Did you make these same FMLA mistakes?
Want a bit of data to help focus compliance efforts for the federal Family and Medical Leave Act (FMLA)? The U.S. Department of Labor’s Wage and Hour Division (WHD) offers some insight. Over the years, in its enforcement actions, the WHD named common FMLA violations, showing missteps employers were taking in their FMLA leave administration. For the last five years, the most common violations were as follows:
FMLA violation | 2024 | 2023 | 2022 | 2021 | 2020 |
Denial of leave | 115 | 140 | 120 | 156 | 178 |
Failure to reinstate employees to the same or equivalent position, benefits, etc. | 40 | 79 | 43 | 77 | 71 |
Termination | 109 | 70 | 65 | 86 | 119 |
Failure to maintain health benefits | 8 | 6 | 8 | 10 | 7 |
Discrimination (disciplinary action, etc.) | 112 | 142 | 140 | 150 | 791 |
What qualifies for leave?
Most of the violations were because employers denied FMLA leave to an employee who was otherwise entitled to it. Relatedly, one of the more common questions employers have about the FMLA is whether a reason qualifies for leave, especially if it involves a serious health condition. Unfortunately, there isn’t a list of qualifying medical conditions.
To help tackle this question, though, employers may ask that employees have a certification completed by the employee’s or family member’s health care provider. The certification should give employers enough information to determine whether a serious health condition exists.
Interference and retaliation
The second most common violation was when employers took a negative employment action against employees who exercised their FMLA rights. Perhaps they applied attendance points to employees who took FMLA leave or chided employees for asking about or taking leave. Employers need to avoid interfering with or retaliating against employees when they request or take FMLA leave.
FMLA fines
Although the number of FMLA violations has generally decreased over the years, the amount of back wages employers had to pay because of the violations over the same period has not decreased.
2024 | 2023 | 2022 | 2021 | 2020 | |
Amount of back wages | $1,482,398 | $987,782 | $870,077 | $1,436,259 | $1,168,898 |
Key to remember: The number one FMLA violation last year was denying employees leave to which they were entitled. Employers can use this information to focus their compliance efforts going forward.