December 13, 2023 • 36 mins
Description:
FMLA is one of our top requested topics from our 30 minute Thrive podcast subscribers. We are glad to have this opportunity to talk about the complexities of FMLA eligibility, outlining who qualifies, and exploring the spectrum of covered events. This episode will help provide some clarity on navigating leave requirements!
Resources:
HR and Employment Law Essentials - Training
FMLA: Tips for Tackling 5 Everyday Challenges - Training
Let's Connect:
Guest LinkedIn Profile - Rob Lapota
Host LinkedIn Profile - Sophie Boler
Transcript:
Transcripts are computer generated -- not 100% accurate word-for-word.
00:00:00:00 - 00:00:21:03 Unknown Hello everybody and welcome to 30 minute Thrive, your go to podcast for anything and everything HR, powered by MRA, the Management Association. Looking to stay on top of the ever changing world of HR? MRA has got you covered. We'll be the first to tell you what's hot and what's not. I'm your host, Sophie Boler and we are so glad you're here.
00:00:21:05 - 00:00:46:09 Unknown Now it's time to thrive. Well, hello everybody, and welcome to this episode of 30 Minute THRIVE. FMLA is one of our top requested topics from our podcast subscribers, so no pressure on today's guest, but we're really glad to have this opportunity to talk about all of the complexities of FMLA eligibility, outlining who qualifies and exploring the spectrum of covered events.
00:00:46:11 - 00:01:12:21 Unknown So our goal really for today's podcast is to help provide some clarity to you on federal FMLA. So I'm joined by Rob Lapota HR director, part of MRA Learning and Development Team. Rob, you have over 30 years of HR experience. You've answered more than 15,000 member calls on the HR hotline, and you're recognized as one of the top knowledge experts on our topic for today.
00:01:12:21 - 00:01:33:09 Unknown And that's a federal FMLA scrub. I'm really excited to have you here today as the subject matter expert and thanks for joining us. Thank you for asking me to be here today. And welcome to everybody for our interesting talk. Yes, I like I like to tell people in our training program with FMLA made simple, get your notebook out because you're gonna be taking a lot of notes.
00:01:33:11 - 00:01:56:03 Unknown Yeah, absolutely. Get them out. Well, Rob, let's kind of start out with the big overarching question here, and that is what is FMLA. I know we have a lot of HR Professionals obviously, who listen to the podcast, who know what FMLA is, but some of our other listeners who may not be in that HR professional may not know exactly what FMLA is.
00:01:56:03 - 00:02:28:15 Unknown So can you kind of just give us an overarching picture? So we start out the first acronym, FMLA. First, let's talk about that Family Medical Leave Act. So that took on a federal basis, that was a law. Those passed back in 1993. And it impacts employers that have 50 or more employees anywhere in the United States. Here's a kind of like a short definition of here's what the law is all about 12 weeks of unpaid leave with no penalty to the employee.
00:02:28:17 - 00:03:01:09 Unknown Now, that sounds like a ver
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
Hello everybody and welcome to 30 minuteThrive, your go to podcast for anything
and everything HR, powered by MRA,the Management Association.
Looking to stay on top of the everchanging world of HR?
MRA has got you covered.
We'll be the first to tell you what's hotand what's not.
I'm your host, Sophie Bolerand we are so glad you're here.
(00:21):
Now it's time to thrive.
Well, hello everybody, and welcometo this episode of 30 Minute THRIVE.
FMLA is one of our top requested topicsfrom our podcast subscribers,
so no pressure on today's guest, butwe're really glad to have this opportunity
to talk about all of the complexitiesof FMLA eligibility,
(00:41):
outlining who qualifies and exploringthe spectrum of covered events.
So our goal really for today'spodcast is to help provide
some clarity to you on federal FMLA.
So I'm joined by Rob Lapota HR
director, part of MRALearning and Development Team.
Rob, you have over 30 years ofHR experience.
(01:03):
You've answered more than 15,000 membercalls on the HR hotline,
and you're recognized as one of the topknowledge experts on our topic for today.
And that's a federal FMLA scrub.
I'm really excited to have you here todayas the subject matter expert and
thanks for joining us.
Thank you for asking me to be here today.
And welcome to everybodyfor our interesting talk.
(01:26):
Yes, I like I like to tell peoplein our training program
with FMLA made simple,get your notebook out
because you're gonna be takinga lot of notes.
Yeah, absolutely. Get them out.
Well, Rob, let's kind of start outwith the big overarching question
here, and that is what is FMLA.
I know we have a lot of HR Professionalsobviously, who listen to the podcast,
(01:47):
who know what FMLA is,but some of our other listeners
who may not be in that HR professionalmay not know exactly what FMLA is.
So can you kind ofjust give us an overarching picture?
So we start out the first acronym, FMLA.
First, let's talk about thatFamily Medical Leave Act.
So that took on a federal basis,that was a law.
(02:08):
Those passed back in 1993.
And it impacts employersthat have 50 or more employees
anywhere in the United States.
Here's a kind of like a short definitionof here's what the law is all about
12 weeks of unpaid leave
with no penalty to the employee.
(02:28):
Now, that sounds like a very simpleone sentence
definition of what is FMLA,but they're in wise the complexity,
the no penalty to the employee.
That's a challenging aspect of the law.
And what qualifiesas a reason for taking FMLA.
That's the other big challenging portion.
(02:50):
And then the overriding complexityof this law
by the employeewhen I'm going to be off of work,
I don't ask for FMLA.
So, for example, if you are a supervisor,I don't call in and say,
Hey, Sophia, it's Rob.
Last night, my daughter, she was knockedunconscious in a soccer match,
but she's actually been admittedto Children's Hospital in Milwaukee.
(03:13):
That's where I am right now.
I'll give you a calla little bit later today
and I'll give you an update onwhat's going on.
That said, I the employee is not mandatoryunder the law for me,
the employee to say,
and by the way, Sophia, why don'tyou give me some of the FMLA stuff?
The way the federal law is written,
it is the employer's responsibility
(03:37):
in all circumstances to designate
leave as FMLA qualifying.
So therefore, because of the complexity,that's what makes it our number
one call on our hotline.
Yeah, I was shocked.
Over 20% of our calls are just on FMLA.
I was just going to mention
that this is one of our top callson the HR hotline and still remains to be.
(03:58):
Yes. And we've had some topicson the podcast on FMLA,
just because it is one of ourmost highly requested topics.
And like you said, there'sso many different complexities
within that, even though that one sentenceyou gave us seems so simple,
it's not as simpleas you may think for experts.
What factors and determine an employee'seligibility for FMLA, FMLA leave?
(04:21):
And how does an employer ensure compliancewith these criteria?
So there's several criteria.
And the first is I need to be workingat a covered employer for FMLA.
And a covered employer is one that has 50or more employees on their payroll
anywhere in the United States.
And it also includes temporary employeesfrom a temp service.
(04:42):
So if I have 25 employees that are on mypayroll and I use 25 from a temp service,
I actually have 50employees for federal employee purposes.
I'm covered by the law.
So for an eligible employee,
first of all, I have to be workingfor a covered employer.
Then I have several other criteriathat need to be met.
Number one, I need to be working forat least 12 months for that employer.
(05:06):
Number two, I work at least 1250 hours
in the 12 monthsprior to my need for leave.
And third,I have to be working at a facility
that has 50 or more employeeswithin a 75 mile radius.
Now, again, just like that,a little definition I can give you FMLA.
Well, that seems pretty straightforward,doesn't it?
(05:27):
But there's a lot of twists and turnswithin those definitions.
So, for example,
the 12 months service on a federal level,it need not be consecutive.
So I could be working, for example,as a college intern.
As for an organization,let's say, in marketing
and work for four summersin a row of three months each summer.
And we're recording this in December.
(05:48):
So let's say thatI'm graduating in December.
I'm going to start with the employerJanuary of 2024.
Well, you actually cannotmy three months of service
going back four yearsbecause it's a seven year lookback period.
