A. Written Policies and General Administrative Issues

It is important to provide employees with a complete and comprehensible summary of their rights and responsibilities under the FMLA. Well-informed employees will be less likely to attempt to abuse your policy, but in my experience, no more or less likely to attempt to take legitimate leave. When employees request leave, inform them in writing again and more specifically of their rights and responsibilities. Provide Department of Labor publications if available. Give the employee another copy of the employer’s FMLA policy at the time he or she gives notice of the need for leave. An added bonus will be the prevention of litigation. Employees bring claims when they feel they have been treated unfairly in some way. If the policy on which discipline or termination is based is clearly communicated to the employee, and the employer follows the policy, the employer has done a significant amount to prevent litigation.

General Absenteeism Policies

Being covered by the FMLA does not mean that employers cannot enforce policies aimed at controlling absenteeism. At the same, courts have held, and the law appears to be very clear, that absences taken for a valid FMLA-qualifying reason may not be counted against the employee under a “no-fault” absenteeism policy. Of course, this assumes that the employee has given the employer appropriate notice that leave is needed for an FMLA- qualifying reason. The employee is not required to say any “magic words” -such as “FMLA” or “family medical leave” or “Family and Medical Leave Act.” The employee need only ask it clear that (1) a leave of absence is being requested or is required, and (2) there is likelihood that the reason for the request or requirement is an FMLA-qualifying reason. Despite some recent decisions cutting against employees on this issue, prudent employers will assume that the DOL or the jury will give the employee the benefit of the doubt when there is some question as to whether the employee gave notice of FMLA leave.

One of the keys to enforcing absenteeism policies, of course, is to have one. Many employers do not actually have a written policy. While the policy should always contain qualifiers that reserve to the employer the necessary flexibility to comply with the reasonable accommodation requirements of the ADA, the MHRA, and workers compensation laws, employers should in general have a policy that describes when an employee is subject to discipline or termination due to absence from work.

–If you choose to adopt a written absenteeism policy that provides, for example, that a certain number of unexcused absences will result in discipline up to and including termination, be sure to enforce it once it has been promulgated; enforcement only in selected cases may result in discrimination charges. Even if you choose not to specify how many absences, you must still be consistent in the enforcement of your policy.
–Audit (or have legal counsel audit) all written policies to insure that they comply with the applicable laws and do not contradict each other. While it is more common for employers to offer too little leave, we have performed such audits only to find that employers are providing more leave than necessary, especially when there are separate “maternity leave” and “FMLA leave” policies.
–Promulgate policies that are accurate, easy to administer, and comprehensible. Policies in language that employees cannot understand will only add to employee anxiety and confusion about leave policies. Providing employees with clearly written policies that tell them exactly what they are entitled to removes uncertainty.
–Audit enforcement of the written policies, to make sure that supervisors understand the policies and are not granting more leave than necessary Provide supervisor training as necessary. Even-handed enforcement will help with employee morale as well; employees are often quick to believe that their co-workers are “getting away” with something.
–Centralize administration of all absenteeism and leave policies to the human resources department and train supervisors not to handle leave requests on their own.

FMLA Policies.

Many employers fail to realize that if the employer has an employee handbook or any other collection of policies that is normally distributed to employees, which most employers do, it is mandatory under the FMLA to have a written FMLA policy that is included in the handbook or other collection of policies. The FMLR does not have a similar mandatory provision, but we still recommend having a written policy for distribution to employees. Assuming the employer has an employee handbook or collection of policies, it must include a written FMLA policy. The employer’s written FMLA policy should specify in some detail the employee’s rights and responsibilities under the FMLA and the employer’s policies for notice, certification, benefits during leave, and return to work.

If the employer does not have a handbook or other set of policies that is distributed to employees on a regular basis, the employer must always provide written guidance to an employee concerning the general provisions of the FMLA and/or the employer’s FMLA policy whenever notice is given by the employee that he or she needs to take leave for a potentially FMLA-qualifying reason. This requirement is different from the specific notice requirements listed in Section V.C below. Such guidance may be disseminated through a preprinted document such as the DOL ‘s Fact Sheet on the FMLA, and/or in a document prepared by the employer.

Specific Policy Content:
The employer should determine its position on substituted paid leave policy (required or voluntary) and incorporate this position into its written policy. The employer should also specify whether the leave year will be fixed or rolling.

