Family and Medical Leave Act (FMLA) compliance is difficult and annoying, said Mark Oberti, an attorney with Oberti Sullivan LLP in Houston, at the National Employment Law Institute’s Annual Employment Law Conference in Arlington, Va., Nov. 16, 2012.
The U.S. Department of Labor’s FMLA regulations often aren’t much help, as they rarely make it clear when an employer may fire someone, he added.
Oberti outlined 12 compliance strategies for employers:
• When in doubt, send the employee the notice of eligibility and rights.
• Provide written notice of approval or disapproval of FMLA leave to the employee.
• Have a specific, formal policy to request leave, and adopt and enforce a call-in policy. Be reasonable about enforcing the policy, he cautioned. For example, cut employees some slack if they call in to their supervisors, instead of HR, even if the policy provides that they call HR.
• Be extremely cautious about terminating employees on FMLA leave.
• Train managers on FMLA basics. Uninformed managers may complain that they don’t want to return a difficult employee to his or her job or an equivalent position.
• Don’t even bother with the option to reinstate a returning employee to an “equivalent position.” Return an employee to the same job if it still exists, Oberti suggested.
• Invoke the employer’s rights in intermittent leave situations with caution. An employer can’t ask for certification of fitness to return to duty for each absence on an intermittent schedule. It can request fitness-for-duty certifications up to once every 30 days if reasonable safety concerns exist about the worker’s ability to perform duties, based on the serious health condition for which leave was taken. Be careful, as the job safety provision is very narrow, Oberti emphasized.
• Select your 12-month FMLA period in writing. If an employer doesn’t designate in written materials available to employees which leave-year option it has selected, the emp