Family And Medical Leave: The Top 8 Mistakes Employers Make

Figuring out how to administer family and medical leave can be tough. And one misstep-even if it seems minor-can lead to a lawsuit. Since the federal family leave law went into effect five years ago, the U.S. Department of Labor has processed thousands of employee complaints. Based on those charges, the department has pinpointed the typical mistakes employers make. And it’s more important than ever to prevent errors since the government has beefed up its enforcement efforts with the addition of 200 new inspectors over the last year.

Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.

Top Family Leave Blunders

Here’s a rundown on the most common violations:


  1. Failing to notify employees of their family leave rights. You are required to post a notice explaining rights and responsibilities under both state and federal family leave laws. You also must provide special notices after employees inform you of their intent to take family leave.


  2. Failing to notify employees that their leave counts toward their 12-week FMLA entitlement. It’s your responsibility to determine whether an absence qualifies as family leave. You must generally designate time off as family leave within two business days of learning it qualifies. (See CEA June 1996 for details on designating time off as family leave.)


  3. Taking disciplinary action against employees for using family leave. It is illegal to discipline employees in any manner for taking family leave. And employees’ use of family leave can’t be counted against them under a “no-fault” attendance policy, such as one in which employees are disciplined or terminated after a certain number of absences, regardless of the reason for the missed time.


  4. Failing to grant leave due to a misunderstanding of what qualifies as a “serious health condition.” A serious health condition is an illness requiring an overnight stay in a hospital or lasting more than three consecutive days and causing an inability to work, attend school or perform regular daily activities. Illnesses such as the common cold, flu, upset stomach and earaches usually aren’t covered unless there are complications.


  5. Failing to grant leave to provide physical care or psychological comfort to a seriously ill family member. Employees may take leave to care for or provide psychological comfort to a family member with a serious health condition. This could include transporting a parent or child to medical appointments or simply providing psychological comfort and reassurance if that would be beneficial to the family member.


  6. Refusing to reinstate employees to the same or equivalent position. It is generally illegal to terminate employees who have exercised their rights to family leave, unless their positions have legitimately been eliminated, such as during a general layoff. Otherwise, when the leave ends, you must reinstate employees to the same job or a position equivalent in pay, shift, benefits and other employment conditions. Plus, use of family leave cannot result in the loss of any employment benefit, including seniority, that employees earned or were entitled to before taking leave.


  7. Failing to follow proper procedures for requesting a medical certification. You are entitled to require a health care provider’s letter verifying the need for family leave, and you must allow the employee at least 15 calendar days to obtain the certificate. To comply with California law, don’t ask a worker for medical facts about the need for family leave; instead, it’s best to use a special Family Care Leave Certification of Health Care Provider form.


  8. Mishandling questions about the validity of a medical certification. If you doubt the validity of a certification, you may not directly contact the employee’s health care provider. Instead, you can obtain the employee’s permission to have your own doctor contact the employee’s health care provider to obtain clarification. Plus, you can request a second opinion at your expense, but only if it involves an employee’s own serious health condition.