I spend a decent part of my day reviewing FMLA forms, certification and correspondence. Exhilarating, for sure.
When it comes to FMLA notices, do you care hear about one of my big pet peeves? [You: Not really interested, Jeff, but we have the feeling you’re going to tell us anyway.]
It’s an issue that the far majority of employers and third-party administrators seem to violate all day, every day.
What Do I See?
In FMLA designation notices, or in correspondence approving FMLA leave, employers and TPAs invariably state something to the effect of “This leave is approved through [a specific date].”
I come across approvals of all kinds — some approve FMLA leave for one month, others up to six months out. The worst approve FMLA leave for ONE. FULL. YEAR. Or more.
¡Ay de mi!
Why Do Employers Do This?
Where do these lengthy approval periods come from? Was there some SHRM conference y’all attended where someone floated this grand idea to approve FMLA leave for months and years at a time?
The rationale for this practice seems rather simple: the approved FMLA period merely tracks the “duration” of the serious health condition as certified by the health care provider. Simple as that.
So, Why Is This a Problem?
- It’s not illegal but this approach technically is incorrect. The regulations say nothing about approving FMLA leave for a specific period of time. If the employer grants FMLA leave after review of medical certification, the model DOL designation notice indicates simply that leave has been “approved,” but it does not require that employers identify an actual time period for approval, particularly where FMLA leave will be unknown in the future.
- It’s misleading and confusing to employees. Let’s say you approve intermittent FMLA leave for migraine headaches for one year because that’s how long the physician certified they would last. One week into this one-year so-called approval, the frequency of the employee’s absences for migraines increases significantly. Is the employee still “approved” at that point? The employee thinks so; after all, the designation notice told him as much. At a minimum, it’s awkward to tell the employee at this point that their FMLA leave may not be approved after all, and you’ll need to recertify the absence. Why put yourself in this position in the first place?
- It may even embolden employees, who believe (in the migraine scenario above) that you can’t question their approval for one year, since it’s already stated as such on the designation notice. They’re entrenched and ready for the fight. Why invite it in the first place?
The answer for me is rather simple – don’t lock yourself in by including an “approval” date in your designation notice or correspondence. Approve FMLA leave to date, and surely designate those absences in the future covered by FMLA where it’s appropriate to do so. But don’t let it be an open-ended approval for any period of time. It just ain’t worth it.
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named 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 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.