The FMLA, ADA, and worker’s compensation laws can overlap. Some serious health conditions that qualify for FMLA leave can also qualify as a disability under the ADA.
Here's what you need to know about common FMLA employer mistakes:
- Employers have to perform an "individualized assessment under the ADA.
- DOL inspectors check to see if employers are complying with posting requirements when they perform random inspections.
- Accurate tracking and reporting systems are crucial.
- Companies should ask themselves, "What are the things we need to do to communicate with this person about how the leave will be operating on an ongoing basis? Do we need to remind them about the callout policy?"
The Family and Medical Leave Act (FMLA) has been around since 1993. However, employers are still grappling with what one organization has called “an alarming knowledge gap” among managers.
In a 2020 study of 435 managers, ClaimVantage found that only 11% correctly answered “three basic questions” on the federal law. Yet, 50% of those surveyed said they’re responsible for educating employees on the federal law and notifying workers of their eligibility.
What can an employer do to minimize FMLA trouble?
Study the FMLA. “The biggest mistake that employers make is not being familiar with the requirements of the FMLA. That’s where it all starts,” Adam Courtin, an attorney in the San Antonio, Texas office of law firm Ogletree Deakins said in an interview.
“Understanding the FMLA is critical,” he said.
Courtin suggested that employers take advantage of the information offered by the U.S. Department of Labor (DOL) on its website. The site is “quite helpful,” and the fact sheets provided by the agency “come in handy,” he said.
Be prepared for FMLA requests
Another common employer mistake is not being prepared ahead of time for requests for leave, Courtin said. One of the ways that employers can be prepared is by using a checklist.
Create an FMLA checklist
“People don’t seem to have a good work process or a flowchart on how to handle leave requests and compliance,” Nancy Barnes, an attorney in the Cleveland, Ohio, office of Thompson Hine, said in an interview. Barnes recommends that employers think through the entire FMLA process in putting their list together.
What to include on the checklist
Barnes said a checklist should cover:
- Eligibility. Include several elements. Is the employee eligible? Have they worked the required number of hours? Have they been with the company for 12 months? If the answer is “no,” determine if the employee has previously been employed with the company? “Prior employment can count toward the one year of service needed under the FMLA,” she said.
- Covered area. Does the FMLA cover the reason for the leave?
- Documentation. Know what documentation you need to be able to determine if the request is a covered condition?
- Length of leave. How long is the employee going to be out? For how many hours a week? How many hours is the employer expected to approve? Calculating the number of hours of leave that an employee is entitled to can be tricky if the employee works a varying number of hours per week.
- Paperwork. The checklist should include a tally of the required paperwork. Employers have to provide several notices – Notice of Eligibility and Rights & Responsibilities as well as a Designation Notice.
- Communication while on leave. Barnes said companies should ask themselves, “What are the things we need to do to communicate with this person about how the leave will be operating on an ongoing basis? Do we need to remind them about the callout policy?”
- Tickler system. Employers should have a system for sending a status letter. “Employers need to have a system for sending employees a letter notifying the worker of the date they are expected to return to work and requesting that if the return date has been changed, the employer should be notified,” Barnes said.
Have the FMLA forms ready to go
The Labor Department provides “great forms,” Courtin said. He suggested that employers have the forms as well as an accompanying form letter prepared in advance. He said employers may want to periodically check the documents for changes.
Don’t ignore an employee’s request or wait for them to use the “magic words”
An employee doesn’t have to say “FMLA” when they request leave, Sheri Giger, an attorney in the Pittsburgh office of Jackson Lewis, P.C., said. If an employer acquires enough knowledge to know that an employee’s need for leave may be FMLA-qualifying, the employer’s obligations are triggered to start the FMLA process. This is an area where proper manager/supervisor training is important, Giger said.
“Proper application of the FMLA can greatly limit the risk of a lawsuit or a Labor Department investigation. Courtin said that “ignoring an employee’s FMLA request or downplaying the employee’s circumstances can open the door to expensive trouble.”
Tracking FMLA leave
“Be careful how absences are counted,” Giger said. An employee’s FMLA leave should not be counted against an employee in an adverse manner that could lead to discipline.
Accurate tracking and reporting systems are crucial. “Equally crucial is communicating to managers and employees how to properly report and input FMLA leave time,” Giger said.
FMLA leave abuse procedures
Barnes advised that you should have clear policies and procedures for determining when employees are engaging in a pattern that seems suspicious or are using leave in a suspicious way.
She also noted that if an employee seems to have a pattern of missing work on a Monday or Friday, the employer should consider having the employee’s physician confirm that the behavior is consistent with the certified medical condition.
“There might be a legitimate explanation,” she pointed out.
The FMLA’s 12-month employment requirement
What do you do if someone requests FMLA leave and has only been with the employer for 364 days or has only worked 1,240 hours of service for the employer during the 12-month period immediately preceding leave?
Courtin said employers might want to show “a little bit of leeway” in interpreting some of the federal law’s compliance requirements. “Don’t buy yourself trouble,” he said.
Courtin suggested that you “consider you might have missed something. Timesheets might not be accurate, or the employee could dispute the number of days and hours worked.” He continued, “the same thinking applies to the employee headcounts.”
“It’s risky to cut it too close,” he said.
Don’t interfere with FMLA leave
“Employees have a right to take leave,” Courtin said. He suggested that employers not:
- Interfere with FMLA leave rights
- Make the process overly difficult
- Retaliate against those who take leave
You have a business you need to run. So, it’s natural to wonder what you do if you suspect an employee is abusing the leave policy.
When asked about incidences of employees posting about fishing trips or Superbowl trips while out on FMLA leave, Courtin reminded us that the serious health condition for which the employee is on leave could be that of a spouse or immediate family member.
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Not maintaining the confidentiality of the employee’s health condition can result in legal problems. “keep a separate employee file from the regular HR file for the information about the employee’s health condition,” Courtin said. The immediate manager doesn’t need to know the worker is out with a serious condition. The manager just needs to know the employee is out on FMLA leave.
Remember the posters
“Employers often fail to post FMLA posters in the workplace and to include FMLA information in the employee handbook,” Courtin said. “DOL inspectors check to see if employers are complying with posting requirements when they perform random inspections and during employee complaint investigations.”
Free posters are available from the Labor Department’s website, and payroll processing companies offer posters that meet most requirements.
Federal laws can overlap
The FMLA, ADA, and worker’s compensation laws can overlap. Some serious health conditions that qualify for FMLA leave can also qualify as a disability under the ADA. Employers should be aware of this and how to respond.
For example, gestational diabetes that some women develop while pregnant and out on FMLA leave might be a disability under the ADA.
Barnes said people sometimes make the mistake of thinking that because an employee has used up their FMLA leave, they must return to work. However, an employer might have a requirement under the ADA to provide that person with additional leave as an accommodation. Employers have to perform an “individualized assessment under the ADA,” she reminded.
Check local and state laws
“Local and state government laws might offer additional leave to employees,” Barnes said.
“States might have more favorable requirements to employees than those found under the FMLA,” Courtin said.
Courtin said that when it comes to FMLA compliance, documenting actions is crucial.
“Employers may want to keep a contemporaneous record,” he went on, “a phone call is not a document. Consider sending a follow-up email to confirm the content of the call.”
Managing leave under the FMLA is challenging. Even experienced attorneys have observed that the FMLA is not an easy law with which to comply. But a study of its requirements and awareness of the mistakes that employers most often make when administering the FMLA can go a long way toward preventing employee complaints and lawsuits.