The Family and Medical Leave Act (FMLA) is a complicated law…Just like a host of other ones your small business has to deal with. Mistakes happen. And when they involve legislation such as the FMLA, they could spell trouble for your business.
First, what exactly is FMLA? This federal law entitles eligible employees up to 12 workweeks of unpaid leave for specific family and medical reasons without the threat of job loss. The law also mandates a continuation of health benefits under the same terms and conditions as if the employee were still working.
Important note for small businesses: FMLA only applies to businesses with 50+ employees working at least 20 workweeks in the current/preceding calendar year.
According to the DOL, these are the situations that would qualify for FMLA:
- The birth of a child and care for a newborn within a year of birth
- The placement and/or subsequent care of an adopted or foster child
- Care for a spouse, child or parent who has a serious health condition
- A serious health condition that makes an employee unable to perform essential job functions
- Any qualifying exigency that arises from the fact that an employee's spouse, child or parent is on active duty or has been called to active duty
- Or 26 workweeks of leave during a single 12-month period for military caregiver leave
Because of its complex nature, the following common mistakes plague small business owners nationwide. But with some education and review of the law with a trusted advisor, you can avoid serious consequences.
Failure to Identify Requests
An employee is not required to mention FMLA when requesting leave, therefore you must be extra careful when examining the reasoning. As an example, an employee may request leave under workers’ compensation or short-term disability, but if the event meets FMLA criteria of a serious health condition, it should be treated as such.
Sometimes, the best way to ensure compliance with federal and state regulations is to provide adequate training. Managers might fail to tell the HR department right away when an employee is planning to take leave which will then delay the start of the 12 workweek period. As a general guideline, make sure you, any supervisors you may have and even employees themselves are well trained on your policies surrounding FMLA to avoid any confusion.
Forgetting about the ADA
Keep in mind that likely a serious health condition that requires 12 weeks of FMLA leave will also constitute a disability under the Americans with Disabilities Act (ADA).
Expecting work while on leave
Sometimes, an employer may request that an employee performs “just a little” bit of work while on FMLA leave. This can get into tricky territory if the employee is held to the same expectations while on leave. Employment Law Daily cites a certain example where an employee on maternity leave was asked to work from home when her company realized she was falling behind on a certain task.
As with most HR procedures, there are strict notification and documentation requirements for employers regarding FMLA. Therefore, it’s imperative that you put a transparent policy in place for all of your communications and ensure consistency across the board.
*Please note that this is not all inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding specific application of the information to your own plan.