Human resources & recruiting --

Family Medical Leave Act of 1993

by Scott Manning, HR Director, MedPro

Reprinted from the ASPR Newsletter, Spring 2004

For this issue, our topic is the Family Medical Leave Act of 1993 (FMLA). The FMLA is a Federal law requiring employers to provide time off for employees due to medical reasons.

I remember sitting in a staff meeting years ago to discuss how the company was going to deal with this new piece of legislation. I recall making the statement that “this is a waste of time, nobody is ever going to use this because the time off is without pay” Well, we have all been wrong, and I certainly was this time!

The FMLA is a topic that doesn’t affect the hiring process often but can certainly affect staffing once a physician has started. If a physician takes 12 weeks off and you are unable to replace him/her, how do you cover the practice?

u Locums,

u Temporary help from the community (if available),

u Everyone else works harder.

Who is affected

Your practice is covered by the Act if you meet any of the following criteria:

1. You employ 50 or more employees in one facility.

2. You are a public agency.

Employee Eligibility

1. Must have worked for the organization for a minimum of 12 months and worked at least 1250 hours. This is time WORKED, it does not include vacation, CME or paid holidays. For an exempt employee, you would compute this based on normal shift length. This is typically 8 hours; however, for example, an Emergency Medicine doctor might work 12 hour shifts. Nonexempt (hourly) employees are self explanatory.

2. FMLA must be for a medical reason, and can be for the employee or an immediate family member.

3. The medical issue must be certified by a physician to require the employee be off work. For example, maternity leave is the most common use of FMLA (both father and mother are eligible for maternity leave). Medical issues that are covered are too numerous to list but include:

a. Maternity,

b. Surgery (pre-scheduled or emergent),

c. Psychological issues,

d. Any debilitating illness.

4. The time off can be intermittent. For example, if an employee has to receive dialysis 3 times a week for 3 hours, you must accommodate this. However, the total time off cannot exceed 12 weeks within a 12 month period.

Employer Requirements

u With medical validation, the company must grant the FMLA.

u Time off is without pay unless company policy supersedes and indicates continued compensation.

l NOTE – I recommend your policy state that the employee must use accrued PTO until exhausted. Otherwise, someone can take FMLA leave and upon returning, turn around and go on vacation.

u Continue employee health insurance during FMLA period at standard employee premiums.

u Must hold employee’s current position or “like position” open for their return. If you choose to fill the position due to “business necessity,” you will be required to create another position for your returning employee.

Summary

The FMLA is a far reaching piece of legislation whose scope continues to expand. It is governed by the Department of Labor. If you need further information, access their website at www.DOL.com. The FMLA is legislation designed to protect employees from losing their jobs due to their family's or their own medical issues. The logistics of determining who or what is covered under FMLA can be daunting. Litigation under this act continues to increase, and the wide range of medical issues covered seems to multiply at the rate of a rabbit colony.

I advise that as a corporation/practice you err on the side of the employee and approve virtually all requested FMLA leaves. Litigation in this area leans heavily in favor of the employee. Also, consider the message you send to the remainder of your work force if you are declining valid requests. If you decline a request which results in litigation, potential financial penalties include back pay, fines, and liquidated damages.

"Approve, approve, approve" should be your motto. If you do decline an FMLA request, have your attorney review the case and provide legal opinion.

Next ISSUE

Interview questions--what you can and cannot ask.

Scott M. Manning SPHR, is Director of HR and Provider Recruiting at MedPro in Phoenix, AZ. He can be reached at 602-470-5012 or . v