Employer obligations under FMLA. The FMLA imposes many technical obligations on employers that may result in liability if not met. Many of these employer obligations can be easily met. For example, employers are obligated to post at every worksite the latest FLMA posters. Employers are also obligated to advise, in writing, whether an employee’s FMLA leave request was approved or denied and must include all required designation notices within required timeframes. Employers must also track all FMLA usage and inform employees of their amount of leave remaining. Most importantly, employers are not permitted to retaliate against or interfere with an employee’s right to take FMLA leave.
Drafting an FMLA policy. Employers are required to draft an FMLA policy and should distribute this policy via the employee handbook. The policy should include terms that are most advantageous to the company. For example, if not specified by the employer, employees may chose to use the 12-month period in which the 12 weeks of FMLA may be taken. Most likely, employees would choose the 12-month calendar period, which allows employees to take 24 weeks of FMLA leave by stacking leave during the last 12 weeks of one year and the first 12 weeks of the new year. Rather than letting employees choose the 12-month period, employers can dictate in their FMLA policy a rolling 12-month period (rolling forward or backwards from the time any leave commences).
Calculating FMLA eligibility. Many employers fail to include all time worked when determining whether an employees is eligible for FMLA. It is important to remember that the employee’s actual workweek is the basis from which employers must calculate FMLA leave entitlement. This means employers need to take into account overtime hours and break time into an employee’s FMLA eligibility calculations.
Untrained supervisors and managers. Since managers and supervisors are an employer’s front-line of defense, it is important that they are trained on the FMLA. If a manager fails to notify HR when an employee is out on leave for an extended period, it could delay the start of the 12-week FMLA period. An untrained manager’s mistake can cause issues with employee staffing and productivity. Other problems can arise from having untrained managers and supervisors. For instance, a supervisor who dissuades employees from taking leave or requests prohibited medical information from an employee requesting leave violates the FMLA and can cause employers to face costly repercussions. Just because managers and supervisors do not administer FMLA leave does not mean they should not be trained on FMLA.
Not recognizing requests for leave. Employers should not assume an employee must specifically ask for FMLA leave. There are no magic words required for an FMLA request. If you feel you need more information to determine if an employee might need FMLA leave, then ask the employee. A general report of a serious condition may be sufficient to trigger FMLA obligations. For example, an employee who has a history of migraines and who noted they took sick days for headaches can signal an FMLA-qualifying condition. Employers should also note that the required 30 days’ notice an employee must give to take FMLA leave depends on whether the need for leave is foreseeable. If the reason for leave is unforeseeable, an employee must only provide sufficient information for an employer to reasonably determine if FMLA may apply. When employers determine whether notice was given in a timely manner, employers should be flexible where the circumstances call for it and must remember to take into account whether the need for leave was foreseeable.
Issues with certifications from health care providers. Under the FMLA, employees have 15 calendar days after submitting a leave request to provide certification from their health care provider. When employers request certifications to document an employee’s leave, they should advise employees of the consequences of failing to provide an adequate certification. An adequate certification must state: (1) the date the condition began, (2) probable duration, (3) medical facts, (4) that the employee is unable to perform her work, (5) the dates and duration of treatment, and (6) the expected duration of leave. Employers will sometimes accept certifications of a serious health condition that does not state the frequency and/or duration of the intermittent leave that is needed. If the certification is incomplete or insufficient, the employer must notify the employee and provide the employee time to cure any deficiency before denying the leave.
Missed notices. When employees seek FMLA leave, employers are required to provide several notices to employees. By failing to provide any one of the notices, employers violate the FMLA. First, employers must provide a general notice of employee FMLA rights. Second, employers must provide notice of eligibility within five days of the leave request. Third, at the same time as the notice of eligibility is given, employers must supply a notice of employee rights and responsibilities under FMLA. Fourth, employers must provide the requesting employee with a designation notice determining whether leave qualifies as FMLA leave.
Expecting employees to work in lieu of or while on FMLA leave. Employers should not make the mistake of offering light-duty work to employees while counting that as FMLA leave. For instance, if an employee cannot perform their work due to an injury an employer may offer light-duty work. If an employee wants to take FMLA leave, employers should not even suggest an employee work (even just a little) while on FMLA leave or in lieu of full-time leave. Further, employers should not insist on meeting time-sensitive goals despite the fact that an employee took FMLA leave.
Underestimating Employee Abuse of FMLA. There are many ways employees can abuse leave under the FMLA. Since many employers complain about unpredictable, intermittent FMLA leave, employers should develop a surveillance plan to reduce the risk of FMLA abuse. This requires employers to ensure they receive adequate medical certification from the requesting employee, to seek clarification and verification of the employee’s condition, and to ask for periodic re-certification and information on any changed circumstances or when the reason for leave drastically differs from the original certification.
Not taking into account the ADA. Many employers fail to realize that the Americans with Disabilities Act (ADA) may require leave beyond the leave required by the FMLA. An employee’s serious health condition that requires 12 weeks of leave under the FMLA will also likely satisfy a disability under the ADA. Hence, employers must remember that additional leave may be required under the ADA as a reasonable accommodation even when the employee has already exhausted all leave she is entitled to under the FMLA.