Top 11 Employer FMLA Mistakes

Original post

Employers should never take a holiday from dealing with the Family and Medical Leave Act’s (FMLA’s) requirements. Legal experts say the law is full of traps that can snag employers that let their guard down, and they recommend that employers shore up FMLA compliance efforts by avoiding the following common missteps.

No FMLA Policy

Employers shouldn’t skip having a written FMLA policy, Annette Idalski, an attorney with Chamberlain Hrdlicka in Atlanta, told SHRM Online. “If employers adopt a written policy and circulate it to employees, they are able to select the terms that are most advantageous to the company,” she said. For example, employers can choose to use a rolling 12-month period (rolling forward from the time any leave commences) rather than leaving the selection of the 12-month period to employees, who almost inevitably would choose the 12-month calendar period. The calendar period, unlike the rolling period, allows for employees to stack leave during the last 12 weeks of one year and the first 12 weeks of the new year. Check to see if state or local laws give employees the right to choose a 12-month period that would give them the right to stack leave.

Counting Light-Duty Work as FMLA Leave

Idalski said employers also often make the mistake of offering light-duty work to employees and counting it as FMLA leave. Light-duty work can be offered but must not be required in lieu of FMLA leave. For example, an employer can offer tasks that don’t require lifting to an employee who hurt his or her back and cannot perform heavy lifting. But if the worker wants the time off, the individual is entitled to take FMLA leave.

Silent Managers

Managers sometimes fail to tell HR right away when an employee is out on leave for an extended period, Idalski noted. If a manager waits a week to inform HR, that could delay the start of the 12-week FMLA period. The employer can’t make the FMLA leave retroactive, and letting the employee take more than 12 weeks of leave affects staffing and productivity, Idalski said. “Management must initiate the FMLA process with HR right away,” she emphasized.

Untrained Supervisors

Untrained front-line supervisors might retaliate against employees who take FMLA leave, dissuade workers from taking leave or request prohibited medical information, all of which violate the FMLA, said Sarah Flotte, an attorney with Michael Best & Friedrich in Chicago. Just because front-line supervisors shouldn’t administer FMLA leave doesn’t mean they shouldn’t be trained on the FMLA, she noted.

Missed Notices

Employers sometimes fail to provide required notices to employees, Flotte said. “The FMLA requires employers to provide four notices to employees seeking FMLA leave; thus, employers may run afoul of  the law by failing to provide these notices,” Flotte remarked. Employers must give a general notice of FMLA rights. They must provide an eligibility notice within five days of the leave request. They must supply a rights and responsibilities notice at the same time as the eligibility notice. And employers must give a designation notice within five business days of determining that leave qualifies as FMLA leave.

Overly Broad Coverage

Sometimes employers provide FMLA leave in situations that are not truly FMLA-covered, such as providing leave to care for a domestic partner or a grandparent or sibling, noted Joan Casciari, an attorney with Seyfarth Shaw in Chicago. If they count that time off as FMLA leave, this could prove to be a violation of the law if the employee later has an event that is truly covered by the FMLA, she said. But the leave may count as time off under state or local FMLA laws, depending on their coverage.

Incomplete Certifications

Casciari added that employers sometimes accept certifications of a serious health condition that are incomplete and inconsistent. In particular, she said that businesses sometimes make the mistake of accepting certifications that do not state the frequency and duration of the intermittent leave that is needed.

No Exact Count of Use of FMLA Leave

Another common mistake is failing to keep an exact count of an employee’s use of FMLA leave, particularly in regards to intermittent leave, said Dana Connell, an attorney with Littler in Chicago. This failure is “highly dangerous,” he stated. An employer might give the employee more FMLA leave than he or she is entitled to. “The even greater risk is that the employer counts some time as an absence that should have been counted as FMLA, and that counted absence then plays a role—building block or otherwise—in an employee’s termination.”

