FMLA Compliance: Employees’ Rights and Employers’ Obligations

The Family and Medical Leave Act (FMLA) is a cornerstone of employee rights, providing protected, unpaid leave for qualifying family and medical purposes. It is crucial for both employees and employers to understand their rights and obligations under this federal law.

For employers, navigating the FMLA’s intricate regulations can feel like walking a tightrope. A single misstep—miscalculating eligibility, mishandling a leave request, or failing to properly reinstate an employee—can lead to significant consequences. FMLA compliance is not merely an administrative task; it’s a critical risk. Ignoring or misinterpreting FMLA obligations exposes a business to substantial risks.

Legally, violations can trigger investigations by the U.S. Department of Labor (DOL) and lead to private lawsuits. The financial fallout can be severe, including liability for back pay, front pay, liquidated damages, and the employee’s attorney fees and costs. Beyond the direct costs, reputational damage can erode employee morale, harm recruiting efforts, and tarnish a company’s public image.

Proactive FMLA compliance is a fundamental aspect of sound business strategy. It demonstrates a commitment to employee well-being, which can improve retention and engagement. A well-managed FMLA program minimizes legal exposure, ensures operational consistency when employees are on leave, and fosters a culture of trust and respect.

Eligible Employees

Not every employee of a covered employer is eligible for FMLA leave. To qualify, an employee must meet three specific criteria:

1. Have worked for the employer for at least 12 months (they do not need to be consecutive).
2. Have worked at least 1,250 hours during the 12-month period immediately preceding the leave.
3. Work at a location where the employer has at least 50 employees within a 75-mile radius.

Miscalculating these hours or tenure requirements is a frequent source of improper denials.

Covered Employers

The FMLA applies to “covered employers,” which include:

• Private-sector employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year.
• Public agencies including Federal, State, and local government employers, regardless of employer size.

A common mistake employers make is miscounting employees, especially when dealing with part-time, temporary, or remote workers. Correctly determining if your organization is a covered employer is a foundational requirement for FMLA compliance.

Leave Available to Employees

Eligible employees can take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specific reasons:

• The birth of a child and to care for the newborn child within one year of birth.
• The placement of a child with the employee for adoption or foster care within one year of placement.
• To care for a spouse, child, or parent with a serious health condition.
• The employee’s own serious health condition that makes them unable to perform their job.
• Qualifying exigency leave for certain reasons relating to a family member’s foreign deployment or military service.
• Qualifying military caregiver leave when a family member is a current servicemember or recent veteran with a serious injury or illness.

An extended 26-week leave is available for military caregiver leave.

Employer’s Notification Requirements: Informing Your Workforce

Employers have multiple notification duties. They must display a general FMLA poster, include FMLA information in their employee handbook, and provide specific notices to an employee when they request leave. Within five business days of a leave request, the employer must provide a Notice of Eligibility and a Rights and Responsibilities Notice. Once it is determined the leave qualifies for FMLA, a Designation Notice must also be provided. Failure to provide these notices can result in compliance violations.

Employee’s Duty to Notify: Recognizing a Leave Request

Employees must provide sufficient information for an employer to reasonably determine if the leave may be covered by the FMLA. They do not need to specifically mention “FMLA.” When leave is foreseeable, like for a planned surgery or birth, the employee must provide at least 30 days’ notice. For unforeseeable leave, notice must be given as soon as practicable. Managers must be trained to recognize a potential FMLA-qualifying event from an employee’s statements and report it to HR immediately.

The Critical Role of Medical Certification

When an employee requests leave for a serious health condition (their own or a family member’s), the employer can require a medical certification from a health care provider. This document confirms the existence of the condition and provides necessary details about the need for leave, such as its expected duration and frequency.

Navigating the Certification Process: Deadlines and Clarity

Employers must allow an employee at least 15 calendar days to obtain the medical certification. If the certification is incomplete or insufficient, the employer must specify in writing what is needed and give the employee at least 7 days to cure the deficiency. Employers cannot directly contact the employee’s health care provider, but they can have their own HR professional, leave administrator, another health care provider, or a management official (but not the employee’s direct supervisor) contact them for clarification or authentication purposes, after the employer has provided the employee with an opportunity to cure any deficiencies.

Second and Third Opinions, and Recertification

If an employer has a good faith reason to doubt the validity of a certification, they may require a second opinion from a provider of their choosing, at their own expense. If the first and second opinions conflict, a third, binding opinion may be obtained, also at the employer’s expense. For ongoing conditions, employers can request recertification at reasonable intervals (for example, every six months, or if circumstances change).

