Top 5 employer FMLA mistakes
The federal Family and Medical Leave Act (FMLA) continues to frustrate and confuse many employers. This confusion is evident by the reported nine million annual page views on the U.S. Department of Labor’s FMLA-related webpages. In fact, these pages remain the most visited sites across all the agency’s resources.
Even those familiar with the FMLA provisions and related court cases could encounter new situations.
Given all this, it’s easy to see why employers make mistakes regarding the FMLA. Over the years of answering FMLA-related questions, the following five employer mistakes have risen to the top:
- Not understanding the FMLA’s definition of a “serious health condition.” Employers have many questions about whether a particular medical condition or procedure qualifies for FMLA leave. There is no list of health issues that constitute a “serious health condition” under the FMLA. Employers need to review the information in a certification (or other document) and compare it to the regulatory definition of a serious health condition (found on the last page of a certification form).
- Lack of manager training. Many employers have situations in which the leave administrator just learned that an employee has been out for several weeks. Once an employee puts the employer (meaning anyone acting on behalf of the employer, such as managers) on notice of the need for leave, employer FMLA obligations kick in. Therefore, managers should be familiar with what they need to do to keep the company out of FMLA hot water, such as reporting leave to the appropriate company personnel. Managers also need to refrain from retaliating against employees because they request or take FMLA leave. Retaliation claims can be costly for an employer to defend as they take time and resources, as well as damage a company’s image.
- Not having a robust FMLA policy. While the FMLA poster might give employees a bit of information, it does not tell them what method the employer uses to calculate the 12-month period, whether employees must use their accrued paid time off during FMLA leave, and so on. While policies don’t have to cover every possible FMLA issue, having one that explains more than the poster can help make the FMLA process run smoothly.
- Missing FMLA notice deadlines. The Department of Labor is taking the five-day window for providing the eligibility/rights & responsibilities notice and the designation notice seriously. Some employers feel that only one of these notices suffice, but both must be provided.
- Asking for too much documentation (or too often). Overly aggressive certification requests can lead to an interference claim. Many employers want to, for example, ask for doctor’s notes for each occurrence of intermittent leave. Courts and the DOL see this as tantamount to asking for recertifications and, therefore, would need to comply with the limits of the recertification provisions. Employers also like to contact health care providers when not authorized. They may do so only after obtaining a complete and sufficient certification, and only for clarification (i.e., understanding the handwriting or the meaning of a response) and authentication (i.e., verifying that the form was competed and/or authorized by the health care provider who signed it).
Key to remember: Knowing all there is to know about the FMLA is near impossible, since it is constantly being interpreted and reinterpreted. Employers can reduce the risk of violation by learning from others’ mistakes.
