When it comes to proper workforce management, having a Family and Medical Leave Act (FMLA) policy in place is essential. Most employers will have a worker request FMLA leave at some point, and so having set procedures in writing can help the company comply with this complex law every time. To develop an effective FMLA policy, HR professionals and employers need to understand what the business can and cannot do under the law and how the company can avoid liability. According to Business and Legal Resources, FMLA policies need to be clear and written.
Here are a few things employers should put in their FMLA policies:
1. Workers will be given certain notices when they request FMLA leave
It's not enough for employers to just provide employees with information on the FMLA within handbooks – an article in Lexology by attorney Kevin Donovan of the law firm Wilson Elser noted there is a legal precedent that employers provide workers with specific notices when employees want FMLA leave. Employers should be sure to include a section in their FMLA policies that outline the need for offering workers the appropriate notices. According to Donovan, these notices are:
- An individual notice, which is required to be presented to employees when they request FMLA-related leave or when the company finds out workers' time off may qualify for FMLA
- An eligibility notice, which states that the worker is eligible for FMLA leave
- A designation notice, which informs workers in writing when the leave with start and that it will be counted as FMLA leave
- A rights and responsibilities notice, which provides information on what is expected of the worker
2. Outline how to deny an FMLA request legally
There are certain instances in which employers can deny a worker's FMLA request. According to the Society for Human Resource Management, employees are not able to use FMLA to care for children who are at least 18 years old. In addition, if the company is in a state where same-sex marriage is not legal, then employees in same-sex marriages can't use FMLA leave to care for their spouse as the FMLA follows state law on this issue, according to SHRM. Employers can outline in their policies some of the most common reasons FMLA may be denied. However, companies need to be careful not to discourage workers from taking FMLA.
3. Determine when the company will check in with workers on FMLA leave
According to an article in TLNT, employers do have the right to check in with staff members when they are on FMLA leave, as long as companies don't provide them with work. Following up with these workers can keep employers in the loop, but companies need to be careful to ensure they don't end up violating the FMLA act.
4. When the company shouldn't fire an employee
Businesses need to be careful when they terminate workers. According to The Employer Handbook, a company can be seen by a court of law to have retaliated against an employee if that person had already requested FMLA leave. Even if the worker had been issued warnings for bad behavior in the past and firing was inevitable, it's essential that the business dedicate part of its FMLA policy to discourage supervisors from terminating workers when doing so is suggestive of retaliation against employees. The Employer Handbook outlined an FMLA court case where the ruling stated "an inference of retaliation exists when an employee is terminated shortly after engaging in protected activity." What this means is employers need to be careful with timelines.
When companies are armed with the right FMLA policy, they can ensure they have effective workforce management.