Employers may wish to require advance notice of foreseeable FMLA leave. As long as it is in the handbook or policy, employers may require up to 30 days’ advance notice from employees requesting leave whenever practicable. If the employee fails to provide 30 days’ notice of a leave request (and if the leave was foreseeable 30 days in advance), the employer has the right to delay the commencement of the requested leave until 30 days from receipt of notice. The employer may always waive the notice requirement. When a medical emergency arises, notice will of course often be impossible and employers cannot require it. (Note that notice may be given by the employee, or if necessary, the employee’s spokesperson (e.g., spouse or other responsible party), in person, by telephone, by telegraph, or by facsimile.)

FMLR Policies
Many employers covered by the Maine FMLR but not the FMLA already have either a written policy concerning leaves of absence, which provides some predictability to employees. Others have only an oral policy that changes over time and context.

While some employers have decided to avoid written policies in order to maximize “flexibility,” others have no written policies simply because they have never gotten around to writing one. An employer subject to state leave statutes –and in truth, every employer — should probably have a written leave of absence policy. Without one, the employer will find it difficult to comply with its obligations under the law.1 For example; every Maine employer is subject to the requirements of the Maine Human Rights Act with regard to pregnancy discrimination and reasonable accommodation (see Section IV), or the Maine Workers’ Compensation Act. The best practice is to have a policy in place before the legal necessity arises.

There is no question that the notion of retaining “flexibility” can be appealing. Uniform rules can seem “rigid” or “inhumane” under certain circumstances. It is important to remember that in some cases, if an employer applies a rule too uniformly it could lead to liability under the “reasonable accommodation” provisions of various statutes. Employers must be flexible enough to explore possible accommodations involving leaves of absence.

Family and medical leave statutes are just one type of law governing entitlement to leaves and benefits. Other types of legally mandated leaves include military leave, and leaves required by “reasonable accommodation” provisions of anti-discrimination statutes as the Americans with Disabilities Act or workers’ compensation laws. Employers may want to include information about other leaves of absence they provide, such as sick days, vacations, funeral leave, jury duty leave, personal days, etc., in their written policies

Moreover, many employers believe that it is important to handle each employee’s leave request individually, and that rigid rules are bad for morale.

On the other hand, uniform rules are easier for human resources personnel to administer and for employees to understand. A uniform rule is the best insurance against violations of Statutes mandating certain types of leave. A uniform policy promotes ease of understanding, ease of administration, and in some circumstances, may help avoid discrimination claims.

The best practice is to have a definite, written policy that has built-in flexibility to cope with documented special needs of employees. From a litigation risk standpoint, it is necessary to balance the risk of discrimination charges based on disparate treatment with the risk of discrimination charges based on a failure to make reasonable accommodations to the needs of employees with disabilities. Any leave of absence policy should provide that it is subject to the requirements of federal and state law. Even if employers choose to write their own employee handbooks and leave policies, I recommend that they have their legal counsel review their policies periodically to insure compliance with the ever-changing regulatory framework.

Employers should coordinate fringe benefits programs with leave policies. For example, if an employee will be paying for any benefits during an unpaid leave of absence, the employer and employee must make arrangements for the employee to pay the required premiums. These arrangements should be made at the commencement of the leave, not later. Note that the FMLA has a limited number of specific options for how this may be accomplished (described below), which employers subject only to Maine’s Family Medical Leave Requirements may use as well. In general, an employer’s written policies should clearly state how various fringe benefits will be handled during a leave of absence. Clear policies are necessary both to inform the employees of their rights and to assist the administrators in properly administering the program.
In short, employers must evaluate their own administrative and business needs and the potential needs of their employees, always keeping in mind the statutory regulatory framework to which the policy must comply.

B. Importance of Designation & Notice

The employer’s obligations under the FMLA’s designation and notice provisions of the DOL’s regulations once an employee has given notice of the need for leave are probably the least understood and most frequently violated provisions. Below is an outline of the specific actions the employer must take to provide employees with notice that their rights or responsibilities under the FMLA are being affected in some way. Note that all these requirements must be carried out within a “reasonable time after notice for leave is given by the employee -within one or two business days if feasible.” Failure to designate and provide notice in compliance with the FMLA is technically a violation of the FMLA, and may in some instances lead directly to liability, even when the employee receives 12 weeks of leave with health benefits intact!

Designation of FMLA leave.

Once the employer has received notice from the employee that he or she needs leave for a potentially FMLA-qualifying reason, the employer has TWO DAYS within which to designate the leave as FMLA leave and communicate the designation to the employee.