No Adjustment to Sales Expectations

Some employers take too much comfort in an FMLA regulation that says that if a bonus is based on the achievement of a specific goal, and the employee has not met the goal due to FMLA leave, the payment of the bonus can be denied. “Notwithstanding that regulation regarding bonuses, courts have held that employers need to adjust sales expectations in assessing performance to avoid penalizing an employee for being absent during FMLA leave,” Connell emphasized.

Being Lax About FMLA Abuse

The FMLA is ripe for employee abuse, according to Connell, who said, “Some employers, especially in the manufacturing sector, find themselves with large numbers of employees with certified intermittent leave.” Those employers need a plan to keep all employees “honest with respect to their use of FMLA.” Connell said that surveillance may be a necessary part of an employer’s plan for dealing with potential FMLA abuse.

Overlooking the ADA

Employers sometimes fail to realize that a serious health condition that requires 12 weeks of FMLA leave will likely also constitute a disability under the Americans with Disabilities Act (ADA), noted Frank Morris Jr., an attorney with Epstein Becker Green in Washington, D.C. Even after 12 weeks of FMLA leave, more leave may be required by the ADA or state or local law as a reasonable accommodation.

“Document any adverse effects on productivity, ability to timely meet client demands and extra workload on co-workers resulting from an employee on extended FMLA leave,” Morris recommended. While the FMLA doesn’t have an undue hardship provision, “The information will be necessary for a proper analysis of whether any request by an employee for further leave as an ADA accommodation is reasonable or is an undue hardship” under the ADA.

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Final Rule to Revise the Definition of “Spouse” Under the FMLA

Originally posted on

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. The FMLA also includes certain military family leave provisions.

The Department of Labor issued a Final Rule on February 25, 2015 revising the regulatory definition of spouse under the Family and Medical Leave Act of 1993 (FMLA). The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons.

The Final Rule amends the regulatory definition of spouse under the FMLA so that eligible employees in legal same-sex marriages will be able to take FMLA leave to care for their spouse or family member, regardless of where they live. This will ensure that the FMLA will give spouses in same-sex marriages the same ability as all spouses to fully exercise their FMLA rights.

The effective date for the final rule is March 27, 2015.

On March 26, 2015, the United States District Court for the Northern District of Texas, in Texas v. United StatesCivil Action No. 7:15-cv-00056 (N.D. Tex.), granted a request made by the states of Texas, Arkansas, Louisiana, and Nebraska for a preliminary injunction with respect to the Department's Final Rule revising the regulatory definition of spouse under the Family and Medical Leave Act (FMLA). The Government informed the Court of how the Government is complying with the injunction and the Government’s understanding of the scope of the injunction in a March 31 filing. A hearing date has been set for April 10th.

Major features of the Final Rule

  • The Department has moved from a “state of residence” rule to a “place of celebration” rule for the definition of spouse under the FMLA regulations. The Final Rule changes the regulatory definition of spouse in 29 CFR §§ 825.102 and 825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. A place of celebration rule allows all legally married couples, whether opposite-sex or same-sex, or married under common law, to have consistent federal family leave rights regardless of where they live.
  • The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law marriages and marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

Additional Information on the Final Rule.

Download the "Final Rule to Revise the Definition of 'Spouse' Under the FMLA" article here.

Download the Department of Labor - Wage and Hour Division's updated "Fact Sheet On The Final Rule" here.

Download the full text of the Final Rule here.

Download the FMLA Final Rule FAQs here.

Download the Press Release - "US Labor Dept. updates Family and Medical Leave Act's definition of spouse" here.

Download the FMLA - An Overview and News Updates here.

DOL Updates Definition of Spouse in FMLA Regulations

Originally posted February 24, 2015 by Rick Montgomery, JD on

On June 26, 2013, in U.S. v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013), the U.S. Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional under the Due Process Clause of the Fifth Amendment. Immediately following the decision in Windsor, the U.S. Department of Labor (DOL) announced what the then-current definition of “spouse” under the Family and Medical Leave Act (FMLA) allowed, given the decision: Eligible employees could take leave under the FMLA to care for a same-sex spouse, but only if the employee resided in a state that recognized same-sex marriage. This has been commonly referred to as the “state of residence” rule.

