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1. FEATURE STORY:
HOW DO YOU SOLVE A PROBLEM LIKE
INTERMITTENT FMLA LEAVE?

The Department of Labor (DOL) asked, and it received. Back in December, the DOL asked for public comments on the Family and Medical Leave Act (FMLA) regulations and their impact on the workplace; it received over 15,000 comments. In June, the agency released a comprehensive review of the comments in Family And Medical Leave Act Regulations: A Report On The Department Of Labor's Request For Information. Not surprisingly, unscheduled intermittent leave is the "single most serious area of friction between employers and workers," particularly when it is needed for chronic health conditions. Judging from the report, you are certainly not alone in your frustration in trying to maintain staffing levels and control attendance problems in light of unscheduled intermittent leave.

While the DOL wrote that it is "cognizant" that some of its regulatory decisions and interpretations may have contributed to the situation, the report does not propose any changes. Its purpose is to lead to "fuller discussion" about how the FMLA has played out in the workplace. Employers were vocal about:

• how hard it is to determine or monitor employees' incapacity when a chronic condition does not involve any active, direct treatment or care by a health care provider;

• how frustrating it is that employees can seem to avoid promptly alerting them of their need to take unscheduled leave in situations when it is practicable for them to do so;

• how they can't verify that an unscheduled absence is, in fact, caused by a chronic serious health condition, or can't seek additional medical verification.

The DOL commented that many employers used the words "abuse" and "misuse" to describe employee use of intermittent leave. But the agency cautioned that it couldn't tell from the record how much leave taking was actual abuse and how much was legitimate. It seemed to the DOL that unscheduled intermittent leave has caused a "backlash" by employers trying to reduce absenteeism (e.g., repeatedly asking for more information in medical certifications). Don't fall into the trap of clamping down so hard on absent employees that you inadvertently violate the FMLA.

Remember, you can't ask for certification every time an employee claims an absence was due to an FMLA-covered chronic condition. You can ask for more certification if you have a reasonable suspicion of abuse.

And you can ask the doctor to certify whether the employee's absence pattern fits with the condition. Beware: Health care providers commented to the DOL about the difficulty they have in predicting the number of times a condition will flare up.

For additional information about FMLA compliance issues, download our FREE REPORT: "Five Recent Court Cases Change The Way You Need To Administer FMLA Leave".

2. CATHIE'S CORNER:
WHEN EMPLOYEES ARE WRONG
ABOUT THEIR RIGHTS

It's happened to all of us. An employee comes in and announces that they want this benefit or that privilege and that the law says you have to give it to them. Or you take an action and the employee says you can't do that because the law says so.

The ones I've heard the most often include:

• all employees have to be given a fifteen-minute break in the morning and afternoon;

• it's illegal to fire someone while they're on disability leave;

• an employer cannot give out any information in a reference check except to confirm dates of hire and job title (this one has a few variants);

• an employer is forbidden to ask the reason for an employee's absence.

In many cases, the employee's claim comes from a half-heard and generally misunderstood feature in existing law. The belief that an employee can't be fired while collecting disability benefits stems from the fact that having a disability is a protected characteristic under federal and most state laws. The misunderstanding regarding reference checks is based on the fact that so many companies have established such a policy that many employees believe it is law.

Unless you are very sure of your facts, it's probably best to make a good-faith attempt to check and see if there's any basis for the employee's claim. Laws change; state laws vary; and sometimes laws are industry specific. It's just barely possible that the employee knows something you don't.

What's most likely, however, is that the employee heard something that they have misinterpreted. One way to explain to the employee why what they have heard does not apply or is just plain wrong is to suggest that they bring you a copy of or a link to the law that they're talking about. This puts the responsibility back on the employee. It can also be the most effective way of proving to them that their belief is faulty. When they're unable to come up with the law, they're not going to be able to blame you for stonewalling them. This is generally most effective when the issue is black and white. Either the law does or does not require that break; either it does or does not require that you include vacation or holiday pay in calculating overtime. It's purely objective data.

If you have time, however, and you know where the law in question can actually be found, another effective way would be to provide the employee with the actual law and review with them how and when it applies. This can be more effective when there's a subjective factor to the issue, such as what's a reasonable accommodation or what is meant by a disability. While it's not always practical time-wise to use this method, I actually prefer it when possible. Employees are more likely to fully understand where their thinking has gone off track, and will appreciate that you didn't ignore their concerns.

A final thought: The fact that the employee thought it was worthwhile to bring the issue to your attention should get you to think twice about it and perhaps revisit the associated policy. Obviously you can't write your policies to suit the wishes of each employee, and sometimes business needs dictate that you can't give employees exactly what they want. But this can be a sign of discontent among your employee base, and it certainly can't hurt to see if you can expand your break policy, or offer more than the minimum disability leave, or whatever the issue may be. If you can't, you can't. But the effort will serve you well.

Catherine Bannon is the President of HR by Request, Inc., in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting firm.

ANONYMOUS WHISTLEBLOWER GETS THE BOOT

State and federal laws prohibit managers from firing employees for reporting occupational health hazards. What if there is no clear evidence that a manager knows who blew the whistle? An employee can still...View the full story on our website.

Kick back, relax, and take a few minutes to check out the HR Soapbox, "What Are Job Applicants Thinking???," in which an editor explores some wacky, yet common, mistakes made by job seekers.