How to Bungle an FMLA Policy in 10 Easy Steps

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The Family and Medical Leave Act (FMLA) has been around since 1993. And while there are a lot of requirements and regulations for employers to navigate, the basic obligations of the law are well known for the most part, and there is plenty of information and guidance available to help make FMLA compliance manageable. Despite this, employers continue to make easily-avoidable errors. Here are 10 ways an employer can bungle its FMLA policy and practices.

1. Don’t know if you’re a covered employer. The FMLA applies to a private employer if it has 50 or more employees for each working day during at least 20 calendar workweeks in this calendar year or the preceding calendar year. Recently, an employer assured its new HR consultant that they were too small to worry about the FMLA, and never had more than 49 on staff. When the consultant checked the current staff directory, he counted 52 employees – plus several vacancies to be filled! A quick review of staff records confirmed that staffing levels for the current and previous years easily met the threshold to qualify the organization for FMLA coverage.

2. Don’t know whether an employee is eligible for leave. This one can be complicated, but it is essential that employers learn it. This error can cut two ways: providing FMLA-covered leave to an employee who is ineligible, or denying FMLA-covered leave because the employer does not realize the employee is eligible. An employee is eligible for FMLA-protected leave when he or she:

  • Has worked for the employer for 12 months (does not have to be continuous);
  • Has worked at least 1,250 hour during the 12 months prior to the start of the FMLA leave (not the date of the FMLA leave request); and
  • Works at a worksite where the employer has at least 50 employees within a 75-mile radius.

3. Don’t have an FMLA handbook policy. The mantra of “If you see something, say something” can be modified for FMLA compliance to “If you are a covered employer, say something.” Technically, employers are not required under the FMLA to maintain a written FMLA policy. However, if an FMLA-covered employer has a written handbook or a written statement of its benefits or leave policies and any eligible employees, the employer must include an FMLA policy in the handbook or written policy. Guess what else the employer mentioned above didn’t do?

4. Don’t provide required notices. In 2013, a federal district court in New Jersey ruled in favor of an employee who was fired two weeks after she failed to return to work following 12 weeks of FMLA leave (Young v. The Wackenhut Corp.).

Why? The company never provided the FMLA-required Eligibility Notice, Rights and Responsibility Notice, and Designation Notice. Courts have consistently held that failure to provide any or all of these individual notices prejudices the employee and constitutes strict liability for FMLA interference.

5. Miss mandatory deadlines. Tick, tock, tick, tock. Hear that? It’s the clock ticking away the time an employer has to provide notices and take action once an FMLA request has been made. Within five business days of being notified of the need for FMLA leave, or of learning that an employee may be FMLA-eligible, the employer must provide the employee with the Eligibility and Rights and Responsibility Notices, along with the appropriate Certification Form for the employee to complete and return.

After receiving a Certification Form with enough information to make an FMLA determination, the employer has only another five business days to issue a Designation Notice informing the employee whether leave will be deemed FMLA leave. Failure to follow proper notice procedures can result in a fine from the US Department of Labor. There also are timetables for fixing an incomplete or deficient medical certificate and for recertification – but this blog is just for the easy bungles!

6. Fail to specify that FMLA leave runs concurrently with other leaves. Employers need to clearly state that FMLA and other leaves run concurrently in their policies, as one employer recently learned the hard way. In Rengen v. FX Direct Dealer, a judge allowed the fired employee’s FMLA interference claim to go to trial because the employer’s FMLA and maternity leave policies didn’t state the two leaves would run at the same time. An eligible employee’s 12-week FMLA leave entitlement may run concurrently with other leaves, such as maternity, short-term disability and workers’ compensation leaves.

Employers also may require employees to use PTO benefits, such as vacation days, sick days or personal days, during unpaid FMLA leave. In these situations, the two types of leave run at the same time. This shortens the total amount of leave time (both paid and unpaid) that the employee uses in a given year.

7. Don’t use the “rolling” method to determine leave allowances. Under the FMLA, eligible employees are entitled to 12 weeks of protected leave in a 12-month period. Employers may choose one of four methods for determining the 12-month period for leave:

  • The calendar year;
  • Any fixed 12-month period (like a fiscal year);
  • A 12-month period starting on the date of the employee’s first day of FMLA leave; or
  • A “rolling” 12-month period looking backwards from the date of the employee’s first day of FMLA leave.

In most cases, the “rolling” or “look back” method is the best choice for employers. The other three methods all allow the possibility of “stacking” FMLA leave – where an employee’s 12-week allocation of FMLA leave for one year ends just as the next year’s allotment starts, thus allowing 24 weeks of protected leave. Although more complicated to administer, the “rolling” method avoids the possibility of an employee having double the amount of protected leave that may be used all at once.

8. Have an inflexible leave policy. The DOL does not like inflexible leave policies, like “no fault” attendance policies that assess points for absences regardless of the reason. Neither do the courts. FMLA leave is protected leave; it cannot count towards any disciplinary action.

The courts also aren’t too keen on an employer rushing to terminate employment without allowing an employee the opportunity to provide notification of a needed change in an FMLA return date “as soon as practicable” per the FMLA regulations. That lack of flexibility cost one employer $750,000, when it sent out the termination notice on the same Friday afternoon the employee was due to return, but could not due to her doctor’s order. Instead she returned on Monday, and brought medical documentation for the change. As the ancient Romans used to say, “Make haste slowly.”

9. Require employees to be 100% recovered in order to return to work. A policy insisting that an employee return to work from FMLA leave with “no restrictions” or “100% healed” creates the risk of an Americans with Disabilities Act (ADA) violation. The ADA requires an employer to make an individual assessment of whether the returning employee can perform the essential functions of a job with or without an accommodation. Most courts have found that “no restriction” policies improperly bypass that requirement.

10. Fail to train your frontline managers. There are too many ways to count how a supervisor or manager can entangle an employer in a lawsuit by failing to understand the basics of FMLA leave.

  • Is an employee’s notice of illness sufficient notice of an FMLA-qualifying “serious health condition?”
  • Did a supervisor give an employee a poor review because the employee was out on FMLA leave?
  • Did a manager improperly connect an employee’s use of FMLA benefits with his or her termination for poor performance?

Not training front-line management when and how to handle potential FMLA issues (that is, contact HR) can be the biggest mistake an employer makes.

It’s clear there are a lot of moving parts to administering FMLA leave. Taking control of the basics will help avoid some common errors and let employers focus on helping their workers take care of themselves and their families.

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