FMLA Question(s)
Kai
30 Posts
I haven't seen this question answered in anything I've read on FMLA-- If the employee isn't responsible for requesting FMLA, why does the DOL's model form WH-381 say, "Employer Response to Employee Request for Family or Medical Leave?"
Comments
>anything I've read on FMLA-- If the employee
>isn't responsible for requesting FMLA, why does
>the DOL's model form WH-381 say, "Employer
>Response to Employee Request for Family or
>Medical Leave?"
Great question!!! IMHO (for what that's worth)
The response would be sent after certification had been received and therefore a request HAS been made.
However your question just brings to light all of the mumble jumble of this ACT and how there are so many interpretations of the "Broad Intent" of it.
>had been received and therefore a request HAS
>been made.
But but but I thought the law said the EMPLOYER was responsible for notifying the employee that the leave was FMLA qualifying leave and that the EMPLOYER was responsible for designating the leave as FMLA qualifying-- sooo, if that's the case, the employee isn't requesting anything.
Which leads me to another conumdrum-- what happens when the employee doesn't return the medical certification? The law says the EMPLOYER has to be consistent-- if I require medical cert on one, I must require medical certs on all-- but my employee doesn't want to use his/her FMLA right now (as if they have a choice in the matter), so he/she doesn't return the medical cert form. Now what do I do?
>just don't have to say, "I want FMLA." They can
>tell you they are in the hospital or they need
>time off to adopt a child. It's the employer
>job to figure out whether their info constitutes
>a request.
Ahh the wonders of federal employment laws! Such clarity! My employee tells me he's in the hospital. I give him the med cert form. I give him 15 days to return it. He never returns it for whatever reason. The employee has effectively made the decision for me, his employer, that the leave won't be FMLA. Or so it seems to me... what am I missing?
>FMLA, employers are now permitted to designate
>the time off as FMLA.
Ahah! I can designate the time?! Excellent! My policies state I (well, the employer) will consider any paid leave for purposes that would otherwise qualify as FMLA leave to count toward the 12 week per 12 month period FMLA allotment.
I give/send/mail the med cert form to the employee. He doesn't respond.
Where am I? What recourse is left to me to obtain the required information to make the final designation on FMLA?
Here is where requiring the employer to designate the leave works in the company's favor. The company gets to start the clock running. If the company elects to do so (and applies this to all EEs), it can run the FML clock concurrent with the use of sick and vacation leave. That allows you to limit the time you would not have a trained, contributing EE away from the job.
I apologize if this is all redundant to your question or knowledge base, it just seemed to me we should touch on this.
Our policy now states clearly that any paid leave for reasons that would constitute FMLA leave will be designated as FMLA leave and run concurrent with the paid leave. Our policy doesn't leave that 'decision' up to the employee. At least it doesn't now, but I'm beginning to believe our policy needs changing since there's really no way to enforce it.
Once upon a time in the not so distant past, our policy on FMLA stated that the employee could apply for unpaid FMLA leave after having exhausted all available paid leave. This truly put the employee in the driver seat. It worked beautifully for us for 11 years.
The one drawback was that the employee could be away from work for up to 12 weeks longer provided he/she could afford to be off work without receiving any compensation. Few could. Few can.
Alas, TPTB felt this was not in keeping with good management practice and we are not running paid leave and FMLA concurrently. Well, that's not entirely true. We're attempting to run it concurrently.
Something is mightily wrong with our procedures though-- we can't seem to get the employees to cooperate with sending back those med certs. Not to mention getting supervisors to cooperate with notifying HR that an employee may be out on a FMLA qualifying leave.
I'm frustrated. I realize that most if not all who read this forum have been running FMLA leave concurrent with paid leave and all this hassle and change happened with you 10 years ago. You've all worked out your procedures and processes and my questions probably seem odd coming 10 years after the law went into effect.
I used to wonder at the surveys that named administering FMLA as the most burdensome employment process. Wow! No wonder! I've blessedly lived in nirvana and didn't even realize it. Our past policy was employee driven and it worked well for us.
1. Document on your paperwork that FMLA forms were given, they refused to fill them out and you are classifying the time as FMLA based on the info you have.
If I didn't have a policy that stated the info above, I would start one immediately.
Could be either parental leave or medical leave.
Sidebar: I would treat the vacation leave after the birth of a child as FML.