Top avoidable leave of absence mistakes

By Higginbotham on November 07 , 2019

GettyImages-judge gavel

The Family and Medical Leave Act (FMLA) gives covered employees the right to take time off for qualified family and medical reasons. Employers who do not understand the intricacies of this law may land themselves in hot water.

FMLA Basics

Under the FMLA, covered employees are entitled to job-protected leave for specified family and medical reasons. This time can be unpaid, but employees are entitled to group health insurance coverage, and the terms and conditions cannot change based on leave.

During a 12-month period, covered employees are entitled to 12 workweeks of leave for the following reasons:

  • The birth of a child and care for a child within one year of birth
  • Care of an adopted or foster child within one year of placement
  • Care of a spouse, child or parent with a serious health condition
  • A serious health condition that prevents the employee from performing the essential job duties
  • Exigencies arising from the covered active duty of a spouse, son, daughter or parent who is a covered military member

Additionally, 26 workweeks of leave are required if the employee needs to care for spouse, parent, son, daughter or next of kin who is a service member and who is ill or injured.

FMLA Lawsuits

When employers do not follow FMLA laws, they may be exposed to lawsuits. Here are some recent examples:

  • A former principal sued the Highlands School District for allegedly discriminating against her and other employees who took FMLA, according to the Pittsburgh Post-Gazette.

  • A woman suffering from postpartum depression sued the Boston University. According to Good Morning America, she was granted extended maternity leave, but when her difficulties continued, her employer fired her rather than provide reasonable accommodations. She was awarded $144,000 in compensation.

  • According to HR Morning, an employee won a $1.3 million case after he was fired for supposedly abusing FMLA by taking a vacation while on leave. The jury found that employee was following doctor’s advice during leave, despite the vacation to Mexico.

Common (and Avoidable) FMLA Mistakes

Common mistakes can result in FMLA problems. As lawsuits have shown, these mistakes include the following:

  • Making personal judgments. Employers don’t get to follow their personal beliefs when deciding who deserves leave or how the leave should be spent. You might be annoyed that an employee is taking a fun vacation while on leave, but this doesn’t necessarily break the FMLA rules. Go by the facts, not your feelings.

  • Thinking responsibilities end with FMLA. Employees are entitled to job-protected leave. This means that taking leave cannot put their job in jeopardy. If employees think they are being discriminated against because they took leave, they may sue. Additionally, employees who have exhausted their FMLA leave may still have relevant legal rights, such as those guaranteed under the ADA.

  • Not understanding the law. In order to follow the law consistently, you need to understand the law. You also need to ensure that all managers and HR professionals who may deal with leave questions understand the law. You want to be able to prove that you’ve followed the law with accurate documentation and tracking. The DOL provides an Employer Guide with detailed information on the FMLA.

Have questions? Need guidance? Contact our HR Services Team.

Subscribe to Higginbotham Emails

Tags: Employee Benefits


Follow us on Twitter