WASHINGTON — Even 26 years after its creation, employers still have difficulty knowing when to designate leave under the Family and Medical Leave Act.

If employers are covered and workers are eligible, they get 12 weeks of job protection in a 12-month period. That's it. They can't save their 12 weeks for later. And tracking FMLA leave should be easy enough, but the Americans with Disabilities Act (ADA) and other factors confuse many employers and inspire others to outsource leave management all together.

Employment lawyers Darrell VanDeusen and David K. Fram understand this confusion, so they took attendees of the National Employment Law Institute's recent National Employment Law Conference through an FMLA case study. With the fictitious case of restaurant employee Ida Wanawerk and her manager Sue Menaught (yes, lawyers make jokes, too), VanDeusen and Fram illustrated three scenarios in which FMLA can get grey — and offered some suggestions for HR pros. 

1. When it IS your mother's disability

In the case study, restaurant worker Ida asks Sue for 10 weeks off to take care of her mother who needs help with a disability. Though "disability" may trigger some employers to dive into the ADA's interactive process, it's the FMLA they should consider.

"It's not her health condition," VanDeusen said. Easy enough, so why might employers get confused?

"There are sometimes still mistakes where HR people think [ADA applies] because you can't discriminate based on relationship — that is part of the ADA, you can't discriminate because of a relationship — but it doesn't incorporate the reasonable accommodation obligations. It's just straight non-discrimination," VanDeusen said, referring to the law's association provision.

When it is the worker's disability, some courts have found that additional leave beyond what FMLA provides can be a reasonable accommodation for certain people. But again, that's another process for HR pros to parse.

2. When it's the flu that never ends

Later, Ida calls out sick with the flu on a Friday. At first, Sue doesn't need to break out the FMLA forms for Ida because the flu is not a serious health condition, Fram and VanDeusen said. However, when Ida calls out again on Monday and says she'll be back in on Tuesday, HR might consider her case again.

"On the one hand, you were out Friday, Saturday, Sunday, out again Monday, coming back on Tuesday. Now that's more than three days," VanDeusen said, citing the Department of Labor's (DOL) three-day incapacity rule. "She went to the doctor once, got her prescription for antibiotics, so that sounds like a continuing course of treatment and could be FMLA-covered. But it's the flu, and the flu is not typically FMLA-covered."

DOL says a cold or flu that incapacitates a worker for three consecutive calendar days (even for days they weren't scheduled to work) could still qualify their illness as a serious medical condition that may warrant FMLA leave. Knowing this, VanDeusen said the safest approach is to give Ida the paperwork.

According to DOL, FMLA-eligible workers should use their 12 weeks right off the bat, VanDeusen said. Workers can't save their FMLA leave for the future. Sending a worker with an extended illness FMLA forms as soon as possible will ensure the worker gets the protection they're entitled to, he said.

3. When it's an intermittent situation  

Ida can't catch a break — and neither can Sue. After Ida is promoted to assistant manager, she shares that she's experiencing chronic fatigue syndrome. An employer might wonder: Is there a case for FMLA? With a diagnosis from her doctor, there could be, VanDeusen said, but that's getting ahead of the situation.

"So what's missing here?" he asked. "She's not asking for leave. So it's not an FMLA question really." FMLA only kicks in when a person needs leave for a serious health condition.

The web gets more tangled, though. Right before the restaurant's manager is about to go on maternity leave, Ida tells her employer she needs intermittent leave to cope with her condition. It could leave the restaurant in the lurch, but HR still needs to comply with the law.

VanDeusen said Ida's manager should say: "Here's your certification form, get it filled out, and we'll figure out what's going on." The employer may want a second opinion from another doctor (not the employer's doctor) to verify the worker's diagnosis, if it doubts the validity of the first opinion. But once the employer is sure the worker is FMLA-eligible, it must permit the intermittent leave, VanDeusen said.

"But, Darrell," Fram interjected. "This comes at the worst possible time. Can't we argue undue hardship?" he asked, referencing the component of ADA that allows employers to reject certain workers' accommodations. Both agreed: No.

"There just is not that same defense [with FMLA]," Fram said. Alternately, the employer could consider moving Ida to a different position that could help her balance her work and home life and keep the restaurant running smoothly, he said. Another benefit to documenting workers' FMLA time, though, is that it can put an expiration date on intermittent leave.

"This is why a company really might want to designate leave," Fram said of intermittent situations, "because at some point it might become something the employer doesn't want to be doing anymore, then they can say, 'You've exhausted your 12 weeks.'"