Administering FMLA Leave: Calculating and Managing Complexities

Once leave is approved, the administrative challenges begin. Proper calculation, tracking, and management are essential.

Employers can choose from one of four methods to calculate the “12-month period” for FMLA leave, but they must apply it consistently to all employees:

(1) the calendar year;

(2) any fixed 12-month period such as the year starting on the employee’s anniversary date;

(3) a 12-month period measured forward from the first date an employee takes FMLA leave; or

(4) a “rolling” 12-month period measured backward from the date an employee takes FMLA leave.

The most common and administratively favorable method is the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave. This prevents an employee from “stacking” leave by taking 12 weeks at the end of one year and 12 weeks at the beginning of the next.

The Minefield of Intermittent and Reduced Schedule Leave

Perhaps the most challenging aspect of FMLA administration is managing intermittent or reduced schedule leave. This type of leave, taken in separate blocks of time for a single qualifying reason, requires meticulous tracking, often down to the minute. Employers must have a robust system to track this usage accurately to avoid both overuse by the employee and interference claims by the employer.

Managing Paid Leave Substitution and Health Benefits

While FMLA leave is unpaid, employers can require (or employees may elect) to use accrued paid leave, such as vacation or sick time, concurrently. One of the most critical employer obligations is to maintain the employee’s group health insurance coverage under the same terms and conditions as if they had not taken leave.

The Return to Work: Ensuring Smooth Reinstatement

The FMLA provides job-protected leave, and an employee’s rights at the conclusion of their leave are paramount. Upon return from FMLA leave, an employee must be restored to their original job or to an “equivalent” job—one with the same pay, benefits, and other terms and conditions of employment. An employer cannot penalize an employee for taking FMLA leave.

Fitness-for-Duty Certification

For employees on leave due to their own serious health condition, an employer may have a uniformly applied policy that requires a fitness-for-duty certification before restoring them to their position. This certification can only address the employee’s ability to perform essential job functions.

Beyond Federal FMLA: Navigating State Laws and Other Benefits

Compliance doesn’t end with federal law. Many states and localities, such as the District of Columbia, have their own family and medical leave laws that can offer greater protections for employees.

The Interaction of Federal and State Leave Laws

If an employee is covered by both federal FMLA and a state leave law, they are entitled to the benefits of the more generous law. This can mean a longer period of leave, coverage for more family members, or broader eligibility. Employers must navigate this complex interplay to ensure full compliance.

Coordinating with Company Policies and Other Benefits

FMLA must be administered in coordination with other benefits like short-term disability (STD) and laws such as the Americans with Disabilities Act (ADA). An employee’s serious health condition may also qualify as a disability under the ADA, triggering additional obligations for reasonable accommodation.

Proactive Strategies to Prevent Costly FMLA Mistakes

A reactive approach to FMLA is a recipe for trouble. Proactive, consistent management is the key to minimizing risk. Clear, comprehensive, and legally reviewed FMLA policies are non-negotiable. These policies should be detailed in an employee handbook that is easily accessible to all employees, outlining their rights and responsibilities.

Be sure to keep accurate and organized records of when the employee handbook was provided to employees, along with signed acknowledgement pages for each employee.

Supervisors are often the first to hear about a potential need for leave. They must be trained to recognize FMLA-qualifying situations and understand their critical role in the process, and, more importantly, what not to do, such as discouraging leave, retaliating against employees who take FMLA leave, or asking for improper medical details.

Managing FMLA, especially intermittent leave, is nearly impossible without a reliable system. Whether using specialized software or a detailed spreadsheet, accurate tracking of leave time and documentation of the entire process will help companies defend against potential claims.

The legal landscape is constantly evolving. Employers should regularly audit their FMLA practices, review documentation, and stay current on guidance from the Department of Labor and any changes to state and local laws to ensure their policies and procedures remain compliant.

Conclusion

Employees should familiarize themselves with their rights under FMLA as well as their employer’s FMLA policies. If you are an employee who believes your FMLA rights have been violated, you should consult with an attorney to better understand what legal avenues are available to you.

Employers should take proactive steps today to protect their business: consult with legal counsel, audit your current FMLA policies, schedule comprehensive training for your managers, and ensure your documentation and tracking systems are ironclad.

The Lipp Law Firm helps with workplace issues throughout DC, Maryland, and Virginia, for companies, HR, executives, and professionals.

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