Nyemaster’s Labor & Employment department hosts monthly Law & the Workplace webinars exclusively for Nyemaster clients. Attorney Mary Funk discussed employer questions about the Family Medical Leave Act (FMLA) in a recent session. Here are highlights.
A lot has changed since the 1993 passage of FMLA. The FMLA has changed too. While every request is different, common scenarios can be handled using clear, consistent policies. Always consult your attorney for advice about your specific situation.
Here are best practices for 12 common questions about FMLA rules.
1. Does an employee’s mental health entitle them to FMLA leave?
Yes, a mental health issue may entitle an employee to FMLA leave.
The effect of mental health issues is enormous for employers. The National Institutes of Health estimates that nearly one in five U.S. adults—or about 52.9 million people in 2020—live with a mental illness. Only about half receive the help needed.
In its 2021 report, the U.S. Equal Employment Opportunity Commission (EEOC) noted 37.2 percent of discrimination charges included disability-related claims under the Americans with Disabilities Act (ADA). Of those ADA claims, nearly 30 percent allege discrimination based on mental health conditions.
In May 2022, the Department of Labor (DOL) reminded employers that a mental health condition may qualify as a serious health condition under the FMLA. Employers should be prepared to properly handle leave requests involving mental health.
2. Can someone working remotely be entitled to FMLA leave?
Yes, remote workers may be eligible for FMLA leave.
Identifying the work site for remote employees is the first step. For FMLA purposes, the work site is defined as the physical office to which an employee reports—not their home office. If the remote worker’s reporting office employs 50 or more employees within a 75-mile radius and if they meet the 12-month and 1,250-hour requirements, the employee is eligible for FMLA leave.
For employers who have no physical office, FMLA eligibility is still an open question. Until a test case is litigated, the best practice is to assume FMLA coverage. Providing leave can be valuable for employee retention.
3. Can an employee be working part-time at home while on leave?
If an employee is off full-time, they should not be working or checking email. Their time off needs to be tracked as full FMLA days.
If an employee wants to work part-time using intermittent leave or a reduced schedule, set the parameters. It must be voluntary. Best practice in ensuring an employer can prove the work is voluntary is to have the employee sign a statement to acknowledge that:
- the part-time work is truly voluntary,
- they will not exceed their doctor’s recommendations, and
- the time they are working is not counted toward FMLA.
4. What happens if an employee can’t return to work when FMLA runs out?
An employer cannot require an employee to return without restrictions or fire the employee who cannot return as soon as the FMLA expires. Such a “100 percent healed” policy is a per se ADA violation. An employee’s inability to return to work after FMLA leave requires an ADA-type analysis.
An employer must engage in the interactive process and determine whether an employee can return to work with accommodations, if those accommodations do not change the essential functions of the job and do not unreasonably burden the employer.
One accommodation may be additional leave. Determine whether the employee can return in a reasonable amount of time with accommodations. Indefinite leave is not required and is considered an unreasonable burden for employers.
5. What is this form telling me?
When an employee gives notice of need for leave, start with the forms from the DOL Wage & Hour Division. Set up a checklist to ensure all the steps are completed as required.
- Within five days, provide Eligibility Notice & Rights and Responsibilities/WH-381 and the relevant certification form.
- Within 15 days (assuming no extenuating circumstances), the employee returns the relevant certification form.
- If incomplete or insufficient, explain what’s missing.
- Within seven days (under most circumstances), the employee submits a complete or sufficient certification.
- Within five days, provide Designation Notice/WH-382 and a fitness-for-duty notice, if applicable.
- When the leave nears its end, contact the employee about the fitness-for-duty exam. As a best practice, provide a notice that the leave is ending and an invitation to reach out if assistance is needed.
If a medical certification form includes vague timelines, such as “unknown” or “indefinite,” for the frequency and duration, an employer can ask for clarification.
If the employee can’t resolve questions in a reasonable timeframe, then—with the employee’s authorization—the employer can contact the health care provider. A human resources specialist, leave administrator, or another health care provider—never the employee’s supervisor—should make the call and handle all notices.
