Employers: Don’t Make These Top 13 FMLA Mistakes in 2021

FMLA laws

Liz Strikwerda

Content strategist and corporate blogger (2000+ posts). Her work has been featured on G2's Learning Hub, Human Resources Today, CloserIQ, Better Buys and over 500 business websites. She plays bluegrass mandolin and enjoys hiking in the red rock wilderness of southern Utah. Connect with me on LinkedIn

Improve your FMLA administration in 2021 to ensure employees can take advantage of it if necessary. In addition, you will protect your company from violations and penalties.

A Summary of 5 Key FMLA Findings for 2021

  1. COVID leave has complicated FMLA administration. Automated time tracking apps streamline COVID and FMLA management.
  2. Helen Applewhaite (FMLA Branch Chief) identified 3 areas that cause employers the most difficulty with FMLA: 1. notifications and communications between employers and employees; 2. recertifications; and 3. protection of the employee’s right to FMLA leave.
  3. FMLA training for managers can prevent problems. It’s vital that managers notify Human Resources if a team member asks for time off work for a medical issue. They should also let HR know if a staff member is out for three consecutive days. This allows HR to provide FMLA notices as early as possible. When managers delay notifying HR, the worker may be disciplined under the company’s attendance policy.
  4. Employees also have deadlines under FMLA. They must provide medical certification within 15 calendar days. If Human Resources requests additional documentation, the worker has seven days to submit it to HR.
  5. A Human Resources Management System (HRMS) is an invaluable tool for complying with FMLA and protecting companies from costly litigation.

Since 1993, employers have been required to provide protected leave under the Family Medical Leave Act (FMLA). Staff absences are often unpredictable. Regardless of whether the absence is due to a medical issue. Employers can protect themselves with ongoing education, staff training, and SaaS compliance tools.

Employers: Avoid These 13 FMLA Mistakes

1. Not Forming an FMLA Policy

FMLA allows you to decide some policies in how you administer FMLA leave. One of these is how you measure 12 month FMLA leave in a fiscal or calendar year.

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.

For example, if an employee requests FMLA leave today, then the amount available would be based on how much time they have used in the previous 12 months.

Finally, you can use a rolling 12-month period from the first day of FMLA leave that resets in 12 months or a fiscal year. This is important because unless an employer defines the method of 12-month calculation for FMLA, employees will usually choose a calendar method.

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.

Another example of FMLA policy should include whether or not employees must use paid leave for FMLA leave. FMLA allows employers to require paid leave as part of FMLA leave. However, employers must apply this policy uniformly and should inform employees of it.

FMLA Rules Tip For Employers

Define how you calculate FMLA leave per year and include it in your employee handbook.

2. Failing to Notify Employees of FMLA Rights

Unfortunately, many employers assume that employees already know about 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 of FMLA rights when hired

You must notify new employees of FMLA rights upon hire. The notice can be included in an employee handbook, on a form, or it can be provided in an electronic format. Employees won’t automatically know if an employer is a covered employer under FMLA or what the employee must do to qualify.

FMLA Rules Tip For Employers

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, you need to 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.

FMLA Rules Tip For Employers

Download FMLA forms from Department of Labor/FMLA. Include this link and instructions for filing in Human Resources training materials. Have your HR manager give the Human Resources 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. Employers can track first the minimum number required months with the employer at which point employers should verify the hours worked over that time period and if needed, track the remainder of the hours required for FMLA leave.

FMLA Rules Tip For Employers

Use an HR portal like WorkforceHUB to track employee work tenure. Set custom notifications that 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.

FMLA Leave Cannot Be Backdated

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 rights and responsibility notice.

Additionally, a designation notice is also required within 5 days of leave. Failure to adequately notify employees of FMLA usage has resulted in crippling FMLA violations.

FMLA Rules Tip For Employers

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 about FMLA to recognize an FMLA-eligible leave or to understand the protection provided. Remember that an employee doesn’t have to specifically invoke FMLA leave to qualify for leave.

