Debunking Common FMLA Myths

by Joseph C. Pettygrove

The Family and Medical Leave Act (FMLA) was very complicated when it was originally enacted in 1993. The sheer number of complaints filed with the U.S. Department of Labor (DOL) and the courts since then confirms that employers and employees have long disagreed about how the law applies in their individual circumstances.

While helpful in some respects, the 2008 regulatory revisions and 2009 statutory amendments continue to generate misconceptions about what the law says (and means) and what employers can and cannot do. The following are some of the more frequently held misconceptions that we find when counseling employers on the FMLA.

FMLA Complete Compliance

‘Satellite’ locations with fewer than 50 workers
Many employers think they don’t have to worry about satellite locations with fewer than 50 workers, but that’s not necessarily true. As a general rule, satellite locations with fewer than 50 employees that are located more than 75 miles from other company locations are not covered by the FMLA. However, most employers are unaware of the highly illogical provisions of the DOL’s regulations that require you to post all mandated FMLA notices at every company location, regardless of whether a particular location is covered.

In other words, the DOL requires private employers to tell employees at noncovered sites about benefits to which their coworkers at other covered locations are entitled (public employers have to post notices at all locations regardless of whether any locations are covered). While you should, of course, comply with the posting requirements to avoid monetary sanctions, you also should include appropriate explanatory language in your handbook or other policy documents to address potential employee-relations concerns.

Understanding when your FMLA obligations are triggered
Employers may think they don’t have any FMLA obligations unless and until an employee requests leave. Wrong! This belief is just as dangerous as it is common. While the law obligates employees to put you on notice of their need for leave under the Act, there is no “magic language,” and they don’t have to use the phrase “FMLA.” In the ordinary course of conversation, employees frequently share with supervisors or HR that they or a family member are “sick” without any intention of requesting leave.

In many cases, the company is charged with “constructive notice” that the employee may qualify for FMLA leave. When that happens, you are obligated to provide the employee with all appropriate FMLA documentation — at a minimum, a notice of rights and responsibilities, an eligibility notice, and a request for her health care provider’s certification. She doesn’t have to provide a doctor’s certification unless and until you ask for it in writing and make clear that FMLA leave may be delayed or denied if the employee fails to timely comply.

Employers must also be aware of state laws and court rulings on FMLA notification that affect the states in which they operate. For example, the Seventh U.S. Circuit Court of Appeals (which covers Indiana, Illinois, and Wisconsin) found that an employer should have known that an employee may have qualifiedfor FMLA leave based on the drastic change in her behavior. The court denied the employer’s request for dismissal, reasoning that the employee could have avoided her unexcused absences (and termination) if it had provided her with the required notices.

State-by-state comparison of 50 employment laws in all 50 states

Medical information and HIPAA
Some employers think they can’t ask for medical information if the employee objects on privacy or Health Insurance Portability and Accountability Act (HIPAA) grounds. Fortunately, that isn’t the case, even though employees frequently cite HIPAA in an effort to avoid providing medical information that the employer legitimately needs.

To be clear, HIPAA prevents unauthorized disclosure of a patient’s medical information by his health care provider. The Act says nothing about an employer’s ability to seek — or even insist on — receiving medical documentation. In fact, the FMLA specifically requires employees to execute any releases or authorizations (and pay any fees) that their doctors may require before giving employers the information needed to support an FMLA leave request.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA

Termination and the FMLA
Another common myth is that if an employee can’t return to work after exhausting FMLA leave, the employer is free to administratively terminate his employment. Maybe, but not always. It’s important to proceed with caution every time. Just because you have satisfied your obligation to provide an employee with 12 (or in some cases, more) workweeks of job-protected FMLA leave doesn’t mean you’re necessarily home free.

If the employee can’t return to work because of a medical condition, you may be obligated to offer a “brief” extended unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). Whether the obligation exists and how long the “brief” unpaid leave needs to be are determined on a case-by-case basis, so don’t rush to terminate as soon as an employee uses all of his available FMLA leave.

Bottom line
The idea behind the FMLA — to provide unpaid job-protected leave to eligible employees in specific circumstances — seems simple enough. However, misconceptions abound regarding what employers can, can’t, and must do. Common sense and popular belief will often steer you wrong when it comes to the FMLA. When you think an employee might need FMLA leave:

• get a notice of rights and responsibilities in the employee’s hand as soon as possible;
• consistently insist on doctors’ certifications to help you determine whether FMLA leave is warranted; and
• if the employee has already exhausted his available FMLA leave, proceed with caution before terminating.