I like a blog called FMLA Insights published by the law firm Franczek Redelet and a recent post included recommendations for reviewing an employer’s FMLA practices. Some of the following is based on recommendations from that blog.
Employers should evaluate whether to follow the FMLA
Since there is an argument that the FMLA applies to tribal employers and an argument it does not, whether the FMLA applies to tribal employers is an open question. This open question forces tribal employers to decide whether to follow the law, promulgate tribal law or policy which meets the standards of the law or reject the law and follow another path. This question should be addressed by the tribe’s leadership with guidance from human resources, the legal team and trusted advisors and executives.
Employers should review FMLA policies
Strong policies address which employees are eligible for leave, the categories of leave, how 12 months is measured, call-in procedures, substitution of paid leave, employee obligations prior to and during job protected leave, the collection of medical information, the employee’s obligation for payment of benefits and fitness for duty certifications.
Post the rules
Tribal employers which follow the federal law should display the federal poster. Tribal employers which follow tribal law should display a tribal poster. Tribal employers which reject the application of the FMLA should not display a federal or tribal poster. In other words, address the threshold question of whether the tribal employer will follow federal law, tribal law or policy or another option. Once that choice is made, act accordingly as to posters.
Use up-to-date forms and letters
The eligibility notice, rights and responsibilities notice, designation notice and certification forms change so determine whether the latest forms are in use. If the tribal employer follows federal FMLA, consider using the federal forms. If the tribal employer follows tribal law or policy which meets the minimum federal standards, consider using tribal forms which will likely be similar, but not the same, as the federal forms. This distinction is important since tribal employers following tribal law which meets the federal standards may argue that the tribal employer is not following federal law. Consistent with that argument the tribal employer utilizes its own forms to avoid confusing employees by using a form which is intended for complying with the federal law outright. Importantly use the forms to meet the standards in the law. A prerequisite to following the rules is communication from managers to human resources (“Peter has missed four days after complaining about a bad back but I am too busy to talk to Human Resources.”). This communication is very important since Human Resources has to assess whether the employee is entitled to job protected leave, and if so, whether an official notice to the employee is required before the employer can deduct time from an FMLA account.
Remind managers not to handle medical information
Medical information gathered to evaluate whether an employee (or other) has a serious health condition as defined by the FMLA and medical information received to determine whether an employee can return to work and perform the essential function of the job should be handled by human resources. Managers should let human resources manage the FMLA process and reinforce the policy that medical information relating to the FMLA is not handled by anyone other than human resources.
Ensure compliance with record keeping rules
Employers shall maintain records which identify employees utilizing FMLA, related payroll data, dates of leave, copies of notices and certification information and documents related to any disputes. These documents are not kept in the employee’s personnel file but instead in a separate file likely under the control of the human resources director or benefits manager.