FMLA administration can be cumbersome—some may feel that’s a vast understatement!— which means it is rife with opportunities for mistakes. And an FMLA mistake can have repercussions that impact both the employer and the employee(s).
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Common FMLA Administration Mistakes
- Unclear or nonexistent communication with employees about their FMLA rights. Some employers have opted not to have a formal FMLA policy that is directly communicated with employees, presumably because they figure that if they’re following the law they’re meeting their obligations. But there are several reasons why this is a risk. Firstly, by not having a stand-alone policy, the employer is missing the opportunity to consistently administer FMLA leave in the way that is most advantageous to the employer (within the confines of the regulations, of course). Secondly, it increases the likelihood that an employee will miss out on FMLA leave because it removes one avenue for the employee to understand this benefit.
- Inconsistent administration of FMLA leave requests. This can be especially problematic when there are a lot of people involved in administering leave for different groups. Managers need to be trained to administer it correctly and consistently. Improper administration can lead to giving away more days off than necessary. It can also lead to discrimination claims or claims that the employer is interfering with the employee’s rights to FMLA leave—especially if a manager makes it too difficult to actually apply for and take the leave.
- Incomplete training for those tasked with administering leave. As a follow-up point to the one above, incomplete training can lead to inconsistent administration. Training about proper FMLA administration should be given to all frontline managers who will field leave requests, even if they’re not the ones who will ultimately be processing the leave details.
- Inaccurate or inconsistent recordkeeping, especially for intermittent FMLA leave. Accurate records and absence tracking are the cornerstone of proper administration. Improper tracking can lead to taking inappropriate disciplinary action against employees for absences that simply should have been part of their FMLA leave. Additionally, not consistently tracking leave can lead to unfair inconsistencies in how much leave is taken.
- Not providing timely notices, which are required under the FMLA. After FMLA is requested, the employer has an obligation to inform the employee of the eligibility requirements as well as of their rights and responsibilities under the law. The employer is also required to respond to the medical certification with a designation form (also known as the approval form), noting whether the request for leave is approved within 5 days of receiving the leave request (or after learning that employee leave is being taken for a reason that qualifies for FMLA).
- Forgetting that FMLA obligations often overlap with other leave laws. The ADA is the primary example here. Depending on the employee’s situation, the ADA may come into play even after FMLA leave has ended—and that could mean that a leave extension is warranted after FMLA leave is exhausted.
- Being too quick to dismiss FMLA leave forms if they’re incomplete. An employer is required to give an employee reasonable opportunity to remedy any insufficiencies in the medical certification forms. This means at least 7 days, or more if 7 days is not practical in the circumstances.
- Taking any action that can be construed as trying to discourage employees from taking their FMLA leave when they do qualify for it. This can be seen as interference, which is not allowed and can lead to lawsuits.
These are just a few of the many mistakes employers may make when trying to administer the FMLA. Employers who fail to administer FMLA leave properly may be subject to penalties or even lawsuits, depending on the circumstances.