Employers can seek clarification or authentication of provided information, but should not go beyond what’s asked on the form. For example, an employer can call the doctor to confirm answers but can’t ask other questions about the employee’s medical situation.
6. What if an employee doesn’t want the leave designated as FMLA or refuses to return the certification?
It is possible to involuntarily put an employee on FMLA leave. Talk through the situation with an attorney. An employer must have enough information to determine a person is eligible and qualified.
7. Can I retroactively designate FMLA?
Retroactive designation may be OK. It is best to have the employee’s agreement. Regardless, an employee must receive appropriate notice so they know the leave is counting as FMLA leave. The employer’s failure to timely designate the leave cannot cause harm or injury to the employee.
FMLA regulations provide an example of harm or injury by an employer’s failure to provide notice of FMLA designation. An employee uses leave to care for a child with a serious health condition. Because the employer failed to provide notice that this is considered FMLA leave, the employee was unable to use leave at a later date to care for a spouse with an upcoming surgery. The employee might establish that harm had occurred by showing that they would have arranged for an alternative caregiver for the child if the leave had been designated in a timely fashion.
Absent extenuating circumstances, employers must notify employees in writing whether leave will be counted as FMLA leave. Employers should exercise caution in making retroactive designations.
8. Does deducting FMLA time from exempt employees jeopardize their FLSA status?
Under the Fair Labor Standards Act (FLSA), exempt employees cannot have their salary reduced for less than full-day increments. There is an exception for FMLA leave time.
A proportionate amount of the employee’s full salary can be reduced by the FMLA time used without jeopardizing the employee’s FLSA status. The key is accurate and careful recordkeeping.
9. If I use temporary employees, the FMLA doesn’t apply, right?
Temporary employees earn FMLA eligibility even while temps. Temps converted to regular employees bring their countdown to FMLA eligibility with them. Temps also count in the 50-employee threshold for FMLA coverage.
When working with a temporary placement agency, the employer may be a joint employer. Typically, the temp agency is responsible for providing required FMLA notices, administering FMLA leave, and maintaining health benefits. Under certain circumstances, the secondary employer may be required to reinstate the temporary worker following leave.
10. Can I contact an employee on FMLA leave?
Interference with FMLA leave is prohibited. Some contact is allowed. For example:
Easy logistical questions to the employee are not considered interference.
- Asking for return-to-work date is permitted.
- Allowing part-time work from home might not be interference if it is voluntary and not coerced.
- On the other hand, requiring light duty or part-time work would be considered interference.
11. I don’t think my employee is really sick. What do I do?
The FMLA does not expect employers to assume that every employee always tells the truth.
An employee is not entitled to FMLA protection if they are not using leave for the intended purpose. An employer should carefully investigate and consult with legal counsel if they intend to deny leave or terminate the employee.
To fight FMLA abuse, follow these best practices:
- Require a written leave request for all absences.
- Prepare a list of questions for supervisors to ask an employee when they call in “sick.”
- Enforce standard call-in procedures.
- Don’t be afraid to recertify FMLA leave.
- Consider surveillance.
- Conduct a FMLA policy audit, including employee handbook provisions such as no moonlighting.
During an FMLA audit, look at ways policies can be improved. For more information about what should and should not be a part of an employer’s FMLA policy, reach out to Mary Funk or any member of the Nyemaster Labor & Employment group.
12. What? I should provide training on the FMLA to non-HR employees?
Managers often do not know their company’s FMLA policy and leave procedures. These managers create a risk for the employer. Examples abound of employers who have been sued because a manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow FMLA regulations. Training managers at all levels can reduce a company’s risk of liability.
Resources for Employers
The DOL offers a handy guide for employers navigating the FMLA. The guide provides a roadmap with questions and answers to help employers understand their roles and responsibilities.
Nyemaster’s Labor & Employment practice offers employers insightful advice. Contact your attorney to address your specific situation.