Coloring In Some Shades of Gray
By Marti Cardi, Esq
Vice President – Product Compliance
Matrix Absence Management, Inc
By Jeff Nowak, JD
Littler Mendelson PC
The U.S. Department of Labor (DOL) tends to be guarded in providing Family and Medical Leave Act (FMLA) guidance that is not already codified. However, we know that a misstep in addressing an FMLA request or in administering the leave itself can get an employer in hot water with the DOL and cost big bucks if the employee sues. So what is an employer to do?
We will be more “daring” than the DOL when we present on this topic at the 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9 in Portland, OR. In our session, 50 Shades of FMLA – Dealing With Those Gray Areas, we’ll take on some of the FMLA gray areas that plague employers, provide recommended practices, and tie those recommendations to the regulations, case law, and sometimes even logic!
You’ll get practical answers to these conundrums, along with many more:
- Intermittent frequency and duration. Your employee’s certification for his serious health condition says 3 occurrences of 4 hours each, every 30 days. How is that 30 days measured — rolling from each usage, a calendar month, or …? How much excess usage do you have to allow because, per the regulations, the provider’s statement is an estimate only? When do you get to recertify? It’s critical for employers to understand how to handle these questions and have a game plan in place to make sure it’s done consistently. Sub-par execution here can mean major liability for the employer.
- Those coincidences! An employee requests leave to care for his mother who lives out of the country, and the leave dates coincide with a week-long national celebration. Or how about when an employee’s FMLA leave request is for the same dates as a denied vacation request? Spouses or roommates each “happen to” take FMLA leave on the same dates. Sound familiar? Must you approve these leaves if supported by a valid certification? How can you push back, and how much? Not knowing your footing in murky ground like this can run the risk of your employee filing suit for FMLA interference.