Employers Be Like, FML…A

Let me begin by saying, the Family and Medical Leave Act is vital in protecting employees’ rights and obligations outside of work. The workplace isn’t a vacuum in which the outside world has no effect. It is quite the opposite; most of the time, life trumps work, and so we have the FMLA. “The FMLA (Family and Medical Leave Act) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” While this protection for workers is essential, that doesn’t change the fact that unforeseen leave can be a nightmare for business, especially when the employee is desperately needed. So what’s a manager to do when a key employee has to take leave? The sitch The situation looks something like this: Kelly is, and has been one of your star employees. As such, she is playing a vital role in an upcoming system integration that needs to happen seamlessly and quickly. No worries though, because Kelly’s got it. Oh but wait, Kelly does not have it. She has had to unexpectedly take leave to help take care of an immediate family member facing medical hardship. The reaction The system integration is now in jeopardy, and there really isn’t any one who can step up to the plate in Kelly’s absence, in this situation. Do you ask Kelly to do all she can from home? Do you redefine expectations while she’s on leave? Do you demand that the integration take precedence? Any employee qualifying for FMLA leave has to be given the leave without being asked to do more than a minimum amount of work without negative employment repercussions. While you as the employer might end up stuck between a rock and a hard place, Kelly is entitled to take her leave without interference. The reality Popular belief is that employees simply can’t be asked to do a substantial amount of work while on FMLA leave. Due to a recent court ruling, the boundaries are much more solid that “substantial work”. The ruling defined the following as acceptable requests of an employee while on leave, according to HRMorning:

• Pass along institutional knowledge to new staff
• Provide computer passwords
• Seek closure on completed assignments, and
• Identify other employees to fill voids.

As the instance of employment practices lawsuits increases, it is vital for human resource professionals and employers to keep up on new FMLA legislations and rulings. Ignorance of the law doesn’t exactly stand up too well in court. “Family and Medical Leave Act lawsuits tripled from 2012 to 2013, a surge lawyers attributed to factors including workers' increased awareness of their rights and an improving job market. And though businesses are becoming more savvy about their obligations, lawyers say the upward trajectory of FMLA claims isn't likely to level off in the near future.” - 2014 Law360 Press Release The bottom line is that when even an irreplaceable employee needs to use their FMLA time, you as an employer need to know what the legal boundaries are. Asking a worker who is out on FLMA leave to work outside of the newly defined, acceptable scope or amount of work can put the organization in serious jeopardy. Even a legal battle in which the employer is found innocent of wrongdoing, can be extremely costly. The average cost of defending an FMLA lawsuit – regardless of the outcome – is $78,000, according to the Wage and Hour Division of the U.S. Department of Labor. That is enough to put some small businesses under, and put a big dent in the reputation of any organization. Employers are very often trapped between the reality of potential abuses if their FMLA policy is too lax, and the fear of costly legal penalties if they fail to seamlessly adhere to changing and complex requirements. Employers are constantly, inadvertently running the risk of violating employee’s FMLA rights. Be sure that you and your HR team won’t be left saying FML…A.