TOP 10 FMLA Mistakes By TISCH MCDANIEL
Absence Management, or Leave Management, means putting strategies, policies, processes, and procedures in place to reduce employee absenteeism while remaining compliant with laws that may govern certain absences. The 2021 Absence Management report by Guardian, reports that eight in ten employers say COVID-19 raised seniorleadership awareness about the importance of leave management. A very complicated component of Absence Management is the Family Medical Leave Act (FMLA) that was signed into law on February 5, 1993. Though the law turned 28 this year, it can still prove to be extremely difficult for employers to interpret. According to the Reed Group June 2021 webinar on Absence Management A deep dive on FMLA, 71% of employers report that making decisions on FMLA requests is a top challenge, up 48% from 2012. HRO Partners and Unum hosted a webinar to help HR professionals maneuver the complexities of FMLA and the increasing compliance and administrative burden. Here are the top 10 FMLA mistakes employers make and best practices to avoid them, according to Unum’s Daris Freeman, Assistant Vice President and Legal Counsel. #10 Failure to monitor intermittent leaves closely Best practice: Require complete certifications and monitor absences. This should include the reason for the absence and the duration -- which should be supported by certification. #9 Improper use of recertifications Best Practice: Recertify at least every 6 months. Recertify patterns of absence, absences that indicate a significant change in the employee’s circumstances, or if absences exceed the estimated frequency and duration. Recertify if you receive information that questions validity and utilize clinical resources to determine whether and when to recertify unknown or indefinite conditions. #8 Failure to request a new certification and redetermine eligibility in a new leave year Best Practice: Establish the one-year period of eligibility for each leave request and re-evaluate eligibility upon the first absence in the new leave year. If the employee continues to be eligible, request a new certification and authenticate, clarify, and request second and third options on the new certification as warranted. 20
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#7 Inappropriate use of medical certifications
#2 “Deeming” employees FMLA eligible
Best Practice: Use comprehensive medical certification forms. Return all incomplete and insufficient certifications to employee. If there are any answers that you do not understand, contact the medical provider to clarify and authenticate all questionable certifications.
Best Practice: Do not count FMLA absences against an employee unless the employee is eligible and the absence is covered. If you improperly deduct time from an employee’s FMLA bank, the employee may be entitled to an additional 12 or 26 weeks of FMLA leave.
CAUTION: The employee’s immediate supervisor cannot contact a health care provider.
Employees that work for companies that have less than 50 total employees within a 75-mile radius would not qualify for leave under FMLA. If you wish to provide employees leave in circumstances that are not covered by FMLA, the best solution is to grant a corporate leave. This could apply to leave to care for non-qualifying family members (e.g. domestic partners or grandparents), or apply to small offices or new employees.
#6 Failure to properly designate FMLA time Best Practice: If you fail to provide timely designation, you can retroactively designate but you should ask the employee if they relied to their detriment on your failure to designate. Enforce minimum intermittent increments that align with your other leave policies, but no more than one hour. CAUTION: You can only deduct FMLA for the time the employee was not allowed to work . Example: employer has a one-hour minimum FMLA increment but employee fell ill 30 minutes prior to the end of their shift. Only 30 minutes may be deducted. #5 Failure to calculate leave entitlement appropriately Best Practice: Appropriately determine an employee’s FMLA bank, factoring in the employee’s normal schedule and any required overtime. Review an employee’s FMLA usage to determine if a holiday falls within a partial week of FMLA. #4 Using a calendar year 12-month period Best Practice: Use the rolling backward calculation method, which helps prevent stacking of leave. This method provides that each time an employee takes leave, the employer looks backward 12 months to determine how much FMLA time the employee has taken. Each time an employee takes FMLA leave, the remaining leave entitlement would be any balance of the 12 weeks that has not been used during the immediately preceding 12 months. The calendar method allows for stacking; and under the calendar method, an employee can take 12 weeks of leave at the end of one calendar year and immediately take another 12 weeks at the beginning of the new calendar year.
And the #1 FMLA mistake employers make is improperly determining eligibility. Best Practice: As an employer, make sure you are covered by FMLA. Verify that you had more than 50 employees for each calendar day for 20 weeks in the current or preceding year. Determine that, as of the time the employee requests leave, the employee works at a location where there are 50 employees within 75 miles. This should include all employees and temps on payroll except expatriates. For work-at-home employees, look to the site where the employee reports or receives assignments. Verify the employee worked for 12 non-consecutive months prior to start off leave. Include employment prior to a continuous break in service of 7 years or less. Military service should be included when calculating tenure and hours worked. Verify that the employee worked 1,250 hours immediately prior to the start of leave using FLSA “hours worked” standard, and do not include leaves or paid time off. CAUTION: Include temp time in hours worked and tenure for any employee who worked for you as a temp. If you were unable to attend the webinar, please email support@hro-partners.com to get a copy of the PowerPoint and to be put on an email distribution list for future webinars.
#3 Failure to provide required notices Best Practice: For the general notice, an electronic notification suffices but it must be accessible to both employees and applicants. If your company has a handbook, a general notice must be included.
Senior Consultant HRO Partners LLC Tisch McDaniel | LinkedIn
If your company does not have a handbook, you must distribute a general notice upon hire. Eligibility, Rights and Responsibilities, and Designation notices must be sent in a timely manner and with all required information.
The information contained herein does not constitute legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and were used for a webinar presentation. You are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.
Tisch McDaniel