The designation must be communicated within two days in writing or orally. If the communication is oral; it must be followed up in writing no later than the end of the current payroll period. If the current payroll period ends within one week of the day on which oral designation occurs, the written designation may be given no later than the end of the next payroll period.

A failure to designate has serious consequences. In short, the employer may not count against the 12 weeks any leave that occurs before the official communication of the designation of the leave as FMLA leave. For example, an employer forgets to designate leave as FMLA leave until October 1, by which time the employee has been out of work with a legitimate serious health condition for six weeks already. On October 1, a human resources staff member telephones the employee and tells her orally that the leave is counting as FMLA leave. The human resources staff member then follows up with a written designation before the end of the current pay period. This employee is entitled to 12 additional weeks after October 1, for a total of 18 weeks.

Note that the employee or his or her spokesperson need not specifically mention the words “family medical leave” or the FMLA in order to assert the employee’s rights under the FMLA. The only statement required is that leave is needed.
Requirement of Certification by a Health Care Provider.
The employer must inform the employee of the need to have a health care provider fill out the certification form and of the deadline for doing so.

The Employer’s Policies Regarding Substituted Paid Leave and the Right to Take Substituted Paid Leave Even When Not Required.
The employee must specify whether there are any conditions related to such substitutions as well.

The Employer’s Requirements with Regard to Payment of Health Care Benefit Premiums. Employers should specify that payments are required, how such payments may be made, and the possible consequences of a failure to pay (i.e., that coverage will lapse).

Fitness-for-Duty Certificate Requirements.
If the employer plans to require a fitness-for-duty certificate, it must so specify when notice is given by the employee.

Notice of Key Employee Status.
If the employee is salaried (i.e., not paid hourly), and in the top 10% of all. employees within 75 miles of the specific employee’s worksite in terms of rate of pay, then the employee is a key employee. The prudent employer will always notify such employees that they are “key employees” and of the possible I consequences of this status for restoration to their positions or equivalent positions at the conclusion of their leaves. Note that at the end of the leave, it is too late. An employer may not retroactively designate an employee as a “key employee” in order to avoid restoration at that time.

Right to Restoration.
Employers must inform employees about their right to restoration to the same or an equivalent position.

Potential Liability for Employer’s Share of Health Benefit Premiums If Employee Fails to Return to Work.
If the employee does not return to work, the employer is entitled to pursue and collect the premiums that the employer paid during FMLA leave if the employee’s failure to return to work was voluntary.

This is not the case if the failure to return to work was the result of. circumstances beyond the employee’s control, e.g., the ongoing nature of the employee’s serious health condition, a layoff by the employer, etc.

Other information you may wish to provide, but which is not legally required includes:

Clarification in writing of the current “position” of the individual who takes leave. Be as specific as possible. If it is known at the time the individual requests leave that his or her job will be changing during the leave period, clarify the nature of the changes in writing at the beginning of the leave.

The possibility that if the job will be eliminated during the leave period due to reasons other than the individual’s taking leave (e.g., a reduction in force).

C. Certification & Communicating with Health Care Providers

Requiring certifications from health care providers is critical to the effective enforcement of FMLA leave. Indeed, this is probably the single most important thing employers can do to reduce the number of unnecessary leaves of absence under the FMLA. The Department of Labor has devised a sample form that illustrates how much information may be requested, including the nature of the condition of the employee or employee’s family member, whether or not it constitutes a “serious health condition,” whether a leave of absence is necessary and if so, its probable duration, and whether intermittent or reduced schedule leave is necessary.

Intermittent Leave:

One area with a large potential for abuse is the FMLA’ s provision for “intermittent leave.” As with any type of leave, the key to preventing abuse of intermittent leave is requiring certification of the need for it.

–Employers are not required to allow intermittent leave for the purpose of caring for a newborn or a newly adopted/foster child. When the FMLA leave is due to the serious health condition of the employee or employee’s family member, however, the employer must grant intermittent leave, as long as the health care provider certifies the medical necessity for such intermittent leave
–The employer may require periodic recertifications of the medical need for intermittent leave or a reduced leave schedule (no more often than once a month).
–The employer may temporarily transfer an employee who needs intermittent leave to an alternative position that better accommodates the employee’s unpredictable schedule, but may not lower the employee’s pay and benefits.

