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

Q&A Follow Up Part 2: The Do’s and Don’ts of FMLA

In case you’re just joining us now, 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 the audience’s questions. We’ve identified some common themes amongst the FMLA questions submitted and broken the responses between two blog posts. Part Two featuring general health concerns, best practices, and key employee exemption 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: General Health Concerns

Are the employers required to collect the group health premium on a pre-tax basis if the employee is sending in the premiums outside of payroll? 

Payments made by the employee outside of payroll for their health benefit premiums are not pre-tax because they are made from the employee’s disposable income.  

Since benefit continuation is required and the company has a policy that says you must send in your portion of the health coverage. Can an employer place an employee on COBRA if a premium is missed? 

Yes. However, the employer should reasonably attempt to make payment arrangements with the employee to keep them on health coverage as normal first. The employer must reinstate the employee to health coverage as normal when the employee returns to work.  

Please address mental health. What type of doctor can initiate FMLA? 

A licensed therapist, social worker, or physician can complete FMLA certification paperwork for mental health.  

If an employee tells you that they are going to be out due to a serious health condition (surgery), do you need to provide the FMLA designation notice within five days at that point or after receiving the completed FMLA certification form is received? 

You should provide the FMLA designation notice within five days after the completed FMLA certification document is received.  

I have a pregnant employee who went out on leave stating her doctor was "taking her out" early. I cannot get her to return any of the forms - disability, paid family leave or FMLA. 

The employee is required to return the forms. If the employee fails to return the forms, you should deny the leave request.  

Can you elaborate a bit more on when an illness is categorized as a serious medical condition? 

An illness is considered a serious medical condition if will keep the employee completely out of work for three days or more OR will cause periodic absences or a change to their work schedule.  

Do employees have to pay their health premiums while on leave, or can this be postponed until they return to work? 

It is the employer’s choice on how this is handled. I recommend working thru payment arrangements with the employee to avoid causing the employee loss of coverage and/or financial hardship while on leave.  

When an employee has used 12 weeks of FMLA but tells the employer that she has additional health issues (separate diagnosis), the employer grants additional time to be away from work through ADA. What is considered a reasonable accommodation for job protection through FMLA and ADA rights? The employer is trying to be compliant, but this employee has been out of work for six months rather than the typical 12 weeks of FMLA. 

The goal of an ADA accommodation is for an employee to continue working with a reasonable adjustment to their work environment, tasks and/or schedule. The goal of the FMLA is to provide job protection to an employee needing time away from work for a family or medical issue. Granting an employee additional time away from work under the ADA beyond the 12 weeks entitled under the FMLA is not required. If the employer no longer feels holding the position is a reasonable accommodation, the employer can review the matter again and alter their position. Without knowing the details, I recommend discussing with counsel before making an adverse decision against the employee to mitigate potential legal risks.  

What do you do when your employer kept questioning your doctor request to extend your leave? Sent through appeal and the appeal was denied before the doctor could send in their finding? 

The employer must allow reasonable time for the doctor to respond to any request for clarification on certification documentation. The employer should list the due date in any request. If the employer has questions about the certification, they can request a second or third opinion at their expense. However, if the certification documentation is reasonable to certify, recertify and/or extend the leave and the employee has FMLA time remaining, the employer should certify the leave and move forward.  

Best Practices and Preparing for FMLA

When should a company with less than 50 employees start preparing for FMLA?  

I recommend a company prepare for FMLA by deciding how it will handle employees needing leave for family and medical reasons. The policy the company creates should mirror the guidelines provided in the FMLA. Then when the company reaches 50 employees, there is no major change in the handling of family and medical related leaves.  

What is the best practice for Intermittent FMLA when it is suspected the employee is working another job when taking Intermittent FMLA?  

An employee can take intermittent leave for the smallest amount of time they can take as other types of leave. So if it's 30 minutes, one hour, two hours, four hours for your other leave types, like PTO or Sick or Vacation, that becomes your baseline for Intermittent leave. An employee can take intermittent leave for many reasons, including travel time, appointments, and rest. Abuse or misuse of intermittent FMLA is difficult for employers to prove. Unless the abuse is flagrant and obvious, it is best to approve and allow the leave request uninterrupted.  

If you have multiple sites (within a city-wide radius) do you have to have an FMLA poster posted at each location or just one posted at one location? 

I recommend having compliant posters at all locations, if possible.  

Are we required to tell an employee when they have exhausted FMLA? 

Yes, you are required to notify the employee when their FMLA is exhausted and the status of their employment.  

How often can you check to see if an employee has met the 1,250 hours eligibility? 

Eligibility hours should be checked when a request for FMLA is initiated or when the employer is notified of the employee’s need to take FMLA.  

Does Military FMLA leave need to be separate from regular FMLA when we write our FMLA process/policy? 

No. It can be covered within the same written policy. However, the rules surrounding military caregiver FMLA should be spelled out.  

Can you explain when the FMLA paperwork is not needed? I was under the impression that the FMLA paperwork had to be filled out by a doctor. 

FMLA paperwork is required to certify the leave. It does not have to be on a specific form. Regardless of the format, it has to be sufficient to certify the leave as covered by FMLA.  

Can intermittent FMLA for a salary employee be handled the same way for an hourly employee? 

The qualifications for eligibility and certification are the same for all employees. Salary exempt and hourly non-exempt will likely have to be handled differently regarding intermittent FMLA time taken for less than a day. Hourly employees can take the time unpaid or substitute paid time for unpaid. However, salary employees can only be deducted for time away from work as long as it is consistent with your handling of other leave types. If you do not require unpaid or substitution of paid time for partial days normally, you cannot require it when the employee is on FMLA.  

Key Employee Exception

A key employee is a salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite. If an employer wants to designate an employee as a key employee, they must notify the person in writing at the time of the initial request.  

An employer may deny restoration to a key employee if the employer determines the restoration of the employee to employment will cause "substantial and grievous economic injury" to the operations of the employer; it cannot base the decision on whether the absence of the employee will cause such substantial and grievous injury. If an employer makes a good faith determination that substantial and grievous economic injury to its operations will result if a key employee is reinstated, the employer must notify the employee in writing of its determination; however, the employer cannot deny FMLA leave, only that it intends to deny restoration to employment on completion of the FMLA leave. This written notice may be served in person or by certified mail. 

The determination notice must explain the basis for the employer's finding. If leave has commenced, the notice must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return. An employer who fails to provide timely notice will lose its right to deny restoration, even if substantial and grievous economic injury will result from reinstatement. 

Some Key Resources from the Webinar

FMLA information: 

DOL Employer Guide: 

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.