HR Management & Compliance

FMLA—Myths and Misconceptions

FMLA just won’t get easier. It seems that every request for FMLA has some new twist. Today, we’ll unravel a few twisted misconceptions your managers and supervisors may have.

You probably know about these issues, but your managers and supervisors probably do not. Best way to get their attention? Remind them that under the FMLA, they may be personally liable in a lawsuit.

Misaconception #1:

If it’s a significant hardship to the company, we don’t have to approve FMLA leave

Unfortunately, this is not true. Assuming your organization is covered by the FMLA, you must grant leave to employees who

  • Meet the eligibility requirements
  • Meet the standards for one of the types of leave

If they satisfy those requirements, they get the leave, no matter how much of a hardship it causes. If managers or supervisors think they have some discretion in whether or not to grant leave, they’ll end up denying leave to employees who are eligible, and that’s a losing lawsuit.

Misconception #2:

I have to give it but I don’t have to like it

Then you get the supervisors and managers who know they have to grant leave, but don’t think they have to be happy about it. Sure, it’s annoying to have to approve someone’s leave during the busy season—or any time, for that matter—but it’s best to do it graciously.

If you are openly angry (“How could you do this to the department?”) or threatening (“I won’t forget this.”), you’re setting yourself up for a retaliation charge down the road.

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For example, if later you have to take a disciplinary step against the person or terminate the person who took leave, he or she is likely to say, “You did this to me to get back at me for taking FMLA.” If you don’t have good, documented reasons for the action, such a charge may be hard to refute.

Misconception #3:

 ‘Exigency Leave’ is for Emergencies

Actually, the exigency leave provision is quite broad. It allows an eligible employee to deal with a qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the armed forces.

There are eight categories. In each case, the need must arise from the covered active duty or call to covered active duty status of a covered military member:

(1) Short-notice deployment. To address any issue that arises from the fact that a covered military member is notified of an impending call or order to covered active duty 7 or fewer calendar days prior to the date of deployment.

(2) Military events and related activities. To attend any official ceremony, program, or event to the covered active duty or call to covered active duty status.

(3) Child care and school activities. To arrange for alternative child care or to provide child care on an urgent, immediate need basis (but not on a routine, regular, or everyday basis). To enroll in or transfer to a new school or daycare facility, to attend meetings with staff at a school or a daycare facility.
(4) Financial and legal arrangements. To make or update financial or legal arrangements.
(5) Counseling. To attend counseling provided by someone other than a healthcare provider for oneself, for the covered military member, or for a covered child.

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(6) Rest and recuperation. To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.

(7) Post-deployment activities. For up to 90 days after termination of the covered military member’s active duty status, to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military; and to address issues that arise from the death of a covered military member.

(8) Additional activities. To address other events provided that the employer and employee agree that such leave qualifies as an exigency, and agree to both the timing and duration of such leave.

In tomorrow’s Advisor, tricky FMLA questions, plus an introduction to the program some call “The FMLA Bible.”

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