Everyone Makes (FMLA) Mistakes
By Darlene Clabault
On the surface, the FMLA seems so clear and easy: Eligible employees of covered employers are entitled to up to 12 weeks of FMLA leave in a 12-month period for certain qualifying reasons.
But the devil is in the details — or sometimes in a lack thereof. Therefore, mistakes happen, even for the best of us. For example, the FMLA process begins when an employee puts you on notice of the need for leave. But what does that "notice" look like? Do employees need to specifically mention "FMLA" to invoke their rights?
Employees may provide "notice" of the need for leave in many different ways. For example, in one case, an employee named Ray began reading and sleeping on the job. At one point, a coworker found Ray asleep in a secure room. After checking security logs, the company learned that Ray frequented that room. To further investigate, the company installed a camera, which revealed on the first night, that Ray spent about three hours reading or sleeping. The next night, Ray spend almost six hours sleeping in the room.
On the day that managers tried to discuss the matter with Ray, he left early and indicated that he would be out for the rest of the week. The employer tried to call Ray, but he did not answer any calls. His sister, however, did, and she indicated that Ray was very sick.
Long story short, Ray was fired, but the court ruled that his unusual behavior was itself notice that something had gone medically wrong, and the employer should have provided him FMLA leave.
Ray never mentioned the FMLA or specifically asked for leave. Ray did, however, say he was going to be out, and his sister mentioned that he was sick. According to the court, all this was enough to put the employer on notice of the need for leave.
While employees need not mention the FMLA or otherwise affirmatively invoke their rights under the law, in most cases, they will do more than sleep on the job. But employers, including managers and supervisors, need to be aware of what might constitute notice under the FMLA.
Other FMLA detail-related missteps could include:
- Managers and supervisors who forget to inform the FMLA administrator that an employee provided notice of the need for leave;
- Employees who don't always provide complete and sufficient certifications on time;
- Employees who take unforeseeable, intermittent leave making production more difficult; or
- Having reason to believe an employee's absence might not be for a real FMLA-qualifying reason (FMLA fraud!??).
And these are just a few examples. Unfortunately, some mistakes can be quite costly if an employee were to file a claim. Even failing to put up the FMLA poster can cost you $163 per offense.
Beyond a poster fine, a violation could result in an employee (plaintiff) receiving wages, reinstatement, monetary loss because of the violation, equitable relief, and so on. Fancy words for "expensive." Of course, if you were to be involved in a claim, the time spent to defend your company would also be a factor.
Copyright 2017 J. J. Keller & Associates, Inc. All Rights Reserved.