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:

1. 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.).
2. 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.).
3. 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.).
4. 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.).
5. 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.

Is it against the law to ask those employees to turn in a fitness for duty medical certification?

In this case, an employee took intermittent leave, though his last absence was six weeks long. When he came back, the company asked him to have a doctor certify that he was able to return to work.

When he didn’t turn in a certification, he was fired. The employee sued.

Department of Labor regulations state that companies can require fitness for duty certifications — except when employees are returning from intermittent leave.

But the company argued it had a right to know if the employee was able to work after he was absent for six straight weeks.

The court agreed, ruling that the DOL rule was unreasonable in this case. It conflicted with another reg which states that employees don’t need to get their jobs back if they can’t perform the essential functions of the position — and often, the only way to know that is to get the word from a doctor.

The employee’s case was thrown out.

Cite: Phipps v. County of McLean

As much as intermittent FMLA can help employees who really need it, there are always those who try to game the system. Here are some tools that help HR and managers fight abuse.

1. Certification form

The most important tool in HR’s arsenal: the medical certification form.

Some employees abuse FMLA by getting a carte blanche certification for intermittent leave and then taking it whenever they feel like taking a Monday or Friday off.

To fight back, HR needs to make sure employees’ doctors get specific about the frequency and duration of leave they need. If a worker returns a form with phrases like “intermittent” or “as needed,” you can send them back to the doctor to get more details.

In one recent court case, an employee turned in a form that listed the frequency of her condition as “completely unpredictable.” The company asked for a more detailed form, but she never turned it in and wasn’t offered leave.

She sued, but the court sided with the company (Cite: Tome v. Harley Davidson Motor Co.).

2. Reschedule

A possible sign of FMLA abuse: An employee needs leave for doctor’s appointments — that happen to be scheduled every Friday afternoon.

In that case, the company can ask her for a certification form explaining why the leave needs to be taken on Fridays. If there’s no medical reason, HR can ask her to reschedule.

3. Recertification

Another way to make sure leave is only taken by those who really need it: Ask for recertification as often as you can.

The law allows companies to ask for new paperwork every 30 days, or more often if:

• details about the employee’s need for leave change (like if he or she needs off more frequently, or for a longer duration each time), and
• the employer gets information that casts doubt on the legitimacy of the employee’s need for leave.

For example, if an employee gets approved for intermittent leave, takes sporadic absences for a while, but later starts taking time off every Friday afternoon, the employer can ask for a recertification.

4. Check in

Some companies have policies requiring HR reps to call employees at home on FMLA leave to make sure they aren’t using it as a substitute for vacation time.

Those policies have held up in court — in fact, some courts have even given the OK to companies that hired private investigators to keep an eye on suspected leave abusers.

One warning, though: Companies need to be careful about how they use the information they gather. In one recent case, an employee took FMLA, and a co-worker who lived on the same block saw him outside building a porch.

He was fired for taking unnecessary leave — but he took the company to court and won. Just because he was well enough to do some construction didn’t necessarily mean he could still do his job (Cite: Weimer v. Honda of America Mfg., Inc.).

One recent case involved a woman who needed FMLA but never completed the right paperwork.

The employee began frequently leaving work early. When warned by her boss, she said it was due to a medical condition and turned in a note from her doctor saying she couldn’t work a full eight-hour day.

In response, the company told her she could take intermittent FMLA leave. HR gave her an FMLA application and a certification form for her doctor to fill out.

After 15 days, she still hadn’t returned the paperwork but continued taking unauthorized time off. The company gave her two more warnings, and then she was fired.

She sued, claiming the company violated her FMLA rights. Her argument: The doctor’s note was enough certification.

No dice, the court said. The law says clearly that employees need to turn in the right paperwork to be eligible for leave, and she didn’t do it.

After she refused to turn in the forms, the company was right in treating her time off as unexcused absences and firing her in accordance with its attendance policy.

The case was thrown out.

Cite: Ridings v. Riverside Medical Center

A federal court recently ruled that a company could fire an employee who missed her scheduled return to work after leave.

A woman took FMLA leave from an oil drilling company in Texas. Before the leave started, she told the company when she’d be able to get back to work.

But when the day came, she didn’t show. Her boss didn’t hear from her or her doctor until almost a week later. By that point, the company had decided to fire her, so she sued under FMLA.

In defense, the company pointed to its own policy on returning from approved leaves. Under the rule, employees that don’t return to work on the agreed date or give advance notice are fired.

But the woman said it was the company’s responsibility under FMLA to try to contact her.

Not so, according to the judge. Once the planned return date had passed, the absences were no longer protected. It was up to the employee to come back, or ask for more time.

Cite: Bardwell v. Global Santa Fe Drilling Co.

The facts:

An employee needed time off because of back problems. She requested FMLA leave, but was turned down. Why? The certification form HR got from her doctor was incomplete. He didn’t provide any dates and gave only vague information about her condition. The company asked for a corrected form and never got one. The employee missed work anyway, and was fired. She sued, claiming the company should’ve given her more time to get certified or asked her to get a second opinion.

The employer said:

It gave the doctor enough chances to get the form right. After that, it was clear he wasn’t going to give enough information. As for the second opinion, if the employee wanted to see another doctor, she could have, but that wasn’t the company’s responsibility.

Who won the case?

Answer: The employer.

Why: The company did the right thing by asking the doctor for another form. The court ruled it wasn’t the company’s fault when he failed to complete it correctly the second time.

Also, the law allows companies to get a second opinion if they have questions about the first certification — but that doesn’t mean they have to send an employee to another doctor if the first one doesn’t fulfill his or her obligations.

Cite: Novak v. MetroHealth Medical Center