How HR Can Minimize FMLA Violation

How to Minimize FMLA Violations
As a corporate supervisor or manager or even a company owner, how you respond to employees’ requests for Family Medical and Leave Act (FMLA) leave is significant.  You do not want to find yourself in the middle of an employment law violation by showing your displeasure or by infringing workplace leave policy.  This was a key topic of discussion at the Society for Human Resource Management’s (SHRM) annual conference this past June.

FMLA Training First

The first safeguard against issues surrounding FMLA leaves is training.  Your company’s managers and supervisors must be cognizant of the laws and of the procedures that need to take place when they have been alerted about a FMLA leave.  One major problem is that many managers and supervisors cannot discern between what constitutes a FMLA leave and a succession of sick days.  When an employee stays home for an extended period of time, you need to attribute the leave to an acute sickness or an extended condition, the latter of which would be protected by the FMLA and may manifest as intermittent leave.  Jeff Nowak, a partner at Franczek Radelet, says, “You’ve got to get rid of this notion that the FMLA is only for long-term [leave].”  As an HR professional, it would be beneficial to provide managers and supervisors with a script of approved questions that they can ask the employee in order to ascertain the nature or root cause of the extended absence, or leave.

Maintain Consistency and Confidentiality

While it is always a good idea to make sure that the employees requesting leave follow the obligatory procedures and paperwork, if the reason for leave is conveyed orally or in another written or recorded format (such as e-mails, voice mails, text messages, etc.) that will also suffice in the eyes of the law since the manager or supervisor was informed of the reason, even if not by traditional means.  Nowak comments, “Actual knowledge trumps failure to follow policies.” 

All HR professionals know that confidentiality is of the utmost importance, however managers and supervisors sometimes need to be reminded of this notion.  It is critical that if they have been confided in with sensitive medical or personal information, that it is not appropriate for them to share that information with other coworkers or departmental colleagues, as that could be considered a breach of confidence and, in turn, a FMLA violation.  In a similar vein to providing a scripted list of questions to ask regarding the employee’s request for leave, developing a canned response for fielding questions about the employee from coworkers is a very sensible approach and could minimize the amount of “leaking” that happens regarding the nature or reasons behind the employee’s leave.    

“Hands Off” Once Handed Off

HR also needs to identify the chain of command as to where or to whom the manager or supervisor should report the request for FMLA leave.  However, though the request will ultimately be handed off to HR or to a leave administrator, the manager or supervisor needs to recognize the fact that until he/she does so, he/she is the hypothetical owner of the request.  But once the request is approved and the employee is out on leave, managers and supervisors need to respect the policy and/or law to limit contact or interactions with the leave-taker, unless it is a situation of dire importance.  Intermittently contacting the employee while on leave can be a violation of the FMLA, as he/she is not considered to be an “on call” employee at this time. 

In the cases where there is a legitimate concern regarding abuse of FMLA leave by the employee, HR will need to research and take a second look at the employee’s actions in order to ensure that a recommendation of termination is warranted.  Managers and supervisors may be consulted in these cases to provide evidence of abuse or poor work ethic on the part of the employee to determine if the FMLA abuse has been committed or could risk a FMLA violation.  Having the appropriate procedures in place will justify any termination and mitigate risk of potential legal backlash and costly litigation for companies.

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