The Family and Medical Leave Act (FMLA), which allows eligible employees to take unpaid, job-protected leave for certain medical and family purposes, will mark its 30th year in 2023. And yet, three decades later, FMLA is still leading to confusion, frustration and sometimes even lawsuits.
The price of those lawsuits can add up quickly. The average cost for defending an FMLA lawsuit is around $80,000 — win or lose. When employees win the case, their awards can often be hundreds of thousands of dollars, and sometimes even millions.
The following four steps can help you avoid errors that commonly lead to trouble with FMLA.
1. Implement a simple, accessible process
A sure way to remove some of the confusion around FMLA is to create clear processes. Share required forms and information in paper and electronic formats. Make sure they’re easily accessible for HR professionals, managers and employees throughout your organization.
Include FMLA information in your employee handbook. Regularly communicate eligibility requirements and how to request leave.
Highlight important eligibility information like:
- To be eligible for FMLA leave, your employees must be with your company for at least one year and have worked a minimum of 1,250 hours in the 12 months leading up to the leave.
- FMLA leave isn’t available for every medical need. However, both physical and mental health challenges can give rise to FMLA leave. In your materials, list qualifying medical conditions.
- Employees must be able to provide medical certifications documenting their or an eligible family member’s qualifying condition. Be clear about required certifications, and make it easy for employees to submit this information.
The Society for Human Resource Management (SHRM) recommends using plain language to explain how employees should report an absence or any type of leave. Include emails and phone numbers for all relevant points of contact.
A common trap is processes that are too restrictive. Make sure your FMLA processes can accommodate varying needs, including leave that is continuous, intermittent, planned or unplanned.
FMLA allows eligible employees to take up to 12 weeks of continuous leave. But it also allows for up to 12 weeks of intermittent leave, which could include a reduced schedule such as five-hour days or three-day workweeks for a period of time. Intermittent leave can sometimes be planned. But it can also take the form of unplanned absences due to ongoing symptoms. Your processes should be flexible enough to accommodate the varying needs of your employees.
2. Stay on top of legislation
FMLA is federal law. However, a common error is looking solely at federal law.
States and localities are allowed to provide leave rights beyond those guaranteed by FMLA, and new legislation relating to both paid and unpaid leave is being passed all the time. Accordingly, you need to pay close attention to the legislative landscape and how it affects your FMLA obligations.
Eleven states and the District of Columbia offer paid family and medical leave as of 2022, according to the National Conference of State Legislatures. There are also various state and local laws related to sick leave and parental leave, among others.
It’s vital to stay on top of different types of leave, when they apply, and whether they run concurrently with FMLA or separately.
This can be a complicated undertaking, particularly if you operate (and/or have employees who reside) in multiple geographic areas. Don’t hesitate to consult with your benefits adviser and legal counsel as needed.
3. Maintain employee privacy
Employees can choose to share a medical condition with colleagues, but your HR team and supervisors should never reveal this information. FMLA medical information must be kept confidential, with these rare exceptions:
- Safety personnel can be alerted to the potential need for medical interventions.
- Government agencies can receive medical information related to an FMLA compliance investigation.
- Supervisors can be given information related to workplace accommodations or restrictions upon an employee’s return to work. This information should be limited to the intervention. For example, you could tell a manager that an employee needs access to a quiet space twice a day for the next three months. But you would not reveal an anxiety disorder without the employee’s consent because it is not a business necessity for a manager to know.
Even when employees choose to disclose their medical conditions, supervisors and HR should refrain from spreading the word to others. It’s not just a matter of avoiding gossip or maintaining professionalism. Revealing employee medical conditions can damage trust, harm your culture and lead to lawsuits.
4. Respect the need for leave and recovery
In addition to maintaining privacy, respect employees’ need for leave and recovery. SHRM points out three common things to avoid before, during and after FMLA leave:
- Before: Don’t attempt to fire an employee because they requested FMLA leave. Even if they have underperformed or have other personnel issues, you must grant a legitimate request for FMLA leave.
- During: Don’t contact an employee unnecessarily while they are away from work. It isn’t a violation to ask an occasional question that requires their expertise or specific working knowledge, especially if it’s for urgent business reasons. However, you should not ask employees to regularly perform work or repeatedly contact them while they are on FMLA leave.
- After: Don’t look for reasons to terminate an employee once their leave ends. FMLA promises up to 12 weeks of job-protected leave. Not all employees will be ready to return to work after 12 weeks. However, some may be eligible for additional leave under the Americans with Disabilities Act. Rather than looking for reasons to terminate them, SHRM recommends first working with the employee on a return-to-work plan. This could prevent unnecessary turnover and unlawful termination suits.
Continue to adapt your FMLA practices
FMLA may have been around for three decades, but compliance is a moving target. Leave legislation continues to change. Awareness and diagnoses of qualifying mental and physical health conditions are evolving. Employee health challenges can be unpredictable.
If you have questions, reach out to your benefits adviser or legal counsel. They can provide guidance and experience to keep you in compliance with FMLA and related leave.
