In Family and Medical Leave (FMLA) designation notices or in correspondence approving FMLA leave, employers and third-party administrators invariably state something to the effect of "This leave is approved through [a specific date]."
I come across approvals of all kinds—some approve FMLA leave for one month, others up to six months out. The worst approve FMLA leave for one full year. Or more.
Why Do Employers Do This?
The rationale for this practice seems rather simple: the approved FMLA period merely tracks the "duration" of the serious health condition as certified by the health care provider. So, why is this a problem?
- It's not illegal but this approach technically is incorrect. The regulations say nothing about approving FMLA leave for a specific period of time. If the employer grants FMLA leave after review of medical certification, the model DOL designation notice indicates simply that leave has been "approved," but it does not require that employers identify an actual time period for approval, particularly where FMLA leave will be unknown in the future.
- It's misleading and confusing to employees. Let's say you approve intermittent FMLA leave for migraine headaches for one year because that's how long the physician certified they would last. One week into this one-year so-called approval, the frequency of the employee's absences for migraines increases significantly. Is the employee still "approved" at that point? The employee thinks so; after all, the designation notice told him as much. At a minimum, it's awkward to tell the employee at this point that their FMLA leave may not be approved after all, and you'll need to recertify the absence. Why put yourself in this position in the first place?
- It may even embolden employees, who believe (in the migraine scenario above) that you can't question their approval for one year, since it's already stated as such on the designation notice. They're entrenched and ready for the fight. Why invite it in the first place?
The answer for me is rather simple—don't lock yourself in by including an "approval" date in your designation notice or correspondence. Approve FMLA leave to date, and surely designate those absences in the future covered by FMLA where it's appropriate to do so. But don't let it be an open-ended approval for any period of time. It's not worth it.
Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the author of the FMLA Insights blog, where a version of this article originally appeared. © 2020 Jeff Nowak. All rights reserved. Republished with permission.
[Visit SHRM's resource page on the Family and Medical Leave Act.]