Viewpoint: Common FMLA Missteps—Don't Be 'That Guy'

How is managing leave under the Family and Medical Leave Act (FMLA) like baseball? The team can be undone by rookie mistakes and unforced errors.

Many organizations have found out, to their dismay, that all-too-common mistakes by untrained HR and people managers handling medical leave can open the door to employee lawsuits. So, when it comes to the FMLA, don't let the team down by being the person who:

Fails to identify an employee's need for FMLA leave

At a minimum, maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave—all within a certain period of time.

Even better, require two calls—one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf.

Make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them. If the employee does not follow these call-in requirements and does not identify an "unusual circumstance" as to why they could not follow your call-in procedure, the leave is not covered by the FMLA and is unexcused.

Also, include clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind.

Reacts inappropriately to an employee's request for FMLA leave

If I had a nickel for every manager's (poor) reaction to an employee's request for medical leave, I would be one rich FMLA puppy. Remember when I told you the story about the manager who terminated an employee while she was in the hospital, even though her son maintained constant contact with the boss? Don't be that boss. Remember, too, the manager who actually put into an e-mail a justification for terminating an employee: because she submitted a request for medical leave. Don't be that boss, either.

Badgers employees during their FMLA leave

Can you make sporadic calls to an employee on FMLA leave to transition work or ask to pass along institutional knowledge? Sure, these won't lead to any FMLA violation. But as a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave. So, leave them alone!

Reveals an employee's medical condition to others

Remember a few years back, I told you the story of a manager who learned of an employee's medical condition and then proceeded to: a) blab about the medical condition at a meeting involving other employees; and b) joked about the condition among other employees? Don't be that boss.

Automatically terminates employment after FMLA leave ends

When an employee exhausts 12 weeks of FMLA leave, it does not mean that the employee transitions into unprotected leave. At that point, we must consider Americans with Disabilities Act (ADA) obligations in determining whether additional ADA leave is required as a reasonable accommodation to help the employee return to work. Instead of wondering, "Is this the chance to terminate the employee?" our thoughts should focus on, "What can we reasonably do to help this employee return to work?"

Contests post-termination unemployment compensation

When you terminate your employee for unexcused absences, think long and hard before you contest their unemployment compensation.

As a general rule, the employee you just canned doesn't sue you because they believe you broke the law; they believe you treated them unfairly. And when you contest their unemployment comp benefits claim because you've got some spite leftover from their employment, you only further cement their belief that they were treated unfairly as they headed out the door.

Don't get me wrong, I am not saying their termination was unjustified. But it gives them another reason to sue you, instead of facilitating an exit where you never hear from them again. Don't believe me? Then believe my friends and fellow bloggers Jon Hyman and Suzanne Lucas on the perils of contesting unemployment compensation claims.

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where an extended version of this article first appeared. © 2022 Jeff Nowak. All rights reserved. Republished with permission.

Related SHRM Article:

Viewpoint: A Checklist to Prepare for the DOL's Expansion of FMLA Audits, SHRM Online, March 2022