The Complexities of FMLA

The author says that FMLA is not an anti-discrimination law, it is an entitlement law and a very complex one. He walks through some hypothetical scenarios to help explain some of these complexities.

The Family Medical Leave Act (FMLA) was enacted into law in 1993 to allow up to 12 weeks of time off for employees to care for themselves or immediate family members who had a serious medical condition.  FMLA is not an anti-discrimination law, it is an entitlement law and a very complex one.

In an earlier article for FedSmith I pointed out that there are both Title I and Title II employees in government service.  The Department of Labor’s Wage and Hour Division was charged with the enabling regulations for Title I personnel, whereas Title II employees fall under the regulations put out by the Office of Personnel Management (OPM), and these apply to the preponderance of federal employees.

I learned federal human resources when there was the Federal Personnel Management Manual and its various updates from OPM in the form of letters of guidance and bulletins.  These are long gone and they got “hammered” by President Clinton and Vice President Gore in the effort to reduce government regulations.  The Clinton Administration’s efforts to eliminate gobbledygook was well intended, but these manuals, letters and bulletins were excellent resources for the federal HR community, especially those who just washed ashore in HR as these were excellent learning resources.

Though the majority of the FMLA entitlements for federal employees are governed by OPM, what do you do when the OPM regulations are silent, and do not cover the specific point in question.

Recently, the DOL FMLA Branch Chief, Helen Applewhaite, responded this way to a FMLA inquiry I made:  “Most federal employees are covered under title II of the FMLA and subject to regulations issued by OPM.  As we discussed, title II of the FMLA requires that OPM prescribe regulations for the administration of title II that shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary of labor to carry out title I of the Act.”

Thus, in order to understand the Title II regulations by OPM, a federal HR practitioner should also be very familiar with the Department of Labor regulations for Title I employees.  This goes to the heart of my last article on the Skills Gap.

Continuing professional education is absolutely essential if HR is going to provide quality customer service to the managers and employees.  A former Commissioner with the Bureau of Labor Statistics (BLS) responded to my Skills Gap article: “As BLS Commish (retired) I always advised the supervisors/ managers to be guided by the experts in OASAM as we (BLS) are not in a position to provide insight to something outside our area of knowledge/ expertise. I know personally that I appreciated the counsel of the OASAM staff although at times I did not always agree with their counsel.”

Professional disagreement can be very healthy as all facets of a problem can be examined before an action is initiated.  Nevertheless, it is incumbent on the HR professionals to understand all of the regulations surrounding a topic, including private sector law and case law because it can be very instructive.

The most common day-to-day issues in the workplace that raise more regulatory and logistical questions are employees’ request for leave.  A simple request for leave often poses questions of lost productivity, coverage, and does the request conform to the agency’s and public leave regulations.  This maze becomes more complex when the request for leave includes FMLA.

Three major drivers giving rise to FMLA usage is the influx of child bearing women in the workplace, the graying of America as much of the workforce is getting older, and the returning of veterans from a war requiring medical care.

Training is the key to compliance with FMLA, and this training must not be reserved just to HR Specialists.  Managers and supervisors must have a fundamental understanding of the laws and regulations surrounding various forms of leave, especially FMLA.

Let’s test this out.  In this hypothetical situation you are an OSHA compliance supervisor and one of your employees comes to you and asks for intermittent leave to bond with his newborn son.  This is the employee’s first child, and the child does not have any serious health issues.  The time off that the employee wants will conflict with the agency’s preparation for an upcoming court case for which this person will be an expert witness, and he will need to work closely with the agency’s counsel to develop the agency’s evidence to present against an employer who has been sanctioned for several major safety violations.  You are aware that FMLA is an entitlement program, but to grant the leave will also cause a major hardship as you prepare for trial. You are also aware that to contact the employee frequently when they are on FMLA leave may also be viewed as an interference with the person’s right to use the leave.  Thus, what do you do?   This question will be answered later in this article, but before you get there, what do you think your answer should be?

In another situation you have a husband and wife who both work for the same agency.  Both report to different supervisors, and each have approached their supervisor requesting 12 weeks of FMLA leave to adopt a child.  They are adopting a child from Latin America, and both need to travel there to complete the legal formalities.  Upon returning home they want to continue using FMLA to take their infant for medical appointments, and to bond with their newly adopted child.  Can management approve the 12 weeks of leave for each parent in this situation?

Lastly, an employee has requested FMLA leave and provided you with a medical certificate signed by a nurse and not the doctor.  Is this acceptable?

These are very typical workplace leave issues for which both HR and managers must know the answers.

Now, let’s see how good you are in responding to the previous hypothetical situations.

An employee eligible to take FMLA may use intermittent leave after the birth of a healthy child only if the employer agrees.  In this hypothetical case the employer would be able to deny the leave and to have the employee conform to a schedule that would satisfy the operational needs to prepare the case for trial.

In the second scenario, under FMLA, employees qualified to use FMLA may take a full 12 weeks of FMLA leave for the birth or to be with a healthy newborn child.  However, when both husband and wife work for the same agency, the full amount of FMLA leave is limited to an aggregate of 12 weeks.

In the last hypothetical I could not find an answer among OPM’s guidance on FMLA leave.

Here is a situation where the practitioner may default back from 5 CFR 630, to 29 CFR 825.  The FMLA rules say that a health care provider must complete the medical certification, normally on the WH-380 form, Certification of Health Care Provider for Employee’s Serious Health Condition (FMLA).  29 CFR 825.125 allows for any other person determined by the Secretary of Labor to be capable of providing health care services.  The provider must be authorized to diagnose and treat physical or mental health conditions.  In other words, if your state recognizes a nurse practitioner as someone who can diagnose and treat issues, then this person would satisfy the FMLA certification intent.

As employees are becoming more sophisticated on ways to take leave, management must be equally sophisticated to ensure these requests for leave conform to established regulations and policies.  Otherwise, abuse of leave will continue.  In my next article, I will address the interaction of FMLA with the ADA.

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.