Click here to watch the video. The Family and Medical Leave Act (FMLA), which is not intended to be challenged by the Family First Coronavirus Response Act, continues to pose daily challenges for management. For insured employers, the FMLA entitles eligible employees to 12 working weeks of unpaid, job-protected leave for family and sick leave and up to 26 working weeks for military leave. In practice, however, the FMLA has been misunderstood in order to significantly extend the vacation rights of employees far beyond the legal entitlements.
As your partner in legal risk management, HBL offers the following three strategies to prevent FMLA leave abuse …
Tip 1: Develop a communication strategy to avoid overstretching your vacation.
As an employer, you can require employees on FMLA leave to notify you of their intention to return to work. In general, if an employee informs you that he or she will not be able to return to work, you have no further obligation to maintain health benefits (other than as part of COBRA) or to restore employment. However, if the employee still has vacation leave and his circumstances change, the employee may be eligible for an extension, provided the employee meets the employer’s communication requirements. By developing a communication strategy, employers can avoid accidentally staying on FMLA leave after their vacation time has expired.
Tip 2: Implement a Paid Sheet Stacking Policy with FMLA Leave.
Under the provisions of the FMLA, employers can require employees to take their paid vacation at the same time as the FMLA vacation, which means that employees would take both vacation days at the same time. If employers fail to exercise their right to piles of leave, workers ‘leave rights are greatly expanded to include their leave in employers’ policies plus an additional 12 (or 26) working weeks. Stacking sheets of paper can save you significant money and prevent your other employees from being burned out.
Tip 3: Revise your sick leave policy to require employees to fill out FMLA records after three consecutive days of absence.
If an employee calls in sick on three consecutive days or notifies you of an upcoming medical procedure, your best course of action is to require the employee to fill out the FMLA records and, if necessary, mark the vacation as FMLA qualified. In most cases, vacation already taken can be retrospectively designated as FMLA Qualified (provided the employee was eligible for FMLA Vacation and the reason for the vacation is FMLA Qualified).
BONUS TIP: Investigate inconsistent employee behavior while on FMLA vacation.
Today more than ever, employees cannot escape the watchful eye on social media. Even if employees do not post pictures or videos, their “friends” can post and tag employees who are acting inconsistently with the reason for their FMLA vacation. As more courts ponder the usefulness and validity of social media, there is some support for employers to use social media posts as evidence that employees have abused their FMLA vacation. However, before action is taken, employers are advised to carefully review and evaluate all relevant evidence, including on the part of the employee.
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