Magazine article Workforce

Employers Need an FMLA Brush-Up

Magazine article Workforce

Employers Need an FMLA Brush-Up

Article excerpt

A continual barrage of court cases indicates employers still are struggling with this not-so-new law.

We're fast approaching the four-year anniversary of the Family and Medical Leave Act (FMLA). Employers seem to have the basics down: Any company with more than 50 employees is required to offer up to 12 weeks' leave for nonkey employees to care for their own or a family member's serious health condition or to care for newborns or recently adopted children. Upon returning, the employee is guaranteed a return to either the same or an equivalent position. That's not too tricky.

Unfortunately, we all know the devil is in the details. Employers are stumbling over everything from the definition of a serious health condition to events triggering leave. David Deromedi, a partner at Dickinson, Wright, Moon, Van Dusen & Freeman in Detroit, offers a review-and an update.

What are the FMLA issues at the forefront now?

The first issue that comes up is how much notice employees have to provide to the employer to trigger their rights for leave under the law, and how an employer specifically needs to respond to an employee's notice that he or she might be out or might have a serious health condition that would qualify the person for leave under the act. What we're seeing so far in the law is that the courts and the Department of Labor (DOL) seem to be saying that employers have to be extra careful in determining whether an employee qualifies for leave.

What do you mean by "extra careful"? Employers have to kind of bend over backward to determine whether an employee is eligible for leave based on the employee's specific situation. I think [the law is] saying that if an employee has a particular health condition and you know that, you have to do everything you can to make further inquiries as to the reason why the employee needs the time off, how long he or she is going to be off, if he or she has a doctor's note to substantiate the time off, and then make an independent determination as to whether that leave qualifies for FMLA leave. Then make sure you walk the employee through the idea that the leave qualifies for FMLA leave and may be treated as such.

So the major thrust is determining if an employee qualifies for leave?

The act itself and the regulations that have been issued by the U. …

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