Okay. So here's the strange thing.
Effective January 2nd, 2024,since my official start date,
(06:09):
I'll actually have 12 months of servicefor that employer.
The same thing goeswhen people leave organizations.
Let's just say I worked at an employerfrom 2015 to 2020
and then I get rehired on January2nd, 2024, by that same employer.
Well, again, there could be upto a seven year break in service.
That's well within that.
(06:30):
So I will actually have 12 monthsof service on my first day of employment
reemployment,I should say, with that employer.
Second of all, the 1250 hours
that is paid time only,that does not include things like holiday
pay, PTO, sick pay, self-funded shortterm disability payments.
(06:52):
Those are not included.
And that's it's just actual work hours.
And then the third criteria,this is and again, another strange one.
I work in a facility that has 50or more employees within a 35 mile radius.
Well, let's just take it for plain value.
Let's say that we
have an organizationthat has three facilities.
They're all within 75 miles of each other.
(07:14):
And one employs 30, another oneemployees 20 and a third facility.
Employees 20 there,or that's 70 employees.
So if I work at any of those facilities,I'm working in a facility
that has 50 employees within a 75 mileradius.
Now, that's also extendedto include remote employees
(07:36):
and all that's since COVID.
You know, a lot of remote work going on.
And still today,
the little twist with that, I'm
included in the headcountwhere I get my work instructions from.
So here we are.
We're in Waukesha, Wisconsin,recording our program.
And this is our call,our corporate offices for me.
(07:57):
So let's say that I live in Iowa
and I work remotely,but I report to my manager,
who is here in the Waukesha,Wisconsin, location
for the 50 employeeswithin a 75 mile radius.
I'm actually counted in the Waukesha,Wisconsin, head count for FMLA
eligibility.
(08:17):
Now, some employers don't have that.
They might have facilities for example,in one state
that are not within75 miles of each other.
And we don't have 50 employeeswithin that 75 mile radius.
However,they still have 50 total employees.
So they're coveredemployers under the law for now.
(08:41):
What do you do?
I'm a covered employer,
but I literallyI don't have any eligible employees
because we don't work at a facility
that has 50 employees within a 35 mileradius.
What do we do?
Well, if I was your head of HRWhat i would recommend
is that we treat all of our locations
as though we have 50 employeeswithin a 75 mile radius.
(09:04):
This could also become a little bitof an employer relations issue.
Let's say that one of those facilitieshas 125 employees,
and the other onesare outside of the 75 mile radius.
Let's just say they have,you know, 40 employees each.
Well, during employmentmeetings, I've had this happen before.
Our plant that has 125 people
(09:25):
that's going to be eligible employees,
got 50 employees within a 75 mileradius, the location being C,
we're not going to callyou covered employers, eligible employees.
Excuse me,because you don't work at a facility
that has 50 employees within a 75 mileradius.
So too bad, so sad you lose.
(09:45):
Well, for an employerrelations standpoint,
we need to go have your employee meetings.
The employees are company
B and C are going to immediatelythrow their hands up in the air to go.
Why does everybody at location, age,how come they get FMLA
and we don't get FMLA?
Well, you got to understand,
you don't work at a facilitythat's 50 employees with a 75 mile radius.
That's an employee relations disaster.
(10:08):
So that's why I suggest mandatory.
But I suggest you treat those locationsas though they do have 50 employees
within a 75 mile radius. Absolutely.
And I love thatyou're giving those scenarios because that
that helps helps a little more to,I don't know, understand.
I'm sure a lot of people havethese certain situations, laws to absorb.
(10:29):
So are there any common misconceptions?
And with FMLA eligibilitythat you often encounter
kind of sees or working with membersin, how can these kind of be clarified?
Then the biggest misconceptionsfor the employee eligibility portion
it covers around those the areas oftribute to a seven year break in service.
(10:51):
So the example I gave that I'm a collegestudent working in marketing Pimp.
I work for you through 2020 Rehire Me.
A lot of employers are not aware
I have 12 months serviceeffective on day one.
And the other big misconceptionabout eligibility,
All of our members of MRA, they will workon what's called a temp to perm basis,
or they'll have employees froma temporary service work for like 90 days.
(11:14):
And if they work out,they'll put them on their payroll.
Well, that's a situationcalled Joint Employment.
So for those temporary employeesthat we put on our payroll,
effective on day one,the hours that they worked
and the months of servicethat they worked actually do count
towards their eligibility of 12 months ofservice and 1250 hours worked
(11:37):
through like a walking
book of knowledge,you know, like that's what they're on.
Tell me.
Yeah.
I've even had some people tell me I knowa little bit too much about FMLA, I think,
but that's why you're the perfect guesthere.
You can answer your question.
So I have an advantage.
I've been in here at Emory 25 years.
Yes. As an instructor.
We're not attorneys here,but I love the law.
(11:59):
I read a lot of court.
I mean, I've read thousandsand thousands of court cases.
Keep up with employmentblogs, Talk about FMLA.
Jeff Nowak is one of the top people in theUnited States at his blog FMLA Insights.
And yeah, I justI actually find it very fascinating.
Well, that's right.
And you probably get a lot of calls,too, on FMLA, where you are.
(12:19):
You want to kind of give those scenarios.
And here's what I would doin that situation kind of thing.
Correct. So next question here.
In what situations might employees
find themselves ineligiblethen for federal FMLA leave?
And do you have any alternativesor options
that may be available to themthat you can suggest?
(12:40):
So go back to the eligibilityrequirements.
I worked for you for 12 monthsand I have at least 1250
hours worked in the 12 months prior.
And we already kind of explained
that 50 employees within the 35 mileradius once we don't need to hit that one.
That would be a point of ineligibilitythat I don't can, you know, work there.
So let's focus on those first two.
So for the hours of work,let's say that I get what's the score?
(13:04):
January 2nd, 2024,since it's right around the corner here.
Let's say that it's my first day of work.
Let's see.
Then in March 2024,I'm diagnosed with cancer.
They catch it early.
It's not very advanced, but I do need tomiss work or radiation treatments
and then, if necessary, to recoverfrom those radiation treatments.
(13:27):
Well, I still have to send meas the new employee who's only been there
for three months now, I still need to getan eligibility notice from the employer.
There's three mandatory noticesthat need to go out,
so I need to get that eligibility notice.
It states you're not eligible for FMLA,federal FMLA.
Why You haven't been here 12 monthsas of the date of your need for lead.
(13:50):
This is on the eligibility notice.
You've workedX months towards 12 months of eligibility,
so the employer wouldwrite three months in their
hours of work.
If I am working part time, I could beworking for you for over a year.
But again, if I don't have that 1250actual work hours,
(14:10):
that could be our second issue, whereI will not be eligible as the employee.
Now in our training,I always told employers,
if you can't give FMLA,
if it doesn't qualify, it's an issuethat's not covered by FMLA.
We need to be much more flexibleas employers today
with time off and adjusting schedulesand what other policies to
(14:32):
you have as an employerso that employee can have time off.
Maybe you have a policy.
It's called a force substitution policy.
You must use any accrued, unused PTO,whatever you're going to be missing work.
Maybe that's what'll be implemented.
Maybe there's a personal leave of absencethat can be used
(14:54):
now if it's for the employee'sown medical issues.
For example, the cancer that I gave you
that's actually now going to fallunder the Americans with Disabilities Act.
Now we havean employee who's suffering with cancer,
which is considered a disability,and they're not eligible for FMLA.
So we would actually need to provideunpaid leave
(15:17):
as an accommodationunder the American Disabilities Act.
So I'm going to get a eligibility notice.
You're not eligible for FMLA, but then I'malso going to receive a cover letter
I should from the employer saying, okay,although you're not eligible for FMLA,
you are coveredunder the American Disabilities Act
and we will be providing you with unpaidleave
(15:39):
as an accommodation under that law.
