Can Your Employee Decline Family and Medical Leave? Solving Common Compliance Problems      

The Family and Medical Leave Act (FMLA) turned 20 last year, celebrating two decades of providing employees with much needed job protection.  For employers, the story is a little more complicated as many still struggle to understand the ever-evolving regulations and stay on top of court precedents. Compliance in small businesses can be particularly challenging as companies lack the internal expertise to interpret and comply with the law.  And even when the employer does everything right, sometimes the employee still fails to meet his or her responsibilities.

This issue made national news recently when the Ninth Circuit Court upheld a California employer’s right to terminate an employee who declined FMLA protection.  Escriba vs. Foster Poultry Farms could happen in any business: an employee states the need for unexpected leave, departs the work site, and is suddenly out of touch without ever having returned FMLA paperwork.

Follow the below guidelines from Helios’ HR experts to ensure that your company stays compliant in these situations:

1. Dig a little deeper: try to find out if there is a reason why the employee may not want to go through the process.  For example, some doctor’s offices will charge to fill out paperwork.  Or the employee may not be able to get paperwork completed in English.  If this is the case and you do not doubt the need for leave, think about ways to be accommodating.  Could you perhaps accept a doctor’s note (usually jotted on letterhead or a prescription pad) instead of the DOL certification?  Would you consider allowing the employee themselves to translate paperwork completed in a second language?  These remedies show good faith on the part of the employer.  Just be conscious of any precedent that you may establish and don’t make an allowance for one employee if you wouldn’t do the same for all employees.
2. Educate, Educate, Educate: Especially in small business, employees may not understand the purpose of FMLA and may feel ambivalent about the benefit when they realize that it provides job protection only, not wage replacement.  Or they may fear retaliation based on previous experiences at other companies.  If this is the case, you may want to think about a communication plan or training for employees to help them understand their rights and benefits.  You can also communicate to employees and managers that no employee will suffer retaliation as a result of exercising his or her right to leave.  Lastly, emphasize that in addition to job protection, FMLA also protects benefits, which may be cut off rather quickly otherwise.  Even if an employee has no reason to fear for his or her job, many would not want to face the prospect of losing coverage or having to pay for COBRA continuation.
3. Document, Document, Document: If all else fails and the employee refuses to go through the process of applying for FMLA, the most important thing to do is document the situation.  Courts have repeatedly found that the responsibility lies with the employer to recognize when FMLA may apply so regardless of the employee’s willingness, you should still go through the notification and designation process.  You should also make a point to document any conversations you have with the employee.  If conversations are verbal or over the phone, follow up with a written summary via email and request acknowledgment. Provided that you don’t question the need for leave, you could still approve the time off under personal leave or leave without pay.  Again, be cautious about the precedent that you set as the situation may be repeated with another employee.  In certain scenarios, such as pregnancy, employers commonly approve leave without detailed certification since the condition is visible and unquestioned and therefore poses little risk.  Court decisions have consistently called upon the employer to err on the side of leniency in extending protection via FMLA so it’s wise to think carefully before taking a putative approach.

While the Ninth Circuit Court decision does give employers some flexibility in taking employment action against unresponsive employees, it also presents new challenges.  Many employers require that accrued leave be applied concurrent with FMLA so the recent ruling may give employees the right to use PTO and preserve their leave entitlement, ultimately giving them more time off than they may have otherwise received.  As implications of the decision continue to develop, employers should partner closely with their HR team to make sure company policy is compliant and following best practices to minimize risk.