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Reduce Your Risk of FMLA Lawsuits

Posted on: August 20th, 2014

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rules and regulations

FMLA lawsuits rose from 291 in 2012 to more than double in 2013, with 877 cases filed. While this pales in comparison to cases for race, sex or disability discrimination (15,000 lawsuits), this is a significant jump and seen as a growing trend that employers with 50 or more employees should pay attention to.

Communicating the rules governing FMLA to your employees and providing a smooth process to request leave can help your company reduce risk and avoid penalties, which can be up to double lost wages or the cost of care for family members. The employer is also liable for the employee’s legal fees if the case is lost.

Overview of FMLA

The Department of Labor (DOL) says:

The Family and Medical Leave Act (FMLA) provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period to eligible, covered employees for the following reasons:

1) Birth and care of the eligible employee’s child, or placement for adoption or foster care of a child with the employee;

2) Care of an immediate family member (spouse, child, parent) who has a serious health condition; or

3) Care of the employee’s own serious health condition.

4) Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

It also requires that employee’s group health benefits be maintained during the leave.

The Impact on Employers

FMLA puts employers in a really tough spot. Essentially the job/position is put on hold during this time. Often, the employee’s workload needs to be re-assigned to other workers. For some positions, this might not be a big deal. But in the case of delivery person with a set route, a sales person covering a defined territory or the head of a remote office, this might also mean a loss of revenue for the company, including additional expenses needed to cover the service or work of that employee.

What can employers do to protect themselves?

  • Communicate FMLA and its rules to your employees
  • Ensure that you have a comprehensive, written leave policy in your employee handbook
  • Determine whether to adopt a rolling annual cycle for leave or base this on a calendar year; ensure this policy is written up and included in the handbook
  • Develop appropriate notification procedures/methods so employees can request leave
  • Make sure that managers are properly trained in FMLA to reduce the risk of mistakes and mishandling of requests (educate via printed materials, online training, lunch & learn, etc.)
  • Document everything (at the beginning, during and end of FMLA leave) to ensure a paper trail in the event there is a dispute or charges of wrongdoing
  • Scrutinize any planned actions, such as terminations, for employees who have been on FMLA leave. Retaliation claims are a big reason for the jump in lawsuits
  • Discuss the FMLA request with the employee directly, in a timely manner, and explore other options
  • Put yourself in the employee’s shoes (empathy); This will can go a long way and help reduce the risk of lawsuits;
  • Keep the lines of communication open with employees on leave

See also: Resources for Employers

Other Issues

One of the issues with FLMA is that it doesn’t clearly identify health conditions that fall under it. Therefore, a frank discussion with the employee can help determine the seriousness of the leave request, how much time the employees thinks will be needed, or if other options can be arranged.

Note that the employee does not have to take FMLA all at once. Complicating the issue is intermittent leave, which is also permitted.

The Department of Labor has published a Notice of Proposed Rulemaking (NPRM) to revise the definition of spouse under the FMLA in light of the United States Supreme Court’s decision in United States v. Windsor, which found section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. Same-sex married couples may soon be included under FLMA.

Need help navigating FMLA rules? MassPay is here to help. Contact us to learn more.

Background source: WSJ



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