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FMLA turns 25, and employers must be vigilant as ever

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Twenty-five years ago this month, President Bill Clinton signed the Family and Medical Leave Act into law, and employment experts warn employers they could face serious legal problems if they don’t follow the statute’s requirements carefully.

The FMLA allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to attend to a serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child.

Employers are obligated to provide FMLA leave if workers report to a site with 50 or more employees within a 75-mile radius.

Jeff Nowak, Chicago-based co-chair of the labor and employment practice group for Franczek Radelet P.C., said the FMLA “has withstood the test of time to providing job-protected time to people who need it when they are severely injured or their family members are injured or ill.”

“It is critical employers carefully administer the FMLA and become acutely aware of its rules, because those rules often trip employers up, thereby creating liability,” he said.

New York attorney Eric M. Nelson said the impact of the FMLA has been enormous, noting that at least three states, including New York, now have paid leave laws, New York City just expanded its paid leave law, and “the concept now of paid family leave is on the president’s agenda.”

“In my experience, employers aren’t as well versed as they should be in when they must allow or can deny leave,” Mr. Nelson said. “They’re also often unsure what they can ask for in the way of notice from employees seeking leave, and what they can require from employees in the way of documentation to support a request for leave.”

Mr. Nelson added that best practices for employers include making sure their human resources personnel have both training and available resources regarding what is required of the company in connection with the employee’s request for, and the company’s rights regarding, leave.

Barbara Hoey, a partner with Kelley Drye & Warren L.L.P. in New York, said the number of FMLA-related cases has gone up dramatically as more employees become aware of this law.

“The FMLA statute has over 100 pages of regulations,” said Ms. Hoey, who also chairs the firm’s labor and employment practice group. Employers “have a legal right to push back if the initial documentation is not sufficient, and the reason I have clients do that is once you’ve certified it, you’re stuck. You’ve done it, you’ve certified it, and now your rights are much more limited.”

Stacie Caraway, employment law attorney with Miller & Martin P.L.L.C. in Chattanooga, Tennessee, describes FMLA documentation as “an employer’s FMLA prenup defining your FMLA marriage.”

“The big takeaway is to make sure your FMLA leave policy and your process for reviewing and approving FMLA leave paperwork has been vetted by legal,” Ms. Caraway said. “Employers have to think about what does the paperwork actually say. If there’s something on the FMLA leave paperwork that doesn’t make any sense or is asking you to approve leave on an ‘as needed’ basis, you have a seven-day period to get corrected paperwork once you tell the employee in writing that there’s a problem, and if they don’t correct it you can deny the leave.”

Maria Rodriguez, partner and Western region‎ head of the employment group with DLA Piper in Los Angeles, advised that the “employer’s policy needs to be clear, it needs to be distributed to all employees, and it needs to model the FMLA and any related state laws.”

“Intermittent leave of absence may qualify as FMLA or the equivalent law, so managers need to be trained to work with human resources so that when employees are taking time off on some sort of a regular or consistent basis, they need to be trained to make sure those employees are working with HR,” she said.

Debbie Friedman, member of Cozen O’Connor in Philadelphia, warned against automatically firing an employee if he or she does not return immediately to work after the 12-week leave has ended.

“This law can’t be viewed in a vacuum,” she said. “An employer has to carefully evaluate whether an employee is entitled to additional time off under state or local laws or ordinances or pursuant to company policies on leaves of absences.”

In addition, Ms. Friedman said, employers should consider whether the employee has a disability covered under the Americans with Disabilities Act for which they need additional time off. If so, she said, the employer has to evaluate if additional time off would be a reasonable accommodation under the ADA, and if it is, they have to give more time off to the employee.