So it's very, very importantthat the employer state specifically
what laws are applying duringwhat time of their lives.
Interesting.Yeah, well, that's great to know.
And I know you've covered thisa little bit in her past.
Questions,uncertainty, examples of medical leaves.
But do you have any other examplesthat are covered instances or events
(16:03):
under FMLA?
And are there specificnuance says for each type of leave.
So how much time do we have?
This is worth over a long problem.
This is where we're getting into the nutsand bolts of the mechanics of FMLA
that can get very, very complicated.
(16:24):
We were very, very fast.
So let's try to summarize thisfor our listeners and our viewers.
So I like to refer to theseas buckets of leave.
So there's ninecompletely different buckets of leave.
All of them can have completely differentoperating orders.
For example,when does that one come into impact?
You know, when are wewhen do we apply to excuse me, I said that
(16:47):
when do we applythat particular need for leave?
How do we certify it?
How long will that individualbe off of work?
And here's again,another big misunderstanding on employers.
And I hear this now.
I've been doing this for 25 years.
The law has been in placefor over 30 years now.
I will still have no, I'm not surprised.
(17:07):
Managers and supervisors in our supervisorin the law, of course, are FMLA overview
classand even HR People in our FMLA simple
administration class for FMLA.
So how long do you need to be off of workin order for FMLA to apply?
Her hands go upand they go, I know, I know, I know.
You have to be out of work.
Three consecutive workdays,and then when you're out for three
(17:30):
consecutiveworkdays, that's when FMLA applies.
The answer is, No, it doesn't.
But I was like, No, nice try.
No, no, it doesn't.
In fact, all of the buckets of leaveexcept for one
can actually be takenin our concurrence. wow.
(17:51):
So let's talk about the one
that you do needto have multiple days of absence,
because this is a common onethat happens in this particular book.
It's called Continuing treatment.
And part of this bucket of leave, i.e.,the employee need to be out
for four consecutive calendar daysor I'm off of work
(18:12):
taking care of the same family memberfor four consecutive calendar days.
Now, it's tricky about this bucketis that this is the only one
where the employee can actually justcall in and say, I'm sick
and it could be FMLA.
You know, the reason why we saidcould be FMLA
once it meets these requirementsfor these particular buckets, well,
(18:33):
then the employer response.
Remember I said earlier,the employee doesn't ask.
The employer respondswith all the mandatory notices, but
all these absences need to be documentedwith a certification form.
None of this is done verbally.
It's all documented.
So how we use that medical certificationform.
So, Sophia, it's Rob.
(18:54):
It's Monday.
Soviets. Rob, I'm sick.
I'm not going to be in today.
That's not FMLA
Tuesday. Sophia, it's Rob.
I'm still sick. I won't be in today
no matter familiar.
Now, Wednesday.
Sophie Last night,my wife took me to urgent care.
I don't have COVID, butI've got some sort of a respiratory thing
that's going around.
(19:15):
I actually feel worsenot going to be in today.
We're not there yet.
Again, the way the law definesthis particular bucket,
it says more than three consecutivecalendar days of incapacity.
So literally what that means isI need to call in four days in a row.
So now, Thursday.
Hey, Sophie, it's Rob.
I'm still not feeling good.
I'm not going to be in today.
(19:36):
Now use my manager.
I notify our leave administrator.
Could be HR Could be somebody else.
Payroll, maybe.
And that starts the familiar paperworkprocess.
Okay,so once the employer's notified of my need
for leave,which in this case would be Thursday.
Now, the employer has five business days
(19:59):
from that dateto give me the eligibility notice.
Then rights, responsibilities notice
a medical certification formgoes along as well,
and that needs to be returnedwithin 15 calendar days.
And then after that time period ends,there's a third
mandatorynotice called the designation notice.
So this is really it's a paperwork here.
(20:20):
It really, really is.
So we the employer,we act on that fourth day of absence
Now for this particular bucket,in order to be covered by FMLA,
the employee would have to go seea health care provider
medical certification form and needto be returned within 15 calendar days.
And on their certification form,it's documented.
(20:41):
They were out for four consecutivecalendar days or more.
They saw a doctor in person
tell the visits are included in thatand they got a prescription medication
that's like 90% of the certain formsI've seen in the past.
The other could be they saw a health careprovider two times in person.
When that'sdocumented, that then would be qualified
(21:03):
and can be markedas FMLA for that particular employee.
So the key there for consecutive daysof absence calendar days.
If I work Friday, I'm offSaturday and Sunday.
Friday.
So if it's Rob, I'm sick.I won't be in today.
I don't work Saturday and Sunday. Monday.
So if it's where I am sick,I won't be in today.
(21:24):
Believe it or not, under the law,that's considered
more than three consecutive days.
I mean, capacity that actually startsthe FMLA paperwork process.
Now, the way that the employee saysI don't want FMLA.
Yeah.
Is they never returntheir medical certification form.
Their employer still needs to go through
all the paperwork,all those monitoring notices.
(21:45):
But eventually you're going to geta designation notice at the end
that says absences for these four days,not FMLA.
Why you didn't returna medical certification form.
So that's that's just one bucket,the only one where you can call in sick.
And these are shortterm illnesses and injuries.
Now, there isn't a listthat I can give you that does not exist,
(22:05):
but this could be the area like colds,
ear infections, pinkeye.
COVID falls into this bronchitis.
You strange your backmoving grandmas are more.
Over the weekend you went skiingand you broke both of your arms
and you can't work.
And it's going to be about 6 to 8 weeksfor your bones to heal.
(22:26):
So these are shortterm illnesses and injuries.
And a remember for either
the employee or covered family member,which would include a spouse,
children
or parents and then stepparents as well.
So that's that's one particular bucket.
Things like pregnancy covered by FMLA,even absences
(22:48):
for prenatal visits or morning sickness,those are covered by FMLA.
Anything to do with adoption or fostercare placements, those are all covered
by FMLA, any pre placement issuesthat need to happen, court
medical evaluations,traveling to different countries,
post adoption, post foster care placement,being with them.
(23:08):
That's covered by FMLA to stay.
So let's talknow about the number one headache.
And I don't mean to be a pun with that,the number one headache under FMLA
is a bucket called chronic conditions.
So short term illnesses and injuries,that's the continuing treatment.
It's got to have at least threeconsecutive days.
(23:29):
I mean, capacity,
chronic conditions.
However, these are long termor permanent medical conditions.
Okay.
The employee or the covered family member
are probably on some sort of a medication.
And with our certification forms, it'svery typical
for these chronic conditionsto be certified for up to a year.
(23:51):
And what we need to look foron the certification
form, it's actually the last questionon the certification form,
and it's the areacalled frequency and duration.
So the number one medical issue that weget in our hotline is migraine headaches.
So as migraines,
we send them to their health careprovider,
(24:11):
they bring back the medical certificationform.
We're going to go look backat that frequency and duration frequency.
How many times a monthis this issue going to happen?
Duration?
How long will any event last?
Well, the search form states1 to 2 episodes per month,
1 to 2 days per episode.
(24:31):
That means that that employee could be up
to four days of FMLA per month, though.
Here's why This is the most complicatedbucket to deal with.
And actually
for managers and supervisors,the most frustrating bucket to deal with.
When's thatemployee going to have the next migraine?
When is their childgoing to have their next seizure?
(24:52):
You don't we don't know.
And there's never a good dayto be off of work. Yeah.
Now, sadly, this is also the bucketwhere occasionally we may have an employee
that will be a little bit abusive with us.
For example, Fridaysand Mondays is a pattern of absences
days before and after paid holidays,even vacation time
(25:14):
to make some sort of an extendedperiod of time offering.
Now that does happen,but thankfully it's not
a very large portion of our employeesthat are using FMLA,
But it's going to be the most frustratingone that we have now.
Please keep in mindthat all these different areas
that we're talking aboutdo not require multiple days of absence.
(25:35):
These can all be hourly, right?
So I think rightnow it's about 10:30 a.m..
