Top 13 FMLA Mistakes Employers are Still Making

Top FMLA mistakes made by businesses


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FMLA Mistakes can be costly

Since 1993, business owner and human resource professionals have provided protected leave under the Family Medical Leave Act (FMLA).

However, although FMLA has been around for over 20 years, many professionals and managers are still making mistakes that put their companies at risk for violations and fines through the Department of Labor.

Recently, one employer was fined a penalty of 200,000 for firing an employee improperly during FMLA leave.

Unfortunately the instances of FMLA violations are increasing, not decreasing. This article will cover some of the most common mistakes so that employers can avoid them.

1. Not Forming an FMLA Policy

FMLA allows employers to decide specific guidelines around FMLA leave. One of those definitions employers can define is the 12 month FMLA leave.

Employees can take up to 12 weeks of FMLA leave in a 12 month period. However, employers can define if that time is in a calendar year, a rolling 12 months backward from current days.

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, employers 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 the employer has already defined and notified employees of the methods of FMLA 12 month period, employees can choose to take leave this way.

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.

2. Failing to Notify Employees of FMLA Rights

Unfortunately many employers assume that employees already understand or know about their rights under FMLA.

However, employers are required to notify employees of their FMLA leave rights in two separate ways. First, employers must post FMLA rights for employees. This can happen electronically in an employee self service portal like SwipeClock’s or it can be physically posted at the employer’s business location.

Secondly, employers must notify new employees of FMLA rights upon hire. The notice can be included in an employee handbook, on a form, or it can also 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.

That is why it is vital for employers to provide that information to employees.

3. Not Using FMLA Forms

In addition to notifying employees, employers should use FMLA form for employee leave.

This helps to ensure that employers are following FMLA rules and if the employer requires any type of medical verification of employee leave, using the official forms will ensure that the employer doesn’t ask for information prohibited under FMLA.

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.

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

Too often the  managers in an organization fail to let HR know when an employee requests time off that could be used toward FMLA leave.

This is a problem because FMLA leave cannot be backdated. That means that employees will get more than 12 weeks of FMLA leave. Employees who take FMLA leave must be provide an eligibility notice of FMLA rights within 5 days of the first day of FMLA. At the same time, they must also 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 massive fines and penalties for employers.

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

Too often managers are not trained well enough about FMLA to recognize an FMLA leave or to understand the protection that employees gain from the law. 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, 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 might be found out of compliance. 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 aspect of untrained managers is that employees may be given repercussions from 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.

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 law. 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 huge misunderstanding. 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.

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

9. Too Much FMLA Coverage

Employers sometimes make the mistake of granting too broad of FMLA coverage. This can especially happen in states like Colorado, or California with individual FMLA laws that overlap Federal FMLA.

Other stats 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 to according to 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 and in a dispute will be found liable. In a best case scenario, employers 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 exact records of FMLA leave

Unfortunately FMLA, like many employment laws require the employer 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.

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

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

This could leave the employer 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.

This is in direct violation of FMLA protections.

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

They should 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 health care 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.

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.

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

FMLA leave allows for intermittent FMLA leave. This could include an adjusted work schedule, part time work, or adjusted work duties.

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

Additionally, after an employee has exhausted all 12 weeks of FMLA leave, employees 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, they may require employee contributions.

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

Further, any benefits that the employee qualified for previous to leave, such as seniority, perfect attendance, or other benefits, must be reinstated to the employee upon their return to work.

Let SwipeClock Help

All too often, employers must track not only FMLA laws, but also local city and state sick leave, minimum wage, and scheduling laws.  

Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Medical Leave Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Businesses can more easily notify and track employee records, and requests through SwipeClock’s award winning HR software.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

Written by Annemaria Duran. Last updated on September 26, 2017

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