The Federal Family and Medical Leave Act (FMLA) is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. With the complexity of the administration of FMLA, now is a good time to make sure your policies and forms are up to date. Below is a quick checklist to help make sure you are in compliance.
- Update your FMLA policy and any relevant personnel policies. Take this opportunity to review and revise your FMLA Policy as well as other personnel policies and procedures (e.g., call-in procedures, leave policies, return to work policies) as an important step to prevent FMLA fraud and misuse. Communicate these policies to employees so they are aware.
- Update your Employee Handbook to include your FMLA Policy. The FMLA regulations require all employers who maintain an employee handbook to publish their FMLA Policy within the handbook.
- Review your return to work policy. Upon return from FMLA leave, an employee is entitled to be returned to the same position held when leave began, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. Make sure your return to work policy is reviewed and maintained consistently among your employees.
- Coordination of all types of leaves. Review your policies regarding FMLA, Short Term and Long Term Disability, Workers Compensation, and ADA to make sure they are in order. When someone is out on long term disability, make sure to properly terminate their employment according to your plan document to avoid any possible conflict, particularly with life insurance in the event of a death. Plan documents should be very specific about the timing of termination, typically 6 months from the date of commencement of the leave.
- Create FMLA administration procedures – and apply them consistently. All company practices around FMLA management – from understanding the laws to the documentation required for record-keeping to employee communication – should be clear to the team that’s handling leave requests. Make sure anyone dealing with leaves (managers, payroll, HR) have ongoing training and specific procedures in place to deal with FMLA issues.
- Require medical certification from the health care provider to validate that the leave is necessary. One of the best ways to avoid employee abuse of FMLA is to require the medical certification form be filled out clearly. Under FMLA laws, employers have the right to require this, and also gain more information if what they’ve received is insufficient or unclear, even requesting second or third medical opinions (at the employer’s expense).
- Make sure your job descriptions are updated. When employers seek medical certification of an employee’s serious health condition, they may require the employee’s health care provider to identify in the medical certification form those “essential duties” the employee cannot perform. Similarly, employers also may require a health care provider to confirm in a fitness-for-duty certification that the employee can perform all essential job functions upon his/her return to work. Updating job descriptions will help promote an efficient and accurate certification process, and help you be aware of any accommodations that the employee may require upon his/her return to work.
- Document everything. Every interaction, including every phone call with the employee while out on leave, should be documented, so that it is in writing and there is no confusion on what the policies include or what information has been shared with the employee.
- Medical forms must be separate from other files. Keep medical information, including the medical certification form, separate from the employee’s regular personnel file in a place where it will remain confidential. If the DOL does an audit of your plan, this is one thing they will be looking for.
- Beneficiary Forms. Annually remind people to update their beneficiary designations for life insurance and any retirement plans. It is particularly important to make sure anyone on long term leave for a serious health condition has current beneficiaries.
- Maintain confidentiality. While an employee’s leave will likely be apparent to their colleagues, it is illegal for employers to share any information about the employee’s medical condition. This is an area that all managers should be aware of to avoid potential HIPAA disclosure issues.
- Post the required Department of Labor’s (DOL) notice at each worksite. The notice must be posted in a conspicuous and prominent place where it can be readily seen by employees and applicants.
- Stay updated on the laws. Employers need to adhere to FMLA federal laws as well as state laws and other medical leave requirements, which may overlap. If a company operates in more than one state, state law compliance is especially crucial. It’s also important to know the rules for different situations, such as continuous leave/incremental leave/reduced schedule leave.
- Ensure that your FMLA forms are up to date. The Department of Labor has provided a series of forms to be used for FMLA. Make sure you are using the most current forms so you don’t have any issues when someone utilizes FMLA.
- And always, Train! Train! Train! From the front-line supervisor to the top executive, managers must understand their responsibilities to effectively manage an employee with a medical condition. Properly training your managers about their responsibilities under the FMLA should become a regular part of an employer’s operations, as it will significantly reduce the risk of legal liability.
Administering FMLA is about managing risk to your organization, making sure that you know and understand the latest laws and applying them consistently at all times, as well as maintaining workplace productivity and employee morale. Following the above steps can not only help you reduce any possible FMLA abuse, but also help the employees who legitimately take leave feel good about returning to work.
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