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Top 10 FMLA pitfalls employers should avoid

August 2, 2018

By Kristen Cifolelli, courtesy of SBAM Approved Partner ASE

It’s hard to believe, but the Family Medical and Leave Act (FMLA) was passed into U.S. law 25 years ago.  Even today it remains one of the most complex employment laws that employers must stay in compliance with – tripping up even the most seasoned of HR professionals.  While the FMLA provides an important leave benefit for employees, administering it can be a very daunting challenge.  Failure to do so properly can exposure employers to legal liability and the threat of lawsuits.   Listed below are some of the top FMLA compliance mistakes that employers should avoid:
1. Failing to meet employer obligations – FMLA has many technical and record keeping obligations that employers are required to meet.  Failure to meet any of those requirements can result in legal liability. Some of the key FMLA employer obligations include:
Poster – every employer covered by the FMLA must display or post an informative general notice about the FMLA. The poster must be displayed in plain view where all employees and applicants can readily see it.  Employers should ensure they are using the most recent poster and that one is posted at every worksite. 
FMLA policy – In addition to displaying a poster, if a covered employer has any FMLA eligible employees, it must also provide each employee with a general notice about the FMLA in the employer’s employee handbook or other written materials about leave and benefits. If no handbook or written leave materials exist, the employer must distribute this general notice to each new employee upon hire.
Employee notification – After an employer has determined an employee’s FMLA eligibility status, the employer must provide an FMLA Notice of Eligibility and Rights and Responsibilities notice to the employee within five business days of the initial request for leave or of learning that an employee’s leave may be for an FMLA-qualifying reason. Once the employer has enough information to qualify the FMLA leave, the employer must provide the employee with a written Designation Notice within no more than five business days, absent extenuating circumstances. If the leave does not qualify as FMLA leave, the employer must notify the employee in writing that the leave is not FMLA-protected.
FMLA usage tracking – Employers need to ensure they are properly tracking the amount of leave employees have used and keep them abreast of how much time is remaining.
Retaliation – FMLA protects employees from interference and retaliation for exercising or attempting to exercise their FMLA rights.
2. Not including all time worked when calculating FMLA eligibility – when it comes time to figure out the amount of FMLA time an employee is eligible for, employers should remember the employee’s actual workweek is the basis for determining leave entitlement.  If the employee is required to work overtime, those hours should be included in the calculation.  For example: an employee whose actual workweek is always 48 hours per week is entitled to 576 hours (12 workweeks x 48 hours per week) of FMLA leave in a 12-month period.
3. Not recognizing a request for leave – Employees do not have to use the letters F-M-L-A to assert their rights to leave.  Employees only need to provide “sufficient information” to make the employer aware of the possible need for FMLA leave. 
4. Failing to give an employee the chance to provide certification – Employees have 15 calendar days to return the certification of health care provider form unless it is not feasible under the particular circumstances to do so. When an employee makes diligent good faith efforts but is unable to meet the 15-calendar day deadline, the employee is entitled to additional time to provide the certification.

5. Using the wrong increment to calculate the amount of FMLA used – Leave may be used in the smallest increment of time the employer allows for other time off usage, as long as the smallest increment is no more than one hour. If an employer uses different increments for different types of leave (for example, accounting for sick leave in 15-minute increments and vacation leave in one-day increments), the employer must allow FMLA leave to be used in the smallest increment used for any type of leave.
6. Requiring inflexible notice procedures – Generally, an employee must give at least 30 days advanced notice of the need to take FMLA leave when he or she knows about the need for the leave in advance and it is possible and practical to do so.  When the need for leave is unexpected, the employee must provide notice as soon as possible and practical.  This means employees may be entitled to take leave even if they gave notice after the employer’s usual deadline.  When determining whether the notice was given in a timely manner, employers should consider whether the leave was foreseeable or not and be flexible when the situation calls for it.
7. Criticizing an employee’s use of leave – This is one of the easiest ways employers can invite an FMLA retaliation lawsuit.  Employers should never comment on employee use of FMLA qualifying time.  Managers should receive regular training to ensure they understand their obligations.
8. Treating an employee differently before and after leave – Managers who subject their employees to higher performance standards upon their return from leave greatly increase their risk of an FMLA retaliation claim.  Performance standards should remain consistent both before and upon return from leave.
9. Insisting on meeting time-sensitive goals despite leave – Employers should adjust deadlines and performance goals to account for time off due to leave.  This is another sure-fire way for employers to land in hot water for an FMLA retaliation claim.
10. Wrongly punishing perceived abuse – Nothing is more difficult for employers than dealing with FMLA abuse.  A common gut reaction is to want to discipline an employee for exceeding the number of absences detailed on the FMLA medical certification from.  But employers should be aware that not all deviations from the medical certification is FMLA abuse.  Employers should use the recertification process whenever there has been a significant change in circumstances. Significant changes that require recertification include receiving information that causes the employer to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification. 
Properly administering FMLA leave can be challenging, but awareness of common FMLA pitfalls will hopefully keep employers on the right side of the law.

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