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These days executives must be familiar not just with the broad outlines of the major statutes governing labor and employment issues but also with how they interact with a company’s seemingly unrelated policies. A brief phrase in U.S. Department of Labor regulations implementing the 1993 Family and Medical Leave Act (FMLA) can cause problems if companies use no-fault attendance policies. It’s not enough for executives to assume the general counsel is ensuring compliance. Unlike other employment statutes, such as Title VII, the FMLA authorizes a suit against not only the company but also against any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer. This potential for individual liability provides further impetus for executives to ensure that their attendance policies and procedures conform with the FMLA and related regulations. The FMLA requires that a covered employer provide up to 12 weeks of leave per year to a qualifying employee. An employee qualifies for FMLA leave so long as the employee has worked for the employer for a total of 12 months and has worked 1,250 hours in the prior 12-month period. Employees can take the leave for the birth or adoption of a child, for the employee’s serious medical condition or to care for a family member with a serious medical condition. The FMLA does not require that leave be paid, but employees must be allowed to use accrued vacation and sick leave. The law makes it illegal for an employer to interfere with, restrain or deny the exercise or attempt to exercise any FMLA right. The Labor Department’s regulations additionally ban an employer from engaging in manipulation to avoid FMLA responsibilities, discriminating against employees who have used FMLA leave or using FMLA leave as a negative factor in employment actions — including disciplinary actions. NO-FAULT POLICIES One way this can become troublesome for executives is that the regulations specifically forbid FMLA leave from being counted against an employee under no-fault attendance policies, which are commonplace, particularly for rank-and-file employees. They are designed to allow for fair and consistent treatment of employees by tracking any absence from work, except those absences specifically excluded by the policy — such as vacation, holiday and jury duty –without regard to the reason for the absence. When an employee reaches a certain number of such absences in a prescribed time frame, discipline results. As an example, assume an employer has an attendance policy providing for progressive discipline resulting in termination of employment when an employee accumulates 10 absences from work during a 12-month period. An employee reaches the 10-absence level and is discharged pursuant to the policy. The regulations and recent court decisions make it clear that if any of those absences were for FMLA-qualifying reasons, the employer can be held liable for interfering with the exercise of the employee’s rights under the FMLA. Accordingly, if an employee, discharged pursuant to such a policy, brings suit alleging interference with FMLA rights, the employer can expect every absence assessed against the employee to be scrutinized. Thus has the FMLA caused attendance control policies to become a source for liability if the employer’s attendance policy, intentionally or unintentionally, counts any FMLA-qualifying events against the employee’s absenteeism total. To avoid this result, executives must � properly structure the company’s attendance policy; and � make sure human resources managers administer FMLA leave in accordance with regulatory requirements. STRUCTURING POLICIES To avoid legal exposure for miscounting FMLA absences and punishable absences while maintaining an effective attendance policy, employers should verify with their general counsel that attendance policies explicitly exclude FMLA leave from consideration. If not, make sure they’re revised. Consider reducing the number of allowable absences under the policy if the number of allowable absences under the policy has not changed for some time. For example, if the policy allows 10 absences per year, including absences that must be excluded under the FMLA, then FMLA usage should be evaluated to determine whether and to what extent to reduce the allowable absence total. But, keep in mind that the downside of reducing allowable absences is that FMLA leave requests likely will increase, particularly among employees facing discipline based on attendance. Many absenteeism policies place an errant employee on a program lasting for a set period during which time the employee must demonstrate improved attendance. Such a program may provide that the period of time is extended by any time missed. If the use of FMLA leave extends the period of time and the company discharges the employee during the extended period, this could constitute interference with FMLA rights. For example, the U.S. District Court for the Southern District of Ohio held in 2003′s Schmauch v. Honda of America Manufacturing Inc. that an employer’s policy of extending the length of an attendance improvement program when FMLA leave was taken may have constituted interference with an employee’s FMLA rights. Some employers require that an employee offered light duty accept the assignment as a condition of employment. However, if the employee qualifies for FMLA leave due to his own serious medical condition, Labor Department regulations make it clear that an employee is free to turn down the assignment. Attendance bonus programs should not penalize an employee from receiving the bonus due to the use of FMLA leave. However, employers may not want to reward employees for perfect attendance when the employees are out on FMLA leave. If the eligibility period for the bonus is a set period of time, employers should consider changing the eligibility criteria to actual hours worked. For example, a company that awards a “well day” — a paid day off — for perfect attendance in a six-month period could change the time frame to award a well day for every 1,000 hours worked. An employee who took FMLA leave would not be harmed or unfairly rewarded with this type of policy change. SOME SAFEGUARDS The other source of potential liability under the FMLA is failing to administer FMLA leave properly. Labor Department regulations impose extensive notice requirements on employers to inform employees of their FMLA rights. The regulations require that employers notify employees of FMLA rights in a variety of ways, including detailed posting requirements, inclusion of FMLA rights in employee handbooks and individualized notice when an employer becomes aware that an employee may be eligible for leave. Employers should review internal procedures to ensure they meet these notice requirements. Of particular importance is training supervisors to recognize potential requests for FMLA leave and to forward such requests to the company’s FMLA administrator. In the U.S. Supreme Court’s 2002 decision in Ragsdale v. Wolverine World Wide Inc., the justices narrowly overruled a DOL regulation providing that failure to notify the employee that leave would be designated as FMLA meant any leave taken could not be counted against the 12-week entitlement. The defendant in that case was forced to argue the regulation was invalid because it had not provided the notice required under the regulation. To reduce abuse of FMLA leave, employers should consider the safeguards afforded them. Employers with high FMLA usage should review their policies to utilize available options fully, including the following: � Granting leave for eligible employees only — those with one year of employment and 1,250 hours worked in the previous 12 months (including use of a rolling 12-month period as permitted under the regulations); � Requiring certification — as prescribed under the regulations — of the need for leave, in particular medical certification, which is crucial when an employee requests intermittent FMLA leave, a rich source for abuse of FMLA leave by employees; � Designating certain absences as FMLA leave; � Revising a company’s sick leave policy; and � Adjusting the company’s insurance coverage to limit the definition of health care provider. The notification requirements have made compliance with the FMLA much more complicated for companies. Kent McCulloch has been board certified in labor and employment law since 1997 and has practiced in that field with law firms and in-house for more than 20 years. He is president of and manages labor relations for StarTran Inc., a company employing nearly 1,000 bus drivers, mechanics and administrative personnel in Austin, Texas.

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