When attendees listening in on a recent Disability Management Employer Coalition webinar were asked what they found the most challenging about administering the Family Medical Leave Act (FMLA), most said the process — "doing everything I need to do" — gave them the most trouble.
But the majority was small — 46.7%. About 30% said deciphering medical certification information presents the biggest challenge, while 16% found adhering to the requirements in a timely manner most difficult.
Angela Ripper, assistant VP and special counsel at Unum Group, and Helen Applewhaite, branch chief, FMLA and other labor standards for the U.S. Department of Labor's (DOL) Wage and Hour Division, hosted the Jan. 22 webinar, New Year's Resolution — Master the FMLA Forms. The pair discussed the the areas respondents said troubled them and offered some actionable takeaways that may help HR departments befuddled by the FMLA.
1. Learn to analyze and think like DOL
After reviewing medical certification information, HR may need to do some thinking to determine whether an employee's condition creates the need for FMLA leave. "That is an area where there's analysis that's required," Applewhaite said. "Whether the information then actually equates to a serious health condition is always going to be for the employer to look at and make that determination."
Ripper echoed the sentiment: "You really are doing an evaluation of whether an employee has a serious health condition to determine if they can take leave under the FMLA," she said. "Look at it carefully when you're evaluating that."
To make these decisions, HR must understand how the FMLA defines a serious health condition. "The information on the form will be the criteria you use," Applewhaite said. "Does that information match with the definitions provided by the FMLA?"
2. Know the definition of 'serious health condition'
To determine whether or not an employee exhibits a serious health condition, Ripper reminded attendees to look for "inpatient care, incapacity plus treatment, pregnancy, a chronic condition, permanent or long-term conditions or conditions that require multiple treatments." Incapacity, Applewhaite said, is the inability to do any work or to be unable to perform any one of the essential functions of the employee's job. "'Any one of' is the key," she said. "They do not have to be completely incapacitated."
This can inspire confusion, Applewhaite said. "You may have a condition, for instance, that meets both the chronic condition criteria but in a particular instance could also meet the incapacity plus treatment criteria, depending on what's going on with that individual," she told attendees. "In order for it to be a qualifying serious health condition under the FMLA, it can meet under any one of those prongs. If it does meet the definition, then it is qualifying."
Applewhaite pointed out another area that causes mistakes as HR moves to determine serious condition qualifications. "Pregnancy can be a serious health condition for its own reasons." She cited prenatal care as an example: it's protected under pregnancy as a serious health condition, just like morning sickness or other complicating factors that could render someone incapacitated and unable to work. The birth of a child, however, is not a serious health condition.
"It's a qualifying reason for leave under the FMLA, but it's not a serious health condition and no medical certification can be required for birth and bonding, other than for the physical aspects of that," she said. "The employer is not entitled to a medical certification for the bonding experience."
3. Understand who can be a 'healthcare provider'
Of course, none of the medical certification information matters unless it's provided by someone who meets the definition of a healthcare provider, Ripper said.
"But on the other side of the coin, remember it's not just a traditional medical doctor," she said. "It's important that they not only meet the definition but that you're not disqualifying a medical certification because you're thinking 'oh it wasn't filled out by a traditional medical doctor.'"
The FMLA considers podiatrists, dentists, clinical psychiatrists, psychologists, nurse practitioners and midwives to meet its definition of healthcare provider.
4. Consider recent opinion letters
HR will need to keep in mind two opinion letters that added nuances to the FMLA, Applewhaite said. An employee can qualify for FMLA leave after donating an organ, according to FMLA 2018-2-A, which DOL published in August.
"One of the important things about his letter is that it brings to light those situations where the individual who is an organ donor likely has no qualifying condition going into a situation where they're donating their organ," Applewhaite said. "I think there's application here beyond the organ donation if you think of other aspects of when the employee's doing something that may result in incapacity," she added.
Applewhaite also urged attendees to familiarize themselves with FLSA2018-19. This letter said that 15-minute, doctor-requested breaks can be unpaid FMLA leave. Finally, HR must keep in mind FMLA 2018-1-A, Applewhaite said, which approved an employer's no-fault attendance policy that effectively froze an employee's accrued points through the duration of his or her FMLA leave.
5. Get the timing right
Applewhaite said she frequently sees issues with timeliness; employers are required to provide employees notice of their FMLA eligibility within five days of their making the request, she said.
She emphasized the importance of these FMLA notices (and posting requirements): "With the notices, that's your opportunity to make sure employees understand both what their rights are and obligations are," Applewhaite said. "If you're not timely or not providing those notices adequately, you may be ultimately interfering with their rights in a way that could come back to be a problem later on."