I can give
you a call or I can come over to youby your office and say, Hey, Sophie,
I feel my IBS about to act upyour irritable bowel syndrome.
I need to get out here and get home.
You know, I go homeand if I work until 3:00,
you can charge me 6 hours of FMLA.
(25:56):
So I can chargehalf a million hourly increments.
So it's not missing holidays,chronic back parking.
It could be parts of days,leaving work early,
coming to work latebecause of that chronic condition.
And again,this is why that particular area of leave,
that's the most frustrating for employers.
These are long term.
(26:17):
So I've been in Emory 25 yearsand let's say that I have the migraines
up to four days a month of FMLA.
Well, if I'm working12 weeks of leave at my work schedule,
that's five days per week, 12 weeks,that's 60 individual days.
I work 8 hours a day.
That's 480 hours of FMLA.
(26:39):
Or if my health care provider certifies meas for four migraines a month for,
you know, total days of migraines, well,four times 12 is 48 days.
I didn't really use up all of my FMLAthat I'm eligible for.
I still have 12 days left.
Once I'm
eligible for FMLA for the next 24 years,I could be missing 48 days
(27:00):
for migraines, unscheduled partial dayscoming in late.
And there's very littlethat you can do as an employer.
That'swhy that's one of the most frustrating.
Now i always told managers and supervisorsand HR People
when we talk about this frustrating bucketthat we take a little bit of pause here.
Everyone struggles with this.
(27:21):
They all knowexactly what i'm talking about
and we get upset with these employees
and somehow we try to do something
to make that person's life miserable.
I'm leavingnow of irritable bowel syndrome.
You look at meand you raise your eyebrows and half
(27:43):
by suppose
under the law,there's two legal things that can happen
interference ofmy ability to take leave and
retaliation for taking that leave.
So a story that I had an actual event,
a manager for a manufactured usual.
(28:05):
It's the last week of the month.
We do a lot to get everything out,got to get our orders shipped
and we're try to get as much as possible.
So end of the month for a manufacturer,that's a big deal.
So on the beginning Mondayof the last week of the month,
individual again suffered with migraines
and this person typically was offat the end of the month
(28:26):
because their migraineswere stress induced.
So on Monday,the manager has pre shift meetings always.
So on this Monday morning meeting Cavsall the employees together
and talks about the week and the jobsthat they're working on right now.
Then at the very end of the meetinghe goes now as you know
this is the last week of the monthwe got a couple new customers.
(28:46):
We got to make sure that we get this outthe door to make these people happy.
And then he looked directlyat the individual with migraines
right into their eyes and said, and I'mcounting on everyone to be here this week.
Now, I do say kudos to the employee.
Actually, congratulations.
(29:07):
Employee they went right to their HRDepartment and they said the right thing.
My manager just threatened me thati better not have a migraine this week.
So i got that call on the hard line.
And the member's question was,
did her supervisor create any problems?
Yeah. And the answer is, you bet they did.
They are now interferingwith that person's right to take leave.
(29:32):
I think I forgot to mention this before
when I was kind of going onwith another explanation
that's really tell about people.The chronic bucket.
You might be frustratedwith your employees
understandyou might be here one day right now.
Although my time here at MRA,I've actually had three major surgeries,
two shoulder surgeriesand a major back surgery.
So I was actually off of workand using FMLA,
(29:54):
and none of that was held against me.
The revenue lost my coworkers that need tosubstitute for my training aren't seats.
They couldn't get booked because I was notavailable so that the lost revenue.
None of that can be heldagainst that employee.
So again, that's that time off
unpaid with no penalty to the employee.
(30:15):
That's why it's a very simple statement.
But there's a lotto that implication of the workplace.
So we saw the continuing treatment,the chronic conditions at school.
We see a lot of her mileagewhen you use now the other buckets.
So we have the employee who literallyneeds to see something medical.
For example, a parent has strokeand end up in the hospital.
(30:37):
So inpatient hospitalizations,anything to do with nursing homes
or hospice care, including homehospice care covered by FMLA?
My mom has structures in the hospitalthat is way, way
beyond I'm sick or opiate work today.
It's very, very specific issues like
dealing with end stage of lifecovered by FMLA.
(30:58):
If the employee needs time off,not the bereavement part,
but if I need time offto be with that family member.
Severe arthritis
and getting treatment, for example,physical therapy.
How can you dialysis reconstructivesurgery after an accident or a cancer?
So the reasons for leave are very,very specific medical reasons.
(31:18):
Yeah.
Now under the law, there's actuallytwo additional military related leaves.
One's got a really unusual namecalled military exigency leave,
and the other one's called Carefor Recovered Servicemember.
Now those are for
family membersof the employee of a covered employer
(31:39):
that can take time offwhen that family member
is either deployed on active dutyor is injured
or become sickbecause of their active duty deployment.
Now, on our hotlinein my training programs
for the last several years,I have not had any examples of those.
So if you have an employeethat comes in and says, Hey,
my son's being deployed in the military,can I get some time off?
(32:00):
Well then that said military exigency.
You deal with that at that point.
But that that's the summaryfor those two conditions.
Basically that is the area of the coverageand a quick summary
for our familiar leave.
All that was a lot.
So I hope you all were writingthe writing notes.
TSA at the beginning,get your notepad out.
I take a lot of notes like now would be aperfect time for a pop quiz or something.
(32:20):
Right now, let's take a breakand look at all your notes so far.
But moving on here,
what advice do you have for employersnavigating intermittent
FMLA leave requests and balancingbusiness needs with employee rights?
So here again with our exampleswith that chronic condition is
probably we're going to see thatmost often with the intermittent leaves,
(32:41):
it can happen with the other areasof leave as well.
Let's focus on those products.
Yeah, once I'm certified by my health careprovider, there's actually very little
that an employer can doto manage those situations.
However,if we do have patterns of potential abuse,
there are a few things that we can doas an employer
to deal with those abuse issues,and it's a little bit
(33:03):
too much for our little overviewthat we're doing today.
But there's a couple thingsthat we can do as employers
other than just catchingthe person an outright fraud,
fraudulent use of leave.
Yeah,
it's a bunch of hurdles that we needto come to deal with that specific issues.
Yeah, absolutely.
Well, kind of wrapping up here, Rob,
(33:25):
we've talked a lot a lot today about FMLAand just kind of the overarching picture.
But can you end with any insightsand best practices for employers to ensure
smooth and fair practice regarding FMLAeligibility in covered events?
So, number one are HR Peoplewho are administering
FMLA, you need to be trainedon how to administer properly.
(33:48):
Now that's what we here at emory.
We have our FMLA made simple classwhere we deal with that issue
for our managers and supervisorstraining as well.
Not how to administer FMLAbut understanding what do i need to listen
for those buckets of leavethat starts the FMLA process?
And then also, what does it meanthat I have no penalty under the leave
and also of the basicrights are under the law.
(34:11):
So training and awareness are two bigcompliance tools that we need to use.
Yes, absolutely.
It also lets mentionabout training employees.
I've had this brought up many, many timesduring my training programs on FMLA.
Well, Rob, this is a really complicatedlaw, so can you come to our organization
(34:31):
and just do like a one hour overviewfor our employees?
Well, first of all, the law doesn't
stateany mandatory training for our employees.
In fact, it assumes that any mandatorytraining for HR People are mandatory.
The supervisorsbut unfortunately, it's not required.
You're putting the posters up,
responding to the requestswhen they come in properly.
(34:53):
That's the way that we deal with FMLA.
We have to be very carefulabout training our employees
because if we just did an explanationof what we just covered,
literally,you're going to open a Pandora's box.
Hey, do you know how to be off on FMLA?
Here's how you do it.
No, I'm not saying thatwith a cold shoulder or unsympathetic,
but we don't want to encourage the issues.
(35:15):
We've had a lot of situations in the pastwhere the entire
shipping department all of a sudden,though, has chronic depression.
because that word spreads, right?
