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6 Common FMLA Violations to Avoid

By Ashley Kaplan, Esq. on 7/27/2015
6 Common FMLA Violations to Avoid

While it’s easy to point fingers at employees in cases of FMLA leave abuse, sometimes the fault lies with you, the employer. You may struggle to strike a balance between providing FMLA leave, as guaranteed under the law, and protecting your business. Misinterpreting FMLA rules, however, can lead to costly mistakes, if not outright FMLA violations resulting in employee lawsuits.

Here are the six most common compliance pitfalls:

Denying coverage to eligible employees –
Be certain you fully understand the various reasons for granting FMLA leave. While the FMLA doesn’t cover minor ailments, it applies to any illness, injury, impairment, or physical or mental condition that requires an overnight stay in a medical care facility, or ongoing treatment by a healthcare provider. An area that often gets employers in trouble is denying leave for complications arising from a minor condition, such as a cold progressing to bronchitis or pneumonia.
Failing to meet notification requirements –
In addition to displaying a mandatory FMLA poster notifying employees of their rights and responsibilities, you must provide a written notice of this information within five business days of an employee requesting FMLA leave. Next, you must allow at least 15 calendar days for an employee to submit a completed certification form. Finally, within five business days of receiving the certification form, you must provide a company response/designation form indicating whether or not the request has been approved. (If a certification form is incomplete or inadequate, you must allow seven calendar days for the employee to correct the situation.)
Asking employees on leave to perform work –
While it may seem obvious to address the “missed” work by assigning it to other employees, some employers make the mistake of asking employees on leave to uphold certain job tasks. The FMLA strictly prohibits you from interfering with employees on leave. Along the same lines, you may not pressure employees to return to work earlier than planned.
Reinstating an employee to a lesser position –
Employees returning from FMLA leave must be reinstated to their original or equivalent position with identical pay, benefits and other employment terms. Similarly, you must continue an employee’s group health insurance during FMLA leave, as well as uphold any other benefits accrued prior to or during the leave (such as an automatic cost-of-living increase).
Counting FMLA leave toward excessive absences –
You need to be careful of “no-fault” attendance policies that count absences for any reason and, once a certain number is met, trigger disciplinary action. FMLA-qualified absences are excused and may not be used against employees in performance evaluations. Furthermore, bonuses and awards for perfect attendance may not be compromised by an FMLA leave.
Terminating an employee unable to return to work –
You cannot automatically terminate an employee who is unable to return to work after exhausting FMLA leave. Instead, you must explore whether the employee is entitled to more than 12 weeks of unpaid leave as a “reasonable accommodation” under the Americans with Disabilities Act (ADA). You’ll find that many FMLA-related serious health conditions are also considered disabilities under the ADA – and qualify for additional leave if accommodating the employee would not pose an “undue hardship” for your business.