It has been established that managers often fail to make HR aware of employees' FMLA leave requests – leaving it open to intermittent leave misuse.
Managers need to know - when employees request time off because of a health condition or to care for a family member’s health problem - whether that leave could qualify under the Family and Medical Leave Act (FMLA).
Stephanie Dodge Gournis, an attorney with Drinker Biddle in Chicago, has commented that managers should be trained to notify HR when they become aware that an employee is requesting time off for a medical condition. The employees requesting the leave are not required to specifically say that they need FMLA leave – it is the responsibility of the employer to identify where leave requests could qualify as job-protected FMLA leave. If it is suspected, HR should be notified immediately.
Managers should know that employees with serious health conditions may qualify for FMLA leave. The 1993 law allows for qualified employees to take up to 12 weeks of unpaid leave each year for the birth or adoption of a child; to care for their own serious health condition, or to care for an immediate family member who has a serious condition. The FMLA has defined a serious health condition as an illness requiring inpatient care or continuing treatment. This could include three consecutive calendar days of inability to work or perform other regular daily activities; two or more visits to a medical provider within 30 days or one visit with a schedule of ongoing treatment.
However, employees must not only have a serious health condition - but also must have worked for 1,250 hours for the previous 12 months for an employer with 50 or more employees within a 75-mile radius of the worksite.
Camille Toney, an attorney with Greensfelder Hemker & Gale in St. Louis, stated that HR should be notified by management if any employee is absent for three consecutive days in order that they can provide the employee with the required notices in a timely manner. She added that waiting for the three days of absence to have occurred "may result in employees taking more leave than they are entitled to and also creates a risk that an employee may inadvertently be disciplined under the company's attendance policy on account of FMLA-qualifying days of absence."
A recommendation that employers should introduce a written policy stating that any employee who wants FMLA leave should contact HR has been suggested by Joan Casciari, an attorney with Seyfarth Shaw in Chicago – in order that employers may avoid liability if the manager fails to realize that an employee has asked for FMLA leave.
Medical certifications should be sent to HR within 15 calendar days of receiving the form or as soon as is reasonable given the circumstances and managers should be aware of this.
Stephanie Dodge Gournis stated:
"Managers should be made to understand that FMLA medical certification forms provide employers the best weapon for preventing potential employee abuse of intermittent FMLA leave, as the medical certification forms provide the employer with important information regarding the expected frequency and duration of intermittent leave."
