Absenteeism and FMLA

• By Pieter van der Have
• 07/01/18

In the world of higher ed, most full-time employees earn a significant number of vacation days, holidays of various types, and sick leave. Although specific numbers of each may vary significantly from one institution to the next, we’ll probably agree that the number of days can be substantial. Unionized organizations may have their own variations on that theme. The total number of hours that employees could be away from the job could, in many cases, easily approach or exceed 300 hours per year. In round figures, that means that they may be compensated to be gone almost 15 percent of the time. That is, if they don’t all use every hour of sick leave that is available to them.

Some employees prefer to think of sick leave as being theirs to take, just like vacation time. Most institutions operate under the belief that sick leave is only there for employees to use if they really need it. Thus, there is a type of cost avoidance (and a potential increase in productivity) if we encourage employees to take as little sick leave as possible. Suggestion: We should discuss this area of performance in the annual performance evaluations.

The Family and Medical Leave Act

Management’s responsibility becomes even more complex if we throw FMLA into the discussion. The Family and Medical Leave Act of 1993 was designed to allow employees to miss work for various stipulated conditions without risk of losing their jobs. Under this Act, qualified employees are permitted to take up to 12 weeks of unpaid leave within a one-year period. Those conditions include their own health condition, childbirth (not necessarily pregnancy), sick family members, or situations related to military service.

I have found, over the years, that most FM front-line managers, and even the most senior-level ones, do not fully understand how to manage this type of leave. For instance, some think that FMLA leave must be with pay. (It doesn’t.) Others might think that it is only for family members. (It isn’t: it can be for the employee him/herself.) Still others might think that it is only for extended periods of time. (Wrong again: with the appropriate documentations and initial approvals in place, it can be for just hours at a time.) Some of us might believe that employer consent is always required for each instance of absence. (Nope. For instance, it may not be required when there is a qualifying exigency, which might apply to family members of active service members.) On the flip side, an employer has the right to deny intermittent leave requests in cases such as adoptions or foster care situations.

Just because an employee is entitled to use leave under FMLA does not mean that a supervisor must approve any request for that use. Management has the right to evaluate each request to determine if the reason for the request falls within the qualifications approved under FMLA. This could be a situation where it may be prudent to involve the institution’s HR department. It could also explain why some managers opt to avoid challenging any request under the FMLA.

Verification

It is appropriate for managers to request a doctor’s note when “intermittent” use of leave under FMLA is taken that exceeds the number of days stipulated by the employer’s policies (three days, for instance). It is not appropriate for us to deny an employee overtime or overtime pay (when otherwise entitled) just because leave under FMLA was taken during the pay period. An employer can, in most cases, require the employee to use any remaining paid leave days (sick leave or vacation) before allowing leave-without-pay to kick in. Employers do have the right to request employees to periodically recertify their need for FMLA coverage. An employee may use his/her own doctor for initial or re-certification, but the employer may insist on a second opinion from an employer-approved physician.

Clearly, there is much more to the application of the FMLA in your workplace than what I’ve identified here. The hope is that by offering this limited information you and your management team will seek to become more familiar with the FMLA, how you can manage it in your place of employment, and how important it is to have a strong relationship with your HR representative!

Published surveys indicate that certain types of organizations (public/non-public, union/non-union) may experience different types and degrees of challenges in the management of leave under FMLA. Nevertheless, there is little doubt that there are two absolute givens associated with use or abuse of the FMLA in your workplace: (1) it can be surprisingly costly if a substantial number of employees in one work unit use/abuse its benefits, and (2) it could have a negative effect on the morale of co-workers.

This article originally appeared in the College Planning & Management July/August 2018 issue of Spaces4Learning.