5 steps to reduce FMLA compliance risk

The Family and Medical Leave Act (FMLA) has made an enormous difference in the lives of many employees. Evidence also indicates that it helps employers. Like all programs that enable work-life balance, leave is especially effective in helping attract and retain talent.

But that doesn’t mean the FMLA is always easy to administer. Helen Applewhaite, branch chief, U.S. Department of Labor’s (DOL) Wage and Hour Division, and other experts discussed the FMLA during a recent DMEC webinar. Forty seven percent of participants said the overall process was the FMLA’s most challenging aspect. About 30 percent said deciphering medical certification information presents the biggest challenge, while 16 percent found adhering to the requirements in a timely manner most difficult.

To tackle these FMLA challenges, here are a few tips for HR professionals and absence managers.

1. Think like the DOL

To take leave under the FMLA, an employee must provide evidence of a “serious health condition” provided by a medical professional. It’s up to the employer to determine if the employee’s condition is eligible for FMLA leave. Employers should view this medical certification information the way the DOL does, and this requires careful analysis. An incorrect decision at this stage is where potential legal and other risk starts.

2. Know the definition of ‘serious health condition”

The place to begin in the analysis is to know what the DOL considers a “serious health condition.” Key information includes inpatient care, incapacity of more than three consecutive calendar days plus continuing treatment, pregnancy, a chronic condition, permanent or long-term conditions, or conditions that require multiple treatments. Crucially, incapacity does not mean being completely incapacitated. For the DOL, it means the inability to do any work or to be unable to perform any one of the essential functions of the employee’s job.

Further, a condition is qualifying if it meets one part of the definition. For example, a condition can be chronic and involve incapacity and treatment. If the condition qualifies under one those factors, it qualifies for FMLA leave.

Pregnancy and child birth are also analyzed by the DOL in a certain way. Pregnancy may qualify as a serious health condition. For instance, prenatal care and morning sickness that could result in incapacity qualify. But while the birth of a child is a qualifying reason for leave under the FMLA, it is not a serious health condition, and no medical certification is required for birth and bonding.

3. Know who is included as a “health care provider”

Americans increasingly look to a wide range of professionals to provide health care. The DOL’s view of the FMLA’s definition of health care provider reflects this changed and changing outlook. Under the FMLA, a health care provider is not restricted to a traditional medical doctor. Providers include podiatrists, dentists, clinical psychiatrists, psychologists, nurse practitioners, and midwives.

4. Consider recent opinion letters

Like most federal regulatory bodies, the DOL provides guidance to employers through “opinion letters.” Understanding these letters is an important way to ensure compliance and reduce risk.

For example, opinion letter FMLA 2018-2-A indicates that an employee can qualify for FMLA leave after donating an organ. The letter’s potential importance goes beyond organ donation. It could apply to other health-related situations that don’t involve a qualifying condition but could result in incapacity.

There is also recent opinion letter FLSA2018-19. This letter states that 15-minute, doctor-requested breaks can qualify for FMLA leave. And FMLA 2018-1-A, which approved an employer’s no-fault attendance policy that effectively froze an employee’s accrued points through the duration of his or her FMLA leave.

5. Timing is everything

One of the best ways to reduce FMLA compliance risk is to know and adhere to timing requirements. For instance, employers are required to provide employees notice of their FMLA eligibility within five days of their making a request. Timely notification is a critical way of ensuring employees are aware of their rights and obligations under the FMLA.

The DOL has made clear its enforcement priority is systematic violations of employee FMLA rights. It has made a large and ongoing effort to help employers understand the law’s basic requirements, so they don’t get caught up in “paperwork” violations. When employers take the time and effort to think about the FMLA the way the DOL does, they will reduce risk and do the right thing for employees, shareholders and other stakeholders.

Read more:

• Top 10 dos & don’ts of FMLA compliance
• Employer in court over FMLA, maternity leave misunderstanding
• 3 questions to ask about paid leave programs

Terri L. Rhodes is Chief Executive Officer of the Disability Management Employer Coalition (DMEC).