March 13 Tip of the Week

“Proactive vs Reactive”

As human resources professionals, it is often difficult to plan out your day because employee issues arise on a regular and unplanned basis and must be dealt with immediately.  Compliance with labor and employment laws, one of the primary responsibilities of human resources, requires a proactive approach – well written, consistently enforced, up to date policies and procedures are the first step toward legal compliance in the workplace.  However, when faced with an employee emergency, whether it be an illness or injury or a performance issue, human resources professionals are often forced to go into reactive mode.  Reactive mode can be problematic because decisions are driven by the employee’s or the supervisor’s sense of urgency and human resources professionals are not given the time to review the situation, review the policies, and choose the best course of action to address the issue.  Reactive responses are also necessary when a supervisor or a manager has allowed an employee to engage in poor behavior or to skirt the rules and then, when the manager gets fed up, the employee is brought before human resources so that their conduct can be addressed.  Unfortunately, when the situation gets to that point, compliance can be an impossibility.  A primary example of this is the use of Family and Medical Leave. 

Under the federal Family and Medical Leave Act, an employer generally has five business days after an employee requests FMLA or after learning of an employee’s need for such leave to notify the employee that they are eligible for FMLA leave and for designating FMLA-qualifying leave as FMLA leave.  Several states have passed their own state family and medical leave laws that may require similar notice.  A failure to properly notify an employee of their eligibility for leave under the state or federal family and medical leave laws may result in an employee being able to remain out of work longer, because the employer missed the deadline to designate unpaid FMLA leave concurrently with paid leave taken by the employee, or may result in the employer being the subject of a complaint from an employee alleging that the employer interfered with their right to FMLA leave.  Both are poor outcomes and can be avoided if the human resources department acts in a proactive manner to ensure compliance with the FMLA. 

How can human resources proactively ensure compliance with state and federal family and medical leave laws? 

1. Review all leave policies and handbooks to ensure that they are up to date on both state and federal laws in this area.

• Review the forms and official notification documents to ensure that they are the latest version issued by the state or federal agency.

• Educate your managers and supervisors regarding the existence and availability of family and medical leave.  Make sure that, in this education process, supervisors and managers are fully versed on the timelines inherent in the notification process, so that they can bring attendance issues to your attention immediately – while there is still time to designate leave as family and medical leave.

• Create a checklist that can be used to address employee attendance issues and the use or potential use of family and medical leave.  As part of that checklist, which can be shared with managers and supervisors, make sure that your timelines with respect to initial notification, designation of leave, and return of medical certification forms are included on that document. 

• Treat all employees using family and medical leave the same – require every employee to provide a medical certification of the need for such leave.  Do not allow managers and/or supervisors to make exceptions for one employee and not others.  Do not presume or assume that, because you are aware of a medical condition of a particular employee, they do not need to provide medical certification.  Any deviation from your process can give rise to a complaint of discrimination or disparate treatment, which can lead to charges with a state or federal agency designed to address employment discrimination. 

• When an employee returns to work, if they were out for their own serious health condition, make sure that they are cleared to return to work from their doctor.  If there is a question about their fitness for duty, send the employee to an occupational medicine provider who can provide an independent evaluation of the employee’s ability to perform the essential functions of their job. 

• Remember that employees who use medical leave for their own serious health condition may have a disability under the ADA and are entitled to a reasonable accommodation.  The interplay of the ADA and FMLA can be tricky, so make sure that you are meeting all of your obligations under both laws. 

There is a myriad of resources and guidance available on the internet from both the state and federal agencies that oversee family and medical leave; as a human resources professional, you should explore these sites and review the official materials regarding the law.  While you can create your own internal forms for the notification and designation purposes, it is always best to use the official form.  That way, no one can say that your form is not compliant.

When in doubt about how to handle a family and medical leave situation, reach out to myHRcounsel.  We can assist you in navigating the process and ensuring that your employees receive the benefits to which they are entitled.  myHRcounsel can also assist you in developing tools to ensure that you can proactively address an employee’s need for family and/or medical leave.