Compliance Tips for Avoiding Common FMLA Violations, Errors

Family and Medical Leave Act (FMLA) compliance is tricky even for the most sophisticated employer, but following certain tips can help you avoid common violations.

“The most difficult situations seem to arise out of intermittent or reduced-schedule leaves when the need for absence is not consistent,” said Michelle Barrett Falconer, an attorney with Littler in San Francisco.

Common Missteps

There is a variety of common FMLA violations, according to Jennifer Long, an attorney with Duane Morris in Chicago. Some of those violations include:

• Failing to provide the required eligibility, rights and responsibilities, and designation notices (and, if required, the certification of health care provider) within the FMLA deadlines for doing so.
• Failing to track absences accurately or taking disciplinary action against an employee for FMLA-qualified absences.
• Permitting an employee’s FMLA-protected absences to be used against the employee in performance metrics, whether directly or as a cause of poor results.
• Requiring additional or different documentation based on the type of medical condition identified by the employee.

“Many violations may be traced to situations where supervisors and managers have not received adequate training on how to respond to or track an employee’s absences or request for time off related to their own or a family member’s medical condition,” Long said.

Sometimes, a manager fails to recognize that an employee’s request for time off is a request for FMLA leave, said Jason Habinsky, an attorney with Haynes Boone in New York City.

“Other times, a frustrated manager could engage in discrimination or retaliation by rejecting an employee’s request for time off or reacting negatively to a legitimate request for leave,” he said. “To make matters worse, a manager can violate the FMLA by failing to respect an employee’s leave of absence through work demands or constant communication with the absent employee.”

It is also common for employers to make mistakes during the period following an FMLA leave, Habinsky added. “Critically, at the expiration of an FMLA leave, it may not be lawful to require an employee to return to work or to terminate an employee for failing to do so,” he said. “Indeed, the employee may still qualify for an additional leave of absence of a specific duration under the Americans with Disabilities Act or the state or city equivalent laws.”

In addition, with the Pregnant Workers Fairness Act—which requires employers to make reasonable accommodations for pregnancy and pregnancy-related conditions—there would be obligations with employees who take FMLA leave for prenatal care or the birth of a child, noted Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.

‘Just Do It’

Employers can take certain steps to comply with the FMLA.

Shea recommended the following as some top “just do it” items to ensure compliance:

• Read the FMLA regulations all the way through. They address many situations that employers will need to handle someday.
• Download the general notice (FMLA poster) from the U.S. Department of Labor (DOL) Wage and Hour Division website, and post it where workers will see it.
• Follow guidelines provided by the DOL Wage and Hour Division and create the required FMLA forms (eligibility notice, rights and responsibilities notice, and designation notice) as well as the medical and military certification forms. Customize the government forms as needed, but be aware there are restrictions on how much customization employers can do.
• Create a company FMLA policy, if there isn’t one. The policy must include certain information from the DOL but should also include information about how the FMLA will be handled at the company. For example, the policy should address whether the employer will use a rolling 12-month period for determining eligibility for FMLA leave versus a calendar year and which unit is responsible for administering the company’s FMLA leave.
• Handle requests in accordance with the FMLA and all other applicable laws as well as the company policy.

“If you make a mistake—which can happen to anyone—correct it as soon as you can, with the assistance of your employment counsel as needed,” Shea said.

Have a Protocol, Managerial Training

Long said that other ways to comply with the FMLA include:

• Having in place an FMLA protocol that includes a checklist, a responsible party, and consistent documentation and employee communication for every employee request for extended or repeated time off.
• Maintaining consistent and centralized attendance records.
• Training supervisors and managers on FMLA-covered absence issues, even when they are not responsible for tracking absences or distributing FMLA paperwork.

“Sometimes, managers do not know the reason being cited for the time off is something that falls under the FMLA, and, as a result, they fail to raise the absence with an HR professional or a leave professional,” Barrett Falconer said.

In addition, sometimes employees are not transparent as to why they need the time off or why they need to show up late or leave early from work, she noted.

Sometimes, managers or HR professionals don’t recognize that an ongoing pattern of absences or tardies for the same reason—such as an ill child or family member—might rise to the level of being covered by the FMLA, Barrett Falconer added.

Then there is the common mistaken view that the absences will be so limited that it’s not worth putting someone through the “hassle” of applying for an FMLA leave, she said.

Finally, there sometimes “is simply the reality of the workplace these days—a manager can see that the absences are occurring, and they think they should address them in some way,” she said. “But then some other time-sensitive issue comes up and their attention is diverted, such that it’s difficult to get back to the issue in a timely manner.”

Employers should plan for and execute on periodic training of managers regarding the FMLA, Barrett Falconer said. “Remember that just because someone was trained on this once doesn’t mean they will commit it to memory forever,” she said. “Also keep in mind that there are new managers in your organization who may have never encountered these issues before.”

The primary cause of employer FMLA violations is employers’ failure to implement standard operating procedures in administering the FMLA, said Charles Thompson IV, an attorney with Ogletree Deakins in San Francisco.

The more you can build things around a set process, the better: Doing so ensures that both employees and managers have better experiences, Barrett Falconer said. “If employees and managers have a better experience, they are more likely to come to HR with early and advance questions, so problems can be avoided.”