Resources for leave management and compliance

Family and Medical Leave Act — This law, and it’s associated regulations, entitle eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The employee must be restored to employment and be provided with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. 

Americans with Disabilities Act — This law prohibits employers from discriminating against qualified individuals with disabilities. This includes providing disabled employees with reasonable accommodations if it does not impose an "undue hardship" on the operation of the employer's business. Reasonable accommodations are adjustments or modifications to a position or workplace that will enable an employee to do his or her job despite having a disability. Leave can be considered a reasonable accommodation if it enables an employee to recover and return to work and as a result, needs to be evaluated if an employee is not eligible for, or has exhausted, FMLA.

Workers Compensation — WC is not a job protection statute, and instead provides financial benefits for employees who have been injured on the job. FMLA runs concurrently with WC if the employee is eligible and has time available under the FMLA. 

Navigating FMLA can be complicated when employees request a leave of absence, so knowing the steps to keep your company compliant is crucial. When an employee requests to take a leave of absence, be sure to:

• Evaluate the employee's eligibility
• Calculate the entitlement for leave
• Provide the employee with their eligibility, rights, and responsibilities, in writing within 5 days of request
• Review submitted documentation and determine if the reason for leave qualifies under the FMLA
• Confirm your decision in writing, within 5 days of the receipt of all requested information

To be eligible under the FMLA, an employee must work for a covered employer and:

• Been employed for at least 12 months (does not need to be consecutive)
• Employed at a site with 50 or more employees employed within a 75 mile radius, and
• Have worked for at least 1,250 hours during the 12 months immediately preceding the start of leave

FMLA provides leave for a range of reasons related to employee and their family members. Those reasons are:

• Birth of a child
• Placement of a child for adoption or foster care
• To care for a spouse, child or parent with a serious health condition
• To care for one's own health during a serious health condition
• To care for a family member injured in the line of duty (military caregiver leave)
• Because of any qualifying exigency arising out of the fact that the employee's spouse, child, or parent is a military member on covered active duty

The Family and Medical Leave Act requires an employee or a family member to be suffering from a condition like, but not limited to, one of the following:

• Severe allergies
• Asthma
• Alzheimer's
• Diabetes
• Epilepsy
• Mental illness
• Restorative surgery after an injury
• Removal/recovery from cancerous tumors
• Stroke

Understanding how FMLA works is crucial to staying legally compliant, while also keeping your company productive and profitable. When an employee requests a leave of absence, know that the following are not typically covered under the FMLA:

• Routine check-ups
• Minor illness or injuries, even with a doctor's visit
• Elective treatments not requiring inpatient care
• Absence caused by substance abuse (Note: Absence caused by addiction treatment is usually covered)

Almost all states have laws providing for job protected leave for specified reasons. Reasons include, but are not limited to, family and medical reasons (similar to FMLA), for victims of crime and/or domestic violence, for employees who volunteer in public service capacities (e.g. volunteer firefighters), or to attend their children’s school activities. Leave laws are complex and varied, so it’s important to stay up to date with current and changing laws in every state where your company has eligible employees. 

A 2018 employer leave management Survey conducted by DMEC showed that employers listed the following tasks as difficult or extremely difficult to manage:

• Tracking intermittent time during leave
• Following intermittent time previously taken before the start of FMLA
• Interacting in conjunction with ADA/ADAAA laws

When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason. Intermittent leave may range from minutes or hours to several days or weeks at a time. When intermittent leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement.

Tips to limit the disruption intermittent FMLA:
- If leave is solely for planned medical treatment, consider the possibility of a temporary work transfer to a position where sporadic absences won’t be as disruptive.

Work with employees to schedule planned treatment
- Carefully track absence time and the reason for an absence.
- Require complete medical certification.

When choosing how to handle FMLA, many factors should be considered:

• Understand your company’s size, and how many leave events your HR representatives can effectively handle. On average, supervisors spend 4.2 hours a week (5.3 weeks/year) focused on dealing with absence related issues.*
• Consider the number of locations, operational sites, and whether sites within 75 miles of each other have a combination of over 50 employees.
• Continually check your capabilities to ensure your representatives are effectively handling your current leave events in a compliant fashion..

Other factors to think about:

• If offering short term disability insurance to your employees, see if the benefits carrier offers FMLA bundling to wrap up administration of absences and timelines within one vendor.
• Find a company that ensures real-time updates to changes in state and federal laws. Also, check to see if they indemnify you, should something get missed. This provides you safety and peace of mind against any possible legal ramifications.
• Check to see if the company has examples of case studies to show how they can enhance productivity at your company, by effectively managing FMLA to reduce lost time.

* Daily Document Update: HR Compliance Library, ¶33,636, Employee absences have consequences for productivity and revenue, SHRM

research shows — SURVEY RESULTS, (Dec. 30, 2014)

Maybe. The FMLA has no provision prohibiting an employee from working another job while on leave from his or her primary employer. However, if the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave.

Yes, in some states. An employer can require an employee to use accrued paid leave at the same time as their FMLA leave (unpaid). It’s important that employers establish this requirement in their policies if they want to require such substitution. If they do not, it becomes the employee’s option whether to use accrued paid leave during otherwise unpaid FMLA. Some states do not allow employers to require use of accrued paid leave so employers should consult their local laws for confirmation.

Yes. Under the FMLA, an employer must provide reduced schedule leave when medically necessary. Since the FMLA also makes it clear that an employer cannot require an employee to take more leave than is medically necessary, an employer is obligated to return an employee to work on a reduced schedule when there are no additional restrictions regarding essential functions of the employee's job.

Note: If the need for leave is for planned medical treatment, an employer does have the option of transferring the employee to an alternate position as long as it has equivalent pay and benefits.