FMLA- 4 Don’ts

Do not penalize an employee for increasing requests for or use of, FLMLA-qualifying leave. Point-based progressive disciplinary policies (such as no-fault attendance policies) may simplify the administration of attendance issues, but employers should be careful not to count absences protected by FMLA and ADA. See Green v. Wal-Mart Stores, East, L.P., WL 3223629 (S.D. Ohio, June 25, 2013) Do not fail to request a recertification from your employee on leave if there is a substantial change in circumstances. FMLA permits employers to substantiate an employee’s request for leave by requesting a recertification. But when the employee’s absences exceed the frequency or duration estimated by the physician in the original FMLA certification, an employer cannot simply assume that the leave is unauthorized, even if it appears that the employee may be abusing the system and taking off work more than medically necessary. See 29 C.F>R. 825.308(b) and Hansen v. Fincantieri Marine Group, LLC, No. 12-C-032 (E.D. Wis., June 14, 2013). Do not impose probation on employees for excessive absences that include leave under FMLA. To do so is akin to using a disciplinary measure to penalize employees for taking qualified FMLA leave. (See first tip under “Do Not”.) Receiving probation for taking excessive sick leave, including FMLA leave, would dissuade most employees from taking FMLA leave in the future. This is in direct violation of FMLA. See 29 C.F.R. § 825.220© and Bravo v. Union County, 2013 WL 2285780 (D. N.J., May 23, 2013). Do not forget that when an employee gives notice of FMLA-related leave, the employer must provide three FMLA notices: Eligibility Notice, Rights and Responsibilities Notice and Designation Notice. HR professionals may sometimes struggle with the murky areas of employment law, but in a leave of absence situation, there should be no mistaking the employer’s immediate obligations: three types of FMLA notice within five business days. See 29 C.F.R. §825.300(b). If you are a client, please contact your Dedicated HR Consultant for any questions you may have regarding this HR Alert. Please send all other inquiries to: Email: Phone: 800-321-2843