Comments on: Good news: Feds reverse ruling on notice for FMLA leave

By: Lizzy

Lizzy — Fri, 29 May 2009 13:36:44 +0000

My ex-employer had a company policy in place that required employees to re-certify for FMLA in the event they changed hours or number of days designated as FMLA, if different from the ones provided by their health care providers at the time of submitting documentation for first approval. While there is no perfect way of doing it, this worked very well and employees who seemed to abuse the system, would think twice before changing times and days a second time around.

By: Michelle

Michelle — Thu, 28 May 2009 20:29:00 +0000

Hmmm – I think you are exactly right. You took the words out of my mouth!

By: Hmmm

Hmmm — Tue, 26 May 2009 19:42:44 +0000

Wouldn’t this be helpful to the employer for those employees who are currently taking intermittent FMLA. Sometimes this intermittent FMLA employee is the worst abuser of giving a proper notice. In the case of an employee who wasn’t aware that their absence qualified for FMLA, of course it is HR’s job to distinguish and start the process.

By: Heather

Heather — Tue, 26 May 2009 19:28:31 +0000

Here’s an example when this is frustrating to an employer. I had an employee on intermittent leave (reduced schedule). He could only work 6 hours per day, while his co-workers worked 10. We counted on his 6 hours per day for production purposes. He started not showing up for work and not calling – at LEAST once a week, if not twice. We have a stict no-call no-show policy. It’s an automatic warning, or next step in progressive discipline. He would come in the next day, and say he was out due to his condition, even though he could have reasonably reported his absence within our call-in procedures. This was a GREAT source of frustration among his co-workers – ergo affecting the rest of my workforce negatively. Under the 1999 opinion letter, I could not discipline him for not following call-in procedure, because he notified us within 2 days that his leave was due to his FMLA qualified condition. I know, because I researched it at the time. Under this opinion letter, I could have held this employee to the same standards as everyone else. As it was, all I could do was let him exhaust his FMLA and then terminate him. In the meantime, we could not count on this person, it affected productivity and his unreliability had a significant impact on production. This is not a huge deal to employers who have primarily white collar desk employees – but for those of us in manufacturing, this is a very welcomed opinion letter.

By: Jeffrey Kraut

Jeffrey Kraut — Tue, 26 May 2009 18:59:30 +0000

I see two problems here. First, the opinions do NOT carry the weight of law. Its almost like an IRS private letter ruling, it only tells how an agency thinks. Secondly, regardless of the stature of the opinion, notification of the “two hour” rule is not realistic in all circumstances. What happens if someone is in the ER? Are they supposed to tell the doctor to stop working on them so they can call in sick? This should be against public policy; and this is thinking from the employERs side as well.

By: MarieS

MarieS — Tue, 26 May 2009 17:36:56 +0000

The difference here is whether the ee used the co’s call in procedure in the first place–as long as it was evenly applied and made good business sense. From there, you then look at whether it was a qualifying leave. But, the original interpretation, er’s were looking at it thinking–if they flew the FMLA flag–then they could call in whenever they darn well wished and the er couldn’t do anything about it–THAT was too strict and not with the intent of the law when loooking at unforeseen health issues (car accident vs. delivery date of a child).

Yes, the er still has the option to decide whether something is covered under FMLA or not, but now we have more flexibility in addressing failure to follow call off procedures. I would never deny someone FMLA leave because they didn’t tell me 1 hr before their shift–usually you don’t have doc notes that quickly–but within 2 days you should have sufficient info to determine if the leave qualifies or not—independent of the time they called in before their shift.

By: Lizzy

Lizzy — Tue, 26 May 2009 17:28:35 +0000

In my experience, the employer has always had the burden of determining whether or not the leave qualifies for FMLA. Even with the same policy of calling in before a scheduled shift, if the person advises within 2 days that the leave is FMLA, chances are that the company is not going to be taking corrective action against the employee during his/her absence, but rather upon return. Besides, FMLA can be approved back-dating it to the first day of the absence, if medical documentation exists to substantiate the full length of such absence. If no documentation is provided to satisfy the requirement, then corrective action may be taken at that time.

By: Debbie

Debbie — Tue, 26 May 2009 15:28:01 +0000

I was also under the impression that the burden of FMLA originally rests with the employer. As a matter of fact, we were always told that if an employee tells their supervisor, it is the same as telling HR even if the supervisor fails to tell HR right away – that is why is would be ESSENTIAL in making sure that all managers/supervisors understood what FMLA is and when it should be offered, etc. Pretty much, I was always told that the employee did not have much burden until AFTER the original FMLA paperwork was done and given to them….. Can anyone clarify this?

By: EB

EB — Tue, 26 May 2009 14:37:27 +0000

They should have kept this opinion letter until someone with knowledge of FMLA read it.

Not a law just someone’s opinion who does not matter. I guess someone in the past administration had a liitle too much time on their hands and the present administration does not know the laws.

By: MB

MB — Tue, 26 May 2009 13:27:53 +0000

Isn’t the burden on the employer to recognize that leave should be designated as FMLA? I know that the employee must provide the appropriate and necessary paperwork/information once the employer requests it, but the case above is confusing to me. In the DOL example, what if the employee did not realize they were eligible for FMLA leave and once HR gathered more information, the employer realized that the leave would be FMLA eligible? Since the employee failed to adhere to established company policy, regardless of FMLA, I’m guessing that would nullify the fact that the leave would have been covered under FMLA?