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Employers Beware: Don’t Discourage FMLA Usage

It’s always good to be reminded about behaviors or policies that could lead to legal trouble. One such reminder comes from section 105 of the FMLA, which indicates that interfering, restraining or improperly denying the benefits of the FMLA also includes not discouraging in any way usage of the FMLA. If this message was clear and obvious to all employers, then it would seem violations of this nature wouldn’t still occur, but unfortunately, they do. Even reminders by the DOL, such as in Fact Sheet WHD #77B, are necessary because of continued violations.

Discouragement could happen in multiple ways, but the big three include:

  • Written communications
  • Written policies
  • Over-aggressive absence management practices

Use of a certification form is not required by the DOL, but if it’s used, wording in the document should not be obtrusive. One such case, likely familiar to readers, involved written language, in bold at the top, indicating that certification forms would not be accepted prior to the anticipated absence.

“Medical certification forms will NOT be accepted prior to the first day of a reported absence.”

Imagine not having confirmation of your request prior to the time of actual absence; this type of environment would add additional discomfort to already difficult circumstances. Having this type of language on a certification form creates road blocks to employees utilizing the FMLA; the exact opposite of the spirit and intent of the law. So, take time to review your certification forms to be sure unnecessary and potentially illegal wording doesn't exist.

In addition, threatening absence policies are likely also to be seen as a discouragement of the use of FMLA. For example, having universal language suggesting swift termination after three days of an unexcused absence is the type of blanket policy that will lead to legal trouble. Circumstances exist around each absence which most likely require unique evaluation. Considering each situation individually is more in line with the movement behind creation of the FMLA.

Take time to review your attendance policies for these types of threatening blanket statements. These policies typically originate from a negative view of taking time off from the workplace. It’s not surprising that employers might become hardened by the FMLA because of time-off abusers, but those employees who take advantage of a well-intended program shouldn’t drive workplace policies.

Finally, potential risk results from over-aggressive absence management practices if those practices in any way discourage or limit appropriate and necessary time off associated with the FMLA. Problems have resulted when employers or third party administrators acting on behalf of employers have put in place restrictive standards or guidelines. The positive of these types of guidelines is that they can provide a sense of how long an employee should be absent for various serious health conditions or health impairments. The negative of these types of guidelines is when they are used as strict, all-encompassing standards that are applied in restrictive manners.

This happens when, for example, a guideline suggests a potential duration of leave of 25 days and the Absence Specialist managing the absence interprets the time strictly as only 25 days. Subsequent actions to prematurely return or terminate the employee, when not returning on the 26th day, spell doom. In these types of situations, if medical certification has been collected, then it should contain information that can be used in determining absence begin and end dates related to time off for the FMLA. Whatever the case, provide time off for eligible employees to which they are entitled and is available.

Waiting until the legal pot boils is not the right approach. Now’s the time to proactively assess and review your certification forms, attendance policies and absence management efforts to identify potential wording or practices that could be interpreted as discouraging use of the FMLA.