FMLA Guidance from our Senior Advisor – Free Webinar September 24th

Published August 2009

Fifty years of combined Human Resources experience and open lines of communication with the Department of Labor gives our clients a key advantage when it comes to FMLA administration.

With his vast knowledge and practical experience, Dave McDaniel, one of our FMLA consultants, is often called upon to provide much needed guidance for our FMLA clients. Dave will join Joe Aitchison, BASIC Vice President, for our free September 24th FMLA webinar (see box to the right for registration).

Below are some practical answers and advice for real life FMLA situations.

Q) If an employee has intermittent leave due to an FMLA illness, but the employer allows the employee to make up the missed time, can it be counted as FMLA? For example, the employee misses 2 hours in one week due to illness but is allowed to make them up before/after normally scheduled work hours.

A) The DOL addressed this concern a few years ago. In general terms the employer may not “credit” work hours to FMLA leave. The dates of FMLA are to be counted as they occur. If the employee makes up the work hours this is to be coordinated with the use of paid leave and compensation rules. In this example the employee’s FMLA time would be debited 2 hours for the actual absence. The fact that he/she “made up the hours” does not apply to the FMLA.

Q) Can a leave be denied due to insufficient notice?

A) Technically, yes, you can deny FMLA leave for insufficient notice under very specific conditions. However, in my 20 years of experience I have always been able to determine that the employer or its agent (i.e. supervisor, HR manager, benefits coordinator, etc.) had knowledge of the serious medical condition; thus, the employer’s requirement to consider the absence as FMLA and to inform the employee of his/her rights applies and the insufficient notice criterion for the employee becomes invalid. Simply stated the ice is too thin to rely solely on insufficient notice as the reason to deny.

Q) We do not require a fitness for duty note after missing work due to FMLA leave. Should we? Fitness-for-Duty Certificate: can only be required every 30 days, not for every intermittent FMLA absence?

A) We recommend that all employers have a fitness for duty policy and program for all medically related absences – including the FMLA. Yes, the fitness for duty form can not be requested more than every 30 days. It may also be required through written policy upon the actual return to work date (remember to be consistent across all related policies and practices). A request every thirty days requires that there be a “reasonable safety” concern.

Q) How does FMLA work with STD? An employee can be eligible for STD but not FMLA and the employee can be on STD for 26 weeks.

A) It is technically possible for an employee to be on STD and not FMLA; however, when you receive a STD claim you need to consider it for FMLA and document why it is not applicable – the employer is responsible for the determination of FMLA rights even if the employee does not assert his/her rights under the FMLA. Another option is to provide all employees who request STD with the FMLA paperwork and allow the FMLA process to rule them out as FMLA applicable.

During the period of absence where the FMLA and STD run concurrent and the employee exhausts the full FMLA leave hours, the rights and protections provided by the FMLA end. STD may continue but the employment and benefits protections of the FMLA would not.