Even seasoned HR professionals can get confused when administering leave, but understanding the federal Family and Medical Leave Act (FMLA) is crucial to an employer’s workplace compliance.
The law requires covered employers to provide unpaid leave for certain family and medical situations, return the employee to the same or an equivalent position at the end of the leave period and continue their health benefits at the same level as prior to the start of leave.
While a myriad of missteps can be made due to the ever-expanding scope of employee leave and employers’ obligations to administer it, there are many common and avoidable mistakes that employers should be aware of.
Not Having an FMLA Policy
Covered employers need to have a written FMLA policy. The law applies to all private-sector employers who employ 50 or more workers within 75 miles of the worksite for at least 20 workweeks in the current or preceding calendar year.
Employees are eligible for FMLA leave if they work for a covered employer and have worked for that employer for at least 12 months, and worked at least 1,250 hours during the 12 months prior to the start of the leave.
A written policy should inform employees of their rights and eligibility under the FMLA, communicate the procedure by which leave needs to be taken and how leave will be tracked. Another benefit to having a written policy is that employers can choose the terms of the 12-month leave period, instead of leaving it up to employees to decide, dependent on state or local laws which may give employees that privilege. Employees may choose a 12-month calendar period—which allows 12 weeks of leave at the end of one calendar year and 12 weeks of leave at the beginning of the new calendar year—instead of a rolling period, which prevents workers from stacking leave in this manner.
Neglecting to Tell Workers About FMLA Leave
Even if employers outline an FMLA leave policy in the employee handbook, they are still responsible for letting employees know about it as as option when they are in need of time off.
HR is also responsible for communicating the leave process to inquiring employees and how their leave time will be tracked.
Failing to Provide Required Notices
The law requires employers to provide four notices to employees seeking FMLA leave:
- A general notice of FMLA rights. Hanging the FMLA poster in plain sight and including it in the employee handbook generally meets this requirement.
- An eligibility notice and a rights and responsibilities notice within five days of the leave request. The eligibility notice informs the employee of his or her eligibility status, and if leave is denied, must state the reason why. Employers may use Department of Labor Form WH-381 for these notices.
- A designation notice within five business days of determining that leave qualifies as FMLA leave. Department of Labor Form WH-382 can be used for this.
Taking Adverse Actions Around FMLA Leave
This is a huge no-no, whether employers penalize employees for FMLA-protected absences or retaliate against a worker after denying leave. When an employee returns from FMLA leave, the regulations state that the returning employee has to go back to the same job or one of equal pay, responsibility, and benefits. Disciplining or terminating an employee for taking leave or after denying leave is asking for trouble. Workers who claim adverse employment actions such as a demotion or decrease in salary as a result of taking FMLA leave can sue for retaliation under the law.
For more information on FMLA best practices, contact us at (212)584-4770, or by email to: firstname.lastname@example.org