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Five common FMLA mistakes by employers

July 16th, 2015  |  Lorene Park  |  16 Comments

By Lorene D. Park, J.D.

Think an FMLA leave request has to be an “FMLA” leave request? What about suggesting that an employee, who is on a tight budget and must care for a seriously ill child, telecommute part-time instead of taking FMLA leave so she can retain her salary—think that’s reasonable? In fact, some employers are now facing costly legal battles over these and other FMLA missteps. In reviewing decisions that came out in the past few months, five avoidable mistakes made more than one appearance, and a couple seemed to form a common theme:

Don’t assume an employee has to ask specifically for FMLA leave. As explained by a DOL fact sheet, an employee is not required to mention the “FMLA” when requesting leave. The notice required varies depending on whether the need for leave is foreseeable. If it is, an employee must give notice (30 days’ notice unless impracticable) sufficient to make the employer aware that FMLA leave is needed, as well as the anticipated timing and duration of the leave. If the need for leave is unforeseeable, an employee need only provide sufficient information for an employer to reasonably determine whether the FMLA may apply.

The sufficiency and timing of notice has been the subject of much litigation. In an Eleventh Circuit case, an employee who previously injured her knee opted for physical therapy instead of surgery. Months later, she reinjured her knee and requested FMLA leave for surgery. The district court found that her need for leave was foreseeable because she knew from the start that surgery was an option. But to the appeals court, she had no plan (or need) to undergo surgery until her reinjury, so the less stringent notice requirements applied, and she complied by giving notice as early as practicable—a day after the reinjury. Also, telling her supervisor that her knee “gave out,” “was painful,” that she could not put weight on it, and that she was going to an orthopedic surgeon was “plenty of information for an employer to reasonably determine” whether she needed FMLA leave.

Context matters in deciding whether an employee provided notice that FMLA leave was needed. For example, it could be significant if the employee took FMLA leave in the past for a condition that later makes a reappearance. In one case, an employee who previously took FMLA leave to care for her disabled son made a request to work from home because, due to work schedule changes, her childcare arrangements had to be adjusted. A federal court in Wisconsin ruled that a jury must decide if she was requesting FMLA leave or was merely requesting to telecommute. In another context, awareness of a health incident at work could suggest an employer knew of the potential need for FMLA-qualifying leave. For example, the Sixth Circuit found that an employee gave notice of a serious condition qualifying him for intermittent leave based on a doctor’s note limiting his workday to eight hours, together with the employer’s knowledge of a health incident at work (chest pains).

Don’t simply reject an insufficient medical certification. An employer may require employees who request FMLA leave to provide a certification from a health care provider. A “sufficient” certification must state: (1) the date the condition began, (2) probable duration, (3) medical facts, (4) that the employee is unable to perform her work, (5) the dates and duration of treatment, and (6) the expected duration of leave. An employer must notify an employee if the certification is incomplete or insufficient, must state what further information is necessary, and must provide the employee time to cure any deficiency before denying leave.

The latter requirement was center stage when the Third Circuit recently reversed summary judgment on an FMLA interference claim due to questions about whether an employer violated the FMLA by firing an employee who provided an insufficient certification. It was vague because, in stating a “probable duration of one month,” the certification failed to specify whether that duration referred to the length of her leave request or of her condition. Because the employer failed to tell her it was insufficient, or to state what information was needed and provide her a chance to cure the deficiency before denying her request, her interference claim was revived.

Don’t expect an employee to work while on leave (or in lieu of leave). Several cases involve employers who suggest that an employee work (even just a little) while on FMLA leave or in lieu of full-time leave. That is simply not a good idea, even when an employer asserts the best of intentions. In one case, while a bank employee was on maternity leave, the bank learned that she was far behind on testing for a software upgrade and called her to discuss the possibility of her working from home. Ultimately, she did not return early and was fired for performance issues while on leave. Denying summary judgment, a federal court in Ohio explained that because the bank was willing to let her to return to work if she did so early, a jury could infer that she was actually fired because she chose to fully exercise her FMLA rights.

