Managers’ 5 most common FMLA mistakes
February 10, 2009 by Sam NarisiPosted in: Best Practices, FMLA, Special Report
HR knows how to comply with all of FMLA’s requirements. But not all managers do — and they’re normally the first ones employees talk to when they need time off. That leaves many companies open to lawsuits caused by some common FMLA mistakes.
What’s the best strategy? Remind managers to come directly to HR any time they have a situation involving FMLA.
Otherwise, they may end up making these common mistakes that could get the company in big trouble:
- Giving leave to ineligible employees – It’s important for managers to be aware of who’s allowed to take FMLA and how much time they get — otherwise the employer may be stuck granting more leave than the law requires. In one recent case, an employee on FMLA called her boss to ask for more time off because she needed follow-up surgery. Even though the extra time put her over her 12-week guarantee, the manager said it was okay. But when the company fired her for missing too much work, she sued — and won. The court ruled it was the supervisor’s responsibility to let her know she was out of leave (Cite: Cutting v. Ferrous Processing and Trading Co.).
- Failing to adjust performance standards – Mangers can discipline employees for poor performance even if they take FMLA — unless the performance problems are somehow related to their medical leave. In a recent case, an employee was fired after she failed to meet a yearly sales quota. However, she sued, claiming the only reason she couldn’t close enough sales was that she was out on FMLA for three months. The court agreed — the company should have lowered the standard to account for the three months she missed (Cite: Wojan v. Alcon Laboratories, Inc.).
- Asking for too much medical info – The FMLA places strict limits on what information employers can gather when employees take leave. In one recent case, an employee submitted a certification form listing her symptoms and how long the condition would last. But that wasn’t enough for her manager. The company asked her for another form, this time with a specific diagnosis. She refused and was fired after she began her leave anyway. The matter ended up in court, and the company lost. The employee’s first form had everything the company needed — verification that she had a serious medical condition, “medical facts” to back that up and a probable duration. Employers aren’t entitled to a specific diagnosis when an employee takes leave (Cite: McDougal v. Altec Industries, Inc.).
- Delaying the response to a request – Managers are busy, but handing out FMLA paperwork is one task that can’t wait. Companies can be on the hook if it looks like they discourage employees from taking leave — even if an employee’s request is eventually approved. In a recent case, an employee told her boss she needed FMLA and asked for the necessary forms. She had to badger him several times and wait three months before she finally got them. Once she turned in the forms, HR approved the leave. But she sued, claiming the boss was trying to keep her from taking FMLA. The court agreed, and the company lost (Cite: Mueller v. J.P. Morgan Chase & Co.).
- Confusing FMLA and unexcused absences – Between HR tracking FMLA use and managers tracking employee absences, it’s easy for the facts to get lost in the shuffle — and managers may end up disciplining an employee for being absent too often when some of that time was protected under FMLA. Before any absence-related action is taken against an employee who’s used FMLA, companies should conduct an audit to determine if any absences the manager has tracked should’ve been excused.
Tags: attendance, certification, FMLA mistakes, performance
February 11th, 2009 at 1:30 pm
Is the FMLA rule not applicable for companies with less than 50 employees?
February 11th, 2009 at 3:49 pm
The simple answer to avoiding this issue is to have one person (HR or a manager specifically trained in leave law) assigned to handle any leave questions. Managers should be trained to direct the employee to the individual who has the knowledge and authority to answer leave questions, not take it upon themselves to answer questions they know very little or nothing about. Conversely, employees should be informed on who to go to with leave questions. This information could be provided in the handbook and/or on break room posters.
February 12th, 2009 at 1:18 pm
For a company with fewer than the 50 employees necessary to invoke the FMLA, what/where are the guidleines for someone with medical issues that has limitations and absences? In a small company, sometimes individuals come up with reasons…some valid…some not…for wanting to be put on medical leave of some sort and ensure that the job is still theirs when they come back…as FMLA does with larger companies. Where can both the employer and employee find laws that govern this sort of thing?
February 12th, 2009 at 2:42 pm
Our problems are not the times when a leave results in a complete absence for a specific duration. We find ourselves in trouble when an individual takes a day here and there intermittently for medical issue or for treatment without letting anyone know that it is for medical leave. The supervisor approves time without HR being aware. In one case, weeks and months went by and an employee was receiving cancer treatment and no one knew anything about it. After a lot of sporadic absences, the employee had no leave available. Our trigger in HR is when the person takes time off when they have no available leave accrued. We began counseling and then a formal disciplinary process for “leave without available sick time” and actually reached a third step where suspension was being issued. It was then that the employee let us know she had a medical issue “that was really none of our business……” As much as we try, employees don’t seem to see the need to read or follow the FMLA notice procedures listed on the big bulletin board. At the other extreme, we had an employee who would go on a bender, then make it to a treatment facility just in time to claim he was receiving treatment at the beginning of his shift. Whether they ignore the rules or play them, the employer seems to be the bad guy.
February 17th, 2009 at 11:36 am
Where can I obtain the latest FMLA poster other than through a company selling them?
February 18th, 2009 at 12:25 pm
You are able to print posters from the US Department of Labor website.
http://www.dol.gov/compliance/topics/posters.htm
February 18th, 2009 at 1:04 pm
Checking in to see if ayone has any information on where I can find the best handling of situations with a company of less that 20 employees. See previous post.
February 18th, 2009 at 1:14 pm
You may want to visit the US Dept. Of Labor website. There is alot of information out there, including fact sheets, that will answer your questions.
http://www.dol.gov/esa/whd/fmla/index.htm
February 18th, 2009 at 1:47 pm
We are a manufacturing facility that has under 50 full-time permanent employees. However, during our processing, we hire an additional 100 employees to work 3 – 4 months of the year (generally October – January). Those add’l employees work 40 hours/week during that time. Do we fall under the FMLA during that time of the year? We now have a situation where a full-time employee may want to take FMLA – we are at 42 employees at this time. Where do we fall in the regs?