Western Grower & Shipper 2018 05 MayJune

rights, employers can take the following actions to protect their rights to effectively manage FMLA leave specifically and stay ahead of issues that may arise. Document All Absences Documentation is critical in administering the leave as it can support any action that might be needed in the future. Employers who fail to track employee leave eligibility may expose themselves to potential liability, including a costly wage and hour dispute, or cause their employee to lose their health plan benefits just when they need the coverage the most. All absences, whether they are due to illness or injury and including vacation requests, should be documented. This allows such requests to be compared with requests for FMLA leave to help detect possible abuse as well as limit liability. Double-Check Eligibility When an employee requests FMLA leave, it is critical that the employer verifies that the employee is eligible for FMLA leave. Courts have ruled that if employers represent that an employee qualifies for FMLA leave and the employee acts based on that representation, the employer would need to honor such eligibility. Double-checking eligibility can minimize this potential risk. Employers May Require Employee to Submit Certification to Support FMLA Need Employers should generally request a medical certification and provide the form to the employee within five business days of when the employee notifies the employer of the need for leave or, if the leave is unforeseen, within five business days of when the leave starts. Employers often request the certification when providing the required notice of eligibility, rights, and responsibilities to the employee. The certification is a document or form that is completed by the employee and, when appropriate, a health care provider.

The certification will allow the employer to: • Understand the likely periods of absences; and • Verify that an employee, or the employee’s ill family member, has a serious health condition (or, in the case of military family leave, that facts exist to support the employee’s request for such leave). The employee is required to provide the initial certification if his or her employer requests it. Employees are responsible to find a health care provider to provide a complete and sufficient certification, and to pay for the cost of the initial certification. After acquiring a complete and sufficient certification, an employer is not permitted to ask for more information, such as requiring a doctor’s note for each FMLA-related absence. Requiring a doctor’s note for each unpaid FMLA related absence may be considered interference with the employee’s use of FMLA leave. Train Managers and Supervisors Managers and supervisors should know the basic provisions of the law as it pertains to leave of absences, details relative to employers covered FMLA and the requirements for employee eligibility. This information is in addition to your company’s specific policies and procedures relative to leave of absences. Educating your leadership will not only help them understand their employee's rights to FMLA leave, but helps the company avoid risks and aids in identifying leave abuse To prevent problems with wage and hour claims and health plan eligibility, it is important to ensure that your Human Resources Department is educated on the industry’s best practices for legally complaint leave and disability policies and enforces them. Western Growers provides training, resources and legal specialist referrals to ensure that your Human Resources Department is educated, informed, and up to date on the law’s latest requirements. For more information about training, Western Growers members may contact Lupe Cuevas at lcuevas@wga.com.


MAY | JUNE 2018

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