So we don't need to encourage that.
But again, the majority of our casesthat we deal with under FMLA, people
legitimately do have medical issuesof themselves or a covered family member,
and they really do need that timeon. Yeah, that makes sense.
(35:36):
I'm sure you've seen a lotand heard a lot of story.
Well, Rob, I want to thank youfor being on the podcast today
and thank you for sharing your expertiseon FMLA specifically,
like I mentioned,this is a highly requested topic,
so I appreciate youcoming on the podcast today to cover that.
And to our listeners,if you liked our chat and topic today,
(35:57):
I would urge you to come and something newthat you learned today
or anything that you'd like to add on tothis conversation.
We'd love to hear, hear from you.
Don't forget to share out this episode.
Consider joining MRAIf you aren't a member already.
We have all the resources you needin the show Notes below,
including resources on our topic for todayand training links.
(36:18):
So check those out.
And we've also includedRob's bio and LinkedIn profile.
So if you'd like to connect with him,
we've got the resourcesfor you to do that.
Otherwise, thank you so much for tuning inand thanks again, Rob.
Thanks for having me.
Here'sa lot of fun and we'll see you next week
for this episode.
Be sure to reference the show noteswhere you can sign them to connect.
(36:40):
For more podcast updates,
check out other Emery episodeson your favorite podcast platform.
And as always,make sure to follow MRA 30 minute Thrive
so you don't miss out.Thanks for tuning in
and we'll see you next Wednesdayto carry on the conversation.
Hello everybody and welcome to 30 minuteThrive, your go to podcast for anything
and everything HR, powered by MRA,the Management Association.
Looking to stay on top of the everchanging world of HR?
MRA has got you covered.
We'll be the first to tell you what's hotand what's not.
I'm your host, Sophie Bolerand we are so glad you're here.
(00:21):
Now it's time to thrive.
Well, hello everybody, and welcometo this episode of 30 Minute THRIVE.
FMLA is one of our top requested topicsfrom our podcast subscribers,
so no pressure on today's guest, butwe're really glad to have this opportunity
to talk about all of the complexitiesof FMLA eligibility,
(00:41):
outlining who qualifies and exploringthe spectrum of covered events.
So our goal really for today'spodcast is to help provide
some clarity to you on federal FMLA.
So I'm joined by Rob Lapota HR
director, part of MRALearning and Development Team.
Rob, you have over 30 years ofHR experience.
(01:03):
You've answered more than 15,000 membercalls on the HR hotline,
and you're recognized as one of the topknowledge experts on our topic for today.
And that's a federal FMLA scrub.
I'm really excited to have you here todayas the subject matter expert and
thanks for joining us.
Thank you for asking me to be here today.
And welcome to everybodyfor our interesting talk.
(01:26):
Yes, I like I like to tell peoplein our training program
with FMLA made simple,get your notebook out
because you're gonna be takinga lot of notes.
Yeah, absolutely. Get them out.
Well, Rob, let's kind of start outwith the big overarching question
here, and that is what is FMLA.
I know we have a lot of HR Professionalsobviously, who listen to the podcast,
(01:47):
who know what FMLA is,but some of our other listeners
who may not be in that HR professionalmay not know exactly what FMLA is.
So can you kind ofjust give us an overarching picture?
So we start out the first acronym, FMLA.
First, let's talk about thatFamily Medical Leave Act.
So that took on a federal basis,that was a law.
(02:08):
Those passed back in 1993.
And it impacts employersthat have 50 or more employees
anywhere in the United States.
Here's a kind of like a short definitionof here's what the law is all about
12 weeks of unpaid leave
with no penalty to the employee.
(02:28):
Now, that sounds like a very simpleone sentence
definition of what is FMLA,but they're in wise the complexity,
the no penalty to the employee.
That's a challenging aspect of the law.
And what qualifiesas a reason for taking FMLA.
That's the other big challenging portion.
(02:50):
And then the overriding complexityof this law
by the employeewhen I'm going to be off of work,
I don't ask for FMLA.
So, for example, if you are a supervisor,I don't call in and say,
Hey, Sophia, it's Rob.
Last night, my daughter, she was knockedunconscious in a soccer match,
but she's actually been admittedto Children's Hospital in Milwaukee.
(03:13):
That's where I am right now.
I'll give you a calla little bit later today
and I'll give you an update onwhat's going on.
That said, I the employee is not mandatoryunder the law for me,
the employee to say,
and by the way, Sophia, why don'tyou give me some of the FMLA stuff?
The way the federal law is written,
it is the employer's responsibility
(03:37):
in all circumstances to designate
leave as FMLA qualifying.
So therefore, because of the complexity,that's what makes it our number
one call on our hotline.
Yeah, I was shocked.
Over 20% of our calls are just on FMLA.
I was just going to mention
that this is one of our top callson the HR hotline and still remains to be.
(03:58):
Yes. And we've had some topicson the podcast on FMLA,
just because it is one of ourmost highly requested topics.
And like you said, there'sso many different complexities
within that, even though that one sentenceyou gave us seems so simple,
it's not as simpleas you may think for experts.
What factors and determine an employee'seligibility for FMLA, FMLA leave?
(04:21):
And how does an employer ensure compliancewith these criteria?
So there's several criteria.
And the first is I need to be workingat a covered employer for FMLA.
And a covered employer is one that has 50or more employees on their payroll
anywhere in the United States.
And it also includes temporary employeesfrom a temp service.
(04:42):
So if I have 25 employees that are on mypayroll and I use 25 from a temp service,
I actually have 50employees for federal employee purposes.
I'm covered by the law.
So for an eligible employee,
first of all, I have to be workingfor a covered employer.
Then I have several other criteriathat need to be met.
Number one, I need to be working forat least 12 months for that employer.
(05:06):
Number two, I work at least 1250 hours
in the 12 monthsprior to my need for leave.
And third,I have to be working at a facility
that has 50 or more employeeswithin a 75 mile radius.
Now, again, just like that,a little definition I can give you FMLA.
Well, that seems pretty straightforward,doesn't it?
(05:27):
But there's a lot of twists and turnswithin those definitions.
So, for example,
the 12 months service on a federal level,it need not be consecutive.
So I could be working, for example,as a college intern.
As for an organization,let's say, in marketing
and work for four summersin a row of three months each summer.
And we're recording this in December.
(05:48):
So let's say thatI'm graduating in December.
I'm going to start with the employerJanuary of 2024.
Well, you actually cannotmy three months of service
going back four yearsbecause it's a seven year lookback period.
Okay. So here's the strange thing.
Effective January 2nd, 2024,since my official start date,
(06:09):
I'll actually have 12 months of servicefor that employer.
The same thing goeswhen people leave organizations.
Let's just say I worked at an employerfrom 2015 to 2020
and then I get rehired on January2nd, 2024, by that same employer.
Well, again, there could be upto a seven year break in service.
That's well within that.
(06:30):
So I will actually have 12 monthsof service on my first day of employment
reemployment,I should say, with that employer.
Second of all, the 1250 hours
that is paid time only,that does not include things like holiday
pay, PTO, sick pay, self-funded shortterm disability payments.
(06:52):
Those are not included.
And that's it's just actual work hours.
And then the third criteria,this is and again, another strange one.
I work in a facility that has 50or more employees within a 35 mile radius.
Well, let's just take it for plain value.
Let's say that we
have an organizationthat has three facilities.
They're all within 75 miles of each other.
(07:14):
And one employs 30, another oneemployees 20 and a third facility.
Employees 20 there,or that's 70 employees.
So if I work at any of those facilities,I'm working in a facility
that has 50 employees within a 75 mileradius.
Now, that's also extendedto include remote employees
(07:36):
and all that's since COVID.
You know, a lot of remote work going on.
And still today,
the little twist with that, I'm
included in the headcountwhere I get my work instructions from.
So here we are.
We're in Waukesha, Wisconsin,recording our program.
