Although the Family and Medical Leave Act (FMLA) has been in effect since 1993, employers still make administrative mistakes that limit their rights and can lead to litigation. Here is my Top 10 list of employer and supervisor misconceptions about the FMLA that limit their ability to manage employee leave use or to defend against subsequent FMLA-related litigation.
Dispelling FMLA Misconceptions
No. 1: “If the employee doesn’t request FMLA, then we don’t have an FMLA issue.”
The employee doesn’t have to ask for FMLA leave or even mention the FMLA. Rather, once they notify the employer of what may be a FMLA-covered event (“I will need to be out two weeks for surgery/recovery”), you are on notice to consider whether the FMLA applies and, if so, to provide the employee with a notice of eligibility and any certification form.
No. 2: “The employee doesn’t want to use FMLA,” often paired with, “The employee has enough paid leave accumulated for the planned absence.”
That isn’t an option, unless you let it be one. The FMLA is a statutory, unpaid, job-protected leave, and thus, it offers the employee a separate benefit that employer paid leave programs do not. It’s up to the employer whether the absence is covered under the FMLA—it isn’t an employee option. In fact, if you have reliable information that the employee is absent for an FMLA-qualifying reason, you may send the designation notice and run FMLA leave even without receiving a completed medical certification. We strongly encourage employers to mandate that FMLA runs concurrently with employer-provided paid leave programs—vacation, paid time off (PTO), sick, etc.—as a matter of policy and practice.
No. 3: “I don’t have to run workers’ compensation absences through FMLA.”
Any “serious health condition” is potentially FMLA-qualifying, and most workplace injuries leading to three or more days’ absence or ongoing treatment or therapies will qualify as serious health conditions. It’s also important to remember that in most jurisdictions, workers’ comp is an income-replacement insurance benefit and not a statutory leave program. So, again, running FMLA concurrently with workers’ comp-covered absences provides the employee the full slate of benefits they’re entitled to while also ensuring the employer preserves all their rights under both programs.
No. 4: “If an employee isn’t able to return to work at their prior position without restrictions at the expiration of FMLA, we’re ok to terminate employment.”
As the football broadcasting icon Lee Corso would say, “Not so fast, my friend.” For example, if the employee’s many serious health conditions could qualify as disabilities under the Americans with Disabilities Act (ADA), you must undertake the interactive process to determine if their restrictions can be temporarily or permanently accommodated in their current job, in another open position, or by a continuation of leave for a defined period of time.
Similarly, an employee who has exhausted FMLA for reasons related to pregnancy or childbirth but is still unable to return to her prior position may be entitled to reasonable accommodation under the Pregnant Workers Fairness Act (PWFA), the Pregnancy Discrimination Act (PDA), and/or the ADA. Importantly, at least under the ADA, you enjoy broad rights to request information from the employee’s physician relevant to verifying and assessing the medical restrictions and possible accommodations.
No. 5: “The social media post of an employee doing keg stands on the same day he called out citing FMLA leave for his back pain is hearsay, and I can’t do anything about it.”
Employers have the right to investigate and discipline or terminate employees for FMLA abuse just like any other abuse or falsification to obtain an employment benefit. And you certainly aren’t bound by evidentiary rules in conducting your investigation, though involving counsel early is a smart idea any time the stakes are this high.
No. 6: “We have to accept the employee’s incomplete certification statement.”
You have the right to require a completed certification document consistent with that offered by the U.S. Department of Labor (DOL). It’s especially critical for intermittent leave requests that the certification specify the frequency and duration of expected leave use.
No. 7: “The employee’s intermittent FMLA designation is a get-out-of-jail-free card.”
Nope. If an employee’s intermittent FMLA use exceeds the frequency and duration of the certification or follows a suspicious pattern, you are entitled to request recertification.
No. 8: “We cannot apply our call-in policy to FMLA absences.”
That isn’t true with respect to unforeseeable intermittent FMLA leave. If the call-in couldn’t occur because of the serious health condition, that’s one thing. If the call-in didn’t occur according to company policy because the employee chose not to follow the policy, the FMLA-using employee isn’t entitled to better (or worse) treatment than any other employee who could have complied with the call-in policy but did not.
No. 9: “We may not require a fitness-for-duty statement before allowing the employee to return to work.”
Not true. Depending on the medical issue, you may require a fitness-for-duty statement or exam prior to returning to work, but you must mark this on the designation notice.
No. 10: “We have to administer FMLA in addition to city, county, or state leave laws.”
If you operate in a jurisdiction with additional leave laws, those leave laws may allow you to run those leaves concurrently with the FMLA so that no additional leave is necessary.
Bottom Line
When my colleague Whitney Brown conducts Effective Supervisor training, she includes a section entitled “Learning to Love the FMLA.” What that means is that employers have FMLA rights—know them and use them wisely.
Richard Lehr is an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C., in Birmingham, Alabama, and can be reached at 205-323-9260 or rlehr@lehrmiddlebrooks.com.