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Employers struggle to comply with complex FMLA rules

Best practices help ensure compliance, discourage abuse


Nearly 20 years since the Family and Medical Leave Act was enacted employers still are struggling to comply with the law.

To ensure compliance with the FMLA, experts say employers should take care in approving or denying such leave and use the tools that the law provides to prevent misuse.

The FMLA applies to employers with 50 or more employees and allows eligible workers 12 weeks per year of protected leave for serious medical conditions, caring for an ill family member or for the birth or adoption of a child.

Employers are required to maintain employees' health benefits and, upon their return from FMLA leave, provide workers the same or equivalent job position.

According to the Department of Labor, termination of employees seeking FMLA leave continues to be the primary reason that employees file an FMLA-related complaint. Of the 1,889 complaints filed in 2008, the most recent year for which data is available, 757 constituted wrongful termination complaints.

A significant difficulty that employers face is confusion over what criteria constitute a serious medical condition, experts say.

While the Labor Department, which administers the FMLA, has issued several clarifications that have broadened what could be considered a serious health condition, those clarifications only made the issue more complex, said Mary Tavarozzi, Tampa, Fla.-based North American practice leader of absence and disability management consulting and senior consultant at Towers Watson & Co.'s health care group.


“That has made it very difficult for employers to know whether or not they are being compliant when they either approve or deny an FMLA request on the basis of whether or not it's a serious health issue,” she said.

Employers also run the risk of noncompliance with the law when employees request intermittent leave, which deals with chronic health conditions such as back pain or migraine headaches. Intermittent leave tends to affect one or two days of FMLA leave time and makes assessing staffing needs difficult for employers, experts say.

“Depending on the industry, it can be very disruptive to productivity and the other employees,” said Steve Wojcik, vice president of public policy at the National Business Group on Health in Washington.

For example, intermittent FMLA leave for a transportation company that schedules employees contingent on other employees' work schedules can create workflow problems and be costly to address, he said.

“It adds labor costs, of course” when companies “up their staffing to make sure that, if there is an employee who's not going to be there, they don't lose productivity,” Mr. Wojcik said.

The Labor Department also has issued guidance on how FMLA intermittent usage should be tracked and counted, “but it has really resulted in higher levels of complexity,” Ms. Tavarozzi said. “That's an enormous burden that's been placed on employers and they struggle with it.”

For example, if an employer tracking its employee's FMLA leave decided the protection has been exhausted, the employer could terminate that employee and position.

“If they've miscounted that time at all, then they are not compliant and there's a whole host of things that can happen from that,” Ms. Tavarozzi said.


Employers also run the risk of mismanaging the medical certification process, which requires employees to provide medical documentation and certification to obtain FMLA-protected leave, said Jeff Nowak, partner and co-chair of the labor and employment practice group for Franczek Radelet P.C. in Chicago.

“Employers often enough don't properly use all of the tools available to them in the medical certification process,” he said, noting that FMLA provides employers with opportunities to properly approve FMLA status.

“Medical certification is perhaps the best tool for determining whether an absence truly is covered by the FMLA and it also helps combat abuse of FMLA,” said Mr. Nowak, who represents employers. “It's critical that employers utilize that medical certification process as best they can.”

Also, before potentially terminating an employee who has exhausted his or her FMLA leave, employers need to make sure they are not violating the Americans with Disabilities Act by not considering the reasonable accommodation process necessary under the ADA, said Chad Richter, Omaha, Neb.-based partner with Jackson Lewis L.L.P., who represents employers.

“I see some employers trip up on that scenario where the employee exhausts their FMLA entitlement and they don't consider whether they have any ADA obligations, meaning to continue to provide time off work as part of a reasonable accommodation and they simply terminate an employee without giving deference to the ADA,” he said (see related story).

While good strategies to combat FMLA noncompliance include regularly updated communication materials for employees, FMLA training for front-line managers and educational meetings with employees regarding their FMLA rights, organizations also can centralize the process around FMLA under a single unit within the human resources department, Tower Watson's Ms. Tavarozzi said.

“That function would include everything from determining employee eligibility to the application process, the tracking and all of the regulated communications that the government requires,” she said.

Another avenue that more employers are pursuing is to establish a centralized process with an external provider that can administer the FMLA on behalf of the employer and deal directly with the employees, she said.