FMLA Leave: Top 13 Mistakes to Avoid in 2019

Family representing FMLA Guide

Since 1993, employers have been required to provide protected leave under the Family Medical Leave Act (FMLA).

Although FMLA has been around for almost 30 years, FMLA violations are increasing. Recently, one employer was fined a penalty of $200,000 for firing an employee improperly during FMLA leave.

Chances are, you’re like us and looking to avoid incurring any unnecessary penalties. Read on for the top 13 FMLA mistakes to avoid to keep your own business protected.

1. Not Forming an FMLA Policy

FMLA allows you to decide some policies in how you administer FMLA leave. For example, employees can take up to 12 weeks of FMLA leave in a 12 month period. However, you can define if that time is in a calendar year, or a rolling 12 months backward.

This is important because unless an employer defines the method of 12-month calculation for FMLA, employees will usually choose a calendar method.

Additionally, this means that technically an employee can take the last 12 weeks of the calendar year off and the first 12 weeks of the new calendar year. Unless you have already defined and notified employees of the calculation method of the FMLA 12-month period, employees can choose to take leave in the way that is most advantageous.

Top Tip: Define how you calculate FMLA leave per year (and whether or not employees must use paid leave for FMLA leave!) and include it in your employee handbook.

2. Failing to Notify Employees of FMLA Rights

Unfortunately, many employers assume that employees already know their rights under FMLA. You are required to notify employees of their FMLA leave rights in two separate ways:

  1. Post FMLA rights at your place of business.
  2. Notify employees of FMLA rights when hired.

You must notify new employees of FMLA rights upon hire. Otherwise, employees won’t automatically know if an employer is a covered employer under FMLA or what the employee must do to qualify.

Top Tip: Display an FMLA poster, outline FMLA rights in your handbook, and include an electronic copy in your onboarding materials.

3. Not Using FMLA Forms

In addition to notifying employees, employers must use FMLA forms for employee leave.

This helps to ensure that you are following FMLA guidelines for employers. The forms also simplify medical verifications of employee leave. Using the official forms will ensure that you don’t ask for information prohibited under FMLA.

Top Tip: Download FMLA forms from the Department of Labor. Include this link and instructions for filing in Human Resources training materials and have your HR manager give their team a refresher course on filing FMLA forms.

4. Failing to Confirm when Employees will Become Eligible for FMLA

Employees are eligible for FMLA leave when they have worked for the employer a total of 12 months over the previous 7 years and 1,250 hours over the previous 12 months.

This means that rehired employees may be eligible under FMLA shortly after rehire. Essentially, a full-time rehired employee (who hasn’t worked in the last 12 months for the same employer) would become eligible during the 32nd week.

If the employee has worked for the same employer in the last 12 months, then those hours would count toward the 1,250 required hours for eligibility.

Top Tip: Use an HR portal like SDP Connect to track employee work tenure. Ask us how to set custom notifications to indicate in each employee’s profile when they are eligible for FMLA!

5. Silent Managers Who Fail to Inform HR of Employee Leave

Too often, managers fail to let HR know when an employee requests FMLA-eligible time off. Unfortunately, FMLA leave cannot be backdated. If you fail to inform employees correctly, they may end up getting more than 12 weeks of FMLA leave. Employers must:

  • Notify employees who take FMLA leave.
  • Give the eligibility notice within 5 days of the first day of FMLA.
  • At the same time, provide a notice of FMLA rights and responsibility.
  • Provide a designation notice within 5 days of leave.

Failure to adequately notify employees of FMLA usage has resulted in crippling FMLA violations by employers.

Top Tip: Train managers on FMLA notification instructions. Remind managers and employees in your HR portal.

6. Managers Who Don’t Understand FMLA Rights or Recognize Leave

Too often managers are not trained well enough on FMLA to recognize eligible leave or understand the protection provided. Remember that an employee doesn’t have to specifically invoke FMLA leave to qualify for leave.

The courts have ruled that if an employee provides enough information to the employer for the employer to know that the leave should have been FMLA covered, the employer must abide by FMLA law.

This means that if an employee mentions a serious health condition and a manager doesn’t recognize the leave as FMLA qualified, you might be found out of compliance.

Another risk of untrained managers is that employees may be given repercussions from taking FMLA leave. Employers who retaliate against an employee for absences that should be counted as FMLA absences will be found non-compliant and will be liable for all penalties and fines.

7. Denying Leave and Then Taking Adverse Action

Although employers can deny FMLA leave for non-qualified events or for employees who aren’t covered, it can be a big mistake to deny leave and then immediately take adverse action against that employee.

While adverse action may have already been in the works and may be completely justified, the employee could view the request for FMLA leave as the reason for the adverse action.