And this is our call,our corporate offices for me.
(07:57):
So let's say that I live in Iowa
and I work remotely,but I report to my manager,
who is here in the Waukesha,Wisconsin, location
for the 50 employeeswithin a 75 mile radius.
I'm actually counted in the Waukesha,Wisconsin, head count for FMLA
eligibility.
(08:17):
Now, some employers don't have that.
They might have facilities for example,in one state
that are not within75 miles of each other.
And we don't have 50 employeeswithin that 75 mile radius.
However,they still have 50 total employees.
So they're coveredemployers under the law for now.
(08:41):
What do you do?
I'm a covered employer,
but I literallyI don't have any eligible employees
because we don't work at a facility
that has 50 employees within a 35 mileradius.
What do we do?
Well, if I was your head of HRWhat i would recommend
is that we treat all of our locations
as though we have 50 employeeswithin a 75 mile radius.
(09:04):
This could also become a little bitof an employer relations issue.
Let's say that one of those facilitieshas 125 employees,
and the other onesare outside of the 75 mile radius.
Let's just say they have,you know, 40 employees each.
Well, during employmentmeetings, I've had this happen before.
Our plant that has 125 people
(09:25):
that's going to be eligible employees,
got 50 employees within a 75 mileradius, the location being C,
we're not going to callyou covered employers, eligible employees.
Excuse me,because you don't work at a facility
that has 50 employees within a 75 mileradius.
So too bad, so sad you lose.
(09:45):
Well, for an employerrelations standpoint,
we need to go have your employee meetings.
The employees are company
B and C are going to immediatelythrow their hands up in the air to go.
Why does everybody at location, age,how come they get FMLA
and we don't get FMLA?
Well, you got to understand,
you don't work at a facilitythat's 50 employees with a 75 mile radius.
That's an employee relations disaster.
(10:08):
So that's why I suggest mandatory.
But I suggest you treat those locationsas though they do have 50 employees
within a 75 mile radius. Absolutely.
And I love thatyou're giving those scenarios because that
that helps helps a little more to,I don't know, understand.
I'm sure a lot of people havethese certain situations, laws to absorb.
(10:29):
So are there any common misconceptions?
And with FMLA eligibilitythat you often encounter
kind of sees or working with membersin, how can these kind of be clarified?
Then the biggest misconceptionsfor the employee eligibility portion
it covers around those the areas oftribute to a seven year break in service.
(10:51):
So the example I gave that I'm a collegestudent working in marketing Pimp.
I work for you through 2020 Rehire Me.
A lot of employers are not aware
I have 12 months serviceeffective on day one.
And the other big misconceptionabout eligibility,
All of our members of MRA, they will workon what's called a temp to perm basis,
or they'll have employees froma temporary service work for like 90 days.
(11:14):
And if they work out,they'll put them on their payroll.
Well, that's a situationcalled Joint Employment.
So for those temporary employeesthat we put on our payroll,
effective on day one,the hours that they worked
and the months of servicethat they worked actually do count
towards their eligibility of 12 months ofservice and 1250 hours worked
(11:37):
through like a walking
book of knowledge,you know, like that's what they're on.
Tell me.
Yeah.
I've even had some people tell me I knowa little bit too much about FMLA, I think,
but that's why you're the perfect guesthere.
You can answer your question.
So I have an advantage.
I've been in here at Emory 25 years.
Yes. As an instructor.
We're not attorneys here,but I love the law.
(11:59):
I read a lot of court.
I mean, I've read thousandsand thousands of court cases.
Keep up with employmentblogs, Talk about FMLA.
Jeff Nowak is one of the top people in theUnited States at his blog FMLA Insights.
And yeah, I justI actually find it very fascinating.
Well, that's right.
And you probably get a lot of calls,too, on FMLA, where you are.
(12:19):
You want to kind of give those scenarios.
And here's what I would doin that situation kind of thing.
Correct. So next question here.
In what situations might employees
find themselves ineligiblethen for federal FMLA leave?
And do you have any alternativesor options
that may be available to themthat you can suggest?
(12:40):
So go back to the eligibilityrequirements.
I worked for you for 12 monthsand I have at least 1250
hours worked in the 12 months prior.
And we already kind of explained
that 50 employees within the 35 mileradius once we don't need to hit that one.
That would be a point of ineligibilitythat I don't can, you know, work there.
So let's focus on those first two.
So for the hours of work,let's say that I get what's the score?
(13:04):
January 2nd, 2024,since it's right around the corner here.
Let's say that it's my first day of work.
Let's see.
Then in March 2024,I'm diagnosed with cancer.
They catch it early.
It's not very advanced, but I do need tomiss work or radiation treatments
and then, if necessary, to recoverfrom those radiation treatments.
(13:27):
Well, I still have to send meas the new employee who's only been there
for three months now, I still need to getan eligibility notice from the employer.
There's three mandatory noticesthat need to go out,
so I need to get that eligibility notice.
It states you're not eligible for FMLA,federal FMLA.
Why You haven't been here 12 monthsas of the date of your need for lead.
(13:50):
This is on the eligibility notice.
You've workedX months towards 12 months of eligibility,
so the employer wouldwrite three months in their
hours of work.
If I am working part time, I could beworking for you for over a year.
But again, if I don't have that 1250actual work hours,
(14:10):
that could be our second issue, whereI will not be eligible as the employee.
Now in our training,I always told employers,
if you can't give FMLA,
if it doesn't qualify, it's an issuethat's not covered by FMLA.
We need to be much more flexibleas employers today
with time off and adjusting schedulesand what other policies to
(14:32):
you have as an employerso that employee can have time off.
Maybe you have a policy.
It's called a force substitution policy.
You must use any accrued, unused PTO,whatever you're going to be missing work.
Maybe that's what'll be implemented.
Maybe there's a personal leave of absencethat can be used
(14:54):
now if it's for the employee'sown medical issues.
For example, the cancer that I gave you
that's actually now going to fallunder the Americans with Disabilities Act.
Now we havean employee who's suffering with cancer,
which is considered a disability,and they're not eligible for FMLA.
So we would actually need to provideunpaid leave
(15:17):
as an accommodationunder the American Disabilities Act.
So I'm going to get a eligibility notice.
You're not eligible for FMLA, but then I'malso going to receive a cover letter
I should from the employer saying, okay,although you're not eligible for FMLA,
you are coveredunder the American Disabilities Act
and we will be providing you with unpaidleave
(15:39):
as an accommodation under that law.
So it's very, very importantthat the employer state specifically
what laws are applying duringwhat time of their lives.
Interesting.Yeah, well, that's great to know.
And I know you've covered thisa little bit in her past.
Questions,uncertainty, examples of medical leaves.
But do you have any other examplesthat are covered instances or events
(16:03):
under FMLA?
And are there specificnuance says for each type of leave.
So how much time do we have?
This is worth over a long problem.
This is where we're getting into the nutsand bolts of the mechanics of FMLA
that can get very, very complicated.
(16:24):
We were very, very fast.
So let's try to summarize thisfor our listeners and our viewers.
So I like to refer to theseas buckets of leave.
So there's ninecompletely different buckets of leave.
All of them can have completely differentoperating orders.
For example,when does that one come into impact?
You know, when are wewhen do we apply to excuse me, I said that
(16:47):
when do we applythat particular need for leave?
How do we certify it?
How long will that individualbe off of work?
And here's again,another big misunderstanding on employers.
And I hear this now.
I've been doing this for 25 years.
The law has been in placefor over 30 years now.
I will still have no, I'm not surprised.
(17:07):
Managers and supervisors in our supervisorin the law, of course, are FMLA overview
classand even HR People in our FMLA simple
administration class for FMLA.
So how long do you need to be off of workin order for FMLA to apply?
Her hands go upand they go, I know, I know, I know.
You have to be out of work.
Three consecutive workdays,and then when you're out for three
(17:30):
consecutiveworkdays, that's when FMLA applies.
The answer is, No, it doesn't.