In another case, an employee of a family-owned business told the owners her son was diagnosed with cancer. She asked for FMLA forms but, in lieu of leave, they formed a plan where she would receive full salary while working as much as she could during her son’s treatment. The owners claimed she had tearfully said she couldn’t afford unpaid leave. But she claimed she was discouraged from taking leave. While on the plan, she worked 5 to 25 hours per week, but she always had her work phone. At some point, the owners became upset and fired her for “lack of communication” during her remote, part-time work. She claimed the problem would not have arisen if she had clearly taken demarcated intermittent FMLA leave during which the employer couldn’t expect her to communicate. A federal court in North Carolina found the issue triable.

Although an employer should not expect an employee to work while on FMLA leave, some interactions are fine. For example, a federal court in Virginia dismissed the FMLA interference and retaliation claims of an employee who voluntarily checked in with his work team and answered questions while absent. It explained that “fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.” Likewise, the Fourth Circuit recently explained that requiring an employee to attend a pre-disciplinary conference in an ongoing investigation into misconduct did not constitute forcing him to “work,” so his interference claim failed as a matter of law.

Don’t include FMLA leave when disciplining for absences. FMLA claims often involve adverse actions taken over absences that arguably qualified for FMLA protection. For example, an employee in Tennessee advanced her claims based on evidence that she repeatedly told a supervisor that many of her absences—for which she was ultimately fired—were caused by her irritable bowel syndrome. In another case, Boeing was denied summary judgment on claims under a Washington law that mirrors the FMLA due to evidence that FMLA-protected leave was included in its calculation of unexcused absences leading to an employee’s termination. And a court in Wisconsin rejected an employer’s argument that an employee fired for excessive absences (due to his partner’s terminal illness and the emotional needs of their children) could not recover because he failed to adhere to its policy for submitting a leave request. A jury could find his designation of the absences as FMLA leave was enough.

These cases suggest the erring on the side of caution is warranted when calculating the number of absences an employee has before imposing discipline for excessive absenteeism. At the very least, consider whether the employee arguably provided notice that some of the absences might qualify for FMLA protection.

Don’t let your irritation show. Obviously, you can’t fire someone for requesting FMLA leave. But employers can get in trouble for other actions that indicate less than good faith compliance with the FMLA, or worse, retaliation. In one case, an FMLA retaliation claim survived summary judgment based in part on a supervisor’s email telling others that she was “irked” because an employee took the full six weeks of medical leave approved (the employee originally thought she might need less). It didn’t help that in the same email chain, the supervisor said she wanted to counsel the employee immediately upon her return and was cautioned by an HR rep that the employee should not be reprimanded for taking medical leave—suggesting to a federal court in Illinois that the supervisor was doing just that.

In another case, a call center employee who had PTSD told his supervisor that sitting next to a coworker who was sexually harassing him exacerbated his symptoms. She refused to move him and later told him she was “tired of walking on eggshells around him because of his disability.” Two days later the employee requested FMLA forms and was directed to the company’s intranet. Before he submitted the forms, though, he was fired for allegedly taking excessive breaks and dropping calls, which he claimed was due to panic attacks. To a federal court in Washington, this was enough to state a claim for FMLA retaliation.

Good faith compliance. While these five mistakes stood out in a review of recent cases, there are, of course, many more ways to run afoul of the FMLA’s requirements. For example, Staples agreed to pay $275,000 to a furniture sales executive who was never notified of his FMLA rights when he needed to take leave to care for his critically ill wife—for two years he used personal leave and vacation days and worked remotely. To avoid these types of costly compliance errors, employers should make sure HR staff and supervisors are well-versed in the Act’s requirements, and have information and forms readily available for employees who may need them.

Indeed, the failure to ascertain the FMLA’s requirements and to act accordingly can lead, in some cases, to the imposition of additional liquidated damages. In one case, a federal court in Michigan explained that such an award is normal where an employer fails to show that its act or omission “was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation” of the FMLA. In that case, the employer’s “cavalier manner” of handling FMLA obligations cost an additional $33,000.

