Monitoring employees on FMLA leave is one of the many obligations of employers administering FMLA leave of absence for employees. In fact, while the employee is out, employers have several things to monitor:
- The total amount of leave used and how much is remaining in the leave year.
- The use of paid leave, which can and should run concurrently with FMLA leave.
- The employee’s payment of health insurance premiums to ensure continuing benefits.
- Return-to-work status of the employee. (This can be done with regular – but not too frequent – communications with the employee).
The use of return-to-work status reports is probably the touchiest subject on the list because employers have to walk a fine line in terms of the amount of contact with the employee who is on FMLA leave.
"You can request return-to-work status reports from the employee, although I’d encourage you to use some caution with this because if you’re constantly calling them every week it could be arguably construed as an interference with their rights." Jonathan O’Connell explained in a recent BLR webinar. If you are going to use a return-to-work status report, be sure to include this in your FMLA leave policy and be sure that the Notice of Eligibility and Rights & Responsibilities advises of the requirement.
The return to work status report may actually prompt some employees to advise that they do not intend to return to work at the end of the FMLA leave. If the employee unequivocally states that they do not want to return, then the employer’s obligations (to continue benefits and to provide reinstatement at the end of the FMLA leave) end. The key is to ensure that the employee is unequivocal about this. It would be best to get the statement from the employee in writing if this is the case. If there is any doubt or if the employee expresses any desire at all to return – even if it seems highly unlikely – then the employer should continue to provide benefits and plan on reinstatement.
For more information on administering FMLA leave, order the webinar recording of "Managing Family and Medical Leave: Helpful Tips and Tools for HR Professionals." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Jonathan E. O’Connell of Holland & Knight practices primarily in the area of labor and employment litigation. His experience includes representing management clients in matters involving claims of racial and sexual discrimination, wrongful discharge claims, federal and state wage and hour compliance, enforcement of non-competition, non-solicitation and confidentiality agreements, and collective bargaining agreements.
There are two types of leave, family and panetral, to which you might be referring. There is no leave law in DC for other family functions or activities.Family Leave:D.C. Code a7 32-502 authorizes up to 16 weeks of family leave to qualified employees every 24 months.Family leave may be taken for the birth, foster care placement, or adoption of a child or to care for the serious health condition of a family member. Employers may request that an employee seeking DCFMLA leave under this section provide certification from a health care provider. Certification details can be found in D.C. Code a7 32-504.Parental Leave:D.C. Code a7 32-1201 authorizes 24 hours of panetral leave per year to allow employees to attend school-related events. “School-related event” means an activity sponsored by either a school or an associated organization such as a parent-teacher association. School-related events include student performances, concerts, plays, rehearsals, sporting events, parent-teacher conferences, or any similar type of activity, where the child is a participant or subject of the event, not a spectator. For more information, contact the District of Columbia Office of Human Rights at (202) 727-4559 or online at: ohr.dc.gov.