DiversityInc - November/December 2008

the Family and Medical Leave Act (FMLA) was enacted for the valid purpose of providing employees with unpaid, job-protected leave for specific medical and family reasons. The law is intended to provide employees with leave for serious conditions that might extend beyond the employer’s sick-leave policies or that last more than a few days. However, the law also permits the use of FMLA leave on an intermittent basis, meaning that employees may take small increments of leave (one hour

or even less, depending on the employer’s policies) throughout the year without advance

notice. Several issues under the FMLA, including intermittent leave, have created frustration for many employers.

Consider the following example: Lois, a second-year employee, has a spotty attendance record. She has admitted to several tardies due to oversleeping and traffic problems.

Lois also has below-average productivity and has shown a lack of teamwork. When Lois has another absence, you prepare a written warning on attendance and meet with her for a disciplinary meeting. Lois tells you in this meeting that she has chronic migraine headaches, has missed work several times due to migraines and will be providing you with medical certification for intermittent FMLA leave. Once Lois provides the certification, she is generally entitled to 12 weeks of job-protected leave (again, in one-hour or even smaller increments). Although Lois’ performance continues to be spotty, you are now concerned that if you address these issues, Lois will believe she is being punished because of her FMLA leave. Lois’ coworkers are frustrated, and you now feel unable to address the legitimate performance issues.

Although the FMLA gives employees significant leeway in taking leave, there are steps employers can take to more effectively enforce their attendance policies and reduce risk under the FMLA.

Jennifer Mirus is a partner in the Labor and Employment Law Practice Group at the Boardman Law Firm. She has extensive experience troubleshooting all aspects of employment relations for her clients, including hiring and firing, wage issues, discrimination, FMLA and harassment. Mirus assists small and large businesses in creating practical solutions for their workplace issues. Mirus is a member of the Society for Human Resource Management, an alumna of Leadership Greater Madison and past president of the Legal Association for Women.

Create attendance policies 1and procedures. Adopt an attendance policy that clearly articulates your attendance expectations and the required procedures for requesting and reporting expected and unexpected absences, including detailed call-in procedures. It is important to consistently enforce the policy and procedures for all employees taking any type of sick leave, whether or not they are FMLA-covered.

Address attendance and 2performance issues. Do not procrastinate on addressing attendance and performance issues. If an employee is not meeting your legitimate expectations, it is critical that you talk with the employee immediately about the issue and have the employee sign off on documentation indicating that the issue was presented.

In Lois’ situation, had the employer addressed and documented her attendance and performance problems before the FMLA issue was raised, the employer would be in a much stronger position to address future issues and avoid a claim of retaliation.

Maintain confidentiality.

3The FMLA and disability laws generally require employers to maintain confidentiality regarding an employee’s status and leaves. Although an employee’s chronic absences or modified schedule may cause “rumblings” among coworkers, it is important not to disclose medical information.