Wednesday, February 2, 2011

Thinking About Taking FMLA Leave? Management Tactics You Should Know About

FAMILY AND MEDICAL LEAVE - SOME USEFUL INFORMATION AND STRATEGY

The attached Article discusses tactics that management can utilize to curb what the article refers to as "FMLA abuse."  Never mind that many FMLA Leaves come about because people get hurt or sick (against their will), or result from management's inability to curb workplace bullying (thereby creating extreme job stress for the victims). 

In any event, here are my counterpoints to this article's suggestions:

1) Require written leave requests for all absences: Although the FMLA does not require an employee to request leave in writing, an employer may impose such a requirement.  If your employer has such a policy, follow it.  However, I usually advise that employees advise employers of their need for FMLA leave via an e-mail to HR and their Boss.  That is so because employers cannot be liable for "retaliation" unless they know about the protected action (i.e. it is illegal to fire or demote someone because they take FMLA leave; employers who are accused of FMLA retaliation who were only notified verbally that an employee is taking FMLA leave will often deny that they were told about the FMLA leave; thus, the employer argues, we could not have fired him/her because they took FMLA leave because we did not know they were on FMLA leave).

2) Prepare a list of questions of people that call in sick:  Don't call in sick; advise them in an e-mail!; you are killing 2 birds with one stone.  The last thing you want to do when dealing with a serious health condition is subject yourself to grilling by an HR rep who is locked and loaded to deny you FMLA leave.

3)  Enforce usual and customary call-in procedures:  Again, send an e-mail.  See above.

4) Check in on the employee:  I tend to desire my clients not take phone calls from work to be cross-examined by HR while they are out on FMLA leave.  If you get a call, write to the caller via e-mail and ask them to put whatever they need to know in writing.

5) Certify...and Recertify:  They can only do it every 30 days under the law.

6) Surveillance:  Well, just because you or your loved one has a serious health condition does not mean you have to be a hermit!  You should not be taking FMLA unless you really need it.  However, if you take FMLA, you should not be skiing or at the beach during your absence.  However, going out to dinner or to the movies is OK.

Number 7 (audit) is not important to employees.

Hope that you found this helpful!

Pennsylvania Family Leave and Disability Attorney

John A. Gallagher, Esquire
Helping Individuals Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

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