TOP FMLA MISTAKES EMPLOYERS MAKE
Legal experts say the Family and Medical Leave Act (FMLA) is full of traps that can snag employers that let their guard down. Don’t find yourself falling into these traps. The Nevada Association of Employers (NAE) is here to help. NAE recommends that Nevada employers shore up FMLA compliance efforts by avoiding the following common missteps.
No FMLA Policy
Employers shouldn’t skip having a written FMLA policy. 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. 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.
Counting Light-Duty Work as FMLA Leave
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.
Managers sometimes fail to tell HR right away when an employee is out on leave for an extended period. 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. Management must initiate the FMLA process with HR right away.
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. Just because front-line supervisors shouldn’t administer FMLA leave doesn’t mean they shouldn’t be trained on the FMLA.
Employers sometimes fail to provide required notices to employees 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. 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. 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.
Employers sometimes accept certifications of a serious health condition that are incomplete and inconsistent. In particular, 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. This failure is dangerous. An employer might give the employee more FMLA leave than he or she is entitled to. The 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.
Being Lax About FMLA Abuse
FMLA is ripe for employee abuse. 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. 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). Even after 12 weeks of FMLA leave, more leave may be required by the ADA or state or local law as a reasonable accommodation.
If you are a Nevada employer and have questions regarding your FMLA compliance, please do not hesitate to contact NAE at (775) 329-4241. Our HR experts are here to provide you with guidance on these and other important issues.