Ask the legal expert: avoidable pitfalls in the Family and Medical Leave Act

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
Where might providers most easily fall afoul of the law concerning Family and Medical Leave Act (“FMLA”) requests or actions?

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave within any 12-month period for the birth or care of the employee's newborn child, the placement with the employee of a child for adoption or foster care, to care for an immediate family member (spouse, child, or parent) with a serious health condition, or to take medical leave when the employee is unable to work because of a serious health condition. Companies can require that FMLA leave run concurrently with the employee's paid time off.  New 2009 FMLA regulations created certain new forms of leave for military families, in addition to changing prior FMLA rules, such as those for intermittent leave.  If you have not already done so, you should review the new regulations in their entirety and adjust all of your FMLA policies accordingly.  

Some employers have become skeptical of requests for intermittent leave because of the potential for employees to abuse it. You cannot discipline or otherwise punish an employee for leave that is taken in accordance with an FMLA-certified medical condition, which in some cases can be taken without notice (if notice was not “reasonably practical”).

But you can discipline employees for taking time off under the guise of FMLA intermittent leave, if the employee has failed to follow your FMLA policies and procedures for intermittent leave. Be sure to keep detailed records of which absences were taken in accordance with FMLA policies and which were not.

Having clear policies, keeping accurate records and maintaining good communication with employees are the keys to ensuring FMLA compliance.
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