Thanks to those who attended my webinar last week with Matt Morris and Tamika Lynch on “FMLA Made Easy: Effectively Managing Difficult FMLA Issues.” As the survey feedback indicated, this webinar was a great opportunity to discuss common issues that arise in the administration of FMLA leave and how employers can best address them.

From an employer perspective, there are several key takeaways from the webinar that will help employers legally administer FMLA leave and prevent FMLA leave abuse (ignoring, of course, the part where I sang to you during the webinar):

1. Medical certification, recertification and second/third opinions continue to be among the best tools to combat FMLA abuse. We spent a good amount of time during the webinar working through what an employer should do when it receives incomplete, inadequate or suspect medical certification. The message is clear — employers have rights when it comes to the medical certification process, and they should utilize them to combat FMLA abuse.  A prior blog post here also help guide you through best practices in the certification process.
2. A honest belief that an employee is abusing FMLA leave — in most cases and states (except California!) — is a strong defense to an FMLA claim, so long as the employer conducts a complete and exhaustive investigation of the facts involved.  Clearly, more employers should be mindful of this defense, since courts are increasingly turning to it when analyzing FMLA claims.
3. Employers must be careful where an employee seeks leave to care for an adult child or another family member.  For best practices in dealing with these issues, access the webinar!
4. Where FMLA ends and ADA begins, it is critical that employers engage the employee in the ADA’s interactive process.  Communicate during FMLA leave…after FMLA leave ends…and at all times before and in between!  Where an employee has requested additional leave after FMLA leave expires, we want to know what they can and cannot do, whether reasonable accommodations are available to help them perform their essential job functions, and whether additional leave will help them perform these essential duties. As I also pointed out during the webinar, it is important for employers also to document how the requested leave of absence poses an undue hardship to their business. Specifically, they should document the following:
   • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
   • Lower quality and less accountability for quality
   • Lost sales
   • Less responsive customer service and increased customer dissatisfaction
   • Deferred projects
   • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
   • Increased stress on overburdened co-workers
   • Lower morale

Finally, as you may recall during the webinar, I made reference to an FMLA guide recently published by the U.S. Department of Labor that I believe is of value to employers when discussing with an employee their obligations under the FMLA.  You can access the Guide here (pdf).  What I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process.  HR professionals and attorneys have mentioned to me that they have found the Guide useful in their discussions with employees largely for this reason.

Thanks again to those who attended the webinar.  I look forward to your continued feedback on the issues we discussed.