Top 11 Employer FMLA Mistakes

Missed notices, documentation errors, clueless managers aren’t even the half of it

By Allen Smith, J.D. Mar 30, 2016
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Employers should never take a holiday from dealing with the Family and Medical Leave Act’s (FMLA’s) requirements. Legal experts say the law is full of traps that can snag employers that let their guard down, and they recommend that employers shore up FMLA compliance efforts by avoiding the following common missteps.

No FMLA Policy

Employers shouldn’t skip having a written FMLA policy, Annette Idalski, an attorney with Chamberlain Hrdlicka in Atlanta, told SHRM Online. “If employers adopt a written policy and circulate it to employees, they are able to select the terms that are most advantageous to the company,” she said. For example, employers can choose to use a rolling 12-month period (rolling forward from the time any leave commences) rather than leaving the selection of the 12-month period to employees, who almost inevitably would choose the 12-month calendar period. The calendar period, unlike the rolling period, allows for employees to stack leave during the last 12 weeks of one year and the first 12 weeks of the new year.

Counting Light-Duty Work as FMLA Leave

Idalski said employers also often make the mistake of offering light-duty work to employees and counting it as FMLA leave. Light-duty work can be offered but must not be required in lieu of FMLA leave. For example, an employer can offer tasks that don’t require lifting to an employee who hurt his or her back and cannot perform heavy lifting. But if the worker wants the time off, the individual is entitled to take FMLA leave.

Silent Managers

Managers sometimes fail to tell HR right away when an employee is out on leave for an extended period, Idalski noted. If a manager waits a week to inform HR, that could delay the start of the 12-week FMLA period. The employer can’t make the FMLA leave retroactive, and letting the employee take more than 12 weeks of leave affects staffing and productivity, Idalski said. “Management must initiate the FMLA process with HR right away,” she emphasized.

Untrained Supervisors

Untrained front-line supervisors might retaliate against employees who take FMLA leave, dissuade workers from taking leave or request prohibited medical information, all of which violate the FMLA, said Sarah Flotte, an attorney with Michael Best & Friedrich in Chicago. Just because front-line supervisors shouldn’t administer FMLA leave doesn’t mean they shouldn’t be trained on the FMLA, she noted.

Missed Notices

Employers sometimes fail to provide required notices to employees, Flotte said. “The FMLA requires employers to provide four notices to employees seeking FMLA leave; thus, employers may run afoul of  the law by failing to provide these notices,” Flotte remarked. Employers must give a general notice of FMLA rights. They must provide an eligibility notice within five days of the leave request. They must supply a rights and responsibilities notice at the same time as the eligibility notice. And employers must give a designation notice within five business days of determining that leave qualifies as FMLA leave.

Overly Broad Coverage

Sometimes employers provide FMLA leave in situations that are not truly FMLA-covered, such as providing leave to care for a domestic partner or a grandparent or sibling, noted Joan Casciari, an attorney with Seyfarth Shaw in Chicago. If they count that time off as FMLA leave, this could prove to be a violation of the law if the employee later has an event that is truly covered by the FMLA, she said.

Incomplete Certifications

Casciari added that employers sometimes accept certifications of a serious health condition that are incomplete and inconsistent. In particular, she said that businesses sometimes make the mistake of accepting certifications that do not state the frequency and duration of the intermittent leave that is needed.

No Exact Count of Use of FMLA Leave

Another common mistake is failing to keep an exact count of an employee’s use of FMLA leave, particularly in regards to intermittent leave, said Dana Connell, an attorney with Littler in Chicago. This failure is “highly dangerous,” he stated. An employer might give the employee more FMLA leave than he or she is entitled to. “The even greater risk is that the employer counts some time as an absence that should have been counted as FMLA, and that counted absence then plays a role—building block or otherwise—in an employee’s termination.”

No Adjustment to Sales Expectations

Some employers take too much comfort in an FMLA regulation that says that if a bonus is based on the achievement of a specific goal, and the employee has not met the goal due to FMLA leave, the payment of the bonus can be denied. “Notwithstanding that regulation regarding bonuses, courts have held that employers need to adjust sales expectations in assessing performance to avoid penalizing an employee for being absent during FMLA leave,” Connell emphasized.

Being Lax About FMLA Abuse

The FMLA is ripe for employee abuse, according to Connell, who said, “Some employers, especially in the manufacturing sector, find themselves with large numbers of employees with certified intermittent leave.” Those employers need a plan to keep all employees “honest with respect to their use of FMLA.” Connell said that surveillance may be a necessary part of an employer’s plan for dealing with potential FMLA abuse.

Overlooking the ADA

Employers sometimes fail to realize that a serious health condition that requires 12 weeks of FMLA leave will likely also constitute a disability under the Americans with Disabilities Act (ADA), noted Frank Morris Jr., an attorney with Epstein Becker Green in Washington, D.C. Even after 12 weeks of FMLA leave, more leave may be required by the ADA or state or local law as a reasonable accommodation.

“Document any adverse effects on productivity, ability to timely meet client demands and extra workload on co-workers resulting from an employee on extended FMLA leave,” Morris recommended. While the FMLA doesn’t have an undue hardship provision, “The information will be necessary for a proper analysis of whether any request by an employee for further leave as an ADA accommodation is reasonable or is an undue hardship” under the ADA.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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