How to ensure your employee handbook supports FMLA compliance

April 12, 2011
in Employment Law

Employers are generally free to develop their own internal policies, but many laws require employers to notify employees of those policies. The most challenging law in this regard is the FMLA.

The FMLA entitles eligible workers to a maximum 12 weeks of unpaid leave per year to deal with their own serious health condition or that of an immediate family member, or the birth or adoption of a child. In recent years, Congress has tacked on caregiver leave for relatives of members of the armed services to ease the strain on military families. FMLA leave and military caregiver leave interact with several other laws, including the Uniformed Services Employment and Reemployment Rights Act.

Some states allow employees to take leave for reasons that may not qualify under the FMLA. Employers have to weave these disparate laws into a uniform leave policy that meets the various laws’ requirements.

Responsible employers cover these policies in their employee handbooks.

But that can leave employers open to several types of lawsuits. And a poorly written handbook or one that is out-of-date is a dream come true for a lawsuit-minded employee.

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WHAT’S NEW: In the case of Jones v. City of Atlantic City (No. 08-2416, U.S. Dist. Ct., 2010), an FMLA dispute revealed that Atlantic City hadn’t updated its handbook in 13 years.

In fact, the last update happened on Nov. 27, 1992, two months before the FMLA was signed into law.

As a result, the city never had an FMLA policy. It wasn’t until city employee Melvin Jones was injured in a car accident and needed time off to recover that the issue emerged. Although the city granted time off to Jones, it insisted he see a city-designated doctor before he could return to work.

The city claimed it scheduled an appointment for Jones, but he didn’t keep it. Jones claims he was never advised of the appointment. Strangely, neither party took any action for three months. Then, the city fired Jones for failing to show up for work—at a time when he claims he was still unable to work.

Eventually, Jones saw the city doctor, who certified him able to work. He returned to his job the next day, working under an agreement that allowed him to use accrued leave to cover the time he had taken off.

But that didn’t end the matter. Jones sued Atlantic City, claiming it violated the FMLA by failing to inform him of his rights and obligations while on leave, and retaliated against him for taking legitimate leave by terminating him.

The city countered that its agreement to allow him to use his leave and return to work after seeing the city doctor prevented him from losing any wages or benefits.

Atlantic City wound up dodging a bullet. When the court asked Jones to document his damages, he couldn’t show that the incident had cost him anything. The court ruled in the city’s favor.

However, Atlantic City still had to spend tens of thousands of dollars in legal fees, an expense it could have avoided with an up-to-date handbook and FMLA policy.

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HOW TO COMPLY: Update your handbook regularly. Policies, procedures, and applicable laws change frequently and handbooks that don’t reflect reality will cause problems.

Consider handbooks as a set of guidelines; they’re not contracts. Leave enough flexibility so you can make common-sense decisions without being handcuffed.

Because collective bargaining agreements and arbitration agreements are complicated documents meant to enforce compliance, never include them in your employee handbook. It’s sufficient to reference them, telling employees where to go for guidance.

Have a leave policy

Clearly, you need a leave policy that encompasses:

  • FMLA leave
  • State-mandated leave
  • Military caregiver leave
  • Military leave for members of the National Guard and Reserve.

Your policy must cover how you pay for leave. Specifically, how may employees on FMLA leave substitute accrued paid leave for unpaid leave?

Note: Your policy should explain any compensation you voluntarily pay to military reservists while they’re on active duty.

Your policy must also spell out eligibility requirements for taking leave. Under the FMLA, you can provide leave beyond what the law requires. If you elect to do so, incorporate it into your leave policy and provide it to all eligible employees on a nondiscriminatory basis.

When drafting a leave policy, don’t just copy FMLA eligibility requirements straight from the regulations. Actively evaluate your leave program’s eligibility requirement and compare it with the minimum FMLA standard.

If your leave requirement mirrors the law, great. If it exceeds it, make sure that’s what you meant to do.

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