The Family and Medical Leave Act is an essential piece of legislation that all HR teams must be aware of and, more importantly, compliant. Research shows, the FMLA covers about 56% of the U.S. workforce.
Despite the high number of eligible employees, several HR teams are still poorly informed about some critical aspects of the act, leading to compliance issues and expensive lawsuits. Some common misconceptions about FMLA include the belief that employees must expressly request FMLA leave, that you cannot deny an FMLA leave request, and you cannot terminate an employee on FMLA leave.
Here’s what you need to know about FMLA and the breakdown of the most common myths surrounding the act.
What is FMLA?
The Family Medical Leave Act is a labor law that requires covered employers to provide eligible employees with unpaid time off to attend to serious family situations or health issues. These may be adoption, foster care replacement, pregnancy, military leave, or family and personal illness, for example.
The FMLA also ensures continued health insurance coverage and job protection for eligible employees on leave.
Therefore, the FMLA ensures families have the time and resources to deal with family situations or serious health issues; the legislation guides HR teams and employers on administering unpaid leave for such circumstances.
All private and public schools, companies, and agencies with 50 or more employees must be FMLA compliant for all eligible employees
The Most Common FMLA Myths and Misconceptions
Despite being one of the most critical acts an HR team must follow, various myths and misconceptions surround FMLA. Here’re the most common ones.
Employees Must Expressly Request FMLA Leave
Employees are not mandated to expressly use specific words to request a FMLA leave. HR teams and employers are responsible for seeking information from the employee to determine whether the leave qualifies for FMLA coverage.
When an employee requests leave under FMLA, the employer has five business days to issue them the Eligibility and Rights and Responsibilities Notice.
Only Employers with 50 or More Employees Within a 75-Mile Radius Should Display an FMLA Poster at the Job Site
FMLA requires all covered employers to display FMLA posters at all job sites regardless of the number of employees. The 50/75 rule covers eligibility, not posting requirements.
Employers Can Deny Reduced-Schedule or Intermittent Leave If It’s Disruptive to the Workplace
The FMLA doesn’t offer an undue hardship provision for employers or HR teams. If your review supports an employee taking an FMLA leave on a reduced or intermittent schedule, you must grant it.
You Cannot Deny a FMLA Leave Request
FMLA leave must be approved for employees who meet the following conditions:
- They are taking leave for the birth and care of the newborn child of an employee;
- They are taking leave for placement with the employee of a child for adoption or foster care; or
- They are taking leave to care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
- They are taking medical leave when the employee is unable to work because of a serious health condition; or
- They are taking leave covered under the Military Caregiver Leave under the FMLA
- They have worked for their employer for at least 12 months
- They have worked at least 1,250 hours over the past 12 months
- They work at a location where the company employs 50 or more employees within 75 miles
- The FMLA leave was requested 30 days prior or as soon as reasonably possible before taking it
- They gave enough information to determine whether the leave is covered under the FMLA
- They haven’t used up their protected leave within the current 12-month period
If the employee doesn’t meet these conditions, you can have grounds to deny the request for FMLA leave.
You Should Not Follow Up with Employees on FMLA Leave About Recertification
HR teams reserve the ability to follow up with employees on FMLA leave and request recertification. Employees must recertify annually if this leave extends over a year. If the initial certification did not specify a leave period, you can request recertification every six months.
You can also ask for recertification if the employee requests to extend their leave, their circumstances have changed, or you doubt whether their leave is valid under the act.
You also reserve the right to offer intermittent FMLA leave with unique rules about calling in.
You Should Give Your Employees the Same Job Back
HR teams are not obligated to give employees their same positions back after they return from FMLA leave. However, you’re mandated to return the employee to the same or equivalent position with similar conditions, benefits, and responsibilities.
This provision also applies to employees in temporary positions.
It’s Okay to Retaliate Against an Employee Who Takes FMLA Leave During a Busy Season
Not all HR teams will be happy to grant an employee FMLA leave when the company desperately needs people resources. However, the law mandates that all eligible and qualifying employees must be given FMLA leave on request. It is in your best interest to provide this leave graciously.
Showing open signs of anger or retaliation to employees who request a FMLA leave can easily lead to a retaliation lawsuit. You should avoid taking any disciplinary steps or terminating the employee’s contract on the grounds of their FMLA leave.
“Exigency Leave” is Only for Emergencies
The FMLA offers an exigency leave provision that most employers and HR teams often misunderstand. Exigency leave allows eligible employees to deal with a qualifying exigency arising because a close family member such as a spouse, daughter, son, or parent is on covered active duty or has been ordered to active duty in the armed forces.
Exigency leave typically covers eight categories, all with a need arising from covered active duty or a call to covered active duty in the armed forces. They include the following:
- Short-notice deployment, issued at least seven calendar days before the date of deployment
- Childcare and school activities, such as arranging for alternative childcare
- Military events and related activities, such as official ceremonies for the covered active duty or call to covered active duty
- Counseling for oneself, a covered child, or a covered military member
- Financial and legal arrangements
- Post-deployment activities for up to 90 days after the termination of covered active duty, such as arrival ceremonies
- Rest and recuperation to spend time with a covered military member on temporary, short-term rest and recuperation
- Additional activities to address other covered events
You Cannot Terminate an Employee on FMLA Leave
FMLA clarifies that employers cannot terminate an employee on the grounds of taking the leave. However, the protection is not absolute.
For instance, if your company has to lay off employees, an affected employee can still get terminated despite being on an FMLA leave. Likewise, if the employee was being investigated for some misconduct before the FMLA leave, they can still be terminated during the leave if they’re found to be at fault.
Talk to an Expert
The FMLA is important legislation for your HR team to understand. Moreover, debunking the myths will help your organization stay compliant. Talk to an expert today and learn how you can ensure total compliance with the act.