by Lisa Berg
Although it was enacted more than 20 years ago in 1993, the federal Family and Medical Leave Act (FMLA) still presents numerous challenges for employers. Even the most adept and experienced HR professionals make mistakes when administering FMLA leave. In light of changes in the U.S. Department of Labor’s (DOL) FMLA regulations over the past several years, some of you may find that your company’s FMLA policy is out of date. This article provides an overview of the most common mistakes employers make when drafting an FMLA policy. 
What your policy should address
Eligibility requirements. To be eligible for FMLA leave, an employee must (a) have been employed by a covered employer for at least 12 months, (b) have worked at least 1,250 hours during the 12-month period immediately preceding start of the FMLA leave, and (c) be employed at or within 75 miles of a worksite where 50 or more employees are employed by the same employer. A court recently extended FMLA rights to an otherwise ineligible employee merely because the employer’s policy didn’t include all of the eligibility criteria. Therefore, you should update your policy to reflect all three eligibility requirements.
Definition of spouse. On June 26, 2015, the Supreme Court ruled that same-sex marriage is a constitutional right and states can no longer prohibit same-sex couples from marrying. Despite the Supreme Court’s decision, many employers have outdated policies that refer to the DOL’s old definition of “spouse” as “husband and wife” or include an outdated definition of “spouse.” You should review your policy and replace any references to “husband and wife” with “spouse.”
Designation of the FMLA year. The FMLA entitles eligible employees who work for covered employers to take unpaid job-protected leave during a defined 12-month period for specified family and medical reasons. Generally, an employer may select one of four options to establish the 12-month period: (1) the calendar year, (2) any fixed 12 months, (3) the 12-month period measured forward from the first date an employee takes FMLA leave, or (4) a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave. According to the DOL, if an employer fails to select one of those 12-month measuring periods, the employer must use the 12-month period that is most beneficial to employees.
Calculation of FMLA leave increments. According to the DOL’s regulations, an employer “must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour.” If you allow employees to take sick leave in 30 minute increments, you must also allow employees who are approved for intermittent FMLA leave to take it in 30-minute increments. You should address intermittent leave usage in your policy.
Circumstances for concurrent paid leave. If paid leave (such as vacation, sick, or personal time) is to be substituted for FMLA leave (i.e., run concurrently with the unpaid FMLA leave), your policy should state when and under what circumstances that rule applies.
Definition of qualifying events. Many FMLA policies fail to explain which types of absences qualify for FMLA leave or address any restrictions on leave (including eligibility for spouses employed by the same employer). Many employers also forget to include the FMLA’s military family leave provisions in their policy (i.e., entitlement to 12 weeks of leave for certain qualifying exigencies and 26 weeks of leave to care for a covered servicemember during a 12-month period). Make sure your policy addresses these issues.
Formal procedure for requesting leave. Under the FMLA, you can require an employee to comply with your usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, you may require that an employee follow your call-in policy, and if the employee doesn’t comply with that procedure and no unusual circumstances justify his failure to follow procedure, you may delay or deny FMLA-protected leave. Your FMLA policy should therefore specify the procedures for requesting foreseeable and unforeseeable leave (e.g., providing written notice 30 days in advance of foreseeable leave), and indicate the penalty for failing to comply with the requirements. Enforce those procedures uniformly for all employees who take FMLA leave or have other forms of absences.
Publication of general notice. FMLA-covered employers are required to display the DOL’s “general notice” poster in each location where they have any employees and where it can be readily seen by employees and job applicants. If you have any FMLA-eligible employees, you must also include the general notice in your employee handbook, policy manual, or other written guidance on employee benefits or leave rights. If your company doesn’t have a handbook or other guidance, you must give each new employee a copy of the general notice when he is hired. If you have a handbook, the entire general notice must be included as an appendix or the contents of the general notice must be included in your FMLA policy. One of the most common mistakes employers make is failing to satisfy this publication requirement.
FMLA forms. The DOL updated its FMLA forms on May 31, 2015. The new forms, which have an expiration date of May 31, 2018, are available at www.dol.gov/whd/fmla/ . Make sure you’ve downloaded and are using copies of the updated FMLA forms.
Return to work. Your FMLA policy should address what happens if an employee doesn’t return to work following FMLA leave (e.g., the policy should include language addressing the availability of additional leave but require employees to contact you to request it or provide an update on their status). The policy should not have an automatic termination provision for employees who don’t return upon the expiration of their leave. It’s also advisable to include a statement explaining that you will administer your FMLA policy in accordance with the Americans with Disabilities Act (ADA).
Bottom line
You are well-advised to consult with experienced employment counsel and conduct a self-audit of your FMLA policies, forms, and practices to reduce your liability if you’re ever faced with a DOL audit or a lawsuit filed by an employee.
Lisa Berg is an employment lawyer and shareholder at the Miami office of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. and a member of the Employers Counsel Newtork. You may contact her at lberg@stearnsweaver.com.
Need to learn more? How do you keep tabs on employees without infringing upon their rights to FMLA leave? Join us on April 6 for the live webinar FMLA Intermittent and Reduced-Schedule Leave: Best Practices for Managing Leave and Mitigating Abuse. Two seasoned labor and employment lawyers from the Employers Counsel Newtork will reveal best practices for FMLA administration with respect to intermittent leave and reduced-schedule leave. You’ll learn how to comply with legal requirements, spot instances of FMLA abuse, and respond in a timely and legal manner to minimize the adverse effects such abuse can have on workplace productivity and morale. For more information, click here.