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A Well-Drafted FMLA Policy Means Little If You Don’t Follow It

When an employer complains about an employee who is missing too much work and that employee is claiming that his absences are a result of a serious medical condition, there is always a risk that the employer could run afoul of the law if it disciplined the employee for excessive absences. The first question I usually ask the employer is: “Do you have an FMLA policy?” I am happy to report that most employers — who are covered by the FMLA — do have a policy. Unfortunately, when I ask employers about how they implement their FMLA policies, I often discover that many employers do very little, if anything, to keep track of FMLA absences.

Sometimes this is not a problem. When well-performing employees take a few days off each year for a serious medical condition, it may not matter much if the employer notified the employee that his leave would be treated as FMLA leave. However, when an employee with a perennial attendance problem announces that he intends to take an additional 12 weeks leave under the FMLA, after having taken weeks of paid leave, the employer often learns that he has little choice but to grant the additional leave request.

So what should employers do to avoid these situations? First, and foremost, make sure that you regularly provide the required notices. When any employee takes paid leave for what could be a serious medical condition, that employee should be given a Notice of Eligibility and Rights and Responsibilities and asked to provide a Certification from his healthcare provider. If eligible for FMLA leave, the employee should also be provided with a Designation Notice that advises the employee that his leave is being counted as FMLA leave. Don’t forget that FMLA leave can run concurrently with employer-provided paid leave such as sick leave, PTO, or short-term disability. Many employers erroneously assume that FMLA leave can only be unpaid and that leave does not qualify as FMLA leave until paid leave has been exhausted.

Additionally, employers must not forget that employees are also obligated to comply with certain notice requirements under the FMLA. If the need for FMLA leave is foreseeable, employees must provide at least 30 days’ notice to their employers. If the issue was not foreseeable, employees are expected to provide notice as soon as practicable. FMLA regulations allow employers to have call-in policies and to discipline employees for failing to comply with them. For example, an employer might have a policy that requires an employee to report absences at least 1 hour before a shift begins, unless there is an unusual circumstance (e.g., the employee suffered a serious accident and is unable to make a call).  If the employer has clearly communicated this policy, the employer is allowed to discipline that employee for failing to call in even if the employee had an FMLA-qualifying condition. 

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.