In order to provide FMLA rights to all legally married same-sex couples consistent with the decision in Windsor, the DOL issued a Final Rule on February 25, 2015, revising the definition of spouse under the FMLA. The Final Rule amends the definition of spouse in 29 C.F.R. §§ 825.102 and 825.122(b) to include all individuals in legal marriages, regardless of where they live. More specifically, the definition of spouse is now a husband or wife as defined or recognized in the state where the individual was married (“place of celebration”) rather than where the individual resides, and specifically includes individuals in same-sex and common law marriages. The Final Rule also defines spouse to include a husband or wife in a marriage that was validly entered into outside of the United States if it could have been entered into in at least one state.

The Final Rule goes into effect on March 27, 2015.

To assist employers, the DOL has released a Fact Sheet and Frequently Asked Questions about the Final Rule.

The surprising big winner when men take paternity leave

Originally posted August 7, 2014 by Bruce Jacobs on

The U.S. Chamber of Commerce warns that paid paternity leave will be a job killer, cost businesses too much, increase administrative burdens, and lower wages for workers who have to foot the bill for a perk that not every employee can access equally.

Yet, if paid paternity leave ever becomes a benefit as commonplace as two-weeks’ vacation or a 401(k), the big winner, suggest researchers and scholars in the field, will be business itself.

Though the 1993 Family and Medical Leave Act entitles employees of either gender to take up to 12 weeks of unpaid parental leave to care for a newborn, and the Equal Employment Opportunity Commission recently issued “time for care” guidelines calling for equal parental leave for both genders, new dads are still expected to bring home the bacon, not cook it.

Josh Levs, a CNN journalist, notes that numerous studies have shown that men who return to work after paternity leave are often treated dismissively by their colleagues and bosses, and all too frequently suffer damage to their reputations, reduced job responsibilities, and even demotions.

Levs, who also writes the blog ‘levsnews,” and is working on a book about the male role in parenting, isn’t just venting. When CNN parent Time-Warner denied his request for paid paternal leave, he filed a complaint with the EEOC alleging discrimination against fathers, one of the first suits brought under the new guidelines.

A scant 16 percent of U.S. companies offer paid paternity leave, according to statistics from the Society for Human Resource Management, but loss of income isn’t the main reason why most men don’t take paternity leave. Ridicule from peers, fear of career suicide, and the cultural expectations of a man’s role in society concoct a brew far more potent than money in keeping men wing-tipped and in the conference room.

“There’s still a powerful stereotype that real men work; real men earn wages,” says Brad Harrington, director of Boston College’s Center for Work and Family, and one of the authors of the 2011 study, The New Dad: Caring, Committed and Conflicted. The report found that only “one in 20 fathers took more than two weeks off after their most recent child was born. Only one in a 100 took more than four weeks off.”

That’s beginning to change, particularly among millennials, those born between 1982 and the early 2000s, a cohort of workers larger and potentially more influential on the future of the American workplace than even the huge wave of soon-to-be retiring baby boomers.

Surveys by PricewaterhouseCoopers reveal that 70 percent of millennials place great importance on flexible work environments, as do 60 percent of baby boomers. But unlike boomers, millennials are willing to quit — or sue — if an employer fails to accommodate a balance between work and personal life.

A few cited examples:

  • With no paid paternity leave offered by his company, 34-year-old newspaper reporter Aaron Gouveia stitched together vacation and sick time to be home with his first child. Before his second kid was born, he quit and joined a company that offered paid paternal leave.
  • When Jim Lin, 41, a public relations specialist and publisher of the Busy Dad blog, wanted to take a couple days off to help care of his ailing son, his boss dismissed the request as something Lin’s wife should handle. Lin eventually quit. “I just didn’t want to be in that kind of environment,” he says.
  • Though he didn’t quit his job, New York Mets second baseman Daniel Murphy had to endure withering heat from media big mouths when he missed the first two games of opening season to be with his wife during the birth of his first child.

