How to Avoid the biggest FMLA mistake

Avoiding the biggest FMLA mistake

 One of the biggest mistakes you can make is firing an employee for an attendance-based reason when some of the absences are Family and Medical Leave Act (FMLA)-qualifying. Counting an FMLA absence toward an employee''s discipline results in a wrongful discharge claim under the FMLA. And, just like the virus of the poorly written severance policy, counting such absences toward possible future discipline might eventually give way to a hidden virus, just ready to spring up at the most inopportune moment. How can you avoid this? Here goes.

First, a refresher

Recall that there are three basic reasons for taking FMLA leave:

1.           to care for a newborn or newly adopted child;

2.           to recover from or receive treatment for a serious health condition; or

3.           to care for a spouse, child, or parent with a serious health condition.

The first reason is pretty straightforward, but the second and third reasons are dicier because what the devil does a "serious health condition" mean? Well, according to the regulations, it''s the following:

1.           a physical or mental problem that forces you to have inpatient care; in other words, a night in the hospital; or

2.           three or more days in a row when you are flat on your back, and for which you are receiving health care treatment from a doctor or other health care professional.

The easy

Usually, employees provide enough information to allow you to determine whether the time off will be covered by the FMLA. For example, if an employee calls in to report, "I need to take my daughter to the hospital for an emergency surgery," or "I''ve had a serious car accident and will be in the hospital for a couple of weeks," you can probably determine that the leave qualifies as FMLA leave.

The hard

Many situations are more ambiguous. For example, certain conditions that seem as if they would not be covered (because they are inherently mild, like the common cold or the flu) may be covered if they are severe enough. Even worse is when an employee calls in "sick" or with a "sick child" on a recurring basis. Whether the absence is covered will depend on whether it stems from a condition that gives rise to a need for intermittent leave.

Because getting sick is not something employees generally plan on, you are often under time pressure to decide whether to designate an employee''s absence as an FMLA leave and apply the time off against his or her 12-week entitlement. The U.S. Department of Labor (DOL) regulations generally require you to respond to leave requests within only two business days. In addition, the DOL rules practically eliminate your ability to retroactively claim an employee''s leave as FMLA leave.

Remember: It''s up to you -- not the employee -- to figure out whether it''s an FMLA leave. Even if the employee does not use the words "FMLA" or "serious health condition," you have to consider it. If you don''t, you lose your right to. If an employee is terminated for attendance problems and sues, alleging that you counted an absence that should have qualified for FMLA leave toward the termination, you are going to have a world of trouble.

The solution -- granting conditional leave

If you know the reason for a worker''s absence but have not been able to confirm that it qualifies for FMLA protection, you may designate the time off as FMLA leave on a conditional basis until you are able to get more information. You must let the affected employee know that you have decided to designate the leave as FMLA leave on a conditional basis.

If you can determine from supplemental information that the employee''s leave is for an FMLA-qualifying reason, your conditional designation becomes final, and the FMLA leave is considered to have begun when you made your initial decision.

If you are unable to determine that the leave is for an FMLA-qualifying reason, however, you must withdraw the conditional designation. If you determine that the leave does not qualify for FMLA protection, you may deal with the absence in the same way as any other time off under your established policies and procedures. In either case, you must inform the employee in writing of your final decision.

Bottom line

This is one instance when the DOL regulations actually help you. You shouldn''t be reluctant to grant conditional FMLA leave if you don''t have enough facts to make an immediate designation under the law. As long as you act in good faith, issue written notice of the conditional determination, and follow up with your final decision regarding FMLA eligibility, providing provisional FMLA leave may be advantageous.

Employers have argued that it is up to the employee to give them more notice and to affirmatively request that their absences be exempted from being counted as occurrences under a no-fault attendance policy. And while we agree with that, the courts don''t.

The courts do agree, however, that an employee''s knowledge of an employer''s leave policy can be considered in deciding whether the employee gave sufficient notice under the FMLA. So make sure you communicate your company''s policy to employees.

Copyright 2000 M. Lee Smith Publishers LLC.

This article is an excerpt from Texas Employment Law Letter, written by the Dallas law firm of Clark, West, Keller, Butler & Ellis, L.L.P. Texas Employment Law Letter does not attempt to offer solutions to individual problems but rather to provide information about current developments in Texas employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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