What is FMLA?
It is very rare to go through life without experiencing life changing events. Some are outstandingly amazing; welcoming a new baby in the world, getting married to a soulmate, or taking a vacation that changes your point of view on life.
Sometimes, those life changing events are not too great. They take you by surprise and turn your world upside down. When you experience a life changing event that requires you to take time off from work the stress of losing your job can add to an already stressful situation. For those life changing events there is FMLA.
The Family and Medical Leave Act (FMLA) was established to provide employees with up to 12 weeks of unpaid, job-protected leave per year with health benefits. In most cases, FMLA is utilized for medical procedures or long-term care for you or your family. FMLA is considered confidential and with the proper documentation and paperwork, FMLA can ease the stress of an already difficult situation.
FMLA is designed to help employees balance their work and family responsibilities without the fear of losing their job. FMLA applies to all public and private elementary and secondary schools, and companies with 50 or more employees.
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What Can I use FMLA for?
Even though FMLA is a confidential process, many people use FMLA for giving birth or the care of a newborn infant, the foster care process, pregnancy complication, medical condition or procedure of immediate family members, addressing a serious medical condition of the employee, or in some cases going to rehab for a substance abuse addiction. When it comes to military families, FMLA helps for specified reasons related to certain military deployments. FMLA also helps military personnel by allowing a person to take up to 26 weeks in a single 12-month period to care for a covered servicemember with a serious injury or illness.
For the families with a newborn on the way, men and women have the same right to take FMLA leave to bond with their child. The only stipulation is that the employee must be taken within one year of the child’s birth or placement and must be taken as a continuous block of leave.
Can I use FMLA for Substance Abuse Rehab?
FMLA unpaid time off can be utilized for substance abuse treatment provided by a health care provider or by a provider of health care services on referral by a health care provider. An employee cannot use FMLA time for abusing substances. Absence of work due to the employee’s abuse of the substance, rather than for treatment, does not qualify for FMLA leave. When an employee exercises their right of FMLA for substance abuse treatment the employer can not take action against the employee unless a written and well-established policy was in place before the FMLA was filed.
Is FMLA Leave Really Confidential?
Yes, FMLA is confidential to all supervisors, management staff, and other employees.
Be mindful that the only person who needs to know the reason for your FMLA request is HR Directors, your doctors, and yourself.
When you request FMLA leave for a medical treatment or procedure, your rights to keep your medical records confidential is protected by HIPAA laws.
However, FMLA is definitely complicated because it attempts to balance the rights of an employer and the rights of the employee. FMLA’s primary purpose is guarantee the rights of employees who need time to care for serious health conditions and from an employer’s point of view, they need proof that the employee is actually taking FMLA for the purposes that they are claiming.
How to Keep FMLA Confidential
So, FMLA is confidential to your direct supervisor, your surrounding employees and many times other executives in the company. Unfortunately, your HR Director is the person responsible for handling the completed forms and may not be entirely confidential to them. However, as an HR Director, they are required to keep these types of proceeding confidential.
When an employee chooses to use FMLA, the employee’s medical information is required to be filed in a separate file other than their employee’s basic personnel file. The employer must keep a second, parallel personnel file which includes any information related to the FMLA request or other employee medical issues. When a supervisor or another employee besides the HR Director asks for the employee’s personnel file, the company is responsible to provide the file without the medical information and FMLA paperwork.
The first step to the FMLA process is to give your employer a fair notice that you are seeking FMLA medical leave. Inform them of the expected time and duration of the FMLA leave. At this step, it is not required to disclose the reason for the leave request. The employer may request certification of the employee’s health condition within 15 days of the initial request for leave.
Completing that form is key for confidentiality. The FMLA certification must be provided by a qualified health care provider or doctor. The U.S. Department of Labor offers a FMLA certification form that can help speed up the process. This form needs to be crafted carefully. Many medical physicians are properly instructed on how to fill these forms out by divulging as little as possible about your medical situation or the illness being treatment.
As part of the certification process, the employer will almost certainly obtain sensitive medical information regarding the employee but when the form is properly filled out, that information must be kept to a minimum when it is properly filled out by a doctor. The doctor will know exactly what is protected by HIPAA and what is required to divulge for FMLA.
When the employer requests to use FMLA, the employees right to privacy places strict limitations on how the information is treated, documented, and filed. Federal regulations require that information related to an FMLA leave request must be treated as “confidential medical records” and kept in “separate files/records from the usual personnel files.”
What is Intermittent FMLA Leave?
If you are in recovery and participate in Evening IOP or any outpatient services, this one is for you.
Instead of leaving for the full 12 months, intermittent FMLA is an option for employees who want to use FMLA leave in a more flexible way. For example, FMLA is often used for surgeries or medical procedures that require a length of consecutive leave time. Intermittent FMLA leave involves using days or hours, broken down into increments over the year. So, if you were doing physical therapy or outpatient services and it required you to take off of work 3 hours early to make these appointments or session, Intermittent FMLA would be what you would utilize.
Intermittent FMLA can also be used to care for a family member with a serious illness or receive treatments over time. When an employee who suffers from a condition or illness that causes “flare-ups” or periods of time where they cannot work is another incident where intermittent FMLA is utilized.
4 Key Things to Remember when Filing FMLA Paperwork
- Know Your Rights: When deciding to file for FMLA it is so important that you know your rights and what the paperwork means. Make sure that your supervisors and managers understand their general obligations under federal and state laws of FMLA and the confidentiality associated with this type of unpaid-time off. Most issues that arise with FMLA happens as a result of something a supervisor or manager has said or done, as these are the people within your organization who most frequently interact with you. Establishing open communication with your managers about the FMLA process will help prevent any complications in this process.
- Give Employers Advanced Notice: One of the key things to remember is the employer must request certification of the employee’s health condition within 15 days of the initial request for leave. Once those 15 days have passed, your medical records are protected. It is HR Director’s responsibility to exercise their right to the information within those 15 days.
- Keep it Between You and HR: Understand that supervisors and managers do not have to know the reason that an employee is out on family medical leave. HR and yourself are the only people that really need to know the reason of FMLA. If you wish to discuss your medical information with employees or managers, this is clearly up to you.
- Know Your Laws: If you can, explore these other laws: Americans with Disabilities Act (ADA), the Genetic Information Non-Discrimination Act (GINA), the Health Insurance Portability and Accountability Act (HIPAA) and the Affordable Care Act (ACA). These other laws influence your FMLA and confidentially, so brush up on them when preparing the paperwork for FMLA.
Returning to Work After FMLA
When you return to work, the FMLA requires that your employer return you to the same job that you left, or one that is nearly identical. FMLA protects your placement at the company and if you did not return to the exact same job, the new position that you are placed in must:
- Involve the same or substantially similar duties, responsibilities, and status.
- Include the same level of skill, effort, responsibility and authority.
- Offer identical pay, overtime and bonus opportunities
- Offer identical benefits as the position that you are no longer occupying.
Don’t forget to touch base with your HR Director and supervisors to ensure that your return to your position is an easy transition. For more information, guides, forms, and current amendments to the FMLA policy, check out the resources below.
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Additional Resources for Applying for FMLA
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