FMLA – Employer Mistakes

Examining the mistakes commonly made by employers implementing the FMLA may help other employers avoid the errors, mitigate challenges to their leave policies, and reduce damages from unintentional violations of the act. Common mistakes, along with a brief summary of the pertinent law, follow:

• Failing to properly designate leave time as FMLA leave. An employer must designate time off as FMLA leave each time an employee is absent from work for a known FMLA reason. Employees are only required to provide notice once if the employee requests intermittent or reduced-schedule leave.

• Regarding protected intermittent leave as non-FMLA absences. An employee may take leave intermittently to care for a family member with a serious health condition or because of the employee’s own serious health condition when medically necessary. An employee also may take intermittent or reduced-schedule leave after the birth or placement of a child for adoption or foster care only if the employer agrees.

• Misunderstanding what qualifies as a serious health condition. An employee may take FMLA leave for the employee’s serious health condition that prevents performance of an essential function of the job or to care for a family member with a serious health condition.

• Failing to recognize notice of FMLA leave. Employees need not specifically assert rights under the FMLA or even mention the act by name to invoke its protection. Notice is sufficient if the employee states reasons that would potentially qualify for FMLA leave. For example, an employee proffered notice would be sufficient to trigger FMLA protections if the employee stated that leave was needed for an expected birth or adoption.

• Failing to grant leave to an employee seeking to care for a family member with a serious health condition. An employee may take leave to care for a spouse, parent, or child with a serious health condition when that employee is needed to care for the family member.
  • The medical certification provision that an employee is needed to care for a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition the family member is unable to care for the member’s own basic medical, hygienic, safety, or nutritional needs or is incapable of self-transport to the doctor.

    The term also includes providing psychological comfort and reassurance that would be beneficial to a child, spouse, or parent with a serious health condition who is receiving inpatient or home care. The term also includes situations where the employee may be needed to fill in for others who are caring for the family member or to make arrangements for changes in care, such as transfer to a nursing home.

    An employee’s intermittent leave or a reduced-schedule leave necessary to care for a family member includes not only a situation where the family member’s condition is intermittent, but also where the employee is only needed intermittently — such as where other care is normally available or care responsibilities are shared with another member of the family or a third party.

• Failing to advise an employee of the need to provide a return to work medical certification. An employer may require a fitness-for-duty certification upon an employee’s return to work as long as the employer has a uniform policy for all returning employees, notice is included in the handbook (if applicable) and in the employer’s response to the employee’s request for leave, and the certification is concerned only with the employee’s particular condition causing FMLA leave.

• Failing to reinstate an employee to the same or an equivalent position. An employer must reinstate an employee to the same or an equivalent position upon the employee’s return from FMLA leave even if the employer replaced the employee or restructured the employee’s position to accommodate the absence.

• Failing to properly document the reason for an employee’s absence. It is the employer’s responsibility to designate time off as FMLA leave when the employer is aware that the leave is for an FMLA-qualifying reason. If the employer fails to designate a qualifying leave as FMLA leave, the employee is entitled to the FMLA protections, but the leave cannot be counted against the employee’s 12 weeks of leave until proper notice is provided (but even then, cannot be applied retroactively except in very limited circumstances).

• Failing to integrate properly the FMLA policy with other leave policies. An employer’s handbook or policy manual that addresses leaves, wages, attendance, or similar matters must include an FMLA policy outlining the employee’s FMLA rights and obligations, including the employer’s definition of a 12-month period and requirements for fitness-for-duty certifications.

• Misunderstanding the method for counting intermittent and reduced-schedule leave for exempt employees. Employers should calculate available leave time by determining the average hours an exempt employee worked over the last 12 weeks. For example, if an employee typically works 50 hours per week, the employee is entitled to 50 x 12 or 600 hours of intermittent or reduced-schedule leave.