FMLA - Common Mistakes for Small Business

Most employers are very familiar with the Family and Medical Leave Act. But being familiar with the Act is one thing; implementing simple, yet inclusive policies to ensure compliance is something else all together. This article aims to help you avoid the most common mistakes that lead to employee lawsuits.

Failure to Notify Employees of their FMLA Rights

As simple as this is, it is the No. 1 reason employers get into trouble over FMLA regulations. There are two ways to comply with this requirement.

First, post a conspicuous notice in the workplace that lists FMLA rights. The notice must list pertinent provisions of FMLA’s general requirements and information about filing charges. If you don’t have a FMLA- approved notice, go to the Department of Labor Web site, www.dol.gov , to find one you can print out and post. While failure to post FMLA rights results in only a $100 fine,  employers who don’t post the notice expose themselves to future litigation.

Second, FMLA requires that employers provide written information to employees. If employee handbooks are available, they must contain a section on FMLA rights and obligations. Among other issues such as medical certification requirements and the employee’s right to restoration, this section of the handbook should explain how the employer calculates FMLA leave.

If the employer does not have a handbook or manual, regulations require that employees who request FMLA leave be provided with a written notice explaining FMLA.

Failure to Designate FMLA Leave Promptly

Even though employees are required to give their employers advance notice of the necessity for FMLA leave, it is ultimately the employer’s responsibility to identify and designate leave as FMLA leave. Under normal circumstances, employees must provide 30 days advance notice and the employer must respond in no more than two working days. An employee need not specifically request “FMLA leave.” While it is the employee’s responsibility to provide enough information to determine if FMLA applies, that doesn’t always happen. In that case, it is crucial for the employer to request additional information.

To be safe, the best practice for employers is to preliminarily designate a questionable absence or illness as FMLA leave and then determine later whether or not that is a proper designation. It is also a good idea to “think FMLA.” If an employee or employee’s family member is hospitalized, or the employee misses three consecutive days of work, is pregnant or has a chronic serious illness that requires multiple treatment, start the clock running by appropriately designating the leave as FMLA leave.

If the company does not act to designate the leave in a timely fashion:

• The employee’s absence cannot count against an attendance policy
• The absence cannot be the reason for any adverse employment action
• The employee’s FMLA leave entitlement is not reduced

Acting within two business days (verbally) and by the next payroll period (in writing) provides employers a way to control their leave policies.

 Counting FMLA Leave Against an Employee for Disciplinary Purposes

 Most employers recognize that they cannot use FMLA leave to write up problem employees , terminate them, demote them or take any other disciplinary action – even if the employee has a terrible absentee record. But there are other disciplinary issues to be aware of, as well.

For example, if an employee has an excellent attendance record and high sales figures before taking leave for FMLA reasons, the employer has to determine how to handle bonuses for both attendance and performance.

Under FMLA regulations, the employer must give the attendance bonus but need not give the sales award unless an employee otherwise qualifies. FMLA does not require accommodations or pro-rata ratings to put an employee in the sales performance position he or she may have been in had they not taken FMLA leave. Across the board cost-of-living expenses, however, must be given to employees who have taken FMLA leave.

Another issue is the scheduled performance review. If a review is missed while an employee is on FMLA leave, it should be conducted as soon as possible after the employee returns to work. The review should be based on performance prior to the leave. Any time an employer is considering disciplinary action against an employee currently or recently engaged in protective activity such as F M LA, there is a strong possibility that the employee will counter with a lawsuit.

 Terminating an Employee During or at the Conclusion of FMLA Leave

If it is necessary to terminate an employee while on FMLA leave, employers should document all reasons and be very objective and diligent. Even-handedness and documentation are the keys to defending against a claim for retaliation.

Suppose an employee is on FMLA leave for 12 weeks. During the course of the leave, the company experiences an economic downturn and can’t afford to pay the employee upon his or her scheduled return.

According to FMLA regulations, the reinstatement right does not entitle employees to any greater rights or benefits than if the employee had not taken leave. Therefore, because the employee’s job was affected by a layoff or termination, that employee does not have an absolute right to return to work.

The employer, however, must carefully and objectively document why that particular employee lost his or her job. There must be a reasonable basis for the termination decision – for example, the employee had the least seniority.

FMLA at a Glance

Employers with 50 or more employees must, in most cases, comply with FMLA.

FMLA does not cover part-time or seasonal employees working fewer than 1,250 hours per year.

Eligible employees may be entitled to 12 weeks of unpaid leave during any 12-month period for:

1. The birth of a child and to care for a new born child
2. The placement of a child with the employee for adoption or foster care
3. To care for a spouse, son or daughter, or parent who has a serious health condition
4. A serious health condition that makes the employee unable to perform the functions of his or her job

Extensis is the leading New Jersey based Professional Employer Organization. We assist our clients in overcoming potential administrative hurdles to their success. Compliance with ever changing employment regulations is just one of the solutions we provide our clients. If you would like to know more, let us know.

For more information, go to www.extensisgroup.com, or call 888-473-6398.