How managers cause FMLA lawsuits — and 10 ways to get them to stop
Supervisors too often wear their hearts on their sleeves and fail to enforce workplace policies, speakers told attendees at SHRM's annual conference.
CHICAGO — Managers are a leading cause of employment law violations, experts say, and the Family and Medical Leave Act (FMLA) is no exception. They create violations by wearing their hearts on their sleeves and failing to enforce workplace policies, speakers told attendees at the Society for Human Resource Management's (SHRM) annual conference June 18.
The key to preventing such issues? Training, according to Jeff Nowak, a partner at Franczek Radelet and Matt Morris, VP of FMLASource, ComPsych Corporation. Being on the front line is no excuse for misunderstanding the FMLA, Nowak said. Courts are even mentioning this in their opinions, he said; they're asking employers why they aren't training their managers, and they're awarding double damages in many instances.
So what are some best practices for manager FMLA training? Nowak and Morris offered some tips:
- Teach managers the difference between FMLA leave and sick days. "I want managers to go home — at a minimum — with the knowledge that a potential FMLA absence is not an ordinary sick day," Nowak said. Walk them through the definition of a serious health condition; make sure they know that even an employee's mention of a "bad back" can put the employer on notice that an absence may be protected.
- Get them to ask the right questions. When it comes to that bad back, managers need to know whether an employee is saying they're sore from doing yardwork over the weekend or that they're suffering from a chronic condition. Just because they’re a front-line manager doesn't mean they never deal with medical situations, Nowak said, adding that he recommends employers arm managers with a scripted list of approved questions.
- Educate managers about intermittent leave. "You've got to get rid of this notion that the FMLA is only for long-term [leave]," Nowak said; too often, managers think there's some three-day threshold for leave to qualify for the FMLA's protection.
- Show them where to direct potential leave requests. Decide at which point you want potential leave requests escalated, and to whom. Managers need to know when to call HR or a third-party administrator, for example. "There's no way you can make FMLA experts out of your supervisor base," Morris said. You want a supervisor to alert the right people, provide direction to the employee and then get out of the way.
- Insist that they enforce policies, and that they do so consistently. Managers need to know that employees must follow call-in procedures and fill out necessary paperwork. If an employee who is being terminated for excessive absences tells you he has been texting his supervisor about FMLA absences, you may have a problem on your hands. Managers shouldn't be undermining your policies, Morris said. Nowak agreed: "Actual knowledge trumps failure to follow policies."
- Get them to "own" the request. It's important that managers direct employees to the proper channels for requests, but once a manager knows that an employee might need leave for a medical condition, they hold the baton until it is handed off, Morris said. They need to know that they own the issue unless and until they receive notice that HR or a leave administrator has taken ownership of the request.
- Teach them to keep their emotions in check. Managers need to know they may not sigh, swear or otherwise make clear that they're unhappy when they find out about an employee's need for leave, Nowak said. This is a huge problem for employers, he added; they need to train managers to keep their emotions in check. Give them the canned responses to use when they hear requests, Nowak suggested. "Let me know how I can help you" is a good one, he said; "I want to be able to use that phrase in defending you in an FMLA case." Make clear that this extends to communication in which the employee is not involved, too. Managers shouldn't be emailing HR or other managers, lamenting the effect the leave will have. "That's what their clergy and their therapists are for," Morris said. "Let's not put it into the record."
- Demand confidentially. Managers need to be trained to keep medical information confidential. The details of employees' conditions and leaves shouldn't be discussed in meetings with people who have no reason to know that information. That alone can create an FMLA violation, the speakers said. Help them develop responses to questions from other employees about their co-workers' leave.
- Require that they leave leave-takers alone. Employees out on leave shouldn't have much contact with the workplace. There may be situations in which the leave-taker wants to check in or a co-worker needs to ask an important question, but those should be rare and handled with care. Consider requiring that managers reach out to HR before calling an employee on leave, the speakers said.
- Help them help you. Managers should be aware that any time they're recommending termination and the FMLA is involved, HR is going to take a second look. Ensure they know that their recommendation can't be because of the leave, and they can help you by providing solid documentation about any separate issues, Morris said. Managers also can be a good resource in helping HR root out FMLA abuse. They're in the best position to notice patterns like Monday/Friday absences, extended holidays and leave requests that follow denied vacation requests.
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