11 FMLA Mistakes Employers Make

  • By: Matthew Burr
  • Date: September 05, 2017

11 FMLA Mistakes Employers Make

FMLA is a growing concern for employers. Confusing regulations, along with numerous changes to the FMLA law, as well as, conflicting court decisions, cause FMLA to be one of the biggest compliance challenges for employers. Since the FMLA legislation was passed in the mid-1990, case law and changes have expanded the definition of Family and Medical Leave. States and cities are now enacting paid leave laws, with New York moving forward with paid leave in 2018.


Additional Resources:

Webinar on Surviving the FMLA, ADA and Workers Compensation Tsunami

Webinar on ADA, FMLA, WC: How to Survive the Bermuda Triangle?

Here are the 11 common FMLA mistakes employers are making:

  1. Failure to Have a Well Drafted FMLA Policy: Employers need to implement a policy that is advantageous to the organization. This should include a rolling 12-month period or standard 12-month calendar. The calendar period, unlike the rolling period, allows for employees to stake leave during the last 12 weeks of one year and the first 12 weeks of the new year.
  2. Light-Duty Work as FMLA Leave: Organizations cannot offer light-duty work and count the light duty as FMLA leave.
  3. Failure to Properly Train Managers to Be Aware of FMLA Issues: Remember to train managers and supervisors of the laws associated with FMLA. HIPPA, ADA, Retaliation, etc.
  4. FMLA Notices: A general notice of FMLA rights must be provided to the employees within five days of the leave request. Organizations must also give designation notice within five business days of determination that the leave qualifies for FMLA.
  5. Coverage: At times organizations grant overly broad coverage for events that are not by definition covered under the FMLA. Ensure that the leave you are granting is required under FMLA.
  6. Failure to Reinstate Employee to Same or Similar Position at end of FMLA Leave: Should understand what employees are entitled to at the end of FMLA leave to avoid this major mistake that employers can make.
  7. Incomplete Certifications: At times organizations, have accepted incomplete certification. Ensure that the certification states the frequency and duration of the leave, continued or intermittent.
  8. Inconsistent FMLA Tracking: Consistent FMLA tracking has been one of the challenge for almost every organization. Ensure that you are tracking leave for all individuals and doing so consistently.
  9. Disciplining, Discharging or Discriminating Against Employees Who are on FMLA-Protected Leave: The law prohibits an employer from discrimination against an employee for taking FMLA leave.
  10. FMLA Abuse: At time’s employees may abuse FMLA use. Employers need to respect the employees’ legal right to FMLA but also should be aware of potential abuse and address it accordingly.
  11. Failure to Recognize a Request for a Reasonable Accommodation Under the ADA: The ADA requires employers to provide a “reasonable accommodation” to an employee who is disabled. If an employee does not have a disability that comes within that legal definition they might not be protected by the ADA

Family and Medical Leave is a very complex area and will continue to change through legal cases, state and city specific laws. A sound policy and consistent process will assist any organization in complying with the current FMLA legislation.

About the Author:

Matthew Burr has over nine years of experience working in the human resources field, starting his career as an industrial relations intern at Kennedy Valve Manufacturing to most recently founding and managing a human resource consulting company: Burr Consulting, LLC. Mr. Burr is an adjunct professor at Elmira College, teaching organizational behavior and human resources management. He is also a SHRM Certification Exam Instructor and co-teaches the SHRM Exam Prep Course at Elmira College. He works as a trainer at both Tompkins Cortland Community College and Corning Community College. He is also an on-call mediator and fact-finder through the Public Employment Relations Board in New York State.

Disclaimer: The views expressed in this article are the author's own and do not necessarily reflect ComplianceOnline's editorial policy.

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