The Dos and Don’ts of FML

by Patti Ellis

Providing guidance on administering family and medical leave (FML) could get quite lengthy because there are so many possible scenarios, but we've put together a list of dos and don’ts that should help HR staff with some of the more common scenarios.

Preparing for a foreseeable leave

Do:       Plan

Some leaves, such as the birth or adoption of a child or a scheduled medical procedure, allow planning and preparation. You should plan out what work will be completed prior to the start of the leave, what work will remain to be completed by others, and who will take on those responsibilities.

Don’t:   Require additional workload

You may not require a teacher to prepare lesson plans any further in advance than if they were not taking leave.

Communication with employee while on leave

Do:      Communicate

Reasonable, limited contact about work-related matters is permissible during an employee’s leave. You may reach out to obtain updates on the status of the employee’s leave and intent to return, as well as to request institutional knowledge or confirmation of completed assignments. Whenever possible, contact should be scheduled, so as not to interrupt or interfere with the reason for leave. Time worked should not be counted against their FML entitlement.

Don’t:   Require work from home

You may not require an employee on leave to work from home or produce work. If an employee does so voluntarily, remind the employee in writing they shouldn’t be working during their leave.

Notices to employees

Do:      Provide notices even if request is not explicit

Employees are not required to use the term “FML” or explicitly request leave. When an employee expresses a need for extended leave, treat the situation as an FML request.

Don’t:  Forget there are three required notices

Make sure you provide required notices to employees: Employees’ Rights and Responsibilities under the Family and Medical Leave Act (e.g., posting), Notice of Eligibility and Rights and Responsibilities, and Designation Notice.

Premium payments

Do:       Maintain required payments

Employer payments for health insurance premiums must be maintained during any paid leave and during FML, even if the FML is unpaid.

Don’t:   Be inconsistent with policy

If you pay for benefits beyond FML requirements, make sure it’s in alignment with policies adopted by the board and outlined in Policy CRD (LOCAL). Failure to follow policies can lead to inconsistent practices, which risks claims of favoritism or discrimination.

Certification of healthcare provider

Do:       Ask for a second opinions

You may request an employee obtain a second opinion from a healthcare provider of your choosing not employed by you. The employer would cover costs associated with this request, and until certification is received, the employee would be provisionally entitled to FML.

Don’t:   Ask for additional information

While HR or a leave administrator may contact a healthcare provider to authenticate or clarify the certification, new or additional information must not be requested.

Intermittent leave

Do:       Pay attention to patterns

If you find employees are taking leave in patterns, for example Mondays and Fridays, you can inquire further to verify the medical need for this schedule.

If employees are scheduling medical appointments during these times, you can ask the employee if there is a medical need to receive treatment on the specified day and require verification from the doctor. If no medical need exists, you may ask that the appointments be scheduled after hours or on a different day.

In general, you can’t ask for medical certification for each intermittent absence. However, if the Monday/Friday absence is not because of appointments, but rather the employee’s serious health condition, you can ask for recertification. According to a Department of Labor Opinion Letter, employers may ask for recertification more frequently than every 30 days in cases of a Friday/Monday absence pattern.

Don’t:   Penalize employees for taking leave

Be careful not to count absences protected by FML against an employee or implement a penalty related to absences covered by FML.