Family and Medical Leave Act: Not Always as Simple as It Seems

Many supervisors’ comfort level with Family and Medical Leave Act (FMLA) ends with birth or adoption of a child. The birth or adoption FMLA cases are frequent and relatively easy. The arrival of the child is anticipated and talked about with excitement, and in most cases, the employee comes back to work. But what about the other uses of FMLA? And what if they turn into something else?

There are many specifics to FMLA, but in broad terms, the FMLA provides employees unpaid leave to address serious medical issues while both continuing their group health insurance and protecting their job. While FMLA doesn’t apply to all employers, it does apply to all public-sector employers. The employee must work 1,250 hours in the previous 12 months to be eligible. The Department of Labor has a great FMLA Frequently Asked Questions (FAQs) on its website.

Let’s look at some examples of FMLA.

Deep needs a total hip replacement and will be off work for four to six weeks. Deep has been employed with the county for more than one year, full time and is eligible under the FMLA law. He has never taken FMLA leave previously and works closely with Human Resources to complete the paperwork. Deep told his supervisor the reason for the leave, as he is excited to have the surgery and is hopeful to return to some of the activities he previously enjoyed, such as hiking.

In another county, Clara also needs FMLA, but is hesitant to tell her supervisor why. Clara needs a hysterectomy and will be out six to eight weeks. She is uncomfortable discussing the medical reason for the leave with her male supervisor, Dale, as she feels it will make them both uncomfortable. At the same time, Clara has worked with Dale for nearly 20 years, and knows that if he asks, it is only because he cares. They have discussed other medical needs in the past, such as Dale’s ACL surgery, and she doesn’t want him to assume the worst. In the end, Clara tells Dale that she needs surgery, is uncomfortable discussing her diagnosis, and shares the amount of time she expects to be off. Dale is understanding and tells her not to worry; he will only tell the staff that she is on leave and he respects her privacy. He wishes her a speedy recovery.

Sometimes, FMLA is not so straightforward. Some employees don’t recover as quickly as expected. Some experience complications during surgery. Some undergo many tests and see many specialists before finally being diagnosed or given treatment. Some have repeated follow-up visits that require intermittent leave after the employee has taken full-time leave.

Paulette has shoulder discomfort and pain for several months, but it is not impacting her work. Her physician recommends rest, alternating ice and heat, and over-the-counter anti-inflammatory medications. After seeing her several times and seeing no improvement, the physician recommends physical therapy. Paulette, being under the care of a physician, completes the FMLA paperwork and is granted intermittent FMLA leave. After several months with little improvement, the doctor recommends surgery and Paulette updates her medical certification to show that she will be out of the office on full-time FMLA rather than intermittent leave. In this case, the intermittent leave preceded the full-time leave.

Sometimes, employees are unable to return to work after exhausting their full 12 weeks of leave. Perhaps they truly hoped to experience improved health after their time off, only to find they were unable to return after 12 weeks. Perhaps they never intended to return to work, and only wanted to remain on the insurance as long as possible. It is discouraging for supervisors to have an employee fail to return after holding the position open for so many weeks. And, it is discouraging to lose a valued co-worker.

Veronica has been diagnosed with cancer and seeks cancer treatment in another city. After exhausting her leave, Veronica is not cancer free, but returns home and desires to return to work, to give her life some of the routine she had before becoming ill. The doctor won’t release Veronica to return to work, as she is very weak and on many medications. The county grants Veronica an unpaid leave of absence after she exhausts her FMLA to give her additional time to return to health. Veronica does not return to work and eventually loses her battle with the cancer.

Unlike Veronica’s case, not all uses of the FMLA law are heart-wrenching or even honest. There is abuse of FMLA. Employees may immediately apply for FMLA after receiving serious disciplinary action, to prevent anticipated termination and gain some time to find other employment. Other employees may try to use intermittent leave to obtain a schedule change or get numerous Fridays and Mondays off work. Employers sometimes receive a doctor’s note that seems to be dictated by the employee, saying that an employee cannot work a certain shift, perform a specific duty, or must be able to as often and at any time they believe necessary.

What should the supervisor do when overseeing an employee on FMLA?

• Notify HR when an employee has an overnight hospital stay or is out for three consecutive days and under the care of a physician. Either of these circumstances may constitute a serious health condition under the FMLA. Human Resources will send the appropriate paperwork to the employee.
• Track the hours as FMLA on the timesheet once the FMLA is approved. Failure to document and track the hours can lead to uncertainty about the number of remaining hours, creating complications and exposure to risk.
• Allow the employee to return to work only with a release from a physician.
• Safeguard against retaliation or appearance of retaliation following FMLA leave.
• Ensure there is no mention of the leave or medical condition in the employee’s coaching, performance evaluation or discipline documents.
• Protect the confidentiality of the employee’s leave. If co-worker, Sally, presses for details, let Sally know that you can only say the employee is on leave, and although you realize she is only asking because she cares, you are protecting the privacy just as you would protect Sally’s privacy if the roles were reversed.
• If the leave is unexpected, such as a car accident, the supervisor will also need to consider the wording of an out of office reply during a leave. Such a reply might say the employee is on leave and who to contact for immediate assistance.
• If there is a schedule or status white board, it should only show leave, not the specific type of leave, such as sick or FMLA.

Requesting time off to get treatment for a medical condition may not only fall under the protection of the FMLA, but also the Americans with Disabilities Act (ADA). Additionally, there are occasions where medical treatment may result in a disability.

John took FMLA to have surgery to remove a schwannoma of the inner ear.

In doing so, he lost his hearing in that ear and became unable to distinguish where sounds originate. His loss of hearing led to an interactive discussion for a reasonable accommodation under the ADA.

How is FMLA different from ADA? FMLA only provides for protected leave. The ADA, for employment purposes, prohibits discrimination of applicants or employees with a disability and requires employers to provide reasonable accommodations to a disabled applicant or employee. While leave can be an accommodation, reasonable accommodations can also include exceptions to certain policies, physical changes to an employee’s workspace, or any other change that allows the employee to perform the essential functions of their job without creating an undue burden on the employer. The FMLA and ADA also differ in what makes an employee qualified under the law.

An employee is not entitled to FMLA-protected leave until they have worked the requisite number of hours. Employees, and applicants for employment, are always entitled to ADA protections.

Additionally, the serious health conditions that are entitled to FMLA leave may not qualify as disabilities under the ADA. While individual employee matters may raise both FMLA and ADA issues, they are distinct and separate laws that must be thoroughly considered on their own terms.

FMLA is a robust law. The examples above covered different scenarios regarding medical leave for the employee’s own serious health condition, but additional uses of the law include caring for an immediate family member with a serious health condition, qualifying exigencies from an immediate family member’s active duty or call to covered active duty, and care for a covered service member with a serious injury or illness, as well as birth, adoption or foster care of a child (see dol.gov for more information). FMLA helps supervisors take care of their work family, while that co-worker takes the time they need to bring health to their family.