QUESTION
An employee has requested time off for a medical reason, but this individual has not disclosed the details. It is a critical time for our company and we cannot afford for the employee to take time off. Are we obligated to allow time off?
ANSWER
Your employee may qualify for medical leave under the Family and Medical Leave Act (FMLA), and, if so, the company may be required to allow the time off. Below are some basic facts to help you assess your obligations under FMLA.
- FMLA applies to all private businesses that employ 50 or more employees for at least 20 weeks per year.
- To qualify, an employee must work for the company for at least 12 consecutive months and work at least 1250 hours in those 12 months. An employee need not be full-time to qualify; the minimal qualification of 1250 hours is about 24 hours per week. In 2008 FMLA expanded coverage for military leaves for purposes of exigency leave (when a family member is deployed) and leave to care for an injured service member.
- FMLA cannot be denied if the employee meets the qualifications and has a documented medical reason for the leave. The employee does not have to disclose the nature of their medical condition; however, the condition needs to be verified by a medical professional. Inconvenience for the employer is not an acceptable reason to deny a qualified employee their leave request.
- The 12 weeks of available leave does not have to be taken consecutively. An employee could work an intermittent or reduced hours schedule.
- The company is required to restore the employee to their original position upon return from the leave of absence. FMLA also allows for an employee to be placed in the same or equivalent position. An equivalent position must have the same or substantially similar duties authority and responsibility as the pre-leave position.
Leave laws are very complex. Violating FMLA can result in costly fines or penalties, third-party complaints, or attorney letters demanding compensation for the denied employee. I’ve outlined below some situations caused by uninformed managers that will place the company at risk.
- Denying leave to a qualified employee. If your company has an HR department, it’s always a good practice to consult the professionals when working with a request for FMLA. If your company does not have an HR department, it is even more imperative that managers are aware of their obligations under FMLA. They should never dismiss a request before reviewing the facts to verify employee qualifications and need for leave. An employee does not need to use the words “FMLA” in order to be approved for leave. Managers need to understand that any request for time off could be approved under FMLA. An employee may say, “I need surgery” or “I need some medical tests”, as an example.
- Pressing an employee for details of their medical condition. An employee does not have to reveal the nature of their medical condition in order to be approved for leave under FMLA. A medical certification is all that is necessary. (Note: if an employee is requesting an accommodation, it will probably be necessary to understand the medical condition in order to consider appropriate accommodations).
- Disclosing an employee’s medical condition. If an employee voluntarily discloses the nature of their medical condition (or has disclosed it as part of a request for accommodation), the manager is not authorized to discuss that information with others. The law allows for sharing information on a “need to know” basis, which may include their immediate supervisor or manager, first aid or safety personnel in the event the employee needs emergency medical treatment and their condition is relevant.
- Failure to return an employee to their previous or equivalent position could be considered retaliation. Even if an employee is rightfully provided with the requested leave, any retaliation or perceived retaliation will be considered a violation of FMLA laws.
The clear remedy for a manager’s mistakes is to provide a comprehensive FMLA training program to all supervisors and managers. Even if your HR department manages the details of employee leaves, uninformed managers can leave the company vulnerable to complaints.
Additionally, many states have existing leave
laws that must be followed in addition to the federal FMLA. These should be
included in any training provided to supervisors and managers.
Kimberly Braman
Director/Human Resources Compliance
Lenders Compliance Group
