FMLA When employers take the timeand effort to think about the FMLA the way the DOL does, they willreduce risk and do the right thing for employees, shareholders, andother stakeholders.


The Family and Medical Leave Act (FMLA) has made anenormous difference in the lives of many employees. Evidence alsoindicates that it helps employers. Like all programs that enablework-life balance, leave is especiallyeffective in helping attract and retain talent.


But that doesn't mean the FMLA is always easy to administer.Helen Applewhaite, branch chief, U.S. Department of Labor's (DOL)Wage and Hour Division, and other experts discussed the FMLA duringa recent DMEC webinar. Forty seven percent of participantssaid the overall process was the FMLA's most challenging aspect.About 30 percent said deciphering medical certification informationpresents the biggest challenge, while 16 percent found adhering tothe requirements in a timely manner most difficult.


To tackle these FMLA challenges, here are a few tips for HRprofessionals and absence managers.

1. Think like the DOL

To take leave under the FMLA, an employee must provide evidenceof a “serious health condition” provided by a medical professional.It's up to the employer to determine if the employee's condition iseligible for FMLA leave. Employers should view this medicalcertification information the way the DOL does, and this requirescareful analysis. An incorrect decision at this stage is wherepotential legal and other risk starts.

2. Know the definition of 'serious health condition”

The place to begin in the analysis is to know what the DOLconsiders a “serious health condition.” Key information includesinpatient care, incapacity of more than three consecutive calendardays plus continuing treatment, pregnancy, a chronic condition,permanent or long-term conditions, or conditions that requiremultiple treatments. Crucially, incapacity does not mean beingcompletely incapacitated. For the DOL, it means the inability to doany work or to be unable to perform any one of the essentialfunctions of the employee's job.


Further, a condition is qualifying if it meets one part of thedefinition. For example, a condition can be chronic and involveincapacity and treatment. If the condition qualifies under onethose factors, it qualifies for FMLA leave.


Pregnancy and child birth are also analyzed by the DOL in acertain way. Pregnancy may qualify as a serious health condition.For instance, prenatal care and morning sickness that could resultin incapacity qualify. But while the birth of a child is aqualifying reason for leave under the FMLA, it is not a serioushealth condition, and no medical certification is required forbirth and bonding.

3. Know who is included as a “health careprovider”

Americans increasingly look to a wide range of professionals toprovide health care. The DOL's view of the FMLA's definition ofhealth care provider reflects this changed and changing outlook.Under the FMLA, a health care provider is not restricted to atraditional medical doctor. Providers include podiatrists,dentists, clinical psychiatrists, psychologists, nursepractitioners, and midwives.

4. Consider recent opinion letters

Like most federal regulatory bodies, the DOL provides guidanceto employers through “opinion letters.” Understanding these lettersis an important way to ensure compliance and reduce risk.


For example, opinion letter FMLA 2018-2-A indicates that an employee canqualify for FMLA leave after donating an organ. The letter'spotential importance goes beyond organ donation. It could apply toother health-related situations that don't involve a qualifyingcondition but could result in incapacity.


There is also recent opinion letter FLSA2018-19. This letter states that 15-minute,doctor-requested breaks can qualify for FMLA leave. And FMLA 2018-1-A, which approved an employer'sno-fault attendance policy that effectively froze an employee'saccrued points through the duration of his or her FMLA leave.

5. Timing is everything

One of the best ways to reduce FMLA compliance risk is to knowand adhere to timing requirements. For instance, employers arerequired to provide employees notice of their FMLA eligibilitywithin five days of their making a request. Timely notification isa critical way of ensuring employees are aware of their rights andobligations under the FMLA.


The DOL has made clear its enforcement priority is systematicviolations of employee FMLA rights. It has made a large and ongoingeffort to help employers understand the law's basic requirements,so they don't get caught up in “paperwork” violations. Whenemployers take the time and effort to think about the FMLA the waythe DOL does, they will reduce risk and do the right thing foremployees, shareholders and other stakeholders.

Read more:

Terri L. Rhodes is Chief Executive Officerof the DisabilityManagement Employer Coalition (DMEC).

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