Resources for employers who want to learn more about the FMLA are available online. A wealth of information is available on the Department of Labor’s website, which provides an overview of FMLA requirements and links to other resources, such as general guidance; posters; e-Tools; and fact sheets on how to calculate FMLA leave, rules for military family leave, and other topics.

Responses

  1. KT says:

    February 1st, 2016 at 10:56 am

    Greetings,

    Could you tell me if it is legal for the employer to do any of the following:

    * Discuss that the employee took FMLA with a new, prospective employer when asked for a reference.

    * Mention (and have it count negatively) that the employee took FMLA in a performance review.

    Thank you for your assistance.

    Regards,
    KT

  2. Margo says:

    March 2nd, 2017 at 3:12 pm

    Is it acceptable for an employer to terminate an employee after they return from 8 weeks of FMLA and then give their 2 weeks notice that they can’t continue to work? The manager actually said that she was upset that she held the job and then when the employee returned and gave notice so terminated her employment that day.

  3. Genevieve says:

    March 30th, 2017 at 5:49 pm

    I have a question about the time allowed to return the FMLA forms.The Dept of Labor has 15calender days but what if your employer only gives less and then fires you for “job abandonment”. Are they in violation if we have documentation showing only 10 days were given to return the forms before termination? They didn’t realize the time mistake yet are still even denying it’s legal and even appealing the employees original state reviewed & approved employee to be paid their Unemployment Benefits. I don’t know where to go for help.
    Thanks & God Bless!

  4. Cheryl says:

    July 30th, 2017 at 5:23 pm

    Can an employer exhaust all fmla allowed hrs while the employee is out on a workers comp injury if they employee was never notified that their fmla hrs were being exhausted?

  5. Cynthia says:

    November 21st, 2017 at 1:06 pm

    I submitted my FMLA intermittent application and was approved. Do I still have to provide hra with doctors notes each time I’m out ?

  6. Rob says:

    January 7th, 2018 at 1:07 am

    I have intermittent fmla, I have had it for 10yrs or so, I recently missed a day, for incapacity, it was approved by the reedgroup company that my company contracts with to handle fmla. My question is this: I am being told that since my call off was at the beginning of my shift, at start time, instead of an hour or two before my shift per company policy that I am subject for a repremand of a point. Is this true? I was incapacitated and notified them as soon as possible. I was approved for the incapacity, but goes against company policy.

  7. Polly Varnado says:

    February 13th, 2018 at 6:54 am

    I had to have a uterine biopsy in Nov which was negative for cancer but my doctor told me I needed a hysterectomy and schedule it for 12/11. When I told my manager she told me ‘not during the holidays’. My mom unexpectedly passed away Christmas Eve and I was off for 3 days bereavement and without being asked put back on the schedule the day after the funeral. When I returned to work I was terminated within a month. I had a feeling when I asked to take off for surgery then told I could not have it that I would lose my job. I live in Louisiana. Is this legal?

  8. Alexa says:

    February 19th, 2018 at 1:00 pm

    My son was diagnosed with bipolar and lives 600 miles away at the beginning of January he had a phsychosis where he was in a phsychward he is 19 years old I requested fmla papers from work and put them into the h.r. I had requested 4 days off to go see him. When I was there I determined he wasn’t on his meds and needed to go back the the hospital I was gone for 4 days where I called into work every day to let them know what was going on I came back home to go back to work as soon as my son was stabilized and med compliant. Now they are saying they did not get my paperwork for fmla in the office now I don’t know if I have a job I don’t know what to do!

  9. Joe says:

    March 2nd, 2018 at 8:20 am

    I went out on FMLA for almost 7 months due to my illness but recovered. While I was out my manager and CEO called me at home asking what was wrong with me? The manager upon my return asked me again I felt compelled to tell something but not everything. I returned to work on a limited schedule from my doctor but made to feel like I’m going to loose my job job because my manager complained about my schedule and about me being behind on my work. Isn’t this harassment? What steps should I take when Human Resources has to know he’s acting like this towards me.

