HR Solutions: Update company policies to simplify FMLA process

Lynne Haggerman is president/owner of Haggerman & Associates, a firm providing outplacement, retained search and management consulting/training on human resource issues.

Companies are required to comply with the Family and Medical Leave Act if they have more than 50 employees within a 75-mile radius. Some requirements have been clarified since the original enactment of the law, so be sure to review your current policies and procedures.

Associates eligible for FMLA will be those employed at least 12 months not necessarily consecutive or those who have worked at least 1,250 paid hours in the 12 months prior to the date the leave will begin. Prior service of rehired staff must be counted toward that 12-month period.

If you have purchased a business, time spent by successor employees under the previous employer prior to the acquisition counts. Individuals who achieved eligibility with the acquired employer prior to the acquisition retain that eligibility, even if they are not covered under the organization's current circumstances. If workers are hired on a temp-to-perm basis, time as temporary team members also counts.

Eligible employees may take up to 12 weeks of unpaid, job-protected leave in a 12-month period for any of four reasons. First is the birth and/or care of a child of the employee. Second is the placement of a child into the employee's family by adoption or state foster care. Under these two conditions, the leave must be taken within 12 months of the birth or placement. Spouses may only take 12 weeks between them if both work for the same enterprise.

The third reason for FMLA leave is the care of the associate's spouse, child or parent with a serious health condition. The child may be biological, adopted, foster or stepchild, legal ward or living with a person who is housing, clothing and feeding him.

The child must be less than 18 years old unless he is incapable of self-care due to a mental or physical disability. The parent may be biological or a person who housed, clothed and fed the staff member when he was a child.

Fourth, FMLA leave is allowed when the worker is unable to perform his job functions due to a serious health condition. A serious health condition is defined as an illness, injury, impairment or physical/mental condition involving one of four characteristics.

One is any period of incapacity or treatment in connection with or as a consequence of in patient care in a hospital, hospice or a residential medical care facility. Another is any period of incapacity requiring an absence from work or other regular daily activities for more than three calendar days and that involves continuous treatment by or supervision of a health care provider.

The third characteristic is continuous treatment or supervision by a health care provider for a chronic, long-term health condition that is incurable or so serious that, if not treated, would result in a period of incapacity of more than three calendar days. The fourth is prenatal care.

You may direct the employee to use available vacation time. You may order the employee to use available sick days when leave is taken due to his or her own serious health condition. However, in order to count vacation and/or sick time toward leave time, you must notify the employee in writing. The staff member may take leave intermittently or on a reduced-hours basis if medically necessary.

Request that adequate notice be provided if possible. Require at least a 30-day notice for foreseeable events. Require notification of no more than two days after an unexpected event. The worker is not mandated to notify you in person or explicitly ask for FMLA leave. If unable to return to his or her regular position, the employee must be restored to an equivalent position without loss of benefits or pay.

To minimize liability, develop comprehensive company polices and procedures, and train managers, especially, because they have personal liability under the law. Develop a form for requesting a leave, a form for the corporate response to the request for leave and a certification form to be completed by the health care provider.

Provide a summary of rights under the law when furnishing the request-for-leave form. Require the completed certification form be returned to the organization within 15 calendar days. Include a section on FMLA in your employee handbook, and post notices in the language(s) in which employees are literate.

FMLA is a complicated law, but with the right steps in place, it can be effectively administered.