The increasingly willingness of at least some male employees to take paternity leave will inevitably lead to a necessary cultural shift regarding paternity leave, industry insiders say.

Already, California, Rhode Island and New Jersey have been leaders of this trend by mandating paid parental leave in their states for mothers and fathers alike.

Governors of these three states may be paying heed to some surprising results of a report issued late last year by the World Economic Forum, which conducted extensive research on the global gender gap. Countries that found ways to keep women in the workforce after they became mothers, the study revealed, tend to have the strongest and most resilient economies worldwide.

But that’s not the big surprise: It’s the role paid paternity leave played in strengthening those economies. By offering it, encouraging it, and normalizing it, those countries enjoyed increased commercial vitality.

But why? With more women in the workplace, more women holding advanced degrees, and more women often earning salaries greater than their husbands, women employees are increasingly key to the success of many businesses. Yet, according to a 2007 study, 60 percent of professional women who left their careers after their baby was born said they stopped working because their husbands were not available to share childcare and household responsibilities.

Paternity leave “shapes domestic and parenting habits as they are forming,” writes Liza Mundy, author of "The Richer Sex: How the New Majority of Female Breadwinners Is Transforming Sex, Love and Family." Because men who take paternity leave are developing lifelong habits of shouldering more of the childcare and household responsibilities, she argues, working women can return to their careers confident that they aren’t the only ones responsible — and able — to raise children and maintain a household.

A recent report evaluating a paid paternity leave program in Iceland, in which 90 percent of all father take part, found that three years after the start of the program, 70 percent of parents who live together continue to share childcare and household duties. That’s an increase of 40 percent from the start of the program.

Though research indicates that women, men and children all win in that scenario, the biggest winner is business. Half the workforce — highly educated women — return to their desks, contributing skill, energy and acumen to the economy.

Enforcing employer policies outside the workplace

Originally posted August 7, 2014 by Tracy Moon and John Stapleton on

All employers adopt and enforce policies regulating conduct at the workplace. Many employers expect that employees will follow their employment polices at all times regardless of whether the employee is working or at work. Many employers expect that employees will follow their employment polices at all times regardless of whether the employee is working or at work.

Today, in the age of social media and smartphones, employers and employees have much greater visibility when they leave work – giving employers the ability (and desire) to monitor their workers after hours, and resulting in greater exposure and potential for harm to an employer’s reputation. But can you monitor or discipline employees for policy violations that occur when an employee is off-duty and off-premises?

First, regardingillegal off-duty conduct, employers are generally entitled to take action after learning of an employee’s conviction, although they may have to demonstrate that the decision or policy is job-related and consistent with business necessity. For instance, an employer would have a valid interest in an employee-driver’s recent conviction for drunk driving. In fact, failing to take remedial action could lead to a claim for negligent hiring or retention against the employer down the road.

The answer is slightly more complicated when an employer attempts to regulatelawful off-duty conduct, such as social-media postings or tobacco use. There are several competing interests at play. On one hand is the employees’ right to be free from the employer’s control while they are away from work, and to engage in conduct which may have no impact on their work performance. On the other hand is the employer’s desire to enforce its policies in order to minimize liability, protect its reputation, and maintain employee productivity.

In an at-will employment relationship, both the employer and the employee can end the employment relationship at any time without notice or reason. In other words, the employer has the right to terminate an employee at any time, for any reason, for no reason at all, or even for a “bad” reason, as long as it is not an unlawful reason. In order to determine what reasons are unlawful, one must look to federal, state, and local laws.

Federal law

Federal law clearly outlines many factors which would be unlawful reasons for making employment decisions. These include: race; color; religion; genetic information; national origin; sex (including same-sex harassment); pregnancy, childbirth, or related medical conditions; age; disability or handicap; citizenship status; and service member status.

Likewise, federal law prohibits making employment decisions based on whether employees have taken time off under the Family and Medical Leave Act, made a safety complaint to the Occupational Safety and Health Administration, questioned the overtime practices of their employer, or filed a charge of discrimination or harassment.

