Ask HR Bartender: Anxiety and the Family and Medical Leave Act

Sharlyn Lauby

2 Mar 2011

I’ve received a reader question regarding medical leave options. Here’s the story:

I’m taking intermittent leave due to anxiety. It’s disrupting the office environment. I know the basic procedure and steps to look into for FMLA (i.e. certification, reasonable notice, transfer, etc.) but was interested in other options. If you have any info or resources that would be helpful that would be wonderful! Thank you!

So I’ve asked a local employment attorney friend of mine to help out with an answer. Mark Neuberger is with the firm of Foley & Lardner LLP here in South Florida. His firm represents management in all aspects of labor and employment law matters including litigation, document preparation, counsel advice and training.

Mark, it sounds like this reader knows all about the Family and Medical Leave Act (FMLA) but for our readers who might not be familiar with it, can you give us the condensed version of the law?

The Family and Medical Leave Act (FMLA) applies to employers who employ 50 or more employees. In a nutshell it allows employees to take up to twelve weeks of unpaid leave due to 1) their own serious health condition 2) the serious health condition of certain immediate family members and 3) the birth or adoption of a child. Last year, the FMLA was amended to provide leave of up to 26 weeks, for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.” A number of states and municipalities have similar leave laws. Employees who are eligible for FMLA have job restoration rights preserved during their approved leave and the group medical insurance benefits must be maintained as if they were actively employed.

Key Question: who is responsible for initiating FMLA – the employee or the company?

Most HR managers were trained that, when it comes to leaves of absence, it was up to the employee to step forward and make a request. Not so with the FMLA. This provides yet another potential pitfall for employers. The regulations provide when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five (5) business days, absent extenuating circumstances. Therefore, it is usually NOT a good defense for an employer to claim ‘I didn’t know’ when in fact management had reason to believe the employee or family member was ill or to claim ‘The employee never asked for FMLA leave.’

If an employee doesn’t want to take FMLA, are there options available to them?

If an employee otherwise meets all the requirements to be on FMLA leave, the employer should notify the employee it is counting the time as FMLA leave. There are many reasons for this, not the least of which is tracking of the time the employee must be maintained on active status in the Group Medical Insurance Plan.

Are there any resources (i.e. websites, etc.) for employees and/or employers that are looking to accommodate time off requests?

The U.S. Department of Labor which is responsible for enforcing the FMLA has a very comprehensive website which, in addition to containing the law and all the regulations, has a number of Fact Sheets prepared in lay language which will answer many of the day to day questions which arise. The website also contains standardized forms which can be used in administering your firm’s FMLA program. Here’s where you can access FMLA information on the DOL website.

Many thanks to Mark for sharing his expertise on this subject. If you want to read more, check out his blog, Labor & Employment Law Perspectives. And you can follow him on Twitter.

I know, Family and Medical Leave doesn’t sound like the sexiest subject to write about. But it’s important and employees rely upon their department managers and human resources to be a source of information about these matters. As Mark mentioned, FMLA is tricky because the employee doesn’t always initiate it. We don’t have to know all the details off the top of our heads (like Mark does) but we do need to know how to find them.