Communicating with Employee’s Health Care Providers

Some employers attempt to call their employees’ physicians in a good faith attempt to get information when an employee has not reported to work or when the employee has not complied fully with the requirements of certification or of periodic communication with the employer. These attempts are worrisome because they are often interpreted by the employee as harassment or an attempt to obtain sensitive and confidential information, or both. Moreover, it is not in the employer’s interest to do this. It may constitute a violation of the FMLA in some circumstances. In fact, the FMLA is specific -and strict -about what types of communication are permitted between the employer and the employee’s health care provider.

If the employee has submitted a filled out certification form filled out by a health. care provider, employers may not request additional information from the employee’s health care provider.

The employee may request clarification and authentication from the health care provider if the form has already been filled out, but the employee must give permission first. The only exception is that the FMLA does specifically provide that the employer may be in contact with the employee’s health care provider to the extent allowed by the workers’ compensation laws of the State.

Under no circumstances should an employer contact a health care provider if the employee has not submitted a filled out certification form.

Seeking Clarification:

Sometimes health care providers return the certification forms without providing clear information that enables the employer to make a definite determination as to whether or not the employee or the employee’s family member has a qualifying serious health condition. As noted above, in such cases, the employer may not contact the health care provider directly. If the employee gives permission, a health care provider representing the employer may contact the employee’s health care provider for the purposes of clarification and authentication.

In cases where the employee does not give permission, or where the employer doubts the validity of the medical certification (whether or not clarification was sought), the employer may seek a second certification.

D. Using Second and Third Opinions

As noted above, if the certification seems suspect, the employer does not have to accept an employee’s assertion- or even the health care provider’s assertion –that the employee is entitled to leave. In some cases, entitlement is obvious, but in many cases, it is not. Employers who require second and third certifications in suspicious circumstances will find that the other employees become aware that the employer takes the certification process very seriously. In the future, employees will be less likely to attempt to take leaves of absence that are not legitimate.

If you are not convinced, you should not hesitate to obtain a second certification regarding whether or not an employee or the employee’s family member has a serious health condition. The standard is whether or not the employer “has reason to doubt” the doubt the validity” of the first certification. The employer may choose which health care provider will give the second certification, except that it may not be a physician employed or contracted with on a regular basis by the employer (unless the employer is in a rural area with very few health care providers). The employer must pay for any visits or other costs. If the two providers disagree, the employer and the employee must agree upon a third provider and abide by that provider’s assessment of whether the employee or the employee’s family member has a serious health condition and how much leave is necessary .The employer must pay for the third provider’s services as well.

Note that the employee is provisionally entitled to FMLA leave pending receipt of the second and/or third certifications.

E. Developing Forms that Work

We recommend using specific forms for administering any FMLA/FMLR policy.
This allows human resources staff ease of administration and insures that all employees will be treated the same with regard to their rights and responsibilities while taking leave. The following list of recommended forms assumes that the employer is covered by the FMLA:

Cover memorandum for other forms.

–Acknowledge receipt of leave request.
–Provisionally designate leave as FMLA-qualifying, pending determination of eligibility and receipt of valid certification.
–Explain other form requirements (formal request for leave form, certification) and attach those forms.
–Explain, in detail, the rights and responsibilities of the employee under the FMLA. Tell the employee what the consequences will he of not complying with the certification requirement, and any other requirements.
–Refer to employer’s FMLA policy and how to get one (or, better yet, simply attach another copy).

Request for leave form.

–How much leave is requested?
–What is the reason for leave?
–If leave is to care for family member, what relation to employee?
–If employee has choice of using up paid leave, what does employee choose to do?
–Expected return date?
–Does employee choose to continue benefits’?
–Leave room at base of request form for employer to:

–Approve or disapprove the leave
–Fill in how much vacation/sick time/etc. has been accrued.
–Keep track of how much FMLA time is available, how much will be left after expected return date.

–Calculate the premium for employee benefits during leave.
–Record any other information the employer wants to communicate to itself or the employee about his/her leave.

[Note that the U.S. Department of Labor (DOL) has developed a sample form for the employer to use when granting or refusing a request for leave, but has not developed a form for employees to use when making the request. The DOL’s form for granting or refusing requests appears as Appendix D to 29 C.F .R. § 825, which you can obtain at any law library, or from your legal counsel. Nevertheless, I recommend creating your own form.

Health care provider certification form.

–Date of the commencement of the serious health condition
–Its probable duration.
–The appropriate medical facts to describe the condition
–If the employee requests leave to care for a child, parent, or spouse, with a serious health condition, the health care provider should certify whether or not the employee is needed to care for that individual
–If the employee requests leave because of his or her own serious medical condition, the health care provider should certify whether or not employer may also require a certification that the employee is unable to perform the functions of the position of the employee’s job.

