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Common FMLA Mistakes Employers Make

Common FMLA Mistakes Employers Make

Candice Gardner, a local government employee in Alabama was not reinstated after her FMLA leave had come to an end. Her employer simply refused and she no longer received income or health insurance. As bills began piling up, Candice struggled to provide for herself and her daughters. 

Candice filed a complaint with the Wage and Hour Division and The Department of Labor opened an investigation. Candice’s employer was found to have violated the FMLA, and was required to pay her more than $42,000, including back wages, medical expenses, and other costs that incurred during the time she was unemployed. 

The FMLA had done its job of protecting workers who need to take time off to take care of themselves or their loved ones. 

 

 

What Is FMLA?

The Family and Medical Leave Act of 1993 (FMLA) aims to promote work-life balance by providing eligible employees with up to 12 workweeks of unpaid, job-protected leave. For an employee who works a 5 day workweek, they would be allowed 60 days of leave. According to the Department of Labor, employers with at least 50 employees are required by law to adhere to FMLA. This includes schools, public agencies, and public and private companies. FMLA also requires employers to protect employee benefits like group health insurance coverage during their leave. 

Employees of these covered entities are considered eligible for FMLA under the following conditions:

  • The birth and care of a child 
  • Fostering or adopting children
  • Attending to the health needs of an immediate family member
  • Medical leave due to serious health condition
  • Any qualifying exigency arising because the employee’s immediate family member is a covered military member on “covered active duty” 

If an employee is in a situation that might qualify them for job-protected leave under FMLA, employers are required to inform them of their rights. Some employees even offer paid FMLA leave as an added benefit.

To file for FMLA leave, eligible employees must have worked with the company for at least 12 months and have worked at least 1,250 hours over the past 12 months. 


 

1. Misunderstanding the 12-month period under FMLA  

The 12-month period sometimes causes confusion for employers. Employers assume that the 12-month period has to be the calendar year, but the organization can actually choose one of four options for their FMLA company policy:

  • The calendar year: January to December
  • Any fixed 12-month leave year (such as the fiscal year or a year required by state law) 
  • The 12-month period from the date of an employee’s first FMLA leave: if an employee wants to take intermittent FMLA leave and his first day of leave occurs on January 3rd, 2024, he would have until January 3rd, 2025 to use his 12 weeks of leave. 
  • A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave: each time an employee requests more FMLA leave, HR will measure 12 months back from that date. An employee is only eligible for the remaining time that has not been used in the preceding 12-month period.  

An employer must adhere to the option they’ve chosen to include in their company policy. 


2. Failing to notify an employee of rights and responsibilities 

Employers covered by the FMLA are required to notify employees of their rights and responsibilities under FMLA. 

Employer notification requirements include:

  • General Notice: The FMLA poster must be displayed in a visible location. The poster must explain FMLA provisions and how to file a complaint with the Wage and Hour Division. Employers must provide qualified individuals and new hires with a general notice that covers the same information contained in the FMLA poster. 

  • Eligibility Notice: After an employee first submits a request for FMLA leave, the employer must notify the employee whether they are eligible for FMLA leave. If the employee is not eligible, at least one reason must be provided. 

  • Rights and Responsibilities Notice: Eligible employees must be notified in writing of their rights and responsibilities under FMLA, and the consequences of not meeting obligations (this notice is combined with the Eligibility notice).  

  • Designation Notice: If an employee qualifies for FMLA leave, the employer must notify the individual in writing of the specifics of their FMLA leave. This form is also used to inform the employee if additional information is needed. 

If an employee does not speak English, these notices should be provided to the employee in their preferred language. Additionally, FMLA qualification details should also be easily accessible to employees via an employee handbook or culture guide. 

 

3. Taking disciplinary action against an employee who takes FMLA leave

Like in Candice’s case, disciplinary action can include termination of an employee during leave or following leave. 

FMLA requires employers to guarantee reinstatement to the same or similar position following leave. Job reinstatement can be denied only if employees:

  • Would not have remained employed any way (For example: the employee was hired for a specific term or project that expired during FMLA leave, or the employee would have been laid off any way)
  • Announce intent not to return 
  • Have taken leave fraudulently
  • Have violated company policy
  • Are no longer qualified to perform the job (For example: the job requires the employee to be on their feet, and the employee can no longer stand following FMLA leave, or the job requires a license that the individual did not renew) 

Besides refusing to reinstate employees, disciplinary action can look like denying them a promotion or ostracizing them in the workplace because they took leave. These disciplinary actions are also considered noncompliant.  

 

4. Wrongfully denying an employee FMLA leave 

This can happen when an employer misunderstands what qualifies an employee for FMLA. For example, employees have been denied eligibility because their condition is not seen as a “serious health condition.” According to the Department of Labor, a serious health condition is an illness, injury, impairment, or physical or mental condition that “involves inpatient care or continuing treatment by a healthcare provider.” Qualifying treatment does not include routine examinations.

The following conditions qualify as “serious health conditions” under FMLA:  

  • Alzheimer’s disease
  • Diabetes
  • Severe depression
  • Severe arthritis
  • Pregnancy or its complications
  • Pneumonia
  • etc. 

Yes, both pregnancy and the care of a child can qualify an employee for FMLA leave. 

Employers have also wrongfully denied employees FMLA leave by failing to recognize that taking care of a child “in loco parentis” (or in absence of a parent) qualifies an employee for FMLA leave. An employee can take leave if they have sudden day-to-day responsibilities to care for a child. Qualification depends on the age of the child, their dependence on the employee, the amount of financial support provided by the employee, and the extent to which the parental figure performs “parental” duties. 


5. Discouraging employees from taking FMLA leave

Discouragement can be direct or indirect. Employees may feel discouraged to take FMLA leave if they are responded to negatively when talking about time off, if employers suggest that taking time off will harm an employee’s career, or if the work environment is hostile in general. An example of discouragement could be if a manager hints to an employee that taking leave will decrease their chances of getting a promotion. This puts undue stress on the employee and makes it more difficult to achieve work-life harmony. Employees should always be informed of and encouraged to use the options that FMLA affords them. 


6. Requiring employees to work during FMLA leave

Employees can claim “interference with leave” if employers require employees to complete assignments or tasks during their leave. Employees are entitled to FMLA protections even if they are being paid during their leave. Any time employees spend working during their leave cannot be counted toward their twelve week leave entitlement. 

To establish an FMLA interference claim, the following must be true: 

  • The employee was an eligible employee under FMLA 

  • The employee was subject to the requirements of FMLA 

  • The employee was entitled to take leave under FMLA 

  • The employee gave notice of their intention to take FMLA leave 

  • The employer denied the employee their benefits under FMLA

According to the Department of Labor, an employer who violates FMLA may be held liable for

  • compensation and benefits lost by reason of the violation 

  • other monetary losses sustained as a direct result of the violation 

  • liquidated damages

  • appropriate equitable or other relief, including employment, reinstatement, and promotion

 

Additional Resources

You can stay informed, educated, and up to date with important HR topics using BerniePortal’s comprehensive resources:

  • BernieU—free online HR courses, approved for SHRM and HRCI recertification credit

  • BerniePortal Blog—a one-stop shop for HR industry news

  • HR Glossary—featuring the most common HR terms, acronyms, and compliance

  • Resource Library—essential guides covering a comprehensive list of HR topics

  • HR Party of One—our popular YouTube series and podcast, covering emerging HR trends and enduring HR topics

  • Community—the HR Party of One Community forum, a place devoted to HR professionals to ask questions, learn more, and help others

 

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