FMLA can confound employers
By Jennie L. Phipps • Bankrate.com

The Family Medical Leave Act can be an expensive and frustrating proposition for an employer. It's also a system that's easy to abuse, says attorney Neil Martin, a partner in the labor and employment section of Gardere Wynne Sewell in Houston.

Martin offers some suggestions for businesses dealing with FMLA situations.

Learn the law.
The FMLA, Americans with Disabilities Act, Pregnancy Discrimination Act and workers' compensation laws overlap. If you don't have a human resources person familiar with this complicated territory, then have knowledgeable legal counsel available to guide you through the leave request.

Don't assume liability.
The law doesn't apply to companies with fewer than 50 employees living within 75 miles of the office. If your workers are distributed in locations throughout the country or the region, you may be exempt.

Assess worker sincerity and commitment.
While you can't discriminate, you can work closely with employees who are genuinely concerned about their careers and reassure them that the leave won't be detrimental. Conversely, be aware that some workers abuse FMLA leave. It's become fairly commonplace for poor performers to use leave to buy a little time when they believe firing is imminent. If you don't want to be used in this way, then carefully document employee shortcomings, keep good personnel records and make sure performance evaluations are up to date.

Consult the doctor.
First, get your employee's permission to speak with his physician. After the OK, ask the doctor to predict the duration of the ailment and explain any extenuating circumstances. If you really need the employee back at his desk by a specific time, tell the doctor. In many situations, a doctor will do his best help the patient accommodate your concerns.

Get the paperwork straight.
Within 48 hours of an employee's announced intention to take FMLA leave, confirm in writing that it will be concurrent with any vacation, sick leave or disability (short- and long-term) time the employee has available. Martin says the courts have repeatedly ruled that failure to give such notice promptly will result in the employee being allowed to take the leaves successively. Some employers put the notice in the employee handbook, but to be on the safe side, specific notification is best. At the same time, make it clear that if the employee doesn't return, the company expects to be reimbursed for any contributions it made for health care or other insurance during the leave.

Offer a truly equivalent position.
When the worker returns, offer him the same job or one that really is comparable. The courts have said switching an employee's shift against his will violates the rules. On the other hand, if you've eliminated the day shift and moved everybody to nights, you're in the clear. The bottom line: Get some advice before making a change that significantly alters what a returning employee does.

Think hard about light duty.
Creating a job to get an employee back early can be a big mistake. Once you've demonstrated a need for this position, you may be stuck paying the employee to do it for a long time. If the light duty job isn't one you really need, let the employee stay home.

Jennie L. Phipps is a contributing editor based in Michigan.

-- Posted: Oct. 8, 2002