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FMLA Tips - Tracking Usage

One of the more challenging issues an employer faces is that of Family and Medical Leave (FMLA) absences and how they are designated. While tracking leave can be a difficult task, it is critical that it be accurately tracked.

Why is FMLA leave tracking a difficult task? Aside from the rules and regulations being complicated and confusing, many employers lack proper policies and procedures to track leave an employee has taken. It can also be burdensome and overwhelming to track all leave. Many employers choose to decline tracking certain categories of leave, whether for practical reasons or for simply wanting to be generous. In some instances, Human Resources might not learn of an employee's need for leave until it becomes an issue.

There are pitfalls to be aware of regarding FMLA leave. Some of the hazards of failing to track FMLA leave include the following:

Hazard 1: Attendance policy
An absence cannot count against an employee under your attendance policy if it was known to be due to an FMLA-qualifying reason and even if HR had no knowledge about it, but the supervisor did.

Hazard 2: Retaliation and Discrimination
The potential exists for retaliation claims when managers grow weary of multiplying unexcused absences. Once employers reach a boiling point - they are ready to terminate the frequently absent employee, thus creating a perception of discrimination and/or retaliation.

Hazard 3: Inconsistent Tracking Inconsistent tracking can lead to discrimination and/or retaliation claims in a different way. An employer should not use FMLA-qualifying absences when making employment decisions.

A minimum increment of leave, albeit confusing, is an option some employers choose to adopt. Some reasons may include:
  • A reduction to the administrative burden of recording small increments of leave.
  • Improvement in the predictability of staffing.
  • It can also prevent employees from utilizing leave time for a few minutes here and there.

The minimum increment cannot be longer than one hour and must be no longer than the minimum increment used for other types of leave.

A few scenarios employers might encounter with regards to retroactive designation of qualifying FMLA leave are listed below.

Scenario 1: Unexpected Leave
These are situations in which an employee is in an accident or has a family medical emergency, wherein he or she is on leave before actually requesting it. All leave, beginning on the first day of leave can be designated as FMLA.

Scenario 2: Missing work before requesting time off
An employee has missed work due to pre-surgery consults, pre-natal pregnancy visits, or other similar situations. An employer can track back to the date notified or count absences listed on the medical certification.

Scenario 3: Frequent missed days of work
An employee fails to notify his manager or HR department about frequent neck pain, ultimately requiring surgery. The manager would like to discipline the employee but HR has no knowledge of what has been going on. The solution for this particular situation is not easy. One approach is to start tracking from the date of the Eligibility Notice. Another option would be to ask the employee to comply with a retroactive designation of leave.

FMLA training for managers and employees is crucial. Employees need to be trained on the basics of FMLA so there are no surprises when they find out:
  • Their particular situation may not qualify
  • The use of vacation time may be required along with FMLA
  • Leave is unpaid

Managers are the eyes and ears of a business and should be able to detect a FMLA situation, even if the employee doesn't. Further, they should know what steps to take to ensure accurate accountability and tracking.

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