Off-duty social media use may also be protected under federal law. As many employers have learned the hard way, the National Labor Relations Act applies to the private sector and may restrict an employer’s ability to terminate an employee for posting disparaging comments on social media. An employer may also violate the NLRA by maintaining an overbroad social-media policy if it could be construed by employees to prevent them from discussing their wages or other conditions of employment.

State and local laws

Next, consider state and local laws. Most states have laws that are similar to or mimic federal law. But many have laws that are much more expansive and protective of employees’ rights. For example, many states have laws protecting smoking, elections and voting, certain types of court-related leaves of absence, victims of crimes or abuse, medical marijuana, or the possession of firearms, among others.

In addition to laws that protect specific types of off-duty conduct, some states have enacted laws which protect broad categories of off-duty conduct, or require an employer to demonstrate some nexus between the employee’s engagement in an activity and the employer’s business before allowing the employer to take adverse action against the employee for engaging in the conduct. (This is also a typical standard under collective bargaining agreements in unionized workforces).

In Colorado, for example, it is illegal for an employer to terminate an employee because that employee engaged in any lawful activity off the employer’s premises during nonworking hours unless the restriction 1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employee’s employment activities and responsibilities; or 2) is necessary to avoid, a conflict of interest, or the appearance of a conflict, with any of the employee’s responsibilities to the employer.

In Montana, an employer is prohibited from refusing to hire a job applicant or disciplining or discharging an employee for using “lawful consumable products” (such as tobacco or alcohol) if the products are used off the employer’s premises outside of work hours, with certain exceptions for a bona fide occupational requirement or a conflict of interest, similar to Colorado’s law.

In addition to the examples set forth above, here are additional instances of off-duty conduct which may be grounds for discipline or termination, depending on the state and the circumstances:

  • 20 states have enacted medical marijuana laws, and 13 states have similar legislation pending (Arizona and Delaware even restrict an employer’s ability to terminate an employee in response to a failed drug test);
  • while most employers may prefer that employees not bring firearms onto company property, some states have laws which protect an employee’s right to do so, including Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, North Dakota, Oklahoma, Utah, and Wisconsin; and
  • 29 states and the District of Columbia have statutes protecting the rights of employees who smoke.

As the above examples illustrate, you must carefully analyze each situation before refusing to hire a candidate, or disciplining or terminating an employee for having engaged in lawful off-duty conduct, even if such conduct violates your established policy.

Even with all of the possible restrictions in some states, employers may have more leeway than they think to consider off-duty conduct when making employment decisions. A wise employer seeks wise counsel to help the employer avoid possible legal pitfalls while exercising the full extent of its rights.



New proposal would make same-sex partners eligible under FMLA

Originally posted June 23, 2014 by Lynette Gil on

No one should have to choose between succeeding at work and being a loving family caregiver, according to the Labor Department's Secretary, Thomas E. Perez. That's why the Labor Department proposed a rule that any employee in the private-sector is eligible for leave to care for a same-sex spouse under the Family and Medical Leave Act (FMLA) regardless if the state they live in recognizes their marital status. Officials did not say how many employees would fall under this rule.

Meanwhile, the Office of Personal Management issued its own proposal, which extends the same benefits to federal employees. However, this rule won't apply to those who work in Social Security or veteran benefits offices because their eligibility is based on the law where the employees live, instead of where they celebrated their marriage.

According to the Washington Post, the Obama administration will call on Congress this Friday to pass a handful of bills "aimed at extending those benefits to same-sex couples in states that don't recognize gay marriage."  And the director of the American Civil Liberties Union (ACLU) Lesbian Gay Bisexual and Transgender Project, James Esseks, said that Congress needs to pass legislation so that "LGBT Americans who have been paying into the [Social Security] system for decades" can take advantage of it.

Understanding FMLA Basics

Originally posted May 21, 2014 on

Is your organization subject to the requirements of the Family and Medical Leave Act (FMLA)? Do all of your employees qualify? What would it take for both your organization and your employees to qualify? And what does all of this mean in terms of employer obligations?

