Why We Need An FMLA Review

    The Family Medical Leave Act (FMLA) has been in effect for employers with 50 or more employees for decades. While the number of obvious cases of interference has declined, the number of claims investigated by the Department of Labor over employers who get “too cute” with the Act, now make up the lion’s share of its investigations. Investigations, of course, can land you in court.

    Instances in which companies were found to have skirted the Act include:

    • Drafting and using a FMLA policy that does not comport with the Act to the detriment of employees.
    • Assessing attendance points and terminating an employee whose absences are later certified to be FMLA-related.
    • Decline, for various business reasons, to approve FMLA leave when presented with FMLA certification of the need for such leave.
    • Give an employee a negative performance review because the employee did not complete the same amount of work as other employees who did not take FMLA leave during the same performance review period.
    • An employee returns from FMLA leave to find their pay or job duties have been reduced because they were on leave.
    • Demoting, terminating or reducing the job duties of an employee that requested or took leave.
    • Discharging an employee on leave or upon return from leave. If your reason is something you discovered while the employee was on leave, document it and be prepared to defend your actions since it looks like interference on its face.

    Remember, if you allow your supervisors to play “fast and loose” with FMLA fact patterns, the FMLA permits personal liability for violations. Federal courts routinely find an employee may sue not only the company but also individual managers for FMLA violations.

    While Department of Labor enforcement priorities make it unlikely the agency will sue, under a referral system it has implemented, the Department will refer an aggrieved party to the American Bar Association to find them an attorney.

    To complicate matters further, the Americans with Disabilities Act can bite employers in the rear once FMLA leave has been exhausted. The Equal Employment Opportunity Commission has served notice that it is aggressively looking at companies that have automatic termination policies after an employee has missed specified periods of work, contending such policies violate the Act. Ask such employees before the end of their FMLA leave if they will be able to return and perform the essential functions of the job, with or without a reasonable accommodation.