Seriously? A FMLA Series, Episode 10

by Carla O’Sullivan

Spring Cleaning….A Mini Series!

Remember…”Rights” is followed by “Responsibilities”

 

Let’s get back to tidying up those FMLA compliance closets. If any part of your job touches the intricacies of the FMLA, you have likely said to yourself many times “How can we run this business when everybody is out and I can’t replace them?” Take a moment to exhale in these moments of frustration, and remember that the FMLA provides right for employees; however, there are also responsibilities!! But much like when a teenager has to take out the papers and the trash, or they don’t get no spendin’ cash; like the parent, you carry the burden of making sure they are informed, or you can’t hold them accountable. Let’s cover how to do just that.

 

The Basics:   Rights & Responsibilities (R&R) Notice

  • Every time you have an obligation to communicate eligibility, you also have to provide the R&R. Remember from episode 9, it is likely not as frequently as you may have originally thought.
  • The R&R must be in writing, unlike the eligibility notice, which is sufficient to communicate verbally.
  • If the employee’s leave has already started, you must mail it to the physical address you have on record.
  • Be sure you inform the employee that their leave MAY be counted as FMLA leave.
  • The big one…is telling them their certification requirements and MORE importantly what are the consequences if they fail to meet this requirement.
  • The notice must identify which kind of tracking you use for the 12 month period. Is it Rolling Forward, Rolling Back, Calendar Year, or Fixed?
  • Take every opportunity to communicate your policy regarding the use of paid leave.
  • Outline the instruction on how to pay their premiums for health benefits, and equally importantly, what is the employee’s liability for the employer portion of premiums if the employee does not return to work.
  • If the employee is a “Key” employee, they have to be informed of this designation and what that means.
  • The employee’s right to job restoration and the maintenance of benefits must be included. This is not quite as daunting as it sounds. Take a look at page 2 of the WH381. The bulleted section on the lower half provides you some template wording. 

 

The Ya, but…: Rights & Responsibilities Notice:

  • Remember that point I made about the R&R being in writing, use caution on whether or not you consider the exclusive use of electronic notification to be considered “in writing”. The DOL identifies that it may be distributed electronically (you can find this in the DOL fact sheet 28D – link provided below). However, what if you are using employee’s work e-mail and they are already out on leave or what if employees have provided personal e-mail addresses, but they change from G-Mail to AOL and you send the notice assuming they received it, but they did not. Be careful not to assume….because you know what that gets you!
  • Simply plopping a copy of the WHD publication of the Rights and Responsibilities does not fit the bill. Read it closely and you’ll see that it really just outlines the generics of what must be communicated, but it does not specifically identify your organizations policy (i.e. calendar type, use of accrued leave). The WHD form 381 may not be particularly user friendly or attractive, but at least it is a start if you do not have a template to start with. (or get a good FMLA software to produce compliant letters for you).
  • Notice the 5th bullet above regarding your policy around the use of paid leave….ya, you have to have a written policy on whether the use of paid leave is up to the employee’s discretion or required. Don’t leave this up to the managers or payroll people to figure out in the moment.
  • Don’t forget, if the employee does not return after the end of their FMLA leave and it is unrelated to the FMLA need (i.e. healthy, new mom simply decides to be a stay at home mom), then you may be able to recover your portion of premiums that you paid during their leave.
  • If you don’t know who your key employees are or what a key employee even is –the DOL has resources to assist you

 

Yes, seriously, the Rights & Responsibilities Notice is the outline for the contract with your teenager so they can’t say “WHA? You never told me!” Ensure that it is complete, in writing, and there is a very clear process for getting it disseminated. You and I both know there isn’t a court in the land that will let you get away with the “But, they should have known” defense.

 

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