Health Care and FMLA

The Family and Medical Leave Act (FMLA) was passed as a federal law in 1993, requiring covered employers to provide employees job-protected and paid leave for qualified medical and family reasons. Qualified medical and family reasons include: personal or family illness, family military leave, pregnancy, adoption, or the foster care placement of a child. The FMLA was intended "to balance the demands of the workplace with the needs of families."

According to the US Department of Labor, the FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to the following benefits:

--Twelve workweeks of leave in a 12-month period for:

·         the birth of a child and to care for the newborn child within one year of birth;

·         the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

·         to care for the employee’s spouse, child, or parent who has a serious health condition;

·         a serious health condition that makes the employee unable to perform the essential functions of his or her job;

·         any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

--Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).  More information is available at this website: http://www.dol.gov/whd/fmla/ .

But there are some qualifiers for someone who is employed that wants to use this as a legal way to take time off from work for medical or family reasons. In order to be eligible for FMLA leave, an employee must have been at the business at least 12 months, and worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. The FMLA covers both public- and private-sector employees, but certain categories of employees are excluded, including elected officials and their personal staff members.

Generally, the FMLA requires an employee to give his or her employer 30 days' notice of intention to take FMLA leave, and the reason for the leave, according to FindLaw.com. There is no "magic language" that the employee must use in notifying the employer, nor does the employee need to mention the FMLA by name. Instead, the notice must give the employer enough information to know the employee is requesting time off, and why.

This allows the employer to determine if the request qualifies under the FMLA, and allows time to find a replacement for the employee. When the need for FMLA leave arises suddenly, like an unexpected medical emergency, employees may take FMLA leave without prior notice. However, employees must give the employer as much notice as is reasonable under the circumstances. More detailed material about this law is available at this site: http://employment.findlaw.com/family-medical-leave/family-and-medical-leave-act.html.

According to the National Partnership for Women and Families (NPWF), America's workers have used the FMLA at least 200 million times to take time off when they need it most, without having to worry about losing their jobs or their health insurance. However, About 40 percent of the workforce is not eligible for leave under the FMLA. More info is located at this website: http://www.nationalpartnership.org/issues/work-family/fmla.html.

The FMLA can be abused by employees in some cases, especially on intermittent leave. Employers have some options to monitor the requests. One of the biggest employer complaints about FMLA is the productivity problems caused by employees’ use—and abuse—of FMLA intermittent leave. The problem: employees with chronic health problems often take FMLA leave in short increments of an hour or less. According to Business Management Daily, here are four tips on certifying FMLA intermittent leave requests:

1. Ask about the specific condition.Medical certification must relate only to the serious health condition that is causing the leave. Employers can’t ask about the employee’s general health or other conditions.

2. Give 15 days to respond.After requesting certification, give employees at least 15 calendar days to submit the paperwork. If the employee’s medical certification is incomplete or insufficient, specify in writing what information is lacking and allow the employee seven days to cure the deficiency.

3. If the need for leave is doubted, investigate the certification. Under the updated FMLA regulations, an organization can contact the employee’s physician directly to clarify the medical certification. The contact person can be a health care provider, a human resources professional, a leave administrator (including third-party administrators) or a management official, but not the employee’s direct supervisor.

4. If the request is still not convincing, require (and pay for) a second opinion. Use an independent doctor selected by the employer, not a doctor who works for your organization. If the two opinions conflict, the employer can pay for a third and final, binding medical opinion

The law gives employers the right to demand certification from the employee’s doctor of his or her need for leave. More information on this topic is found at this website: http://www.businessmanagementdaily.com/glp/25988/FMLA-Intermittent-Leave.html.

According to FMLAOnline.com, the Family and Medical Leave Act is an on-going challenge for HR professionals. Because its rules are so complex, companies are vulnerable to FMLA abuse, exploitation, and miscomprehension. It takes only one confused or misinformed employee to cost a business tens of thousands of dollars in FMLA lawsuits. There are three different kinds of FMLA leave:

·         Continuous FMLA leave: An employee is absent for more than three consecutive business days and has been treated by a doctor.

·         Intermittent FMLA leave: An employee is taking time off in separate blocks due to a serious health condition that qualifies for FMLA. Intermittent leave can be in hourly, daily, or weekly increments. Intermittent FMLA is often taken when an employee needs ongoing treatment for their condition.

·         Reduced schedule FMLA leave: An employee needs to reduce the amount of hours they work per day or per week, often to care for a family member or to reduce stress.

All FMLA forms and information about an employee’s FMLA leave and condition must be kept confidential and separate from other employee files. It is an FMLA violation for an employer to share information about an employee’s FMLA leave with other employees. Additional material on FMLA policies is located at this site: http://fmlaonline.com/ .

According to HRHero.com, employers must keep accurate records pertaining to the leave and either physically or electronically post a notice of employees’ rights under the FMLA so that the information is accessible to both employees and job applicants. Furthermore, the FMLA requires employers to maintain the employee’s group health benefits while on leave on the same terms that it provided them when the employee was working.

Leave taken under the FMLA is job-protected, which means that employees must be given the same job or an equivalent job when they return. Employees or the Department of Labor can sue the employer for lost wages, benefits, reinstatement, attorneys’ fees, and liquidated damages for willful violations. Additional information is located at this site: http://topics.hrhero.com/family-and-medical-leave-act-fmla/.

The FMLA is a definite benefit for qualified employees, and employers have certain protections under the law if there is suspected abuse or violation of FMLA. Going forward, both employees and employers must know the law and follow it to avoid any problems. Both family and medical leave is important in circumstances that mandate time away from work. The key is to understand how it works and how to manage it.

Until next time.