • Keep accurate records. Precise notation of absences and performance issues for all employees is imperative to avoid liability. Your institution’s FMLA standards must be applied consistently to all employees. Pay particular attention to employees whose attendance may be difficult to track, such as faculty with unique schedules.
  • Watch for potential issues that could be construed as retaliation. Even if an employee was experiencing performance issues and was going to be terminated or reprimanded before an FMLA absence, he or she may still allege retaliation. Remember that jurors often sympathize with employees returning from medical leave and if the leave appears to affect an employment decision, it can be tough to defend. Require an employment lawyer to review all proposed discipline against an employee who is on or has recently returned from FMLA leave.
  • Be sensitive to employee privacy while determining eligibility for FMLA leave. You must tread the line between respecting an employee’s medical privacy protections while gathering the necessary information to make your decisions. Most of those who take FMLA leave are genuinely dealing with sensitive issues. Failure to respect that can not only cause potential liability, but further emotional distress for employees as well.
  • Understand the differences between FMLA, ADA, and workers’ compensation. FMLA claims are difficult to resolve and are often combined with workers’ compensation law claims and those under the Americans with Disabilities Act (ADA).

The FMLA is complex, and there are many caveats to consider when determining eligibility. Consult the FMLA section of the U.S. Department of Labor website for comprehensive resources.

By Mike Toohey, UE member relations specialist 


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