Avoiding common FMLA traps

The Family and Medical Leave Act (FMLA) is more than six years old, and litigation under the Act is increasing dramatically. This law applies to employers with 50 or more employees. It provides eligible employees up to 12 weeks of unpaid, job-protected leave in a 12-month period for childbirth, caring for a newborn, adoption, foster care, and the serious health conditions of an employee or the employee''s spouse, parent, or child. The following article provides some tips to help you deal with some of the trickier issues under the FMLA.

Basics

The 12-month period can be a calendar year or fiscal year, or it can be based on each employee''s anniversary date of employment. But the best way to administer FMLA leave is to use a rolling 12-month period in which you determine how much leave an employee is entitled to by looking back over the 12-month period preceding the leave. Whatever 12-month period you choose must be applied uniformly to all employees.

To be eligible, an employee must have been employed 12 months, must have worked 1,250 hours before the leave, and must work at a site where there are 50 or more employees within 75 miles of that site.

The FMLA Final Rule, published by the DOL, is key to understanding the intricacies of this complicated law.

Be careful with attendance- based terminations

If you are terminating an FMLA-eligible employee for excessive absenteeism, make sure that none of the absences were FMLA-qualifying. Counting an FMLA absence toward the discipline could result in a wrongful discharge claim. These absences should be segregated and the employee informed that they are not counted for purposes of excessive absenteeism.

Start the FMLA meter running

While several courts have held that FMLA leave begins to run automatically when an employee goes on FMLA-qualifying leave, the FMLA Final Rule requires you to initiate the process by giving the employee written notice. To comply, covered employers should use the Employer Response Form (published by the DOL), or its equivalent, and you should initiate the process at every opportunity. Workers'' compensation leave, for example, is almost always FMLA-qualifying and should be noted as such.

Publish a policy and post the FMLA notice

All handbooks and other written materials communicating leave rights must contain a well-worded FMLA policy. Covered employers also should have the required FMLA notice posted in the workplace.

Train your supervisors

Employees are not required to use the terms "FMLA" or "family leave" when making a leave request. Once management knows the reason for the leave, it is up to you to determine whether the leave is FMLA-qualifying. Supervisors must learn to filter and process potential FMLA leave requests.

Note the reason for all absences

If an employee is terminated for attendance problems and sues alleging you counted an FMLA absence toward the termination, it may be your word against the employee''s, with you swearing the employee didn''t provide enough information at the time of the absence to make the proper determination. Proper documentation, signed by the employee about the reason for the absence, will help avoid this problem.

Maintain contact

Stay in touch with employees or their families during FMLA leave. Keep up a dialogue so you''ll know the employee''s status and progress toward recovery and return to work. This will help stem leave abuse.

This article is an excerpt from Washington Employment Law Letter, written by the Seattle-based law firm of Perkins Coie LLP. Washington Employment Law Letter is not intended to be and should not be used as a substitute for specific legal advice, since legal opinions may only be given in response to inquiries regarding specific factual situations. If legal advice is required, the services of counsel should be sought.

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