Automatic FMLA?

Paul in Cannon Beach

Our policy manual and handbook have the following language:

After four consecutive days of sick leave for any one illness, employees are automatically placed on FMLA leave, retroactive to the first day the employee was absent. The FMLA leave will run concurrent with paid sick leave until the employee returns to work or all FMLA leave is used.

Does anyone else have a policy like this? Does this cut the mustard? Seems too easy.

Paul

LindaS

Does this policy also state that the sick leave must be physician verified? If not, how can you verify that the reason the person is ill qualifies as a "serious health condition" under FMLA?

njjel

The illness must be a qualifying one. A person could potentially be out 4 days with the flu or a stomach virus. If they haven't seen a physician, then the illness more than likely does not qualify for FMLA.

Whirlwind

Our policy says:

"Except in the case of FMLA leave used intermittently or to create a reduced work schedule, no absence will be counted as FMLA leave unless it exceeds three consecutive work shifts. This means that any amount of time an employee is absent into his/her fourth consecutive shift, regardless of whether the entire shift is missed, will result in the entire absence being counted as FMLA leave if it otherwise meets the FMLA criteria."

So, in effect, we preliminarily designate the absence as FMLA until we receive the medical verification.

Margaret Morford

If an employee winds up in the hospital for two days, don't you also count it as FMLA even though it does not exceed three days? How does your policy handle those situations?

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Whirlwind

Admittedly, we aren't terribly consistent with absences of three days or less because our managers aren't required to report them to HR and employees aren't required to provide a medical excuse for absences of this length. Our after-the-fact flexibility has prevented us from having any problems with this; for example: If an employee had an FMLA qualifying situation unbeknownst to us but missed less than four shifts, then later starting have other problems with attendance that caused the reason for the earlier absence to come to light, we're happy to go back - with suitable documentation - and retroactively designate that absence as FMLA.

We tend to be very accommodating about designating leave as FMLA, because in our experience, people are going to use their paid leave anyway but won't go into leave without pay unless they really need to. I'd like to hear whether anyone thinks this is a warped philosophy.........?

LindaS

I don't think "warped" is the correct term and I tend to go back and retroactively designate FMLA absences with suitable documentation as well but have been experiencing problems in this area. Who tracks attendance of employees if HR does not? How are you made aware of a potential FMLA situation so you can provide them with the necessary paperwork? It is my understanding that it is the employer's responsibility to determine a "trigger" event that may fall under FMLA and provide the employee with the necessary paperwork.

Whirlwind

We only pay once per month, so departmental timekeepers track attendance throughout the pay period and turn in all the leave info to HR at the end. They are only required to notify HR of two attendance issues at the time of occurrence: one, when an employee overuses paid leave and needs to be docked; and two, if an employee has an absence of more than three consecutive shifts. When we're notifed of a more-than-3-day absence, that triggers our preliminary FMLA designation and the provision of detailed notification and a physician's certification form to the EE. In the rare instance of an FMLA-qualifying situation with an absence of three or fewer days, we've usually heard it through the grapevine or from the employee him/herself.

So, in summary, the trigger is the 4th day off in a row, which means we might miss a few of the short ones. From what I've read and heard, it's pretty common for employers to have four or five day triggers. The key - as with most things -is consistency, and I'm probably being inconsistent with those below the trigger because I'm only designating those as FMLA when it comes to my attention. But how can I know what I don't know?

I guess my question about a "warped philosophy" was unclear. What I meant was: Do y'all generally feel it's true that (1) there's not much cost/benefit in trying to manage attendance within the limits of earned, paid leave (as long as people request/report/document leave according to your rules) and (2) that most people won't "abuse" unpaid leave? This is a question of great interest to me, because I see so many managers wringing their hands, mostly about the first question, and I rarely find that anything will motivate certain people not to use any and all paid leave they have it on the books, even if it can be carried forward for later use or paid upon termination.

Sorry for the long post!

LindaS

In my experience, most employees will use ALL leave that is available to them as they feel it is owed to them and not a benefit. In addition, I have found many employees that want to have various things "excused" and not be forced to use vacation or PTO to cover the absence.

Regarding the abuse of intermittent FMLA, most employees cannot afford to take significant unpaid time off but you always have a couple that believe this time is just more vacation and use it as such.

Don D

We look at FMLA sorta like a written job offer - conditionally. Our policy is very, very similar to Paul's, with the addition of Margaret's suggestion, but we added the phrase, "Contingent upon the completion of required FMLA paperwork and the approval by Human Resources of a properly completed medical certification." Then of course, we go on in detail to explain the program and its requirements AND OURS. The intent obviously is to broadcast the clear message that the company is very likely going to invoke FMLA timelines regardless of emergencies and footdragging.

Ruskanen

Paul-

I hope at some point you require the employee to turn in some documentation to justify a FMLA leave. Otherwise I might decide to take an extended vacation if I worked for your company. I would just make sure that I called in "sick" periodically.

