FMLA and Employee Illness – Three Tips for Compliance

Howard K. KurmanPrincipal, Offit│Kurman

Employee illness can rock any organization. Similarly, an employee’s inability to work given family illness is equally difficult – for both the employee and the employer. The Family Medical Leave Act (FMLA) mandates compliance in similar scenarios for employers with more than 50 employees. Importantly, the Department of Labor (DOL) recently clarified the role of FML in recent weeks, given the global pandemic. Make sure that your organization is up to date and in compliance by adhering to the following tips:

  1. Clarify via policy what documentation is required for those requesting leave. The Department of Labor’s recent guidance clarifies that expanded FML – under the Families First Coronavirus Response Act (“FFCRA”) – can request similar documentation to “conventional” FMLA, with accompanying certifications. Documentation requirements for emergency paid sick leave under FFCRA (2-weeks in duration) differ (as well as the timing of such requirements), and therefore your policy should distinguish accordingly.
  2. Posting the FFCRA and FMLA notice is required. Although both laws overlap, eligible employers will only meet the posting requirement if both posts are distributed to the workforce. Significant penalties apply for a failure to do so.
  3. Ensure that your payroll reflects policy requirements. Recent DOL guidance clarifies that employees taking leave for child care are entitled to $12,000 total, with $2,000 for paid sick leave and $10,000 for FML. Make sure that your payroll team or provider clearly tracks and catalogs leave requests to provide proper payment (and avoid possible penalties).

In this uncertain time, doing work on the frontend to update or create compliant policies provides clarity and security to the entire team. Feel free to reach out to me to discuss your team’s FML and paid leave policies.