Here are Ten Problems with Your FMLA Policy and Suggestions on How You Fix Them

Jingle Bells is now a faint memory. Three weeks into 2020, we’ve made and already broken our New Year’s resolutions.

Is it a new decade, or is it not?

Who knows and who cares, right?

Whether or not you’ve broken that New Year’s resolution, the turn of the calendar is the perfect opportunity to update your key personnel policies. At the top of your list should be an in-depth review of your FMLA policy. I outline below a road map to audit your current FMLA policy.

Here are the ten (or so) problems we commonly find when reviewing employers’ FMLA policies, along with our recommended fixes:

1. Expanding leave entitlement by redefining threshold eligibility.  You’re likely familiar with that pesky eligibility requirement that requires your employees to work at a location where there is 50 employees within a 75-mile radius.  Perhaps due to oversight or harmless historical laziness, you have removed this critical eligibility requirement from your FMLA policy. It’s entirely possible that this is due to a conscious decision on your part to provide FMLA leave to all your employees no matter where they work. If this is not what you intended, however, you should ensure that this 50/75 requirement is included in your policy. When you don’t include this provision, you may not be able to claim the employee is ineligible later. Just ask this Kalamazoo, Michigan employer.
2. Improper identification and description of your FMLA leave year.  An eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. Notably, this “12-month period” is defined by the employer. But what happens when an employer fails to disclose the 12-month period in its FMLA policy? The employer is obligated to use the 12-month period that provides the most beneficial outcome for the employee.  To avoid this injustice, be sure to clearly identify and describe your 12-month period within your policy. If you are interested in my suggestion as to which FMLA leave year to choose, take a look at a previous post.
3. Inaccurate or non-compliant rules about required or permissive substitution of paid time off and/or disability benefits during leave.  As an initial matter, if you are exhausting an employee’s accrued paid leave concurrently with FMLA leave, be sure to include this requirement clearly in your policy. Additionally, if the employee is receiving STD or worker’s compensation benefits, neither the employee nor the employer may require the substitution of paid leave. Despite this requirement, some FMLA policies still provide for substitution of paid leave during periods of STD or WC benefits.  Edit this provision accordingly to comply with the law.
4. Failing to describe employees’ notice obligations (or failing to accurately capture difference between foreseeable and unforeseeable situations). There are oodles of you out there who still advise employees to “call as soon as possible” when requesting FMLA leave. Why on earth would you use such wishy-washy language? It’s of no help to you, as it effectively allows the employee to define when they are going to phone in an absence. This approach ends up frustrating you, since the employee calls whenever it’s best for them and there is little recourse for you. Ensure your policy clearly defines notice expectations for foreseeable and unforeseeable leave. As to foreseeable absences, you generally can require 30 days’ notice. As to unforeseeable leave, strongly consider establishing a set time before an employee’s shift begins (e.g., two hours before the shift starts) to report their absence. This approach helps you better plan your staffing, and it reduces employee misuse of FMLA leave. Consider this recommendation the proverbial low-hanging fruit.
5. Outdated information about military family leave entitlements. Remember when the National Defense Authorization Act of 2010, which amended the FMLA with respect to a few obscure reasons for  military family leave? [Yeah, I barely remember it myself.] At that time, parameters for the “rest and recuperation” and parental care obligations were adjusted as “qualifying exigencies,” along with a few other rules. Despite my recommendations some seven years ago, some of you still have not updated your FMLA policy. It’s never to late to change — go ahead and do it now!
6. Explanation of what happens if employee fails to pay benefit premiums during leave. The FMLA regulations have very specific rules for canceling an employee’s group health benefits while they are on FMLA leave. (29 CFR 825.212) As the regulations make clear, an employer’s obligations to maintain health insurance coverage ends if an employee’s premium payment is more than 30 days late. Before dropping coverage, however, the employer must provide written notice to the employee that the payment has not been received and that coverage will end in 15 days if the premium is not paid.  Why not include this expectation within your FMLA policy so employees are  well aware of this payment requirement?
7. Overstating fitness for duty requirements. Do you apply your fitness-for-duty certification requirements consistently?  You should. Do you require a fitness-for-duty certification when an employee is returning from intermittent leave? You shouldn’t, unless reasonable safety concerns exist regarding the employee’s ability to perform his or her duties.  Take a look and make sure you aren’t stating something different in your policy.
8. Failing to attach DOL’s FMLA Poster or include all of its detail in the policy. The Department of Labor long has taken the position that the entire contents of the  DOL’s “rights and responsibilities” poster must be included within your employee handbook.  To comply, we recommend that this poster be included within an appendix or the back of your employee handbook.
9. No state law addendums where required (e.g., California, New Jersey, New York, Connecticut, D.C.) that explain differences between employee rights and responsibilities under the main (federal law) policy and applicable state law. Where different leave laws apply to your employees, be sure to include within your personnel policies or handbook these state and local laws so that employees are fully aware of their rights and responsibilities.  In some states, these policies must be located within your handbook or personnel policies.
10. Leaving out descriptions of employer’s recertification and second/third opinion rights. See above. You want your employees to know that they may be subject to recertification and second opinions. So, simply put, include these provisions in the handbook so there are no surprises later. ‘Nuf said.

But wait, there’s three more! [I’m an attorney. Do you actually think I could limit myself to identifying only 10 problems?]

 1. Characterizing FMLA leave as “job-protected” without noting the employer-friendly qualifications. Many policies inform employees that they will be returned to the same or equivalent position at the end of their FMLA leave.  Case closed, right?  Wrong! Be sure to include in your policy the exceptions to the general rule that they will be restored to work, such as layoffs, shift eliminations, fraudulently obtaining leave, and occasions when the employee is unable to perform essential job functions. (29 CFR 825.216)

2. Leaving out a statement that FMLA fraud is prohibited.  Courts are increasingly relying on provisions within your policy prohibiting FMLA abuse when dismissing FMLA claims, so shouldn’t this be reason enough to add this admonishment in your policy.  Yes, it is.

I’ll even make this easier on you — here’s the precise language to use:

An employee who fraudulently obtains Family and Medical Leave from [the Company] is not protected by the FMLA’s job restoration or maintenance of health benefits provisions. In addition, [the Company] will take all available appropriate disciplinary action against such employee due to such fraud.

Similarly, if you want to prohibit an employee from working a second job, it is critical that you maintain a uniformly-applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. (29 CFR 825.216)

3. Lack of “Key Employee” provision – or, at least, disappearance from eligibility notice.  Ok, maybe I am getting slightly overzealous here, since few of you care about the “key employee” exception, and rightfully so. If you think there is even a sliver of a chance you would employ this exception in the future, be sure to include the provision within your policy and your eligibility notice.

I’m pooped.  Clearly, “being less verbose” was not one of my New Year’s resolutions.

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.