by Carolyne S. Kalson, Esq.
On December 1, 2006, the United States Department of Labor published a request for information and public comments to find out what’s working–and what’s not–with the 12-year-old law that allows employees to take up to 12 weeks of unpaid leave for various medical reasons.
Since enactment of the Family Medical Leave Act (herein FMLA), there has been a significant amount of Litigation concerning its regulations and what exactly is covered by the Act. Employees have sued over failure of the employer to grant FMLA leave. Employers have requested medical information to which they are not entitled. Additionally, employees have sued alleging retaliation for use of FMLA leave.
Employers have had difficulty determining what constitutes “a serious medical condition” under the Act and how to administer intermittent leave which can disrupt the functioning of the business. There is also concern about employee abuse of the leave, for example employees who routinely call out sick and take intermittent leave on “Mondays and Fridays”.
To be eligible for FMLA, an employee must have worked 12 months and the employer must have at least 50 employees. Notice of leave is also required except in emergency circumstances.
If an employer questions the validity of a medical note requesting leave, it can request the employee submit the medical certification provided by the Department of Labor. If the DOL certification has been completed, the employer CAN NOT request additional information. Only with the employees consent can a health care provider representing the employer contact the employee’s doctor to clarify or verify the certification. If the employer has a reason to doubt the certification, it may employ a second and third medical opinion at its expense.Thus, in some circles the FMLA is known as the full employment act for both lawyers and doctors.
There are mechanisms under the act for controlling intermittent leave. The employer can schedule it to minimize disruption of its operations or transfer the employee to an alternate position. There are ways to prevent abuse of FMLA including policies on outside employment, call in policies and under some circumstances surveillance. If an employer believes the employee is abusing the FMLA leave it can discipline or terminate the employee. However, it is risky and may likely result in litigation.
If you would like more information on this subject, kindly contact my office at 732-785-0800.
DISCLAIMER: This article provides general information only and is not intended as legal advice. This article expresses the opinion of the author only and not the Brick Township Chamber of Commerce.