[The DOL has provided a sample form for these purposes that appears as.

Appendix B to 29 C.F.R. § 825. Employers may use this form or develop one of their own.]

F. Paid versus Unpaid Leave

As noted above, FMLA and FMLR leaves of absence are generally unpaid. Nevertheless, in many situations, the leave of absence will be entirely or partially paid.

When the employer carries short-term disability coverage (STD), the employee may qualify under the STD policy for benefits during an FMLA/FMLR leave of absence.

Employers may require employees to use accrued paid leave during FMLA leave, except that employers may not require employees to use any type of accrued paid leave for any purpose that is inconsistent with the ordinary purpose of such accrued paid leave. For example, if under an employer’s general policies, employees are not allowed to use “sick days”, to care for a sick family member, but are required to use their’ vacation days, the employer may not require the employee to use up accrued sick days in order to care for a child, spouse or parent with an FMLA-qualifying serious health condition. Those sick days will be intact when the employee returns from FMLA leave. At the same time, when employers do not require employees to use up accrued leave, the employee may always choose to use up paid leave if they choose to do so.

Whether the employer requires the use of accrued paid leave or the employee I chooses to use up such leave, it is called “substituted paid leave.” Substituted paid leave always runs simultaneously with FMLA leave. Similarly, see Section IV for a description of how workers’ compensation leaves and reasonable accommodation leaves may count against the FMLA 12-week (or FMLR 10- week) maximum.
When an employee is on substituted paid leave, his or her health benefits should continue as always. When an employee is on unpaid leave, in order to continue health benefits during leave, the employee must pay the premium that is normally deducted from the paycheck. Each employer should develop a system for employees on family and medical leave to pay for their normal share of health benefits. It is important to note in any employee handbooks or written family and medical leave policies what that system will be.

During any part of FMLA leave which is substituted paid leave, the employer may continue the practice of deducting benefit payments from the paycheck. During the normal unpaid FMLA leave, however, as long as they provide advance written notice to the employee, employers may require employees to pay for their share of the premium payments in any of the following ways:

–Payments due at the same time as if by payroll deduction;
–Payments on the same schedule (but not necessarily the same amount) as if made under the employer’s COBRA plan;
–Prepayment pursuant to a cafeteria plan at the employee’s option;
–Payment pursuant to the employer’s existing rules for payment by employees on “leave without pay,” provided that such rules do not require (1) prepayment, (2) payment of higher premiums than if the employee had continued to work instead of taking leave, or (3) more of the employee taking FMLA leave than of employees who take other forms of unpaid leave; or
–Payment according to another system voluntarily agreed to between the employer and the employee which may include prepayment, such as by increasing payroll deductions when FMLA leave is foreseeable.

Except in circumstances beyond the employee’s control, if an employee fails to return to work after taking an FMLA leave, the employer is entitled to recover its share of the health insurance premiums that it paid for the period of the employee’s unpaid FMLA leave. “Circumstances beyond the control” of the employee include the continuation, recurrence, or onset of a serious health condition of the employee or the employee’s family member, which would otherwise entitle the employee to FMLA leave, for which the employer may require certification.

G. Choose a “leave year” and use it consistently.

Eligible employees are entitled to twelve weeks of family and medical leave each year .The employer must determine what constitutes a “year” from among the following four options:

–the calendar year;
–any fixed, 12-month period designated as the employer’s “leave year,” such, as the employer’s fiscal year or a year starting on the employee’s “anniversary” date;
–the twelve-month period measured forward from the first day of an employee’s FMLA leave;
–a “rolling” twelve-month period measured backward from the date an employee uses any FMLA leave.

Disadvantages of using a non-fixed leave year (the second two options listed. above) include the necessity of keeping detailed records for each employee and contusion among both human resource personnel and employees eligible for FMLA leave. Disadvantages of using a fixed leave year, such as the calendar or fiscal year, include the possibility that an employee may take up to twenty-four consecutive weeks of leave. In other words, if the leave year begins on January 1, the employee could schedule FMLA leave for the twelve weeks prior to January 1, using all his leave for that year, and then schedule FMLA leave for the twelve weeks immediately following January 1, using all his FMLA leave for the next year. In this way, the employee would be on leave from October through the end of March. Each employer must decide what option works best for its operations and its employees. Again, the key to making the policy work is choosing one option and using it consistently.