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FMLA Mistakes You May Not Know About

Dec 4, 2023

New Proposed DOL Rule 2023
Paul Kramer

Paul Kramer

Director of Compliance

The federal Family and Medical Leave Act of 1993 (FMLA) provides eligible employees of covered employers with job-protected, unpaid leave for specified family, medical, and military-related reasons. It is a complicated law with over 70 detailed implementing regulations and differing interpretations from courts.  

Although the FMLA has been law for 30 years, many human resource (HR) professionals and managers still struggle with FMLA compliance exposing their company to risks of violations and costly lawsuits. This article focuses on lesser-known mistakes employers make when navigating the FMLA that may catch them by surprise.   

Not Having a Written FMLA Policy

The FMLA permits employers some leeway in deciding certain terms and conditions of FMLA leave. Still, it is important for employers to have a written FMLA policy to clearly explain these terms and conditions to their workers. Under current regulations, an employer who has any FMLA eligible employees must provide notice to employees of their FMLA rights in an employee handbook or other written guidance materials (if these materials exist). If an employer does not have an employee handbook or other guidance, the FMLA information must be given to workers in writing upon hire. 

Not Using the Best FMLA Leave Year for Your Company

Employers must generally provide up to 12 weeks of FMLA leave in a 12-month period and may select one of four methods to establish their FMLA leave year:*

  1. The calendar year.
  2. Any fixed 12-month period (such as the fiscal year).
  3. A 12-month period measured forward from the date an employee’s FMLA leave begins.
  4. A rolling period measured backwards from the date an employee uses any FMLA leave

Many employers instinctively choose the calendar year or fixed 12-month period methods due to ease of administration. But these FMLA leave years allow employees to lawfully stack 24 consecutive weeks of leave over two leave years, such as the final 12 weeks of one calendar year and the first 12 weeks of the next calendar year. Employers should consult an HR professional to determine the best FMLA leave year for their business.   

Failing to Use Model FMLA Forms

When administering FMLA leave, employers should use the model FMLA forms issued by the United States Department of Labor instead of creating their own forms. This helps ensure employers are properly following FMLA regulations. 

Providing FMLA Leave for Non-Covered Reasons

Some states have family and medical leave laws which differ from the FMLA. For instance, state laws may grant employees leave to care for grandparents and siblings with a serious health condition, which are not covered FMLA leave reasons. If employers in these states count leave taken for these relationships under both the state leave law and the FMLA, they will be tracking FMLA leave incorrectly.  

Counting non-covered leave reasons as FMLA leave can lead to the perilous situation where an employer wrongfully denies a valid FMLA leave request because they mistakenly believe the employee has exhausted their FMLA entitlement. 

Failing to Follow FMLA Recordkeeping Rules

FMLA regulations mandate that employers must maintain FMLA records according to the recordkeeping requirements of the Fair Labor Standards Act. A specific list of the types of documents and information that must be preserved is identified in the regulations. Failing to properly retain these records can lead to FMLA violations and substantial liability for employers. 

Failing to Understand the Relationship Between the FMLA and the Americans with Disabilities Act (ADA)

The FMLA requires employers to provide job-protected leave to employees for personal medical reasons that may also qualify as a disability under the ADA, for which leave may be necessary as a reasonable accommodation. Consequently, even if an employee has exhausted their FMLA leave, they are not precluded from further time off under the ADA as an accommodation. Before terminating an employee whose medical condition prevents a return to work after their FMLA leave expires, employers should consider whether the employee is owed additional leave as an ADA accommodation. 

Forgetting About State Law

The FMLA does not supersede state laws covering the same leave reasons. Thus, if an employer has employees in a state with its own family and medical leave law that is more protective of workers than the FMLA, the employer must abide by the more generous provisions of the state law. 

Employers should be vigilant about complying with the FMLA, including the Act’s lesser-known rules. Reduce noncompliance risks by working with your employment counsel if you are unsure about the FMLA’s many regulations or switch to a cloud-based modern workforce management solution, like the WorkForce Suite, to remove the difficulties associated with compliance. Whichever way you choose, always remember to treat employees fairly and it will lead to a more productive workforce. 

Learn how WorkForce Software can keep your organization compliant with emerging and complex labor laws.

*Eligible employees may take up to 26 workweeks of FMLA military caregiver leave during a single 12-month period to care for a covered servicemember with a serious illness or injury incurred in the line of active duty.

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