  10. Lorraine Aponte says:

    March 29th, 2018 at 5:52 pm

    I am told I have exhausted my FMLA early. The end date is this coming May. Due to health issues and operations, I called off quite a bit, and I’m told I only have 54 days left for sickness, then I;m fired. They are also forbidding me to file a new FMLA due to upcoming surgery. If I take medical leave, I have to pay full amount of my health benefits, AND they will tap into those 54 days. Either way I’m screwed. What can I do?

  11. Sandra Butler says:

    April 9th, 2018 at 3:45 pm

    I told my supervisor I needed fmla time because I was not feeling right. (I was having an anxiety attack. He told me I would get a point for leaving. I was scared to lose my job so I said.

  12. Chad Hicks says:

    April 11th, 2018 at 8:42 pm

    Ok so last year I was diagnosed with systemic sclorerosis. I was back and forth to my primary care Dr mind you I am a salary exempt overtime employee and made up each appt that week, primarily that day. During this time I askedy supervisor 2 times to confirm that I did not need to take intermittent FMLA and he said no. No problem just account for your time and make up the difference. We were notified pir group of 3 program managers all being manged by our remote supervisor in Michigan that the need for a 4th was necessary. During this work loads increased 3x each and we’re divided amongs us me being the newest of the group hired in. He stressed on several occasions that he knew the work load and was in process of getting the 4th in pace to relieve the workload that was unmanageable. We have all done our best and met every deliverable. At the start of this year we had a family death and my personal marriage issues and I took my 1 day behrevement for death of uncle, my dad’s brother that lives 500 miles away. I was approved to take the additional 2 vacation days. Soon there after I had 2 other days vacation approved and during easter week we I one scheduled day that was on our calendar and then called in and asked for vacation ,personal time or what we have as 3 floating holidays to use at our will in addition to salary continuation. Step back 2 weeks from that and my supervisor from nowhere said I needed to file FMLA and I did so mind you no worked had been missed with the exception of 1/2 day due to the wing up at lunch and the next day for stomach virus. So once my diagnosis came back and I finally got to see the specialist we had appts mind you all were covered in both time and I was remoted into my laptop and performing work monitoring any issues etc, also the same when I was off on my other vacation days before. He sent me a text and mentioned how he did not see this being sustainable. Flash forward to late last week and my FMLA was denied because of my Dr and his lack of focus on filling out cert form. I was told this by the nurse as she said that I was denied because of all of the portions not filled out correctly. I am currently taking humira for PsA , baclofen and daily and life long predizone, blood pressure meds in addition to potentially having to taking methyltrexate. I have c2-3,5 foraminal narrowing and will have to have surgery but due to the TNF going crazy from my autoimmune disease necessitates it. Mind you none of which effect my job or performance due to my go getter attitude and moving and thinking at a very fast pace. Well today I come in and I had asked to his supervisor our division leader to speak with him today as all of the corporate team from Michigan was in our facility for a VP visit includingy supervisor. The main manager who is very logical and true to his word had not arrive to work today and my supervisor beste to the punch and separated me today on the account of absences and performance. In reference one of my peers and senior Program Manager had enough a month or so ago and went directly to facility manager and asked that we report to h because his lack of ability to effectively lead. This not to mention a lady hired in Michigan as prgrsmanger currently just returning from work – myself covering a great deal of her load as well as a jr. Program Manager who quit ain late 2017 and his programs being handed down to me as well. ..
    Please ask me any questions as iay have missed something. Everyone was in shock and I have not heard from the main manager yet although I expect a call or email soon as I’m sure he is unaware but is aware that I need to speak to him when I asked for a few.minutes of his time. I have never took FMLA. And this was my first time and any other previous absences I have accounted for and well within the 6% that is the standard they use according to HR. Also one other thing. If the nurse was taking the paperwork and calling. The Dr as did I to redo the cert form – how did i get denial even before them asking for additional information and informing me
    ? I am Livid as is the rest of my team and work peers and have many that will attest to my can do – let’s get it done attitude.

