Seven FMLA Do’s and Don’ts

Seven FMLA Do’s and Don’ts

The Family and Medical Leave Act (FMLA) of 1993 grants employees the right to take up to twelve weeks of unpaid, job-protected leave from employment to care for themselves or a family member who is suffering from a serious illness. For employers and managers, the FMLA offers many pitfalls. As recent lawsuits make clear, employers can easily run afoul of the FMLA by failing to adhere to its many requirements or by applying the FMLA inconsistently. Here are seven do’s and don’ts to help employers stay compliant with the FMLA.

Do Create and Consistently Follow an FMLA Policy

The FMLA is substantial and complicated. It may also interact with state law, so employers must also be aware of this when forming their specific FMLA policy. It must address coverage, what employees should do to receive FMLA coverage, and what the employer will do when applying the FMLA (this includes record keeping). The FMLA offers some flexibility in its application, for example regarding paid time off, so employers will need to create an FMLA policy that complies not only with federal and applicable state law but also with existing employer policy.

The Department of Labor (DOL) offers employers guidance on the application of the FMLA. For employers, the first question is: are we a “covered” employer? The answer is yes if the employer is a:

  • Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer;
  • Public agency, including a local, state, or Federal government agency, regardless of the number of employees it employs; or
  • Public or private elementary or secondary school, regardless of the number of employees it employs.

Regarding who is covered, an employee is covered under the FMLA if he or she:

  • Has worked for the employer for at least 12 months;
  • Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and
  • Works at a location where the employer has at least 50 employees within 75 miles.

Once a covered employer has created a policy, it must be applied consistently. Failure to do so can contribute to lawsuits. For example, in Hudson v. Tyson Fresh Meats Inc., an employee argued that his employer did not consistently enforce its rule that “All management Team Members are expected to personally call their direct supervisor to report an unplanned absence or to report that they will be late.” The employee said that he had sent notice via text instead and that the company had previously accepted such notice. The court noted that “Originally, Tyson claimed that it fired Hudson for ‘fail[ing] to notify the company he was going to be absent.'” This small inconsistency did not prove that Tyson used Hudson’s failure to follow policy as a pretext to fire him for seeking FMLA protection, but it was enough to garner the court’s attention. Inconsistent application of company policy regarding the FMLA may expose an employer to charges of discrimination as well.

Do Provide Notice of the FMLA to Employees

Employers are required to inform employees of their rights under the FMLA. This is typically done via posting information on a company web page that employees access, in the employee handbook, and in posters in a commonly accessed area such as a break room. In addition, employers should let employees know if they may be eligible for FMLA protection and not play “gotcha” in denying FMLA coverage for failure to follow company policy. The FMLA protects employees who act in good faith. The employer should also inform employees of its FMLA policies.

Do Make Sure Managers Are Trained

Managers may fail to comply with the FMLA in two ways. One is to take action (or fail to do so) while unaware of what company policy is, and the other is to allow their emotions to govern how they act toward employees who claim or may be eligible for FMLA protection. In both cases, training on company policy and its application is the best way to avoid mistakes that may prove costly.

The FMLA does not consider whether an employee is “good” or “bad,” including regarding previous attendance issues. For managers, there may be a temptation to help good employees with navigating the maze of FMLA compliance and to use the rules as a means of dismissing other employees. Another way that managers can create trouble for the employer is by failing to notify HR when the FMLA may be implicated. The FMLA also has confidentiality provisions that, if violated, can lead to a lawsuit.

For example, in Holtrey v. Collier County Board of County Commissioners, a “management-level employee allegedly disclosed Plaintiff’s condition to his coworkers and subordinates at a staff meeting….Roughly eight…coworkers and subordinates learned of Plaintiff’s condition….These coworkers and subordinate employees have approached Plaintiff to [inquire] about his condition and “frequently [ ] make fun of him….” The fun included “obscene gestures about [his] condition.” Not surprisingly, the court denied the company’s motion to dismiss.

Managers do not have to know the reason for an absence under the FMLA, let alone spread the word about it. Instead, they need only be aware of the possibility that the FMLA may apply to a situation and act according to company policy when that possibility arises. For example, if an employee is missing work because of a sick child, the manager may consider whether the FMLA is implicated and notify HR.

Don’t Fail to Confirm Eligibility

Failure to train managers on recognizing when the FMLA may apply can place employers in legal trouble. The employer’s duty to employees may even extend as far as letting an employee know that the FMLA may apply. In Lichtenstein v. University of Pittsburgh Medical Center, for example, a court determined that the comment “sick mom!” in a log regarding an employee’s absence was sufficient to implicate a possible application of the FMLA. The lesson for employers is to train managers and supervisors about the FMLA and to apply that knowledge when receiving communications from eligible employees about their absences. Employers need to know when the FMLA may apply and to inform employees that they may be eligible for FMLA coverage.

Similarly, employers should not interfere with an employee’s FMLA claim. When an employee makes an FMLA claim, the employer should not act or fail to act in ways that a court may later construe as attempts to stop or hinder the employee from making a claim. This holds true even if the claim is later denied.

Do Keep Records

The DOL provides some basic guidance on what records an employer must keep in relation to FMLA claims. Specifically, covered employers who employ FMLA-eligible employees must maintain records that include:

  • Basic payroll and identifying employee data, including:
    – Name, address, and occupation,
    – Rate or basis of pay and terms of compensation,
    – Daily and weekly hours worked each pay period,
    – Additions to and deductions from wages, and
    – Total compensation paid.
  • Dates FMLA leave is taken (which must be designated in the records as FMLA leave),
  • Hours of FMLA leave used if leave is taken in increments of less than a day,
  • Copies of FMLA notices provided by an employee to the employer and by the employer to its employees concerning the FMLA (including any written request for leave from the employee as well as any required notice provided to the employee concerning FMLA leave),
  • Any documents, including electronic records, describing employee benefits or employer policies and practices regarding the taking of paid or unpaid leave;
  • Premium payments for employee benefits, and
  • Records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave, such as emails or other written statements regarding a disagreement on the designation of the employee’s FMLA leave request.

These records should be kept for at least three years.

Don’t Retaliate

Many FMLA lawsuits address whether an employer retaliated against an employee for taking or seeking medical leave. If an employer disciplines, fires, demotes, or reduces an employee’s pay or benefits after the employee seeks or receives medical leave, the employer should be prepared to defend its reasons for doing so.

In Walker v. Verizon Pennsylvania LLC, the court ruled that the employee had suffered retaliation after receiving medical leave. The court came to this conclusion after the employee was laid off despite having a better performance record than other employees who were not selected for dismissal.

Don’t Overlook Intermittent or Reduced Schedule Leave

Under the FMLA, covered employees may be eligible for reduced work schedules. If, for example, an employee needs extra time in the morning to attend to a sick family member but can work after that, an employer must consider altering the employee’s schedule to accommodate the employee. While this may sound similar to accommodation provisions of the Americans with Disabilities Act (ADA), the laws cover different situations. The FMLA covers serious medical conditions of the employee or someone in the employee’s family, while, the ADA covers disabilities.

The FMLA does allow employers some leeway with reduced or intermittent schedules, for example in cases of fostering or adopting children.

Conclusion

The FMLA’s numerous and complicated provisions create many potential problems for employers. As such, employers should develop a written FMLA policy, train managers and supervisors on that policy, and provide notice to employees of their rights under the FMLA as well as the company’s FMLA policy. Employers should stay abreast of developments in FMLA law and make sure that HR managers are up-to-date on the myriad details of family medical leave.

About The Author

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Eric Howard is a legal editor who lives in Los Angeles.

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