By Thomas Hutton, Esq.
Patterson Buchanan Fobes Leitch and Kalzer, Inc., P.S.
Concerned that “too many workers don't know about their rights” to family and medical leave under federal law, the U.S. Department of Labor (DOL) this summer released a short, user-friendly resource entitled, “Need Time? The Employee's Guide to the Family and Medical Leave Act.” Employers would be well advised to familiarize themselves with this FMLA document.
The Guide doesn’t so much shed new light on any of the trickier legal questions employers and employees face with the FMLA as it just explains key provisions in plain English and provides helpful flowcharts on coverage and eligibility, the process involved in taking leave, and the medical certification process. DOL also held a webinar that takes viewers through the Guide and has archived the recording of the webinar on its website.
Although the Guide is intended for employees, it details not only employer obligations but also some of the employee’s responsibilities in ways employers may appreciate. Among other examples, the Guide:
- Explains the employee’s right to be reinstated upon return from leave and the limits on that right where the employee cannot be reinstated in the same, specific position;
- Highlights the fact that public employers and elementary and secondary schools are covered by the FMLA even if the employer otherwise would not have enough employees to be covered, and the fact that employees of local education agencies may be eligible for leave even if they don’t technically meet the usual requirements for the amount of time worked;
- Highlights that special rules also apply to airline flight attendants and flight crew employees;
- Details the employer’s duties to notify employees of their eligibility rights and responsibilities;
- Defines the kind of “serious health condition” that an employee must have or provide care for in order to be eligible for leave;
- Describes what information the employee must provide to enable the employer to determine whether he or she is entitled to leave;
- Specifies that the employee must try to schedule medical treatments to minimize disruptions to the employer's operations;
- Lists the specific medical information that must be included in the employee’s medical certification if the employer requests one, and notes that the employee is responsible for paying for the certification and making sure it is provided to the employer;
- Points out that the employee will need to inform the employer if his or her need for leave changes, and that the employer may require the employee to provide periodic updates on his or her status and intent to return to work; and
- Describes how the employer can require the employee to use paid leave during the FMLA leave.
While the Guide plows little or no new ground legally, here are some suggestions for employers:
- Ensure that your HR staff is familiar with the Guide. At a minimum the Guide reflects DOL’s current thinking and is a likely source of the information your employees may be getting, and it explains how they can file an FMLA complaint. But it’s also potentially a good internal reference tool for your organization.
- Review your procedures with reference to the Guide. Striving for consistency in procedural details and even use of terminology may help get everyone on the same page and yield operational efficiencies, particularly as to processes like medical certification that now frequently require more than one attempt to get right.
- Anticipate the possibility that your employees may file somewhat more requests for leave. Again, DOL specifically suggests that too many employees “fail to take advantage of [the FMLA’s] protections.” To the extent some employees may not be fully aware of all of those protections, the Guide may accomplish its goal of raising awareness, particularly with respect to certain FMLA provisions that may be less well known. Two examples are (1) the eligibility of an employee acting “in loco parentis” for a child, even though he or she has no biological or legal relationship to the child, and (2) the recently added eligibility of an employee who is caring for a military service member with a serious injury or illness.
- Speaking of military family leave, be aware that DOL regulations implementing these new provisions of the FMLA currently are in the process of being finalized—the public comment period on the proposed regulations ended in April 2012.
- Consider using the Guide as a tool to communicate with employees. There are some tradeoffs involved in proactively disseminating the Guide to all employees. But there at least are likely to be benefits to referring an employee to the Guide once he or she has inquired about family leave, especially where DOL stresses the employee’s obligations in making the process work.
- Also be aware that a Spanish translation of the Guide is expected in the near future.
- Don’t forget that state family leave statutes and even municipal ordinances may cover more employees under more circumstances or require additional benefits than does the FMLA. If this is the case, make sure your practices go beyond the FMLA to comply with these requirements.
- Finally, don’t forget that if an employee’s medical condition is a disability under the Americans with Disabilities Act—and under recent changes to that law, many more conditions now qualify as disabilities—leave may be required as a reasonable accommodation of the disability even where it is not required under the FMLA.