  13. Chad Hicks says:

    April 11th, 2018 at 8:54 pm

    Sorry one other thing. I was not notified until our nurse told me it had been denied and once she investigated was found to be Dr cert letter incomplete. Mind you again he did a terrible job of submission and would send this info to anyone whom would like to review and go through. But the standard who handles our benefits not once called me or reached out to me via email , etc. The provided me with a leave # and to fill out and submit paperwork and have Dr portion to get complete and faxed to them. When I spoke to my Dr nurse who submitted it she said that there had been no request for additional info. I’ve worked very hard and never abused the system work for an overseas company ,many night and weekends oon my own time to sort out issues with programs etc. Again. Any feedback would be greatly appreciated. I feel like I have been railroaded and although I have worked for several years at another location and only left due to inminent facility closure with 15 years invested and never had 1 write up or issue . I started with that company when I was 19 1 step up from janitor and left #3 in command for running the entire facility with night school for my bachelor’s and master’s degree. Maybe this will give you a baseline of what type of person I am and how I take work with me everywhere I go and always accessible. .y supervisor on the other hand, would not answer a call or attend a night time meeting or answer the phone period once 430 hit

  14. Chad Hicks says:

    April 11th, 2018 at 8:56 pm

    Sorry one other thing. I was not notified until our nurse told me it had been denied and once she investigated was found to be Dr cert letter incomplete. Mind you again he did a terrible job of submission and would send this info to anyone whom would like to review and go through. But the standard who handles our benefits not once called me or reached out to me via email , etc. The provided me with a leave # and to fill out and submit paperwork and have Dr portion to get complete and faxed to them. When I spoke to my Dr nurse who submitted it she said that there had been no request for additional info. I’ve worked very hard and never abused the system work for an overseas company ,many night and weekends oon my own time to sort out issues with programs etc. Again. Any feedback would be greatly appreciated. I feel like I have been railroaded and although I have worked for several years at another location and only left due to inminent facility closure with 15 years invested and never had 1 write up or issue . I started with that company when I was 19 1 step up from janitor and left #3 in command for running the entire facility with night school for my bachelor’s and master’s degree. Maybe this will give you a baseline of what type of person I am and how I take work with me everywhere I go and always accessible. .y supervisor on the other hand, would not answer a call or attend a night time meeting or answer the phone period once 430 hitSorry one other thing. I was not notified until our nurse told me it had been denied and once she investigated was found to be Dr cert letter incomplete. Mind you again he did a terrible job of submission and would send this info to anyone whom would like to review and go through. But the standard who handles our benefits not once called me or reached out to me via email , etc. The provided me with a leave # and to fill out and submit paperwork and have Dr portion to get complete and faxed to them. When I spoke to my Dr nurse who submitted it she said that there had been no request for additional info. I’ve worked very hard and never abused the system work for an overseas company ,many night and weekends oon my own time to sort out issues with programs etc. Again. Any feedback would be greatly appreciated. I feel like I have been railroaded and although I have worked for several years at another location and only left due to inminent facility closure with 15 years invested and never had 1 write up or issue . I started with that company when I was 19 1 step up from janitor and left #3 in command for running the entire facility with night school for my bachelor’s and master’s degree. Maybe this will give you a baseline of what type of person I am and how I take work with me everywhere I go and always accessible. .y supervisor on the other hand, would not answer a call or attend a night time meeting or answer the phone period once 430 hit

  15. Chelsie says:

    May 1st, 2018 at 12:13 am

    I had been approved for Intermittent FMLA and was using it for about 6 months now. Our HR representative has changed recently and the new HR rep has told me that the wrong documentation was filed- but was initially approved and I used it- and that as of right now I don’t have FMLA and need new paper work submitted. I’m just wondering, is that legal? My work had approved it, I was using it and now this new rep is telling me that I don’t have it and need new paper work to get approved. She did state that everything in the past (absences/late to work) would still be under FMLA since it was “their mistake” but can they just take it away while I work on getting to the doctor for the correct paper work to be filled out??

  16. C says:

    July 17th, 2018 at 4:13 pm

    If I have FMLA on my wife can my employer hire a private eye to follow us?

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