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FMLA myths that catch employers

Have you been spellbound by any of these?

Posted October 25, 2018

The FMLA has been providing employment law entertainment for over 25 years, confusing and confounding leave managers with its details (or lack thereof). Some provisions seem to sustain certain myths. Here are a handful.

  • The FMLA clock doesn’t start ticking until you are made aware of an employee’s need for leave.

The FMLA clock starts ticking when an employee puts anyone acting on behalf of the employer on notice of the need for leave. This could be the employee’s supervisor, as employees often inform their supervisor of the need for leave. In this situation, the clock starts when the supervisor is made aware of the leave, not when the HR department is made aware.

  • If a key employee’s leave poses a hardship, you may deny the leave.

Some employers believe that if an employee’s FMLA leave creates a burden on the company, the leave may be denied. The FMLA, however, includes no undue hardship defense for employers. While there may be situations in which FMLA leave may be denied (e.g., the employee didn’t provide a certification), undue hardship is not one of the situations. Even key employees are entitled to the leave; they may not, however, be entitled to reinstatement under limited circumstances.

  • You may request a certification for all reasons an employee takes FMLA leave.

You may request a certification if an employee takes leave that involves a serious health condition (the employee’s or a family member’s), for a qualifying exigency, or for military caregiver purposes. You may not, however, request a certification if leave is for bonding with a healthy child. This could include situations involving foster placement or adoption. If the child doesn’t have a serious health condition, a doctor would have little input on the condition or need for leave. You may, however, request reasonable documentation or statement of the family relationship. This could be a court document, birth certificate, or a verbal statement from the employee.

  • If an employee misses the 15-day window for returning a certification, he or she can be terminated.

Not in all cases. If an employee cannot meet the 15-day deadline due to extenuating circumstances, you need to be flexible. Many employers often provide an additional seven days, but how much more to provide will depend upon the specific facts involved. If, for example, an employee’s doctor is on a three-week cruise to the Mediterranean, you should not expect the employee to meet a seven-day extension.

  • Once an employee exhausts his or her 12 weeks of FMLA leave, he or she may always be terminated.

In such situations, while your FMLA obligations might cease after 12 weeks of FMLA leave, you likely have obligations under other laws, such as the Americans with Disabilities Act (ADA) — assuming the leave was for the employee’s own serious health condition. Providing leave beyond the 12 weeks of FMLA leave has been seen as a reasonable accommodation under the ADA. Many state laws also provide for leave.

Essentials of FMLAJ. J. Keller's Essentials of FMLA manual helps HR pros understand and comply with the FMLA rules, control costs related to leave taken, and minimize the law's potential disruption to their organizations' operations.


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