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October 1, 2019 | HR Compliance | Posted by Sarah Morgan

Q&A Follow Up Part 1: The Do’s and Don’ts of FMLA 

Earlier this summer we were joined by Sarah Morgan, Chief Excellence Officer of BuzzaRooney, LLC, when she presented “The Do’s and Don’ts of FMLA (Family and Medical Leave Act).” The webinar navigated the FMLA process step by step; from an employee's initial request through return to work, the pesky pain points of this process were highlighted and practical suggestions for best practices using real world examples were provided. 

 There was so much engagement during the Question and Answer portion of the live webinar, we asked Sarah to respond to all of the audience’s questions. We’ve identified some common themes amongst the FMLA questions submitted and broken the responses between two blog posts. Part One featuring child/family, time classification and workers compensation questions is below! Please enjoy this two-part blog series as you navigate your own, vexing FMLA requests and processes. 

FMLA as it relates to: Child / Family

Would the birth of a grandchild qualify for job protection under FMLA? 

It might. While grandchildren are not specifically covered under the FMLA statute language, if the parent of the child is incapacitated, it is possible that the grandparent would be appointed caregiver or guardian, which would be covered. It is best to ask probing questions to determine more details about the situation to know if the situation is covered.  

 When you say care for child with serious health condition, does this mean dependent children only or does it cover an adult child? 

Adult children may be covered if they are incapacitated and/or don’t have the capacity to care for themselves. You will need to ask probing questions to determine if this is the case.  

 In terms of notification and designation, what about when the employee's family member's schedule of treatments is pending? 

The certification paperwork should outline what help if any is needed by the family member while treatment is pending. The employer should adhere to this and approve the leave.  

 Are you required to document the family relationship? 

You are not required to document the family relationship. It is optional and at the employer’s discretion.  

 What are best practices when both parents, expecting a child, work for the same organization? Is each parent entitled to 12 weeks, or do the parents get a combined 12 weeks?  

The parents receive a combined 12 weeks for the birth of a child.  

FMLA as it relates to: Time Classification

Can we force an employee to use FMLA if they would rather use their vacation time? 

Vacation and FMLA should be taken concurrently based on the latest DOL guidance. Employees cannot use Vacation in lieu of FMLA or to extend their FMLA. If you or the employee are in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and/or Washington, you should consult your attorney on how to handle the situation because the Circuit Court and DOL guidance on this subject differ vastly.  

Some of our employees have submitted intermittent FMLA forms to allow for tardiness. It has been problematic. How do we address incidents of tardiness? 

Intermittent leave allows for tardiness to address care for self or approved family members. If the employee has certified their leave, it should indicate if periodic tardiness is expected. The employee should follow normal procedures for reporting tardiness; failure to do this can be addressed. However, the employee cannot be disciplined or prevented from taking intermittent FMLA. The time should be recorded as part of their entitled 12-week allotment.  

If you have an employee on intermittent leave, is asking for an annual recertification okay? 

If the medical condition will last for one year or more, the recertification is okay.  

If we do a rolling 12 months, does that still apply to the any combination of 52 weeks? 

The stipulation on any combination of 52 weeks applies to determining if the employee has worked 12 months for the company in order to be entitled to FMLA. The rolling 12 months applies to how the 12 weeks of entitled leave of an employee who is determined to be FMLA eligible is counted. These are two different, unrelated items. I recommend reading the DOL Guide to gain more clarity on the difference to ensure you are applying it properly.  

If someone's FMLA leave is to start August 1 but they miss time from work in July for the same reason, can the time out in July be counted toward FMLA? 

It depends but, most likely, it can be counted if the employee was away from work for more than three days.  

I recommend obtaining an updated note from the doctor to document the reason for the July absence.  

If an employee submits a certification that shows FMLA is needed for two months, do we ask the employee at the conclusion of two months to recertify? Do we leave it to the employee to tell us about continued need for FMLA? 

You should ask the employee to either recertify for an extension if more time is needed at the end of two months or provide a release to return to work at the end of two months before coming back to work. Either way, the employee should provide an updated note at the end of the two-month period.  

If a doctor places on the Certification of Health the six weeks postpartum and the employee was on summer break during this time (schoolteacher), does the employee have the right to take the 12 weeks of bonding? Does the employer or can the employer request the doctor to update the Certification for bonding time? (We are in Florida). 

FMLA covers up to 12 weeks of time for birth and bonding within one year of the child’s birth. The employer can allow more time if it chooses. Florida has no current law requiring additional family or medical leave time.  

I believe you said we should not wipe out all their sick and vacation time. Why not? We sometimes let them dip into the next year's accrual of vacation. Why would this be bad? 

The goal of most time off policies is to allow the employee time to rest, relax and recuperate. If all the employee’s time is wiped out immediately upon taking FMLA, they will not have additional time for rest, relax or recuperate when they return to work. I do not advise or support this. However, it is not unlawful.  

Can we require the employee to use their PTO during FMLA or can the employee opt not to receive pay while on FMLA? How many occurrences of FMLA can employee have in one year? 

What if an employee who has utilized all 12 weeks of FMLA and now needs another six weeks within the same calendar year, how is that handled? 

The employer can require the employee to use their PTO to substitute unpaid FMLA leave time. I do not recommend this as best practice. Instead, discuss it with the employee and decide what is best on a case-by-case basis to avoid creating greater hardship. Employees are allowed up to 12 weeks of FMLA in a 12-month period. The number of incidents is unlimited as long as it does not equal more than 12 weeks (or 26 weeks in the case of some military related FMLA needs). If an employee needs an additional six weeks and the FMLA is exhausted, the employer may deny the leave and terminate employment or choose to make an accommodation in some other way. Whatever the employer chooses needs to be consistent across requests.  

For a salaried employee who may be on intermittent leave, can the company deduct a full day’s pay? Example: Say the employee may be out two days per month, can we deduct pay for those two missed days? (Within the appropriate pay periods of course)" 

The employer can deduct for full days on salary exempt employees. The employer should allow the employee to substitute the two days for paid time like sick or vacation if available.

FMLA as it relates to: Workers Compensation

We have an employee who has had an attendance issuethe employee later filed for worker’s comp and has shared that s/he wanted the summer off. The employee has now applied for leave, and we are having a hard time having the health care provider provide parameters around the position. What is your recommendation? 

The employee is required to certify their FMLA leave. If they are unable to do so within reasonable time, you should deny the leave and require the employee to return to work. If the employee fails to return to work, you should terminate employment.  

If someone is injured and is on work comp do you have to do FMLA in conjunction with the work comp? 

You can run FMLA and Work Comp leave concurrently. I recommend this and the DOL guidance supports this approach.  

 In case you missed the live webinar, check out the on-demand recording for more insight on what to and what not to do when it comes to FMLA.  

Sarah Morgan has been a practicing HR Executive for 20 years. She is currently the Chief Excellence Officer of BuzzARooney LLC, where she provides consulting and coaching surrounding organizational culture, comprehensive health & total wellness benefits, and executive leadership. Sarah still also serves as an active HR practitioner as the Director of Human Resources for a national company headquartered in Raleigh NC.