Let’s start with the basics: What employers are subject to the FMLA regulations?

Here are the basics of what employers are covered:

  • For private companies, the employer must have at least 50 employees to be subject to the FMLA, and these employees must have worked at least 20 or more workweeks in the current or prior calendar year.
  • Additionally, there must be at least 50 employees within a 75-mile radius for that location to be covered.
  • Public (government) agencies and schools are subject to the FMLA regardless of the number of employees.

What this means in practice is that any private employer with fewer than 50 employees does not have to provide FMLA leave. And even employers with more than 50 employees do not have to provide FMLA leave to employees who work in locations where there are fewer than 50 employees within a 75-mile radius, even if all other employees are covered.
Bear in mind, an employer with fewer employees than this threshold could still choose to allow unpaid leaves that are in alignment with the FMLA standards, but they would not be required to do so by law.

Now let’s look at employees: Which employees qualify to take FMLA leave?

What must an employee do to qualify under the FMLA?

  • First, the employee must have been employed by the employer (the same employer who is subject to the FMLA leave based on the criteria above) for at least 1 year. This requirement does not have to be the preceding year calendar year and need not be consecutive. For example, if an employee worked for the employer in the past, that time could count toward this requirement as long as it was fewer than 7 years ago (or if the absence of more than 7 years was due to military obligations).
  • The employee must have worked at least 1,250 hours for the employer in the preceding 12 months. Vacation or PTO time does not count toward this requirement.
  • The employee must work at a location that has 50 or more employees within a 75-mile radius, as we noted above.
  • Finally, the employee must have a qualifying condition. This includes:
    • The employee’s own serious health condition.
    • The need to care for an immediate family member with a serious health condition. “Immediate family member” refers to a spouse, child, or parent.
    • Placement or birth of a child. (The right to leave in this instance extends for up to one year after the birth or placement of the child.)
    • Any qualifying exigency related to an immediate family member being in the military on “covered active duty.”

And if both the employer and the employee qualify, what does that mean the employee is entitled to?

If the employer is subject to the FMLA leave and the employee qualifies for it, then the employee has the right to up to 12 workweeks of unpaid leave in a 12-month period, which can be taken in one or more blocks of time. For some conditions, when medically necessary, the leave could also be taken intermittently or on a reduced schedule.
The FMLA also entitles the employee to:

  • Job reinstatement upon return from leave, in the same or equivalent role.
  • Continuation of group health benefits during the leave period. The employee is still obligated to pay his or her insurance premium contributions during that time.
  • Up to 26 total weeks of leave (instead of 12) in the case of caring for a covered service- member with a serious injury or illness.

Beyond employee entitlements, covered employers also have an obligation to:

  • Post an FMLA notice explaining employee rights under the FMLA program.
  • Give all new employees information about the FMLA, either in the employee handbook or separately upon hire.
  • Tell an employee when he or she may have an FMLA-qualifying leave, as soon as the employer reasonably should know that an absence or leave request may qualify.
  • Give employees an official eligibility notice for FMLA leaves.
  • Explain the employee’s rights and responsibilities under the FMLA.
  • For all FMLA leaves, note the FMLA designation and how much of the total leave allotment will be deducted from the employee’s leave bank.

These basic components of the FMLA can help employers to understand their obligations under the FMLA. Of course, this is just the tip of the iceberg; proper FMLA administration will require a more in-depth understanding of how to ensure employees are qualified, how to curb FMLA abuse, and how to ensure employees are treated fairly and consistently under the program.

Benefit Aspects of Employee Leaves of Absence

Employee leaves of absence raise a number of difficult questions under federal employment laws.  Must a requested leave be granted?  Under what conditions?  Must the employee's position be held open so that the employee may return to it after the leave?

In addition to those questions, employers often must address the benefits-related aspects of any leave of absence. Complicating a benefits manager's task are a host of federal laws, including the Family and Medical Leave Act, COBRA and more.

Learn what you need to know to cope with leave-related challenges from your workforce. Please contact us for more information.