Did you know that any technical violation of the FMLA may constitute "interfering with, restraining, or denying the exercise of rights" provided by the FMLA? Yes, that's right employers: you can get sued by an ex-employee or fined by the DOL for technical errors relating to FMLA notices, paperwork, timing, and follow-up.
Because of the number of questions that arise regarding FMLA compliance, this is a Two-Part series. Be on the look-out for Part II on Monday.
Beware of common FMLA violations, including:
1. Written FMLA Policy Does Not Reflect Actual Calculation Method. Full-time employees get 480 hours (12 workweeks) of FMLA leave per year. Employers must choose a method of calculating the FMLA leave year (e.g., calendar year, 12 months from first day of leave, or "rolling" method). Your published FMLA policy must state your method of calculating leave, or it defaults to the method most favorable to the employee. If you are utilizing the "rolling" method (which is generally most favorable for the employer) but your published policy states "12 months from the first date of leave," you are not in compliance.
Take-away: Check your written FMLA policy and compare to the actual calculation method being utilized.
2. Failure to Post the DOL-Required FMLA Notice: This is the easy one. Post this notice:
3. Requiring Employees to Provide Official or Written Notice of the Need for FMLA Leave. An employer must provide to the employee the FMLA "Notice of Eligibility and Rights & Responsibilities" (https://www.dol.gov/whd/forms/WH-381.pdf) along with the appropriate certification within 5 days of the employer learning of an FMLA-qualifying event (certification form: https://www.dol.gov/whd/forms/WH-380-E.pdf)
The employee does not have to request medical leave, notify the employer in writing of the need for leave, or even mention "FMLA" or "medical" to trigger the employer's notice requirement.
If the employer learns of any circumstance that could qualify the employee for FMLA leave (overnight hospitalization, domestic battery, serious medical issue of employee or immediate family member, frequent medical appointments, pregnancy, etc.), the employer must provide the FMLA paperwork and give the employee at least 15 days to return the appropriate certification.
Practice Pointer #1: What if the employee says he or she doesn't want FMLA paperwork? Answer: Give it to the employee anyway. Under the FMLA regulations, the employer must provide the FMLA paperwork even if the employee doesn't want it. If the employer knows of an FMLA-qualifying issue and does not provide the required paperwork, any discipline or termination of the employee for attendance violations can be deemed FMLA interference because the employer did not meet its initial obligation by providing the required paperwork.
Practice Pointer #2: To avoid the scenario where the employee claims he or she did not receive the FMLA paperwork: send it by email or hand-delivery AND mail, (preferably certified), and document your efforts within the employee's FMLA/medical file (separate from the personnel file). Also, make sure to include the employee's deadline for returning the paperwork (at least 15 days from the date provided to the employee).
