Managing FMLA: 6 Legal Risks Many Employers Face

Share on LinkedIn Share on Facebook Share on Twitter Share on Google Plus Share this Page

Managing FMLA: 6 Legal Risks Many Employers Face

The Family Medical Leave Act (FMLA) is one of the most complex employment laws with which employers must stay in compliance. Employers face a number of legal risks when managing FMLA ranging from determining eligibility to disciplining an employee on leave. Here are 6 common legal risks many employers face with FMLA that you need to know.

1. Recognizing when leave needs to be covered by FMLA

The need for FMLA leave in the workplace can go unrecognized by supervisors and create potential liability.

For example, in a 2013 case, an employee called her supervisor to inform them that she could not report to work, and the following day reported that she was seeking treatment at a mental health center. She provided her employer with a doctor's note which stated that she was being treated for depression. She was eventually terminated after she had asked for extensions of her leave of absence, and when she could not return to work. The court found that the employer interfered with her FMLA rights when it did not provide her with an FMLA certification form nor a notice of her FMLA rights.

Employees are not required to state the need for FMLA as a reason for their absence. They only need to provide enough information to indicate that the absence might be covered under FMLA. As a result, it’s critically important to train your supervisors on FMLA to recognize the signs of when an absence may signal the need for FMLA.

Such signs may include emergency room notifications, doctor's notes, extended absences, asking for time off for a medical condition/to care for a family member, and references to a medical condition. These may prompt asking more questions of your employees to help you determine whether the absence should be designated as FMLA.

2. Handling leave when employees are not eligible for FMLA

Sometimes an employee will need leave and not be eligible for FMLA, either because they have exhausted their leave, or because they haven't met the eligibility requirements yet.

If an employee has a medical condition or disability that qualifies under the Americans with Disabilities Act (ADA), leave may be a reasonable accommodation and should be considered.

Extensions of leave once FMLA is exhausted can also be a reasonable accommodation under ADA. In a maternity leave situation, employers should consult whether their state requires a pregnancy-related leave, and, similarly, should also look at their other personal leave and time off policies as well as their short term disability plans, if offered.

Also, as a reminder, employers must calculate leave not based on the date of the request, but as of the date the leave is to begin, as a court concluded that "the determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start."

3. Dealing with leave when absences exceed certification requirements

Another 2013 case illustrates the importance of not dismissing claims prematurely when an employee exceeds the number of "episodes" estimated by their medical provider, and making sure you follow appropriate recertification steps when episodes exceed the expected frequency and duration.

In the case, an employee was fired for exceeding the expected four episodes of depression during a six-month period with a duration of incapacity of two to five days per episode that his doctor estimated he would have.  The employee, however, ended up having 10 episodes of depression.  

The employer then took improper recertification steps. It contacted the employee's doctor to seek certification and asked the doctor to confirm the employee's previous certification. Additionally, it did not seek recertification or provide notice to the employee that recertification was required. The court determined that there was sufficient evidence to decide whether the employer interfered with the employee's rights.

4. Handling untimely medical certifications

Frequently, filling out proper FMLA paperwork falls through the cracks. Either employers encounter employees who do not provide complete sufficient medical certification, or they let paperwork requirements slip and don't hold employees accountable.

If the employee does not provide medical certification within the required 15 calendar day turnaround time, and does not make a diligent, "good faith effort" to return the certification, employers may reject their FMLA claim.

A "good faith effort" could entail repeatedly contacting their physicians, delivering forms in person, and requesting an extension based on stated difficulties in obtaining the certification.

Employers need to do two things in the case of untimely certifications. They should remind employees via a formal letter after the 15-day period of their need to submit certification within a new deadline period (typically 7 days). Additionally, they need to provide employees with the opportunity to explain how they tried in "good faith" to obtain the certification.

5. Disciplining an employee on FMLA

It's not uncommon for employers to find performance issues, discover past wrongdoings, or encounter an issue in which they want to discipline an employee who is out on FMLA leave. Taking disciplinary or adverse action on an employee who is out on FMLA can be done for appropriate reasons, however, employers must tread extremely cautiously.

Generally speaking, if you have a specific procedure, policy, or rule of conduct that an employee did not follow, prior to disciplining them, counsel them, document the issue, and create a performance improvement plan (if needed). Make sure there is a progressive system of warnings about their behavior.

Also, be sure that all employees are being held to the same standard and that discipline is being enforced consistently. For example, if you want to discipline an employee on FMLA leave for an action that another employee who did not take FMLA leave was not disciplined for, you will run into legal issues.

6. Coordinating an employee's return to work

There may be concerns about an employee's risk of injury or ability to work when he or she returns from FMLA leave because of their serious health condition, even when their medical provider releases them as able to work.

Requiring an employee to return from leave with no restrictions, however, can be legally risky as employees may have limitations and be entitled to reasonable accommodation under ADA. Many courts have ruled that these types of policies and requirements discriminate against employees with disabilities.

Employers may require a fitness for duty certification from the employee's medical provider to determine whether their employee is fit to return to work from their leave. If the fitness for duty certification reveals that the employee can perform the essential functions of the job, the employee needs to be reinstated as soon as possible. Additionally, if restrictions are noted and medical information reveals that an accommodation is needed to help an employee perform the essential duties of the job, employers need to accommodate unless it creates undue hardship.


These scenarios are just a few that employers face with FMLA. Managing FMLA is risky business, so be sure to know what risks there are associated with the law and how to protect your organization.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

ADA FMLA Compliance Training

ADA & FMLA Compliance Training Course

Participants review the interrelatedness of these two laws including how they impact each other.

Train Your Employees

Pingbacks and trackbacks (1)+