This could set the employer up for increased liability under FMLA laws. The courts have been very sensitive to retaliation cases lately.

8. Too Little FMLA Coverage

Some employers mistakenly believe that FMLA leave is related only to work-related conditions. This is a dangerous misconception. Employees can take leave not only for themselves, but also for qualified family members, parents, children, and spouses.

Further, employees can take leave for a serious health condition related to employment, but also for something not related to their work. This can include a physical or mental illness that qualifies.

A serious health condition is any condition that requires inpatient care at a hospital, hospice or continuing medical treatment. In some cases, employers should grant FMLA leave for situations arising from natural disasters.

Top Tip: Review the FMLA guidelines and include them in your employee handbook. Remind employees and managers in your HR portal, too, just to be safe!

9. Too Much FMLA Coverage

Employers sometimes make the mistake of granting too broad of FMLA coverage. This is more common in states like Colorado and California, with their own state FMLA laws in addition to federal FMLA.

For example, many states expand FMLA coverage to include in-laws, domestic partners, siblings, or grandparents. While your company can provide leave for these situations or may be required under state law, it does not count as federal FMLA leave.

Employers who count leave for these relationships or for expanded reasons and then deny true FMLA leave will be non-compliant with FMLA laws. In a best-case scenario, you will have to grant more leave than may have been intended to employees who seek legitimate FMLA leave after being given ‘expanded’ FMLA leave.

10. Not Keeping Thorough Records of FMLA Leave

FMLA, like all employment laws, requires you to keep detailed records or risk repercussions for non-compliance. Employers who don’t keep exact records of employment leave may provide more leave to employees than intended.

This could leave you open to a discriminatory lawsuit if some employees are inadvertently given more leave than other employees. It could also mean that absences that should be FMLA leave are not counted as FMLA leave and that the employee gets punished or held back from promotions because of those absences.

In order to protect yourself from a potential lawsuit, you should retain FMLA records for at least 3 years.

Top Tip: Include a copy of the notice provided to employees, proof of any premium payments for employee benefits, documentation regarding all FMLA disputes, certifications, re-certifications and medical records, and all employee notices to employers regarding FMLA leave. These records should be kept separately from personnel records.

11. Inaccurate Medical Certifications and Missing Job Descriptions

Employers should attach the employee’s job description to the designation notice. This allows the healthcare provider to understand what the employee’s duties are and to accurately release the employee for work.

If the employee’s job description or duties aren’t attached to the designation notice, then the health care provider may rely on the employee to describe their work and may mistakenly release them for work when they are not ready.

Additionally, some employers mistakenly believe that only a medical doctor can provide a fitness for duty certification. In fact, any healthcare provider can release an employee for work. This includes clinical psychologists, nurse practitioners, physician assistants, and even chiropractors in some situations.

Top Tip: In your human resources software, include the appropriate job description to each employee’s profile. (Hint: you can find our entire job description library in SDP’s HR Support Center!) Have Human Resources personnel attach this job description to all FMLA paperwork.

12. Not Understanding ADA or How Light Duty Work Affects FMLA Leave

FMLA includes the possibility of intermittent leave which can jointly qualify under the Americans with Disabilities act. This could include an adjusted work schedule, part-time work, or adjusted work duties.

The way ADA and FMLA work together isn’t straightforward. Consult legal counsel to make sure you are in compliance. Review Americans with Disabilities Act guidelines. Add to your company handbook and Human Resources training.

And remember, after an employee has exhausted all 12 weeks of FMLA leave, they must still be aware of ADA laws.

The American with Disabilities Act (ADA) applies in nearly every circumstance in which an employee would use FMLA for a serious health condition of their own. Thus, even after 12 weeks of leave, employees may be eligible for additional accommodations due to their disability and may be protected from retaliation.

13. Not Handling Benefits Properly While Employees Are On Leave

Employers must maintain employee healthcare coverage while employees are on FMLA leave. However, you may be able to require the customary employee contribution.

If employees must make health care contributions, but this isn’t required after returning to work, coverage must be provided without any waiting periods.

Top Tip: Remember any benefits that the employee qualified for previous to leave (such as seniority or attendance related benefits) must be reinstated to the employee upon their return to work.

What do you think?

How confident are you in your FMLA compliance? Employers must track not only FMLA laws, but also local, city, and state sick leave, minimum wage, and scheduling laws.

Southland Data Processing provides a comprehensive array of workforce management and time tracking tools that can help businesses maintain compliance.

Let’s talk to find the best solution for your business. And don’t forget to check us out on FacebookTwitter, and LinkedIn to make sure you never miss a beat!

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