National Association of
Counties * Washington, D.C. Vol. 33, No. 19
* October 15, 2001
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FMLA Love It And Leave
It
 The Family Medical Leave Act (FMLA) is now a well established
member of the family of federal employment laws counties must manage. FMLA
provides an entitlement for county employees to take unpaid or paid leave
of 12 weeks in a 12 month period for serious medical conditions
affecting the employee or members of the family. The employer is precluded
from denying these rights or adversely affecting the employees because of
the exercise of FMLA rights.
The HR Doctor has long supported family friendly workplace environments
and policies. The basic concept behind FMLA fits exactly into this
positive vision of a productive workplace.
Having said that, however, the regulations the many regulations
associated with trying to administer FMLA have been brought to us by the
Department of Labor yes, the same group that has provided clear and
unambiguous guidance in the management of that other lovely and talented
workplace law the Fair Labor Standards Act.
What that momentary lapse into sarcasm really means is that the rules
of FMLA can place difficult burdens on counties, create uncertainty and
stress. Out of uncertainty comes opportunity to take advantage of the law
or to increase county management liabilities.
The HR Doctor offers the tips below in the hope of providing readers
with a compass or better yet a GPS device and a map to make FMLA
navigation easier:
- Any leave taken, which is not identified by the employer as part of
an FMLA entitlement, generally wont count as part of the 12 weeks. In
other words, an employee may take days or weeks off during the year and
only then assert a right to 12 more weeks of time off under FMLA. A
county should consider a basic policy under which all time off related
to medical conditions is deemed to be counted as FMLA time, unless the
employee requests otherwise and the employer agrees.
- The employer has the burden to define the 12-month period of
entitlement. Will it be a calendar year, for example? Or will it be a
rolling 12-month period different for each individual and beginning with
a particular instance of time off? Whatever the employer chooses, the
choice must be made known to employees.
- Counties rely on supervisors to be their agents in the
administration of human resource laws, rules and policies. It is a
fundamental principle of the HR Doctor that all supervisors and managers
must be knowledgeable HR professionals. This means that a county which
doesnt offer FMLA training, guidance and support for managers is a
county at considerable risk of inadvertently violating requirements of
the law.
Therefore, build FMLA training for managers into an
ongoing training program for county employees. In a similar manner, once
policy decisions are made, such as those outlined in this article, they
must be communicated clearly to employees and repeated periodically to
take excuses away from the person who might argue that he or she
didnt know what the countys policies were. Remember that the burden is
not on the employee to ask specifically for FMLA time off. That burden
rests with the county.
- Do you have a bonus or reward program for perfect attendance? If so,
read FMLA and realize that the law, as currently written, is specific in
saying that a person using FMLA entitlement leave may not be penalized
by losing out on a bonus or incentive program related to attendance. The
obvious outcome in this scenario is that you are not able to count FMLA
time against an employees eligibility for a bonus.
You may find,
therefore, that you are giving a perfect attendance award to someone who
has had 12 weeks of time off. This is certainly inconsistent with most
perfect attendance incentive programs not to mention common sense.
This is clearly an area for legislative reform and possibly brain
transplants for regulation writers at the Department of Labor.
- Since an employee may not be adversely affected by virtue of
exercising FMLA entitlement, counties need to carefully review their
sick leave control or monitoring programs the opposite end of the
administrative food chain from perfect attendance awards. That is,
FMLA is sufficiently vague about the meaning of phrases, such as
serious medical condition, that monitoring efforts which attempt to
deny or discipline employees for patterns of such time off may add to
county liability.
County ability is made more complex as we try
to deal with the relatively small part of the employee population who is
regularly using unscheduled time off and managers either suspect
possible abuse of sick leave or, even if there is no abuse, the
operation is harmed by frequent unplanned absences.
For example,
one of the Department of Labors defining elements in considering
whether something is a serious medical condition or not, is whether the
condition involves a regime of medical treatment. As all of us know,
however, in this era of defensive medicine, it is not rocket science
to get a doctors note or 10 days of penicillin or other prescription
which may well constitute a regime of medical treatment.
- The employer may require that paid time off accrued by an employee,
such as paid sick leave, be used first before unpaid leave will be
approved. This is a legitimate exercise of discretion under FMLA, but
employers need to understand and recognize that it is an option at their
discretion.
- Another point involves resolution of a dispute about whether the
situation is a serious medical condition. FMLA, in this case, may
override local practice by calling for medical arbitration. In other
words, if a claim for FMLA entitlement is made, the county has the right
to require medical certification that a condition is a serious medical
one. This can be done by accepting certification provided by an employee
or paying for a county-mandated physicians examination.
Should
there be a disagreement, for example, between an employee and the county
physicians opinion, a second medical opinion may be sought to resolve
the issue paid for, of course, by the county. Should the two medical
opinions clash, FMLA provides for the matter to be resolved by a third
physician opinion paid for by you got it the county.
- Another point is that FMLA may very well overlap with other state or
local laws. FMLA does not absolve the county from having to also comply
with these other rules. State leave time acts exist in 25 states.
Workers compensation time off rules apply in all states, local
collective bargaining contracts nearly always include time off,
entitlements or policies. Civil service rules also are at work and
there may be other court precedents or regulations present in the
particular county.
Enough examples?
The HR Doctor apologizes for, perhaps,
giving you a headache by describing the complexity of trying to live in
good faith with laws like the Fair Labor Standards Act or FMLA. However,
look at the bright side. These complexities contribute to the job security
of human resource professionals.
On a more serious note, these laws are complicated, but they can be
effectively managed with proactive policies and deliberate steps to train
and clarify issues for the managers throughout our organizations.
While the laws are complicated, our failure to provide guidance can
lead to a very serious organizational medical condition decision
paralysis. Regrettably, that is not a condition covered by the Americans
With Disabilities Act or the FMLA. Finally, another bright spot, if trying
to administer FMLA drives you crazy, you may well find that your mental
and emotional deterioration qualifies as a serious medical condition under
the act. You may have to approve time off for yourself.
You are invited to visit the HR Doctors office at http://www.hrdr.net/. Let me know if I can
help. Best wishes.
Sincerely,
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