FMLA – PRACTICES EMPLOYERS SHOULD AVOID

Many employers know what to do when an employee needs to take leave under the Family Medical and Leave Act (“FMLA”), such as providing correct certification forms, meeting notification requirements, and tracking leave time for employees. However, some employers fail to realize that knowing what not to do regarding FMLA leave is just as important as knowing what to do.  

An employer should never react poorly to an employee’s request for FMLA leave. It can be tough for employers to make adjustments and fill in gaps when an employee goes out on leave. However, employees are entitled under the law to use FMLA leave; therefore, an employer should never react in a negative way when an employee requests FMLA leave and should never use a request for such leave as a reason for discriminating against or terminating an employee.

An employer should also never fail to identify an employee’s need for FMLA leave. If an employer is aware that an employee is out due to an FMLA qualifying circumstance, the employer is required to start the FMLA leave process even if the employee has not expressly requested FMLA leave. As such, all covered employers should maintain an absence notification policy. Under this policy employees should be required to call into an actual person or a call-in line, within a certain timeframe, to report their absences and the reasons for it. Also, an employer’s FMLA policy should include clear language about how you expect employees to communicate their need for leave with the company.

An employer should be careful about contacting an employee while they are out on FMLA leave. Some employers have a practice of checking in with an employee who is out on FMLA leave on a regular basis. However, employers should understand that employees on leave should be relieved of any and all work while they are out and employers should not ever ask individuals to perform work while they are on FMLA leave. General infrequent calls to an employee on leave regarding transition work or to pass along general knowledge about the company are acceptable, but beyond that an employee should not be unnecessarily contacted by an employer while on leave.

Sharing an employee’s medical condition with others is something that an employer should never do. It runs afoul of the law. All information related to an employee’s need for FMLA leave, especially when it involves a medical condition, should always be kept confidential by an employer.  

Finally, an employer should be cautious about terminating an employee when their FLMA leave ends. When an employee’s FMLA leave is exhausted, it does not mean that they automatically transition into unprotected leave. An employer should always keep the Americans with Disabilities Act (“ADA”) in mind when dealing with employees who are returning from FMLA leave. An employee who exhausts their FMLA may need reasonable accommodations when returning to their position or they even may need unpaid leave as a reasonable accommodation under the ADA. An employer should never focus on terminating an employee after FMLA leave has expired, but instead, should always focus on what they can do to assist the employee in returning back to work.

Members with questions regarding FMLA and their obligations should contact us and speak with a member of our team of experienced HR and legal professionals to ensure they are doing everything in compliance with the law. Not a member yet? Join NAE today to begin enjoying the benefits of membership.