Managing FMLA

Whether the Family & Medical Leave Act applies to tribal employers is an open question, but if a tribal employer applies the law, or adopts a law or policy which is similar to the FMLA, here are some management recommendations from FMLA Insights the blog authored by Jeff Nowak.

Under the FMLA, employees are not required to specific words in requesting job protected leave, but instead the law requires employees to provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. 29 CFR 825.303(b)

Employers, when it comes to employee notice, it is critical that we formulate specific call-in procedures for reporting leave and set up a compliant system for handling and memorializing the reason(s) employees give us when they miss work. When we don’t do so, we take on way too much risk. Implement the following to substantially minimize your liability:

1.Maintain effective call-in procedures.  Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., “one hour before your shift”), the person to whom they should report the absence, and what the content of the call off should be.  If you don’t have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse, help you address staffing issues at the earliest time possible, and establish a strong defense if litigation ensues.

2. Require actual information from your employees! How many of you allow your employees to leave cryptic messages for you on Company voicemail when reporting an absence? Do you have a practice of returning these voicemail messages? How many of you actually probe further to determine the reason for the call off? A couple of thoughts to obtain the information you need to determine whether FMLA applies:
• First, include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you’ll also want to include expectations for completing a leave of absence request form, which I also recommend.) My model policy provision looks something like this:
When you contact Human Resources to report your need for leave, you must provide at least the following information:
o The specific reason for your absence, with sufficient information to allow the [Employer] to determine whether the FMLA may apply to your request;
o When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;
o A telephone number where you may be reached for further information.
• Second, ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play. As you have read in my previous blog posts, I recommend using a script of questions to assist you in your efforts.

3.  Use a Uniform Approach to Documenting Absences. Many of you “log” all the call-ins for a particular shift in some book or the back of a napkin that never sees the light of day. Work with your employment counsel to construct a system for logging calls which requires as much information as possible and a review by HR or a leave administrator so that the employer follows up on potential FMLA-related absences.

4.  Use a Leave Request Form for all absences.  Where possible, require your employees to submit a leave request form for all absences so you know — on paper — the reasons for their need for leave. If they have an unforeseeable absence, require that they fill out a form upon their return to work. Having the reason in writing helps you better determine whether FMLA might be in play.

5.  Use Personal certification. For those who can pull this from an administrative standpoint, require all your employees to provide personal certification after every absence (FMLA or otherwise) confirming that they look leave for the reasons provided.

6.  Audit Absences at the Time of Termination. Before you hit the termination button on an employee due to attendance issues, please please please conduct an audit of all the absences serving as the basis for the termination decision and confirm with documentation (see your new logging system above) that none of these absences could have been covered by the FMLA or ADA. If there is any doubt about whether one or more days could have been covered by FMLA, ask the employee about the absence.

7.  Train any and all managers remotely involved in the FMLA process.  Employers, I love you dearly, but many of you are guilty of this FMLA 101 principle — you require that your manager play some role in the attendance or call-in process (e.g., they pick up the phone to take the employee’s call when they can’t come to work), but you do nothing to train them about the FMLA and how to recognize a potential FMLA absence.  Simply put, the average manager doesn’t have a clue as to their responsibilities in the FMLA/leave of absence process.  As a result, because you save a few pennies now in not training them now, you exponentially increase the potential for litigation (and a judgment against you).  Don’t waste another minute. Train. Them. Now.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.