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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 won’t 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 doesn’t 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 didn’t know what the county’s 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 employee’s 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 Labor’s 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 doctor’s 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 physician’s examination.

    Should there be a disagreement, for example, between an employee and the county physician’s 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 Doctor’s office at Let me know if I can help. Best wishes.



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