While the U.S. Department of Labor recently issued guidance aiming to make Family and Medical Leave Act compliance a little easier for businesses, figuring out how to avoid violating the FMLA and the numerous laws that intersect with it can still be vexing for even the most sophisticated employers.
Enacted in 1993, the FMLA allows eligible employees to take up to 12 weeks of job-protected, unpaid time off over a yearlong period for a variety of family and medical reasons, including if a worker has a serious health condition that prevents them from performing key parts of their job or if they need to take care of a sick family member.
The statute, however, is one that practitioners often cite as being among the most confusing for employers on several levels, including figuring out whether an employee’s reason for seeking leave is covered by the statute or how to administer it alongside the cornucopia of state and local leave laws that exist across the country.
In an advisory opinion letter the DOL issued on March 14, the agency said businesses can’t let workers take paid sick time that may be available to them before they tap into their allotment of FMLA leave.
Instead, employers must start running the clock on workers’ 12 weeks of FMLA time as soon as they determined that a worker’s absence qualifies for leave under the federal statute, according to the opinion letter, which is a tool the agency uses to offer guidance on specific pay- and benefits-related questions it receives.
Maria Stearns, a partner at Rutan & Tucker LLP, said the opinion letter cleared up a question employers have long held about when workers’ 12 weeks of leave starts, but did so in a way that didn’t necessarily cut in employees’ favor.
“I don’t think it’s an employee-friendly opinion, I think that in some ways it’s more beneficial to employers,” Stearns said. “Before I think the question was when does the FMLA start running, and there had been authority that suggested it’s in the control of the employee and if the employee doesn’t want to start burning through their FMLA time, they don’t have to. This opinion letter seems to suggest otherwise.”
Another question is how to deal with an employee assigned extra work with a colleague is on leave.
Stearns said the best approach for employers is to simply stick with expressing their appreciation to the complaining employee for taking on the extra work they were asked to do and that they do their best to complete it — without throwing the FMLA recipient under the bus in the process.
“I’m not even going to go, ‘This is what’s required by the law,’ because it makes it sound like this employee who’s out on leave is a burden,” Stearns said. “I prefer to say, ‘I get it, we’re all busy. I appreciate you putting in that extra effort. That’s what the business needs and I need you to just focus on doing good work.’”
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