Don’t Get Trapped in an FMLA Quagmire — Know Your Procedures and Policies

The Family and Medical Leave Act is a federal statute that allows eligible employees up to 12 weeks unpaid leave in a 12-month period. During FMLA leave, employees are entitled to health insurance ben­efits and the right to return to an equivalent position at the conclusion of that leave.

There are strict procedures and deadlines associated with giving employees notice of potential FMLA eligibility and rights, requesting certification for FMLA leave, and designating FMLA leave. Failure to follow those procedures may bar an employer from challenging an employee’s FMLA leave request or may support an FMLA interference lawsuit. It is critical that school officials understand their school’s FMLA proce­dures and board policies, including when to give employees notice of FMLA rights, when to request medical certification, and the appropriate Department of Labor forms to use. This article highlights simple proactive steps to ensure that your school is appropriately implementing the FMLA to avoid mistakes.

Identifying FMLA Leave

School officials must recognize that an employee’s right to take FMLA leave need not start with an em­ployee requesting FMLA leave. When an employer has knowledge that an employee is taking leave and the circumstances suggest that the leave may be covered by FMLA, the employer is obligated to inform the employee of the potential eligibility for FMLA leave.

This step is accomplished by providing employees with Department of Labor Form WH-381. Keep in mind that compliance with this notice requirement can be difficult when the official responsible for a school’s FMLA process is in a centralized location and only building-level administrators know that an employee’s leave may qualify for FMLA coverage.

School officials must also take care not to discipline employees (or take any other adverse em­ployment action) for taking FMLA leave or when there is reason to suspect that the leave may be FMLA eligi­ble. Also remember that employers must give employees notice once leave is designated as FMLA leave. This can be accomplished using Department of Labor Form WH-382.

Concurrent Use of FMLA and Paid Leave

Schools may run into complications when trying to require an employee to use paid sick leave concur­rently with FMLA leave if the appropriate procedures are not followed. Schools can only require the concur­rent use of paid sick leave and FMLA leave if it is pursuant to a specific rule contained in the school’s published FMLA procedures (e.g., board policy). Because such a requirement is related to a mandatory bargaining subject, this provision should also be in­cluded in collective bargaining agreements. Consequently, if a school wants to require concurrent use of leave, it is critical that the requirement is contained in both board policy and applicable collec­tive bargaining agreements. Requiring concurrent use of paid leave prevents an employee from receiving 12 weeks of unpaid FMLA leave and then utilizing an allotment of paid leave under a collective bargaining agreement or an individual contract. When adminis­tering the FMLA process, mandatory use of concurrent leave must be indicated on the Department of Labor FMLA forms WH-381 and WH-382.

Defining the FMLA Leave Year

Schools should have a clearly defined “FMLA leave year” to prevent confusion and improper administra­tion of the FMLA process. Eligible employees may take 12 weeks of unpaid leave during a given FMLA leave year, which an employer can establish by using one of the following four calculation methods: (1) a calendar year; (2) a fixed 12-month period (e.g., fiscal year); (3) a 12-month period moving forward; or (4) a rolling 12-month period measured backward. A specific FMLA leave year should be consistently defined within board policy and the collective bargaining agreements. If an FMLA leave year is not defined (or is inconsist­ently defined) by the employer, the default rule is the FMLA leave year that is most beneficial to the employee.

When used appropriately, the FMLA process can be simple, efficient, and help schools eliminate abuse of leave while assisting eligible employees to take available leave. Up-to-date, complete, and consistent policies and using the appropriate forms are critical. The most recent Department of Labor forms are avail­able at:

https://www.dol.gov/whd/fmla/2013rule/militaryforms.htm