MEAT+POULTRY - January 2025 - 84

LABOR
Averting FMLA troubles
The Family and Medical Leave
Act (FMLA) of 1993 marked the
first mandatory leave in American
workplaces. The FMLA applies to
employers with 50 or more employees
within a 75-mile radius, provides up
to 12 weeks of unpaid leave per year
for birth or adoption of a child and/
or " serious " medical condition of the
employee or a close family member.
The FMLA provides for unpaid leave,
but the concept of paid leave has
enjoyed some limited bipartisan
support for some time.
As far back as 2018, Senator Marco
Rubio proposed a bill that would
have permitted parents to apply for
two months of paid leave by delaying
receipt of Social Security benefits.
At about the same time, Senators
Joni Ernst and Mike Lee joined in a
proposal similar to Rubio's. Senators
Kyrsten Sinema and Bill Cassidy
proposed the first bipartisan bill. It did
not mandate leave but would provide
access to $5,000 through reduction of
the l child tax credit. However, each of
these bills failed to make any progress.
At least 14 states and the District
of Columbia have enacted paid leave
legislation. Most of the states grant 12
weeks of paid leave. In 2021, Maine
became the first state to mandate
paid employee leave of up to 40 hours
for any purpose. Likewise, with no
federally mandated sick leave, several
states have adopted mandatory paid
sick leave programs. Currently 11
states require paid sick leave.
DIFFICULT LEAVE ISSUES
Granting employees leave, whether
FMLA or otherwise creates
recordkeeping issues that can prove
troublesome. FMLA leave certification
requirements is one instance in which
employers sometimes falter. Upon
becoming aware of the possible need
for FMLA leave, employers must notify
the employee if medical certification
to substantiate the need for leave
is required. The notice should be
included in the written Rights and
Responsibilities Notice that is required
to be given to the employee within
five days of becoming aware of the
employee's potential need for FMLA
leave. The employer must then notify
the employee in writing if leave will or
will not be FMLA-covered. Potential
notice problems can be avoided if
employers simply utilize the forms
available from the Department of
Labor that contain the required
information and are a sure way of
tracking compliance.
RECERTIFICATION REQUESTS
Employer requests that an employee
on FMLA leave recertify the continuing
need for leave can prove thorny for
employers. An employer has the right
to request that the employee provide
recertification of their serious health
condition or that of their family
member every 30 days, and only when
the employee is actually absent or has
requested to be absent.
FMLA ABSENCES AND
ATTENDANCE POLICIES
Another potentially tricky task in
managing employee leave is the
interplay between FMLA absences
and the employer's attendance policy,
which frequently arises when leave
is taken on an intermittent basis.
Legitimate FMLA-related absences
from work cannot be considered
violations of an attendance policy.
However, employers may require
employees using FMLA leave to
comply with the usual absence notice
procedures, unless they are medically
unable to do so. Failure to properly
give notice of a need to be absent,
even if it relates to a serious medical
condition for which the employee has
been granted intermittent leave, can
result in lawful disciplinary action.
As mandatory leave laws continue
to proliferate, especially at the state
level, and perhaps even at the federal
level in the near future, employers
will increasingly be confronted with
demanding obligations under the
various leave laws.
RICHARD D. ALANIZ | meatpoult r y@sos land.com
Another potentially tricky task in managing
employee leave is the interplay between FMLA
absences and the employer's attendance policy.
84 MEAT+POULTRY | 01.25 | www.meatpoultry.com
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MEAT+POULTRY - January 2025

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