Don’t leave Family Leave to chance

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One of the most complicated problems facing employers today is the administration of the Family and Medical Leave Act (FMLA). The complexity of the law and the subjective and varied circumstances in which employees are absent have caused many employers to develop gray hair, ulcers and insomnia.
In fact, one could use FMLA leave oneself, after dealing with some of the FMLA problems situations that have arisen since the law was enacted 11 years ago.
Businesses with 50 to 100 employees have been hit the worst. The law governs employers with 50 or more employees, but companies of this size rarely have the resources to dedicate significant time or effort to deal with issues such as FMLA leave.
Those in company management who are required to deal with FMLA leave deserve some respect; the rules are often learned on the fly as situations arise. While, with some effort, they can draft policies that can streamline administration of FMLA, these smaller companies often buy "canned" polices or take them off the Internet.
These will be hit or miss and rarely take into account the employer’s own circumstances.
Worse yet, the US Department of Labor has developed optional forms for employers that can create more problems than they solve. Imagine now that you are a doctor whose patient gives you the four-page Form WH-380 "Certification of Health Care Provider."
It requires you to check one of six boxes in which you are to identify the nature of your patient’s condition that permits him to remain off of work and protected by the FMLA.
Do you ever check box No. 6, "none of the above"? Probably not. Yet the whole purpose of the form is for the employer to learn the facts concerning the patient’s health care that requires the employee to be absent from work.
Employers, not health care providers, understand the job and the physical requirements to perform it. Because employers need better information to decide whether FMLA applies, better forms have been developed for this purpose.
Such forms do not, as the Department of Labor’s form does, ask the doctor whether the employee’s presence to provide psychological comfort to a spouse, parent or child would "be beneficial to the patient or assist in the patient’s recovery?" Would any doctor say "No?" Probably not.
Beyond using better forms, here are some more common sense suggestions for employers in the administration of FMLA leave:

Whose decision is it?
It is the employer’s decision (not the employee’s or the doctor’s) as to whether an employee’s circumstances merit the employer affording protection under the FMLA. An employee cannot have his doctor take him off of work without the employer’s consent.
An employee asking for time off must provide the employer enough information that the employer understands the circumstances and can make a reasonable decision as to the application of the FMLA.
A tool available to the employer is the requirement that the employee provide a certification from a health care provider if the requested leave involves a serious health condition, but whether to require this is up to the employer.
If the form is incomplete, confusing or inadequate, and the employer still does not understand the nature of the employee’s need for FMLA leave, the employer may simply ask the employee for the necessary details.

When is a condition "serious?"
Believe it or not, it depends on where the employee works. Cases decided by the 4th and 8th Circuits of the U.S. Court of Appeals have held that the flu can constitute a serious health condition if it involves a four-day "incapacity," coupled with the doctor providing a prescription and saying "call me if it does not get better."
Other jurisdictions have not been as expansive in the definition of "serious." The 7th Circuit, in which Wisconsin is located, has not yet determined that FMLA is available for the flu, but has not ruled it out.

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Are Wisconsin employers held to a higher standard?
Wisconsin has its own FMLA that also applies for Wisconsin employees. An employer satisfying the federal FMLA does not necessarily satisfy the Wisconsin FMLA and vice versa.
Certain idiosyncrasies under Wisconsin law can be a trap for the unwary.

Do absences for other reasons "count" as FMLA leave?
Under the federal FMLA, an employer must permit an employee to be gone up to 12 weeks per year for certain reasons, including the birth or adoption of a child, the serious health condition of a child, spouse or parent, or the employee’s own serious health condition.
If the employee incurs a work-related injury and is out on worker’s compensation leave while he recovers, this "counts" as FMLA leave because the employee is gone due to his own serious health condition. During that time, the employer must continue to pay its share of the employee’s health care costs and to return the employee to his position when he recovers.
Thus, FMLA leave and worker’s comp leave can run concurrently.
While employers face a sometimes daunting task regarding the administration of a complex law with few available resources, a common sense approach and attention to streamlining the process through employer-friendly policies and forms can sometimes make a big difference.

Charles Stevens is a partner at Michael Best & Friedrich’s Employment Law Practice Group in Milwaukee.

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Feb. 20. 2004 Small Business Times, Milwaukee

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