Employees are permitted to take leave due to a serious health condition of an immediate family member, which is defined under the Family and Medical Leave Act (FMLA) as a spouse, parent or child. This law was designed to provide protected leave to employees and help add balance to the demands of work and home, but it can also create compliance issues for employers who are not well-versed in their resulting legal obligations. In fact, legal experts insist that the law is “full of traps” that can easily trip up employers and lead to costly lawsuits and penalties.
FMLA mistakes are becoming increasingly common and these are mistakes that employers just can’t afford to make. Below are the top seven FMLA mistakes that employers need to avoid making.
1. Not having a written FMLA policy.
The FMLA actually allows employers to decide on their specific guidelines surrounding FMLA leave. This gives the employers the opportunity to select the terms that are most advantageous to their company, such as either using a rolling 12-month period, or a 12-month calendar period.
2. Not properly training managers on FMLA procedure.
Managers and supervisors who are not properly trained can make detrimental mistakes when dealing with FMLA requests such as attempting to dissuade workers from taking leave, requesting prohibited medical information or even threatening some form of retaliation against employees who take FMLA leave. All of these are direct violation of the FMLA, and can get the company in a lot of trouble. Just because a supervisor or manager isn’t in charge of administering FMLA leave doesn’t mean they shouldn’t be properly trained on the guidelines.
3. Failing to provide required notices to employees.
One of the FMLA requirements is that employers provide four notices to employees seeking FMLA leave; a general notice in the form of an informational poster with FMLA rights, an eligibility notice within five days of the leave request, a rights and responsibilities notice provided at the same time as the eligibility notice and finally, a designation notice must be provided within five business days of determining that leave qualifies as FMLA leave. Failure to adhere to the notice requirements may be construed as an interference with, restraint or denial of the exercise of an employee’s FMLA rights. The employer can then be held liable for lost benefits and other compensation.
4. Offering light-duty work as FMLA leave
Light-duty work is a reasonable accommodation for employees who are struggling to meet the physical demands of their jobs. However, it is under no circumstances to be offered in lieu of FMLA leave. If an employee requests time off to deal with a health condition, they are entitled to take FMLA leave.
5. Coverage that is too broad.
FMLA coverage is designed to provide coverage for an employee and a very limited definition of “family members.” Sometimes employers provide FMLA leave in situations that should not be covered. For example, caring for a grandparent or sibling is not an eligible situation for FMLA coverage. Counting that time off as FMLA leave could cause issues for the employee if they have a situation that does qualify in the future.
6. Accepting incomplete certifications
Employers sometimes make the mistake of accepting certifications of a serious health condition that are incomplete and inconsistent. It is important that certifications state the frequency and duration of the leave that is needed to properly qualify an employee for FMLA coverage.
7. Not accurately tracking use of FMLA leave
Record keeping is always crucial in any attempt at compliance, and this is certainly true in regards to FMLA leave. Especially in the case of intermittent leave, employers need to keep a very accurate count of how much leave has been used over the coverage period. An employer can quite easily give an employee more FMLA leave than they are entitled to, or misclassify FMLA leave as absence.
Navigating the complexities of FMLA leave can be stressful, and no employer wants to have to pay penalties and settlements because of a simple error that could have easily been prevented. Partnering with a PEO gives employers access to HR representatives that are thoroughly trained on FMLA requirements and can help ensure no steps are missed when an employee requests leave.
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Since 1995, Emplicity has provided a smarter, more secure, and integrated platform of employer services to its 300 business clients and their 8,500 employees. As a Professional Employer Organization, or PEO, the California-based HR outsourcing firm simplifies the compliance, administration, and support businesses need in the areas of employee benefits, payroll, and human resources technology.
NOTICE: Emplicity provides HR advice and recommendations. Information provided by Emplicity is not intended as a substitute for employment law counsel. At no time will Emplicity have the authority or right to make decisions on behalf of its clients.