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Don’t delay! Doing so puts your company at risk

Delaying requested FMLA leave results in a visit from the DOL

Posted April 2, 2021 

Do you meet the FMLA’s deadlines? At least one employee of a company was unhappy with the way the company managed FMLA leave, particularly in relation to leave requests, and talked to the U.S. Department of Labor (DOL) about it. According to the allegation, the employer’s leave request procedure required five levels of review before reaching human resources, typically one month later, with some employees waiting for months regarding their requests. Oops.

Once an employee puts the employer on notice of the need for leave, the employer must provide the employee with an eligibility/rights & responsibilities notice within five business days.

While employers may request that employees provide a certification (or other documentation) supporting the need for leave, once that is received, the employer has another five business days to provide the employee a designation notice. This informs the employee whether the reason for the leave qualifies for FMLA protections. Delaying the leave can easily be seen as interfering with an employee’s rights.

Employees generally have at least 15 days to provide a certification, so delaying leave by months won’t cut the FMLA muster. The allegation goes on to indicate that the employer subjected employees to illegal disciplinary actions while those employees waited for their leave to be designated. Taking such action can easily be seen as retaliation for exercising FMLA rights.

So, this employer had both interference and retaliation issues.

The employer apparently also required second opinions of employees, which is fine, but it used an in-house doctor. For second opinions, employers may choose the doctor, but the doctor may not work for the employer on a regular basis. Finally, this employer based its designation determination on the second opinion and often denied leave.

Because the leave request process affected many employees and the employer had thousands of employees, the DOL took even more issue with it. As a result, this employer (likely on demand by the DOL):

  • Revamped its leave request process to provide a response to employees within 24 hours.
  • No longer routinely requires second opinions
  • Created a reference guide for leave specialists,
  • Scheduled joint training sessions with the DOL (doesn’t that sound like fun?), and
  • Removed all adverse actions against employees the procedure caused.

Friends, unless you and your company would like to jump through these types of hoops, don’t let your processes undermine your compliance. Take the FMLA deadlines seriously. We’re here to help.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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