How Understanding FMLA Basics Can Help Employers Avoid Common Mistakes

Tips for HR managers and employers to navigate FMLA eligibility and avoid costly mistakes

By David Setzkorn, Hub International

It is all too easy for human resource professionals to get the ins and outs of the Family and Medical Leave Act (FMLA) wrong.

Figuring out where company leave policies intersect with FMLA provisions – or not – can be a challenge to HR managers, general managers and employees themselves. Mistakes are common and can be costly.

Take the 2019 Massachusetts Supreme Court decision finding an employer liable for $1.3 million in damages for a retaliatory termination of an employee after he took a trip to Mexico while on leave. The trip had been scheduled well in advance of the surgery which had necessitated the leave; his activities on vacation aligned with medical recommendations and FMLA leave requirements. The case was a warning against knee-jerk decisions in response to perceived FMLA abuses.

FMLA administrators have found that three particular areas are most troublesome to employers: notifications and communications between employers and employees; recertifications; and ensuring employees’ rights to leave under FMLA are protected.

Understand Eligibility Requirements, for Starters

HR and general managers should be trained in the provisos of the FMLA. That starts with knowing the four eligibility requirements for employers and employees. Additionally, understanding the common mistakes can go a long way toward avoiding them.

● Employer eligibility requirements: Eligible employers must have 50 or more employees working each day for at least 20 calendar weeks over the previous 12 months or current calendar year at the time a leave is requested. Employers on the cusp can move in and out of eligibility, so they should review this every time a potential leave request is made.

Smaller employers that are owned or managed by a central company must use the integrated employer test to determine if they collectively share enough common interest to be considered one employer for eligibility purposes.

● Three rules for employee eligibility: First, the individual must work a minimum of 12 calendar months, not consecutive, but over a seven-year time frame. This means accurate record-keeping for seasonal employees or those who are re-hired. In the 12 months prior to making the leave request, an employee must work a minimum of 1,250 hours. Part- or full-time status is not relevant.

The work location must have 50 employees within a 75-mile radius. This has become more complicated with remote work trends. For remote workers, the rule shifts to the location where their work is assigned. For those without a fixed worksite, the rule is based on which location they report to. Remote managers? Where they report to or where work is assigned from are site location determinants.

Avoid Most Common Mistakes

A lot of mistakes can be made in determining FMLA eligibility, but here are four of greatest concern:

1. Eligibility requirements – specifically the 50/75 rule – cannot be waived, altered, ignored or eliminated by the employer to be more generous or restrictive.

2. The FMLA clock does not restart for employees who leave or come back. Regulations say nothing about accounting for employment breaks. The rules require employers to look at the 12 months preceding the leave request.

3. An employee’s status as a part-timer does not mean he or she is ineligible for FMLA.

4. It is easy to mishandle eligibility requirements for temporary employees that are then hired as regular employees. In this instance, the joint-employer rule comes into play: their joint service hours and months accrued as a temp must be counted toward FMLA eligibility once they are hired.

The FMLA is a boon to workers as a way to balance the often-warring demands of work and health. But it is also complex, making it a challenge for employers to administer correctly. Organizations will be well-served by instituting a sound FMLA policy that outlines everything from notice requirements and medical certification rules to how it aligns with company leave policies – and training managers regularly on the basics.

David Setzkorn is Senior Vice President and National Practice Leader for Absence Management at Hub International out of Arizona. He has over 10 years of experience working in the carrier space as a subject matter expert on leave administration. His experience includes consultation and development of absence management and ADA programs with clients from implementation, training and ongoing compliance with state and federal regulations as well as product and program development for carriers. He is a nationally recognized speaker working with organizations such as DMEC, IBI, SHRM and ISCEBS to deliver trainings and content regarding FMLA, ADAAA, Paid Family Medical Leave and state and municipal leave programs.

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