There is probably no law that gives HR more headaches than the Family Medical Leave Act (FMLA). Even the most adept and experienced HR professionals make errors when administering FMLA. It’s hard not to make mistakes, given the emergence of new case law as well as state and federal regulations that are constantly expanding the scope of employee leave and employer’s obligations in administering that leave.
One small mistake with FMLA, however, can cause big consequences for your organization. Here are 9 of the most common (and avoidable) FMLA mistakes.
- Not counting leave as FMLA. If your organization does not run FMLA concurrently with other paid time off, sick leave, disability, or worker’s compensation, it may incur lost work time which can lead to significant costs. Also, some employers may not track time that should be qualified as FMLA leave, especially when reasons for employees’ leave or time off are not known by HR.
- Disciplining employees for FMLA-protected absences. It’s not uncommon for employers to penalize employees for absences, but when FMLA factors into the absence, tread carefully. If employees are eligible for FMLA and are qualified to take leave, they are protected, even though your attendance policy may be very specific. Disciplining or terminating an employee for taking leave may not be an appropriate or legal measure to take.
- Taking adverse action after denying leave. Denying an employee’s request for FMLA and then taking a series of adverse actions following that request can be a fatal mistake. While these actions may be warranted, employers need to watch their timing. If you deny an employee’s request for FMLA, then immediately follow-up with a termination, it could suggest that the employee’s FMLA request was linked to the termination. Plus, the courts have been especially mindful of retaliation charges lately.
- Failing to communicate your FMLA policy and procedure. As an employer, you must let employees know about their rights under FMLA. A 2012 ruling suggests that you must also communicate the procedure by which leave needs to be taken and how you are tracking employees’ time (i.e. rolling calendar year measured forward/measured backward etc.). Even misinforming employees of the time in which they are eligible for FMLA can be a liability.
- Allowing your supervisors to manage FMLA. Supervisors are usually the first people employees turn to when they need to take leave. Sometimes, however, supervisors don’t realize that they must direct the employee to HR and not handle FMLA cases on their own. Be sure that your supervisors know how to respond when employees ask for leave. Otherwise they could face personal liability for FMLA violations.
- Making assumptions about an employee’s health condition. Making judgments about whether employees have a serious health condition or not without the necessary information can be disadvantageous. Employees may present clear signs of a serious health problem or the condition may be less visible. Take each employee’s request for FMLA seriously and ask for appropriate documentation if you question its validity.
- Not verifying or clarifying FMLA documentation with health care providers. Employers may clarify any documentation they receive from health care providers, ask for second and third opinions, and make sure that the employee who is requesting leave does in fact have a serious health condition. Also, know that requiring too much or too little medical documentation could result in liability. Don’t ask for too much, but don’t accept too little.
- Removing an employee from their prior job. An employee goes out on leave, perhaps you find that another employee can perform the person’s job better, and then you consider terminating the returning employee or moving them into a lower position. Be aware that unless you have adequate performance documentation to demote or terminate the individual, FMLA regulations say that the returning employee is entitled to their same job or one of equal pay, responsibility, and benefits.
- Not providing a reasonable accommodation. Although FMLA only allows for 12 weeks of unpaid leave, your organization may need to explore other reasonable accommodations following FMLA leave if employees have a disability or medical condition that is protected under the Americans with Disabilities Act (ADA). Under ADA, an extension of unpaid leave could be a reasonable accommodation in some circumstances. Oftentimes, both FMLA and ADA apply, especially when serious health conditions are present.
Employers unfortunately can pay a steep price for their mistakes in administering FMLA—whether they are honest or intentional. Our best advice for avoiding FMLA mistakes is to maintain open lines of communication with employees and managers, stay up to date on FMLA case law, don’t make assumptions, keep excellent documentation, and be conscious of the timing of your decisions.
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.