You Determine Eligibility Even If The Employee Doesn’t Recognize It

The courts have ruled that if an employee provides enough information to the employer for the employer to know that the leave qualifies for FMLA, that 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, the employer could unwittingly commit a violation. This could be as simple as an employee taking time off work to care for a parent who had an overnight stay at the hospital.

Another risk of untrained managers is that they might punish an employee for taking FMLA leave because supervisors or directors don’t realize that FMLA time is protected or don’t realize that certain absences are covered under FMLA.

Employer retaliation against an employee for FMLA-qualified absences is a violation. Those found noncompliant could be liable for penalties and fines.

FMLA Rules Tip For Employers

Train and re-train managers on FMLA guidelines for employers. Remind managers in your HR portal. Instruct your Human Resources director to check in with managers weekly to make sure they don’t overlook an employee’s absence.

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.

Beware of the Timing

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.

In addition, 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 or hospice, or continuing medical treatment. In some cases, employers should grant FMLA leave for situations arising from natural disasters.

FMLA Rules Tip For Employers

Review the FMLA guidelines. Include this in your employee handbook. Remind employees and managers in your HR portal.

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. These states have FMLA laws that overlap federal FMLA.

Other states with individual FMLA laws include Connecticut, Maryland, Minnesota, New Jersey, New York, Rhode Island, Tennessee, Washington D.C., Wisconsin, and Vermont.

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.

Non-Eligible Leave Can’t Reduce Eligible Leave

Employers who count leave for these relationships or for expanded reasons and then deny true FMLA leave will be noncompliant 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.

FMLA Laws Tip For Employers

Review your state laws and compare to federal FMLA laws. Create a compliant policy. Incorporate in Human Resources training materials.

10. Not Keeping Detailed Records of FMLA Leave

FMLA, like all employment laws, requires you to keep detailed records or risk repercussions for noncompliance.

Employers who don’t keep exact records of employment leave may provide more leave to employees than intended.

For example, this could happen when an employee takes sick leave that could be counted as FMLA leave. FMLA leave can run concurrently with other absences, leaves, and even state-provided leave.

If you don’t accurately count FMLA leave, then an uneven distribution of leave could occur among employees.

This could leave you open to a discrimination lawsuit if some employees are inadvertently given more leave than other employees. It could also mean that absences that should qualify as FMLA leave are not counted as FMLA leave. Or, as mentioned, that an employee suffers adverse effects because of those absences.

This is in direct violation of FMLA protections.

FMLA Laws Tip For Employers

You should retain FMLA records for at least 3 years. These records should be kept separately from personnel records.

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

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 healthcare provider may rely on the employee to describe their work and may mistakenly release them for work when they are not ready.

In addition, 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.

FMLA Guidelines Tip For Employers

In your Human Resources software, include the appropriate job description to each employee’s profile. Ensure administrators 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 modified work duties.

However, if you allow an employee to take an intermittent leave with reduced work duties, remember that intermittent leave is optional. Employees can still request actual leave time as FMLA leave.

Also, don’t confuse FMLA with working from home. Allowing an employee to work from home may qualify as an ADA accommodation, but if an employee is on FMLA leave, the employer cannot require them to do any work.

FMLA Guidelines Tip For Employers

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

Remember, after an employee has exhausted all 12 weeks of FMLA leave, employees must still be aware of ADA laws.

The Americans 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 healthcare contributions, but this isn’t required after returning to work, coverage must be provided without any waiting periods.

FMLA Guidelines Tip For Employers

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.

WorkforceHub Simplifies FMLA

Employers must track not only FMLA laws, but also local, city, and state sick leave, minimum wage, and scheduling laws.

WorkforceHub, the HRMS from SwipeClock helps companies comply with FMLA, FLSA, and other wage and hour laws.

Last updated March 10, 2021

Simplify HR management today.

Simplify HR management today.

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