Don't Make These 5 Common FMLA Mistakes

Posted by Lauren Osselton on Mar 28, 2017 12:04:36 PM

Leave management is tough, there’s no doubt about it. At any given time, you could have multiple employees requesting leave, some continuous and some intermittent, and managing all of them simultaneously is a heavy burden for employers. It’s always good to educate yourself on the common FMLA mistakes, and how you can avoid them to prevent errors that lead to costly litigation.

1. Improper Calculations

First and foremost, make sure that your company is even eligible for FMLA. As a simple guideline, an employer generally qualifies for FMLA when they have 50 or more employees within a 75 mile radius of the workplace. The employee becomes eligible once they have worked for the company for 365 days (these months need not be consecutive) and 1,250 hours.

Now that you know that your company is eligible, here comes the tricky part: managing the individual cases.

There are many reasons why people take FMLA, including, though not limited to: the birth or rearing of a newborn, care of an immediate family member with a serious health condition (such as their parent, spouse or child), the employee’s own serious health condition, to care for a family member who was injured while serving in the military, etc.

Begin your management process by really understanding FMLA qualifying events, so you are aware of the reasons your employees may need it. Certain employers forego this step and tend to run into trouble because they either give too little FMLA leave and end up in a litigation battle, or end up giving too much and thereby reducing the productivity of their organization as a whole. Avoid these kinds of mistakes by being extremely thorough when processing leave and be sure that each individual case is catered to each individual employee.

2. Paperwork, Paperwork, Paperwork

… You can say that again! One of the most common FMLA mistakes is the mismanagement of the paperwork that you are legally required to give to your employees. As a general rule of thumb, the employer must provide the following 4 notices:

  • A General notice of the employee’s FMLA rights. Covered employers must also display a poster in a conspicuous place, even if there are no eligible employees.
  • An Eligibility notice within 5 days of the leave request, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason.
  • A Rights and Responsibilities notice, given at the same time as the Eligibility notice. The Eligibility and Rights & Responsibilities notices must be written, and provided within the required timeframe.
  • A Designation notice, given within 5 days of when the employer determines that the leave qualifies for FMLA. This is particularly important, because an employer cannot designate against an employee’s FMLA entitlement until the designation notice is delivered. Nevertheless, an employer may retroactively designate leave as FMLA protected.

By following these simple steps, you will stay on top of your paperwork while also remaining compliant with the FMLA guidelines.

 3. A Lack of Communication

Healthy two-way communication is absolutely essential to the leave-management process. An employee must state a qualifying reason for the needed leave, in order for the employer to determine if the leave is FMLA-qualifying. The moment that either the employee states that they need FMLA leave or that the employer learns from another source that the employee needs an FMLA-qualifying leave, the employer obligations have begun. In fact, if the employer fails to recognize this FMLA need, it could be seen as FMLA interference.

At the end of the day, communication is key to remaining compliant. Take the time to listen to your employees, understand their problems and offer solutions. Keeping track of every point of contact is another way to make sure you are staying compliant and avoiding potential liability.

 4. An Uneducated Frontline


This one is tricky, because there is a fine line you need to walk when it comes to supervisors and their involvement in FMLA management. You want them to be able to respond to simple questions about the FMLA process, and potentially be the point of intake if your employee goes to them first. But you don’t want them to take too much charge in the process because they should never have access to protected health information or be making eligibility and entitlement decisions.

If the front line isn’t trained properly, they could treat people who take leave with stigma, or dissuade them from taking leave, or even request prohibited medical information, all of which violate the FMLA.

So take the time to train your managers properly. Inform them of the signs to watch out for, if they think an employee is in need of time off. Provide your frontline with a guide of how to handle the situation, including their roles and responsibilities, and at what point they should direct the employee to HR.

5. No Systematic Process

Whether it’s a technological solution or a spreadsheet, you need to have a system for tracking employee absences, and which of those are for FMLA. A failure to do so could lead to significant setbacks for your organization’s efficiency and productivity.

For example, if an employee’s FMLA leave is tracked as non-FMLA time off, and these absences come into play in a poor performance review or you terminate the employee based on them, this could play into an FMLA interference lawsuit. Make sure that before terminating an employee based on absences, that none of them are FMLA qualifying. This is why having a strong systematic process is absolutely essential.

Now, this is all just a start. Of course there are many other things that could go wrong while managing FMLA. But take it one step at a time, and follow these guidelines as a few of the ways you can get started. Need a bit of help? Leave Genius is a trusted web-based app that will help with managing your FMLA all in one simple place. Sign up here.


Now over to you. Have you encountered any of these mistakes in your own absence management process? Or have another you’d like to share? We’re listening! Meet us on Twitter, Facebook or Linkedin.


About Leave Genius

Leave Genius is your go-to web app for leave laws, going beyond just FMLA. Built by Presagia, a solution trusted by the nation’s largest organizations, Leave Genius is a simple and effective web app developed to give small and medium-sized employers confidence in leave compliance.

Topics: FMLA, Compliance

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