But I was like, No, nice try.
No, no, it doesn't.
In fact, all of the buckets of leaveexcept for one
can actually be takenin our concurrence. wow.
(17:51):
So let's talk about the one
that you do needto have multiple days of absence,
because this is a common onethat happens in this particular book.
It's called Continuing treatment.
And part of this bucket of leave, i.e.,the employee need to be out
for four consecutive calendar daysor I'm off of work
(18:12):
taking care of the same family memberfor four consecutive calendar days.
Now, it's tricky about this bucketis that this is the only one
where the employee can actually justcall in and say, I'm sick
and it could be FMLA.
You know, the reason why we saidcould be FMLA
once it meets these requirementsfor these particular buckets, well,
(18:33):
then the employer response.
Remember I said earlier,the employee doesn't ask.
The employer respondswith all the mandatory notices, but
all these absences need to be documentedwith a certification form.
None of this is done verbally.
It's all documented.
So how we use that medical certificationform.
So, Sophia, it's Rob.
(18:54):
It's Monday.
Soviets. Rob, I'm sick.
I'm not going to be in today.
That's not FMLA
Tuesday. Sophia, it's Rob.
I'm still sick. I won't be in today
no matter familiar.
Now, Wednesday.
Sophie Last night,my wife took me to urgent care.
I don't have COVID, butI've got some sort of a respiratory thing
that's going around.
(19:15):
I actually feel worsenot going to be in today.
We're not there yet.
Again, the way the law definesthis particular bucket,
it says more than three consecutivecalendar days of incapacity.
So literally what that means isI need to call in four days in a row.
So now, Thursday.
Hey, Sophie, it's Rob.
I'm still not feeling good.
I'm not going to be in today.
(19:36):
Now use my manager.
I notify our leave administrator.
Could be HR Could be somebody else.
Payroll, maybe.
And that starts the familiar paperworkprocess.
Okay,so once the employer's notified of my need
for leave,which in this case would be Thursday.
Now, the employer has five business days
(19:59):
from that dateto give me the eligibility notice.
Then rights, responsibilities notice
a medical certification formgoes along as well,
and that needs to be returnedwithin 15 calendar days.
And then after that time period ends,there's a third
mandatorynotice called the designation notice.
So this is really it's a paperwork here.
(20:20):
It really, really is.
So we the employer,we act on that fourth day of absence
Now for this particular bucket,in order to be covered by FMLA,
the employee would have to go seea health care provider
medical certification form and needto be returned within 15 calendar days.
And on their certification form,it's documented.
(20:41):
They were out for four consecutivecalendar days or more.
They saw a doctor in person
tell the visits are included in thatand they got a prescription medication
that's like 90% of the certain formsI've seen in the past.
The other could be they saw a health careprovider two times in person.
When that'sdocumented, that then would be qualified
(21:03):
and can be markedas FMLA for that particular employee.
So the key there for consecutive daysof absence calendar days.
If I work Friday, I'm offSaturday and Sunday.
Friday.
So if it's Rob, I'm sick.I won't be in today.
I don't work Saturday and Sunday. Monday.
So if it's where I am sick,I won't be in today.
(21:24):
Believe it or not, under the law,that's considered
more than three consecutive days.
I mean, capacity that actually startsthe FMLA paperwork process.
Now, the way that the employee saysI don't want FMLA.
Yeah.
Is they never returntheir medical certification form.
Their employer still needs to go through
all the paperwork,all those monitoring notices.
(21:45):
But eventually you're going to geta designation notice at the end
that says absences for these four days,not FMLA.
Why you didn't returna medical certification form.
So that's that's just one bucket,the only one where you can call in sick.
And these are shortterm illnesses and injuries.
Now, there isn't a listthat I can give you that does not exist,
(22:05):
but this could be the area like colds,
ear infections, pinkeye.
COVID falls into this bronchitis.
You strange your backmoving grandmas are more.
Over the weekend you went skiingand you broke both of your arms
and you can't work.
And it's going to be about 6 to 8 weeksfor your bones to heal.
(22:26):
So these are shortterm illnesses and injuries.
And a remember for either
the employee or covered family member,which would include a spouse,
children
or parents and then stepparents as well.
So that's that's one particular bucket.
Things like pregnancy covered by FMLA,even absences
(22:48):
for prenatal visits or morning sickness,those are covered by FMLA.
Anything to do with adoption or fostercare placements, those are all covered
by FMLA, any pre placement issuesthat need to happen, court
medical evaluations,traveling to different countries,
post adoption, post foster care placement,being with them.
(23:08):
That's covered by FMLA to stay.
So let's talknow about the number one headache.
And I don't mean to be a pun with that,the number one headache under FMLA
is a bucket called chronic conditions.
So short term illnesses and injuries,that's the continuing treatment.
It's got to have at least threeconsecutive days.
(23:29):
I mean, capacity,
chronic conditions.
However, these are long termor permanent medical conditions.
Okay.
The employee or the covered family member
are probably on some sort of a medication.
And with our certification forms, it'svery typical
for these chronic conditionsto be certified for up to a year.
(23:51):
And what we need to look foron the certification
form, it's actually the last questionon the certification form,
and it's the areacalled frequency and duration.
So the number one medical issue that weget in our hotline is migraine headaches.
So as migraines,
we send them to their health careprovider,
(24:11):
they bring back the medical certificationform.
We're going to go look backat that frequency and duration frequency.
How many times a monthis this issue going to happen?
Duration?
How long will any event last?
Well, the search form states1 to 2 episodes per month,
1 to 2 days per episode.
(24:31):
That means that that employee could be up
to four days of FMLA per month, though.
Here's why This is the most complicatedbucket to deal with.
And actually
for managers and supervisors,the most frustrating bucket to deal with.
When's thatemployee going to have the next migraine?
When is their childgoing to have their next seizure?
(24:52):
You don't we don't know.
And there's never a good dayto be off of work. Yeah.
Now, sadly, this is also the bucketwhere occasionally we may have an employee
that will be a little bit abusive with us.
For example, Fridaysand Mondays is a pattern of absences
days before and after paid holidays,even vacation time
(25:14):
to make some sort of an extendedperiod of time offering.
Now that does happen,but thankfully it's not
a very large portion of our employeesthat are using FMLA,
But it's going to be the most frustratingone that we have now.
Please keep in mindthat all these different areas
that we're talking aboutdo not require multiple days of absence.
(25:35):
These can all be hourly, right?
So I think rightnow it's about 10:30 a.m..
I can give
you a call or I can come over to youby your office and say, Hey, Sophie,
I feel my IBS about to act upyour irritable bowel syndrome.
I need to get out here and get home.
You know, I go homeand if I work until 3:00,
you can charge me 6 hours of FMLA.
(25:56):
So I can chargehalf a million hourly increments.
So it's not missing holidays,chronic back parking.
It could be parts of days,leaving work early,
coming to work latebecause of that chronic condition.
And again,this is why that particular area of leave,
that's the most frustrating for employers.
These are long term.
(26:17):
So I've been in Emory 25 yearsand let's say that I have the migraines
up to four days a month of FMLA.
Well, if I'm working12 weeks of leave at my work schedule,
that's five days per week, 12 weeks,that's 60 individual days.
I work 8 hours a day.
That's 480 hours of FMLA.
(26:39):
Or if my health care provider certifies meas for four migraines a month for,
you know, total days of migraines, well,four times 12 is 48 days.
I didn't really use up all of my FMLAthat I'm eligible for.
I still have 12 days left.
Once I'm
eligible for FMLA for the next 24 years,I could be missing 48 days
(27:00):
for migraines, unscheduled partial dayscoming in late.
And there's very littlethat you can do as an employer.
That'swhy that's one of the most frustrating.
Now i always told managers and supervisorsand HR People
when we talk about this frustrating bucketthat we take a little bit of pause here.
Everyone struggles with this.