Paul in Cannon Beach

Thanks for all the great responses.

Here is what I am doing right now. When I become aware of an employee taking FMLA qualifying leave, I give them the request form. Once that is completed I may require medical certification. Usually I don't because there is no question about the truth of the claim (pregnancy for example). Then I issue the employee a form that tells them they have been placed on FMLA leave effective so and so date.

I guess I am struggling in really staying on top of what leave gets designated as FMLA and what doesn't. Its not a serious problem here. Our employees generally only take the minimum time off needed and don't want to go on unpaid leave.

I tend to look at the larger leaves and not worry about tracking all the little ones. Maybe we are too lax. It seems to be working ok.

Paul

Don D

Paul: You're either pulling our leg or you're setting yourself up for disaster. Requiring the proper certification in a willy-nilly fashion, assuming a group of employees will or won't do this or that and handling FMLA in a hit and miss fashion tell me you are courting disaster. Imagine the DOL investigator standing in your doora asking questions about policy, consistency and proper forms. I can still picture her standing in mine!

POPEYE

Paul, Once again I have to totally agree with Don. As my Grandmother used to say, "What is good for the Goose is good for the Gander". Don't we preach and teach consistency to managers and supervisors about all other aspects of the workplace? Why would we not do the same here? I too have had the DOL sitting in my office and it is not a comfortable feeling.

Paul in Cannon Beach

Ok, here is where I will ask for your patience in explaining what I am doing that is not consistent.

I will be the first to say that I am a people guy. I have few other abilities. Administrating complicated regulations is not my strength.

So, what am I not being consistent about? Perhaps I am not explaining myself well or perhaps I am not doing this correctly. I am here to learn.

Part of it may be our unique HR culture here. For example, I dont see employee timesheets so I am not aware of who is taking leave. That is the way its been done here. Monthly timesheets go to bookkeeping. HR is not really involved. I have recently asked that I would be alerted to any leave of more than three days.

I doubt I am the only person on this forum who struggles with administering these leave laws correctly. I guarantee you I try and never knowingly neglect to handle these correctly. Its my ignorance however that I am struggling with.

Paul

LindaS

Paul - In every company I have worked for, HR has always been notified of absences of employees. This is how I have become informed of FMLA situations when an employee has been absent for less than three days (In my current company I get the absence reports weekly). I'll be the first to admit that some employees take advantage of the system, especially regarding intermittent leaves, but it is our responsibility to notify an employee of his/her rights should a FMLA qualifying situation arise. All of us are required to post the FMLA notice but this is not adequate in notifying an employee of their rights. You may not have a problem now but one can never tell what the future holds and once you make an exception, you can be pretty sure you will be asked to make it again, and again, and again...

Regarding the medical certification - this is something you should ALWAYS get. Granted situations such as pregnancy are pretty obvious but I'm assuming you don't have "MD" after your name and without that paperwork, you are making assumptions that you probably shouldn't be making. Having this paperwork completed by EVERYONE requesting or needing FMLA makes it easier to defend to an employee that doesn't want to have it completed. In addition, this paperwork is what will justify your decisions down the road if there are any questions.

Please trust me when I say that not being consistent, even with the best of intentions, will eventually come back to haunt you!

POPEYE

Paul- LindaS was right on concerning my "GOOSE AND GANDER" post. If you are requiring certification for any FMLA (and you should be), then you should for all, regardless of severity of illness. There are those whom I sometimes think have a physician on retainer just to fill out their certifications but at least I have the document if any questions arise.

AprilShowers

Paul-
I struggle with the same issues you have stated earlier. In my company HR is not involved with payroll and does not have access to employee absence records either. We depend greatly on word of mouth and management notifying us of qualifying absences. I was a extremely surprised when I started here that HR was left out of this process, hopefully in the future the powers that be will budget in software for HR as well as accounting. Those of you HR professionals that have a formal tracking system and have access to employee attendance records are very fortunate!

I have started sending an FMLA attandace tracking sheet to the manager's of employees who have been approved for FMLA leave. This takes care of tracking those employees that notify us they need leave in advance. It is a lot tougher keeping track of the employees who DO NOT know they need to request FMLA leave. Prehaps it's time for a refersher course, FMLA 101, for management and staff!

Good luck Paul,
I do agree with the other's that you should request medical cert. from all of your employee's needing leave under the FMLA. I don't see how you can count the leave as FMLA without the certification.
Take Care,
April

Paul in Cannon Beach

Thanks everyone. Since the last post I brushed up on my FMLA and I think I have a better grasp now. I think you all had excellent points and I am convinced that I need to require medical certification for all requests.

It will be a bit of a culture change here and it goes against my nature to be a real stickler about paperwork. But you're right.

Thanks for the good input and suggestions.

Paul

Don D

Paul: Think of it this way. It's just like a trip to the men's room. Paperwork is just an essential part of the process.

POPEYE

Just don't leave a "Paper Trail"!!