Avoid Common FMLA Mistakes


Managing an employee’s leave under the Family and Medical Leave Act (FMLA) can be a challenge. Many businesses have found out the hard way that making mistakes can result in lawsuits. Whether it’s an oversight by the business owner, an untrained HR manager or an outdated HR policy, when it comes to FMLA there is no room for error.

Firstly, it is important to identify an employee’s need for FMLA. Every business should have an employee handbook that includes an updated absence notification policy that requires employees to call an immediate supervisor to report an absence and state the need for the leave, all within a certain and very specific period of time.

If an employee fails to report an absence according to the HR policy guidelines, the absence notification requirement should also make clear that the employee is expected to explain why they could not follow the reporting procedures. This protects the business against an employee claiming in the termination meeting that the absence from several months ago was actually FMLA leave and not the unexcused absence for which they are being terminated for. In this scenario, be sure to maintain concise records and fairly consider an employee’s unemployment compensation filing.

Be sure to include clear language in the HR policy regarding FMLA and other leave policies. Set acceptable communication standards that employees are expected to follow. For example, if a phone call is the only acceptable mode of communication, consider adding verbiage stating that text and email messages are not considered acceptable methods of communication. If an employee fails to follow the HR policy absence call-in requirements and does not identify an “unusual circumstance” as to why they could not follow proper procedures, the leave is not covered by the FMLA and is unexcused.

It is important to react appropriately to an employee’s request for FMLA and maintain confidentiality. And, as a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.

When an employee has completed 12 weeks of FMLA leave, it does not mean that the employee transitions into unprotected leave. At that point, the Americans with Disabilities Act (ADA) must be referenced to determine whether additional ADA leave is required as a reasonable accommodation to help the employee return to work.

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*Southland Data Processing, Inc. (“SDP”) is not a law firm. This article is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other SDP materials does not create an attorney-client relationship. SDP is not responsible for any inadvertent errors that may occur in the publishing process.


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