(27:21):
They all knowexactly what i'm talking about
and we get upset with these employees
and somehow we try to do something
to make that person's life miserable.
I'm leavingnow of irritable bowel syndrome.
You look at meand you raise your eyebrows and half
(27:43):
by suppose
under the law,there's two legal things that can happen
interference ofmy ability to take leave and
retaliation for taking that leave.
So a story that I had an actual event,
a manager for a manufactured usual.
(28:05):
It's the last week of the month.
We do a lot to get everything out,got to get our orders shipped
and we're try to get as much as possible.
So end of the month for a manufacturer,that's a big deal.
So on the beginning Mondayof the last week of the month,
individual again suffered with migraines
and this person typically was offat the end of the month
(28:26):
because their migraineswere stress induced.
So on Monday,the manager has pre shift meetings always.
So on this Monday morning meeting Cavsall the employees together
and talks about the week and the jobsthat they're working on right now.
Then at the very end of the meetinghe goes now as you know
this is the last week of the monthwe got a couple new customers.
(28:46):
We got to make sure that we get this outthe door to make these people happy.
And then he looked directlyat the individual with migraines
right into their eyes and said, and I'mcounting on everyone to be here this week.
Now, I do say kudos to the employee.
Actually, congratulations.
(29:07):
Employee they went right to their HRDepartment and they said the right thing.
My manager just threatened me thati better not have a migraine this week.
So i got that call on the hard line.
And the member's question was,
did her supervisor create any problems?
Yeah. And the answer is, you bet they did.
They are now interferingwith that person's right to take leave.
(29:32):
I think I forgot to mention this before
when I was kind of going onwith another explanation
that's really tell about people.The chronic bucket.
You might be frustratedwith your employees
understandyou might be here one day right now.
Although my time here at MRA,I've actually had three major surgeries,
two shoulder surgeriesand a major back surgery.
So I was actually off of workand using FMLA,
(29:54):
and none of that was held against me.
The revenue lost my coworkers that need tosubstitute for my training aren't seats.
They couldn't get booked because I was notavailable so that the lost revenue.
None of that can be heldagainst that employee.
So again, that's that time off
unpaid with no penalty to the employee.
(30:15):
That's why it's a very simple statement.
But there's a lotto that implication of the workplace.
So we saw the continuing treatment,the chronic conditions at school.
We see a lot of her mileagewhen you use now the other buckets.
So we have the employee who literallyneeds to see something medical.
For example, a parent has strokeand end up in the hospital.
(30:37):
So inpatient hospitalizations,anything to do with nursing homes
or hospice care, including homehospice care covered by FMLA?
My mom has structures in the hospitalthat is way, way
beyond I'm sick or opiate work today.
It's very, very specific issues like
dealing with end stage of lifecovered by FMLA.
(30:58):
If the employee needs time off,not the bereavement part,
but if I need time offto be with that family member.
Severe arthritis
and getting treatment, for example,physical therapy.
How can you dialysis reconstructivesurgery after an accident or a cancer?
So the reasons for leave are very,very specific medical reasons.
(31:18):
Yeah.
Now under the law, there's actuallytwo additional military related leaves.
One's got a really unusual namecalled military exigency leave,
and the other one's called Carefor Recovered Servicemember.
Now those are for
family membersof the employee of a covered employer
(31:39):
that can take time offwhen that family member
is either deployed on active dutyor is injured
or become sickbecause of their active duty deployment.
Now, on our hotlinein my training programs
for the last several years,I have not had any examples of those.
So if you have an employeethat comes in and says, Hey,
my son's being deployed in the military,can I get some time off?
(32:00):
Well then that said military exigency.
You deal with that at that point.
But that that's the summaryfor those two conditions.
Basically that is the area of the coverageand a quick summary
for our familiar leave.
All that was a lot.
So I hope you all were writingthe writing notes.
TSA at the beginning,get your notepad out.
I take a lot of notes like now would be aperfect time for a pop quiz or something.
(32:20):
Right now, let's take a breakand look at all your notes so far.
But moving on here,
what advice do you have for employersnavigating intermittent
FMLA leave requests and balancingbusiness needs with employee rights?
So here again with our exampleswith that chronic condition is
probably we're going to see thatmost often with the intermittent leaves,
(32:41):
it can happen with the other areasof leave as well.
Let's focus on those products.
Yeah, once I'm certified by my health careprovider, there's actually very little
that an employer can doto manage those situations.
However,if we do have patterns of potential abuse,
there are a few things that we can doas an employer
to deal with those abuse issues,and it's a little bit
(33:03):
too much for our little overviewthat we're doing today.
But there's a couple thingsthat we can do as employers
other than just catchingthe person an outright fraud,
fraudulent use of leave.
Yeah,
it's a bunch of hurdles that we needto come to deal with that specific issues.
Yeah, absolutely.
Well, kind of wrapping up here, Rob,
(33:25):
we've talked a lot a lot today about FMLAand just kind of the overarching picture.
But can you end with any insightsand best practices for employers to ensure
smooth and fair practice regarding FMLAeligibility in covered events?
So, number one are HR Peoplewho are administering
FMLA, you need to be trainedon how to administer properly.
(33:48):
Now that's what we here at emory.
We have our FMLA made simple classwhere we deal with that issue
for our managers and supervisorstraining as well.
Not how to administer FMLAbut understanding what do i need to listen
for those buckets of leavethat starts the FMLA process?
And then also, what does it meanthat I have no penalty under the leave
and also of the basicrights are under the law.
(34:11):
So training and awareness are two bigcompliance tools that we need to use.
Yes, absolutely.
It also lets mentionabout training employees.
I've had this brought up many, many timesduring my training programs on FMLA.
Well, Rob, this is a really complicatedlaw, so can you come to our organization
(34:31):
and just do like a one hour overviewfor our employees?
Well, first of all, the law doesn't
stateany mandatory training for our employees.
In fact, it assumes that any mandatorytraining for HR People are mandatory.
The supervisorsbut unfortunately, it's not required.
You're putting the posters up,
responding to the requestswhen they come in properly.
(34:53):
That's the way that we deal with FMLA.
We have to be very carefulabout training our employees
because if we just did an explanationof what we just covered,
literally,you're going to open a Pandora's box.
Hey, do you know how to be off on FMLA?
Here's how you do it.
No, I'm not saying thatwith a cold shoulder or unsympathetic,
but we don't want to encourage the issues.
(35:15):
We've had a lot of situations in the pastwhere the entire
shipping department all of a sudden,though, has chronic depression.
because that word spreads, right?
So we don't need to encourage that.
But again, the majority of our casesthat we deal with under FMLA, people
legitimately do have medical issuesof themselves or a covered family member,
and they really do need that timeon. Yeah, that makes sense.
(35:36):
I'm sure you've seen a lotand heard a lot of story.
Well, Rob, I want to thank youfor being on the podcast today
and thank you for sharing your expertiseon FMLA specifically,
like I mentioned,this is a highly requested topic,
so I appreciate youcoming on the podcast today to cover that.
And to our listeners,if you liked our chat and topic today,
(35:57):
I would urge you to come and something newthat you learned today
or anything that you'd like to add on tothis conversation.
We'd love to hear, hear from you.
Don't forget to share out this episode.
Consider joining MRAIf you aren't a member already.
We have all the resources you needin the show Notes below,
including resources on our topic for todayand training links.
(36:18):
So check those out.
And we've also includedRob's bio and LinkedIn profile.
So if you'd like to connect with him,
we've got the resourcesfor you to do that.
Otherwise, thank you so much for tuning inand thanks again, Rob.
Thanks for having me.
Here'sa lot of fun and we'll see you next week
for this episode.
Be sure to reference the show noteswhere you can sign them to connect.
(36:40):
For more podcast updates,
check out other Emery episodeson your favorite podcast platform.
And as always,make sure to follow MRA 30 minute Thrive
so you don't miss out.Thanks for tuning in
and we'll see you next Wednesdayto carry on the conversation.
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