It is hard to believe that it has been almost 20 years since the Family and Medical Leave Act (FMLA) was originally enacted in 1993.  It would be easy to think that after 20 years, all of the kinks would be worked out and that it would be a piece of cake to administer, but unfortunately that has not turned out to be the case.  Issues surrounding administration of the FMLA continue to be one of the biggest challenges HR departments face today.


While most HR professionals can list the basics of the Act off the top of their heads, there are a many pitfalls that employers face that can potentially lead to costly litigation if their own policy is not administered properly.  Below are several suggested areas to help employers, managers, and HR professionals avoid potential pitfalls

Develop and Clearly Communicate Company FMLA Policies

As with most HR policies, the best way for employers to steer clear of problems is to communicate their FMLA policy in a clear and concise manner.  The DOL requires that covered employers post a notice (WH Pub 1420) explaining FMLA rights and responsibilities in a central location on the worksite, as well as include information about employee rights and obligations under the FMLA in employee handbooks.  But that is just the basics.  It is imperative that a policy be developed that not only explains what the law permits but how the company plans to administer their FMLA policy.  For example, what 12-month period will be considered a benefit year (calendar, anniversary, rolling forward, rolling back)?  How do employees arrange to pay for the employee portion of their health insurance while they are off payroll?  How will the company treat accrued paid time off (PTO, sick, vacation leave) and recertification of the need for leave?  At a minimum, all of these issues should be outlined in all FMLA materials and provided to employees on a regular basis.

Don’t Ask, Don’t Tell

Okay, you have received a medical certificate from an employee and it does not include all of the information that you need to make a FMLA determination, now what do you do?  You send them back to their physician to get additional information, of course, but it might not be quite as easy as that sounds.  As the employer, you are required to notify the employee in writing of deficiencies in the information and allow 7 calendar days for the employee to correct the discrepancy.   However, it is important to keep in mind that a medical note need only verify that an employee has a “serious medical condition”, including the medical facts that back up that designation and probable duration of the leave.  Remember, employers are not entitled to a specific diagnosis when an employee requests a medical leave under FMLA, just that he/she has a serious medical condition that needs on-going treatment.

Also, with all of the legislation that has been enacted to safeguard the medical conditions of employees (GINA, HIPAA), it is safe to say that employers must tread lightly when making requests for medical certification to support FMLA requests.  The 2009 FMLA regulations permit, under certain circumstances, an employer to contact an employee’s health-care provider to request additional clarifying information; however, the contact must be made by a HR professional, a leave administrator, or a management official of the employer.  The employee’s supervisor is strictly prohibited from making such contact.  This is a perfect lead to the next recommendation to prevent a pitfall…supervisor training.

Train Supervisors and Managers on Handling FMLA Issues

Let’s face it, direct supervisors and managers know much more about what is going on in the daily lives of their employees than the HR Department.  Therefore, training supervisors on how to handle FMLA absences and requests is crucial for risk management.    Training should outline employee rights under the FMLA regulations, teach supervisors to  respect the confidentiality of medical records, instruct them on when and how to apply company policy, and lastly, encourage them to point employees to their HR representative if they are asked questions that they are not comfortable answering.

Adjust Performance Standards

The FMLA does not limit employers from disciplining employees for poor performance, unless the performance problems are somehow related to that medical leave.  For example, employers may want to be cautious and reduce quarterly or annual sales quotas for those employees who have taken an approved FMLA leave.  Remember, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies.  Therefore, if an employer offers a perfect attendance bonus and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.  Remember, there should be NO penalties imposed on employees who take approved FMLA leave.

Bottom Line

The FMLA is one of the more complex rules with which employers and HR professionals must deal; however, with a little upfront planning, strong communication, and internal education, costly litigation may be avoided.

Ann Kontner is a former senior human resources executive with vast experience in all facets of the HR field. She brings to S&J over 25 years of HR experience in corporate compliance, administrative management, staff development and executive leadership skills. She has worked for a wide range of employers including both public and privately held corporations, federal government contractors, and has experience working in both domestic and international markets.
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