Keeping the Business Running While Providing Family and Medical Leave

At the time of this writing, Austin’s paid sick leave ordinance, previously scheduled to take effect on October 1, 2018, has been stayed by Texas’s Third Court of Appeals in Austin—but Austin’s ordinance is still under the court’s review and may still go into effect. Meanwhile, San Antonio has passed an ordinance providing up to 64 hours of paid sick leave per year to employees working in San Antonio; this ordinance will go into effect on August 1, 2019.

Given the passage of these paid sick leave ordinances, it’s a good time for Texas employers to review their FMLA practices and consider the impact of these local ordinances.

Complying with the FMLA
Complying with the FMLA is about getting the details—and especially the documentation—right. Here are some quick reminders on how to comply with the FMLA while handling employee leave requests, whether reasonable or not:

• Maintain—and enforce—a call-in policy that specifies when and to whom an employee should call in an absence. When an employee calls in an absence, ask questions: For example, ask for the reason of his or her absence, whether he or she expects to see a health care provider, and when he or she expects to return to work. Make a record of the employee’s response.
• Where practical, have the employee complete a written leave request. Getting an initial request in writing can help set your and the employee’s expectations from the start.
• After receiving notice of a need for FMLA leave, inform the employee about whether he or she is eligible for such leave (i.e., whether they have worked for you for a year, whether they have worked enough hours within the last 12 months). Often, employers make the mistake of offering FMLA leave to employees who were ineligible for that leave. If an employee is eligible, provide the employee with a Rights and Responsibilities Notice.
• Have the employee timely and sufficiently complete a written certification to support a leave request (including documentation from a health care provider, as appropriate). If there are any specific concerns about the certification, let the employee know those concerns and give him or her seven days to correct them.
• Then, notify the employee in writing if his or her leave is FMLA-protected. We recommend using the Department of Labor’s Designation Notice form for that purpose.
• Request certifications from employees on if and when they plan to return from FMLA leave, or back to full duty.
• Keep track of when an employee’s FMLA leave is exhausted so that you can determine next steps for the employee.

At its worst, complying with the FMLA seems like a lot of paperwork—and it can be! But this paperwork can serve the employer well by keeping employees honest and accountable—which keeps the business running.

Complying with Local Ordinances
If Austin’s ordinance were to stand and San Antonio’s ordinance were to remain unchallenged, contractors would need to track employees’ hours city-by-city, post legally required notices of paid sick leave obligations, keep employees informed of their hours accrued and used in each city, and comply with a patchwork of city regulations—much like employers have to do with the FMLA. If any such paid sick leave ordinances go into effect, it will be important for employers to make sure that employees are using their FMLA leave at the same time they are getting paid leave—to avoid the possibility of employees getting a “double helping” of leave. Further, Texas employers that already provide paid time off to employees should avoid providing additional paid sick leave under these ordinances by adjusting their PTO policies to meet the ordinances’ accrual and usage requirements.

Please contact Tony Stergio or Andrew Clark at 713.850.4200 for more information.

Andy Clark

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