Family and Medical Leave Act Issues

The birth and care of a newborn child of the employee

The placement of a foster child or adoptive child with the employee

The care of an immediate family member (the spouse, parent, or child) of the employee

Leave for an employee who is unable to work due to serious medical concerns. These may include both physical and mental conditions that require either inpatient care or ongoing medical treatment.

Shift elimination

Overtime reduction

Pending lay-off

Not acknowledging a request. If an employee requests time off for reasons that would fall under the FMLA, and you ignore their request or misfile their leave, you could be in violation. Employees do not need to cite the FMLA for FMLA regulations to apply. It is the responsibility of the employer to correctly label this time off request.

Requiring excessive notice. Employees are granted 30 days by law to notify their employers of anticipated time off requests under the FMLA. If you require additional advance notice from your employees, you may be in violation of the FMLA. In addition, in emergency cases, you are expected to demonstrate some level of flexibility for employees with medical emergencies or caregiving issues.

Denying or delaying leave. While requiring notice is acceptable, delaying or denying leave is not. For example, if a medical professional schedules a major emergency surgery for your employee and you delay their requested time off, you may be in violation of the FMLA. While delaying leave can be acceptable in some situations anticipated by the employee, delays are not appropriate in the event of an emergency.

Expecting an employee to work while on leave. If an employee has requested and been granted leave, it is unacceptable for you to expect them to work. This applies even if you request that they work from home instead or if you require them to remain available for emails, phone calls, or texts pertaining to work. Confusing FMLA leave with working from home is an abuse of that employee’s rights.

Failure to inform HR of employee leave. Management and supervisors must notify Human Resources regarding any requested or approved leave, especially in the case of FMLA leave.

Discipline or discrimination for FMLA Leave. When an employee requests leave supported by the FMLA, it is inappropriate to discipline them for taking time off. Terminating an employee is an extreme example. Other examples of discipline may include verbal abuse, demotion, or marking FMLA leave as an unexcused absence in the employee’s file. Discrimination may include harassment, relinquishment of duties, or even passing an employee up for promotion because of past FMLA leave.

Not restoring employee to their previous level of employment. Whether the employee takes long-term leave or intermittent leave, failing to return the employee to their previous level of employment or an equivalent position constitutes an FMLA violation. From duties to location, pay, and benefits, the employee must be returned to the same position or its equivalent after their leave.

Disruption of employee benefits. While the employee is on approved FMLA leave, the employer must maintain all employee benefits, including health insurance. While you as the employer may require them to continue to contribute to any health plans, any benefits they had prior to their leave, as well as any that they may have gained during their leave, must be maintained. Aside from health insurance, these benefits may include seniority and wage increases.

Establish an FMLA policy. While the FMLA states that eligible employees are guaranteed 12 weeks of leave, the employer can dictate when this 12-month period begins. Is it based on the previous 12 months, and how much time the employee has already used? Does it start at the beginning of the year? That is for you to decide and set up in your own policy.

You may also decide whether an employee must use paid leave before FMLA leave. The text of the FMLA does allow employers to make this decision. However, the policy you create should be used consistently, and all employees should be informed of these guidelines.

Inform employees of their FMLA rights. This is another crucial step to protect your business. FMLA rights should be posted visibly in a place all employees can access. Rights should also be a part of the employee handbook that can be accessed upon hire. Any other relevant policies you create can also be included in both places.

Notify HR of all FMLA leave. Notifying HR of any FMLA qualified leave also protects the business. Employees must also deliver an FMLA eligibility notice within five days of their first day of leave. These notes keep employees from abusing this policy and create a record of your business granting FMLA leave.

Keep detailed records. Creating FMLA records is one of the best ways to protect yourself and the integrity of your business. By keeping detailed records, you can be sure that employees aren’t abusing their FMLA rights or your company’s policies. You can also maintain fair treatment across the board, prevent violations, and protect your business from discrimination claims. It is crucial to keep records of leave for at least three years, as the statute of limitations for FMLA violations can extend up to three years.

Include a job description with FMLA leave notices. Creating a job description to include employee FMLA leave notices can also protect your business. Healthcare providers can develop a better grasp of the employee’s responsibilities, so they can better gauge the employee’s ability to return to work. Keep in mind that medical doctors aren’t the only healthcare providers that can release an employee to return to work.

Request medical notes. Employers are also well within their rights to request medical notes for employee FMLA leave. While some levels of privacy must be adhered to, it is important to ensure employees are not abusing leave time.

Creation of anti-discrimination policies. By creating these types of policies and procedures and providing training for anti-discrimination and workplace harassment, your company can be saved from future litigation.

Formation of employee handbooks and company policy. Making employee expectations clear and precise is one of the best ways to protect your business. Without strong policies in place, too much is left up to interpretation, which can be extremely risky for your business. We can help keep handbook and policy language professional and assertive to reduce issues before they start.

Review of FMLA laws and requirements. We have the in-depth knowledge and experience necessary to help you and your business remain in compliance with FMLA. With so many complex rules and stipulations, this is an area best left to the experts.

Preparation of employment contracts. We can help to keep you well within your rights as a business. If you utilize employment contracts, having distinct expectations written into each contract before signing is integral to maintaining your business’s integrity.

Defense of terminations and staff reduction. Company restructuring can come at a cost when approached the wrong way and may even lead to future legal trouble. Contact us for legal advice when approaching these actions or to defend you and your company after terminations take place.