When it comes to administering FMLA, I’ll admit — I have grown cynical and hardened. Like a doctor who becomes desensitized to blood and guts, I, too, have become desensitized to an employee’s antics while on FMLA leave.
Taking FMLA leave for a beach vacation, you say? Sounds likely. Caring for your dying mother when, in reality, you need leave to serve a 60-day jail sentence for DUI? Yep, heard that one before.
As an HR professional, leave administrator or as counsel for an employer, you witness some of humanity’s worst behaviors, all in an effort to scam a little medical leave. Despite this madness, I am often reminded that there really is a need for these federal and state leave laws, since there are a whole lot of people dealing with legitimate medical conditions that render them unable to perform their job.
And these people are counting on us HR/leave professionals and legal counsel to help them.
Once every spring, I return to a happy place where FMLA and ADA situations are taken seriously and with sincerity. At DMEC’s annual FMLA/ADA Compliance Conference, oodles of FMLA and ADA nerds convene to discuss leave and accommodation compliance issues. I had the pleasure of joining my friend and Special Counsel at Unum, Ellen McCann, to give an overview of the key FMLA and ADA cases from the past 12 months. Ellen’s performance was riveting; mine, not so much. Nevertheless, here is our PowerPoint if you were unable to join us.
In the immortal words of Cosmo Kramer, this compliance conference scratches me right where I itch! For several days, we put cynicism aside and focused on practical and meaningful ways employers can support their employees when they or their loved ones deal with medical issues that keep the employee away from work — all while keeping business operations humming.
Here are few insights that I took from the conference:
1. The far, far majority of our employees utilize FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee’s request for medical leave or workplace accommodation. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let’s not assume without any basis in fact that our employee is trying to misuse their leave of absence.
2. Be empathetic. The words, “How Can I Help You?” can go a long way. When you communicate with an employee, use words that show that you’re on the same side as the employee. You want to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy.
3. All Requests for Leave Should be Treated as a Request for a Reasonable Accommodation. Yes, you read that correctly. Each time an employee requests leave from the job because of a medical condition, the request should be analyzed through the lens of FMLA and ADA. This concept is hardly earth-shattering, and it makes sense. Where an employee needs leave from work because of a serious medical condition, any good employer should use it as an opportunity to engage in the interactive process to determine how we can best address the employee’s situation in an effort to keep them engaged and at work. A leave of absence is only one tool to help us accomplish our goal in maintaining a productive and healthy workforce.
4. Train managers to help you achieve the kind of workplace you’re trying to cultivate. At the conference, FMLA Branch Chief for the Department of Labor, Helen Applewhaite, identified several compliance problems that pop up regularly during DOL investigations.
She noted that front-line managers often fail to recognize when an employee may need a leave of absence protected by the FMLA. Even worse, some make derogatory comments about an employee’s use of FMLA leave. Indeed, many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee’s request. In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.
As I warned attendees in my DMEC presentation, there are far too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA or did not follow the FMLA regulations. Managers at all levels drastically increase your liability when it comes to FMLA when they are not trained in the FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.
Every once in awhile we need that simple reminder:
Be sincere.
Be empathetic.
FMLA and ADA compliance will follow. Look at it as your Kumbaya moment.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
