One of the most critical FMLA tasks for HR is accurate leave tracking for all employees. If leave is not tracked and designated as FMLA leave, then the employee may be disciplined for absences that should have been protected. However, properly tracking FMLA leave is often easier said than done.
Why is FMLA Leave Tracking so Difficult for HR?
Leave tracking can be difficult for HR because:
- The rules are confusing. The rules for tracking leave are complicated and can be confusing, especially for those unfamiliar with them.
- The processes aren’t in place. “Many employers don’t have the proper policies and procedures in place to enable them to properly track leave and to make sure that they’re tracking all of the leave that an employee has taken.” Julie Athey noted in a recent BLR webinar.
- It’s burdensome to track it all. Should every hour missed for appointments be recorded, for example? Some employers wait until a certain level of seriousness is reached or until absences become bothersome, which can present problems of inconsistent application.
- Software doesn’t always help. Leave tracking software doesn’t answer the tricky questions.
- There’s a desire to be benevolent. It may seem heartless to track every absence in some circumstances. Many employers knowingly decline to track certain categories of leave. They may have practical reasons or simply want to be more generous for certain types of leave, such as:
- Ordinary pregnancy-related absences
- Pre-adoption absences
- Pre-surgery appointments
- Intermittent leave by exempt employees
- HR might be the last to know. HR often doesn’t learn about employees’ need for leave until it becomes a problem.
Hazards of Failing to Track all FMLA Leave
“It’s generally in an employer’s best interest to capture all of an employee’s absences that are FMLA-related.” Athey noted. There are several hazards of failing to track all FMLA leave:
- Hazard 1: If the employer had reason to know that an absence was due to FMLA-qualifying reason, it can’t be counted against the employee under the attendance policy, even if it was never designated as FMLA—and even if HR never knew the situation (but the supervisor did).
- Hazard 2: HR can’t always be sure that supervisors and managers won’t hold a grudge against employees with repeated absences. This is problematic because of the potential for retaliation claims. (This could occur, for example, if supervisors fail to track FMLA leave and finally reach the end of their rope and come to HR ready to terminate an employee).
- Hazard 3: When the employer finally starts treating absences as FMLA leave, the employer may have to give the employee their full 12 weeks of leave despite the fact that FMLA-qualifying absences may have already been taken for same reason. (Retroactive designation of FMLA leave may be possible, but is often risky).
- Hazard 4: Inconsistent tracking of leave can give rise to discrimination or retaliation claims. For example, if an employer initiates FMLA only after repeated absences, it may look like disability discrimination. (The employee may ask: “why make me use FMLA when you don’t require others who qualify to do so?”)
For more HR tips for FMLA leave tracking, order the webinar recording of “Leave Tracking for HR Pros: In-the-Trench Strategies for Conquering Complex FMLA Challenges.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Julie K. Athey is an HR consultant with the Robert E. Miller Group in Kansas City, Missouri. She assists clients in developing customized FMLA policies and procedures as well as providing in-depth compliance assistance and advice.