With change, comes discussion, complaints, dissatisfaction and let us not forget manipulation.  Over the last few weeks one such hot topic revolves around the Family Medical Leave Act (FMLA).  The Department of Labor (DOL) recently amended/expanded the Act to include a few changes as they pertain to Military Leave such as expanding the Act to include caring for a Veteran who suffers from a serious illness.  You can read about the newly implemented changes HERE.  With these changes, a new DOL FMLA poster has been issued and Employers should be aware that the new poster must be displayed within the workplace prior to March 8, 2013.  You can download the 2013 FMLA Poster by Clicking HERE.

The DOL recently also issued an Opinion clarifying the definition of a Child (as it relates to Adult Children and if a parent can take FMLA to care for their Adult Child).   What is irritating is the fact that this type of question even had to be asked and opined.  The Act clearly and unmistakably includes “immediate family member” and specifically spells out “son” or “daughter”.   Why complicate such a simple process?

Other recent posts have criticized the DOL’s recent study on the FMLA that indicates that most employers found the provisions of the FMLA easily to understand and implement.    This was hugely criticized in the legal profession by Employer Representatives.   But, we have to stop and realize that Employer Representatives are left holding the bag to defend against improper client procedures and actions, so of course they are going to be the naysayers.   However, the truth be told (and supported by many online comments), the FMLA is not hard to understand or implement, actually it falls well below the complexity of administering Payroll and is child’s play as compared to adhering to the newly implemented Sick-Leave Policy.  So why the drama?

The drama over FMLA exists for a short few, but very valid reasons.  The first reason is due to a lack of trained and knowledgeable HR staff.  Years ago, a company could get away with an administrative assistant keeping up with personnel files and payroll and could be labeled HR.  Too many Companies have failed to change with the times.  Today, HR means compliance with State and Federal laws and an untrained HR person = lawsuit.  Whether you’re a Company or a HR Professional in need of legal advice or training, simply give us a call.

The second and most relevant reason why FMLA has become such a dramatic topic for many companies and their legal representatives is not due to FMLA complexity, but directly due to FMLA gridlock which is intentionally created as a means to hinder the flow of FMLA requests by the Employer.  We see this type of FMLA gridlock constantly.  As an example, a recent client who suffers from a known disability requested intermittent FMLA leave.   The client produced all required medical documentation supporting the intermittent FMLA leave and the leave was granted.  However, upon inspection of the granted leave, it was found that HR Personnel decided on their own accord that the employees leave should be continuous and not intermittent and removed the employee from the workplace.  Obviously, this interference and wrongful removal of the employee from the workplace resulted in the employer compensating the employee for their lost time and subjecting the Company to fines by the DOL.  The real fact is, the FMLA in and of itself is not complex.  It is the employer’s representatives who attempt to push the envelope past its allowable limit that rips the guidelines apart.

The FMLA simplicity is exact.  Who qualifies, Certification by doctor, the actual leave, allowable follow-up after 8 weeks, the return Certification and the actual return to the workplace.  These guidelines are specifically spelled out right on the DOL website, you can read them here.  It is only when the employer goes beyond the scope of these very simple guidelines that things move from a song and dance to a dramatized novel.

Yet, just this morning I read an article outlining to the Employer some steps they can take upon questionable FMLA leave requests that included having the Employer write their employee a letter questioning the reason for their leave and suggesting that the employer have an employee obtain a second opinion.  Herein lies another huge problem – Don’t believe everything you read in a blog on the internet.  It is actions like this that result in FMLA violations.  Not only is the employee not required to disclose the serious illness they suffer from, but the employer’s written request directly violates the American’s with Disability Act (“ADA”).  

So what can an employer do when they suspect FMLA abuse by an employee?  Stop the drama and call your legal representative first, before allowing your HR personnel to gridlock the FMLA process – because in the long run, it is the company and their Representatives who find themselves at a dead-end with the defensive argument that the FMLA rotary was too complex.