Family and Medical Leave Act in Practice

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Table of Contents

Errors and Oversights
Methods of Calculating Leave
Eligibility in the Absence of a Thirty-Day Notice
Availability of Employment
Department Closure
References

Errors and Oversights

The first error related to FMLA is the scarcity of information regarding the necessary medical documentation. The document requires an employee to present a certificate that supports a request for the FMLA leave as a result of an adverse health condition. However, it does not list the criteria for a document in question. As a result, it is possible to expect a scenario where an employee will submit a certificate that would identify major symptoms observed by a healthcare provider and the approximate duration of a condition. In some instances, this information can be considered insufficient, which will prompt the management to request additional data (e.g. a specific diagnosis) in order to confirm the employee’s eligibility for leave (Bosland, 2008a). This request may be difficult to obtain in some cases, leading to tensions and, possibly, termination of employment. This scenario can be avoided by introducing specific criteria for documentation required for submission by employees, such as the inclusion of certain elements by a healthcare provider.

The second error is the vagueness of the definition of failure to return to work after the leave. According to the document, the failure to return is considered equivalent to a voluntary resignation. This vagueness introduces the risk of employment termination as a result of the prolongation of a serious health condition. Admittedly, the document does contain a disclaimer regarding the circumstances beyond employee’s control. However, it only applies to the recovery of health insurance premiums, which factors in after an employee is already fired. This oversight can be addressed by acknowledging the existence of circumstances preventing an employee from returning t duty on a previously specified date.

Third, the FMLA policy statement states that the company reserves the right to undergo a second certification procedure on the conditions determined by the company in the case when there is a reason to doubt the initial certification results. However, the possible causes for doubt are not specified, which opens up the possibility of unfair practices on the part of management. In other words, it becomes possible for the company to arbitrarily assign recertification, putting an employee in unfavorable conditions. This oversight can be addressed by specifying the situations in which such action may be deemed necessary.

Fourth, the statement does not mention the adjustment of performance standards related to FMLA leaves. As a result, it is possible to encounter the situation where an employee fails to comply with annual schedules as a result of a prolonged leave. This oversight introduces a risk of disciplinary measures from company management in response to supposed underperformance (Bosland, 2008b). It is possible to address this error by adding a possibility of standards adjustments for eligible employees.

Finally, the document does not contain specific conditions of responding to the request. Delays in the process of determining employee eligibility may complicate the process of obtaining the leave and, as a result, discourage employees from using the opportunity and, in some cases, create the possibility of abusive practices (Bosland, 2007). The apparent solution is the addition of a specific timeframe necessary for approval of a request.

Methods of Calculating Leave

Currently, three alternative methods exist for calculating leave, namely using any fixed 12-month period (e.g. a fiscal year or a calendar year), a 12-month period following the date of the first leave taken by an employee, or a 12-month period calculated backwards from a date when a leave requested by an employee (SHRM, 2018). I believe the latter method is better for two reasons. First, it offers the most flexible scheme of taking leave, which is convenient for an employee. Second, it effectively eliminates the possibility of using a block of FMLA leave that exceeds the allowed duration, which is beneficial for an employer.

Eligibility in the Absence of a Thirty-Day Notice

The eligibility for an FMLA in the absence of a required notice is determined depending on whether it was possible and practical to issue such a notice. Thus, in a situation of emergency where it is neither possible nor practical to provide a timely notice, the employee is still eligible for a leave (U.S. Department of Labor, 2013b). For example, an employee issuing notice after two days of leave would be eligible if no possibility to give it sooner was available.

Availability of Employment

According to the FMLA, it is not necessary for the same position to be available to an employee returning from leave. However, it is required that an equivalent position is offered to them. The position is considered equivalent when it has terms, conditions, and benefits that are virtually identical to the original one (U.S. Department of Labor, 2013a). The failure to comply with these requirements is considered a violation of the law and is enforced by the Wage and Hour Division.

Department Closure

In a situation where the employee’s department is closed during the leave, the company is required to offer them a position with identical pay and benefits adjusted for any unconditional pay increases that occurred throughout the duration of the leave. All benefits accrued prior to the leave should be restored. If an employer fails to comply with these requirements, the legal ramification may include a private lawsuit filed by an employee.