The Family and Medical Leave Act (FMLA) was designed to protect employees from being fired for taking time off for a serious health condition of their own or a family member. Despite the federal regulations intended to close loopholes and make the FMLA process seamless, FMLA violations still occur. The types of violations vary, but employers, as well as employees, are guilty of missteps, abuse and misappropriation of FMLA absences.
Failure to Inform Employees of Rights
One of an employer's simplest obligations is informing employees of the rights under the FMLA. All it takes is handing an employee a fact sheet printed from the U.S. Department of Labor's website, directing the employee to a workplace poster or spending just five minutes of staff time to explain FMLA rules. But according to the department's Wage and Hour Division, this is a shockingly common violation of the law.
Excess Scrutiny by Employers
Companies that rely on every staff member being present and productive may cringe when they learn that FMLA regulations guarantee up to 12 weeks of time off – albeit, unpaid time off – and guarantee the employee willy still have a job after being off for three months. Granted, the time off is unpaid, but reassigning staff, training replacement workers or leaving a position vacant can be a hardship that some employers just don't want to deal with. This leads to employers over-scrutinizing employee eligibility for leave, asking for unnecessary second and third opinions from medical providers and ultimately denying leave to eligible employees who truly need the time off.
Discharging Employees While on FMLA
If an employee doesn't return from FMLA leave, they may be terminated in FMLA retaliation. But there must be documentation concerning FMLA leave dates, the employee's return-to-work date and proof that the employee failed to return to work. The most egregious violations of FMLA regulations occur when an employer simply discharges an employee during the leave of absence or gives notice that the job is no longer available when he or she returns from leave. In 2008, the U.S. District Court for the Northern District of Georgia awarded several million dollars to an employee after his employer refused to approve his FMLA leave and finally fired him for asserting his rights under the FMLA.
Abuse of the Intermittent Leave Option
Employers aren't the only ones guilty of FMLA violations. Employees who work the system also know how to abuse FMLA leave. Intermittent leave options – meaning an employee doesn't take a block of time, but instead takes a day here, a day there – are ripe for abuse. Benefits specialists must pay careful attention to administrative details of intermittent leave, because FMLA abuse examples involve an employee who routinely takes off a Monday or a Friday to extend the weekend. Slack accounting of time by human resources and benefits staff can lead to not deducting enough time from the employee's paid time off or overlooking proper deductions of time without pay.
- U.S. Department of Labor: Family and Medical Leave Act
- FMLA Insights: Abuse of FMLA Leave
- Workforce: Wait, an Employer Can’t Fire an Employee on FMLA Leave Caught on Facebook on Vacation?
- U.S. Department of Labor. "The Family and Medical Leave Act of 1993." Accessed Sept. 4, 2020.
- U.S. Department of Labor. "The Family and Medical Leave Act of 1993, Sec. 104." Accessed Sept. 4, 2020.
- U.S. Department of Labor. "Fact Sheet #28: The Family and Medical Leave Act." Accessed Sept. 4, 2020.
- U.S. Department of Labor. "The Family and Medical Leave Act of 1993, Sec. 2." Accessed Sept. 4, 2020.
- U.S. Department of Labor. "Temporary Rule: Paid Leave Under the Families First Coronavirus Response Act." Accessed Sept. 4 2020.
Ruth Mayhew has been writing since the mid-1980s, and she has been an HR subject matter expert since 1995. Her work appears in "The Multi-Generational Workforce in the Health Care Industry," and she has been cited in numerous publications, including journals and textbooks that focus on human resources management practices. She holds a Master of Arts in sociology from the University of Missouri-Kansas City. In addition, she earned both the SHRM-Senior Certified Professional (SHRM-SCP), through the Society for Human Resource Management, and certification as athe Senior Professional Human Resources (SPHR) through the Human Resources Certification Institute. Ruth also is certified as a facilitator for the Center for Creative Leadership Benchmarks 360 Assessment Suite, and is a Logical Operations Modern Classroom Certified Trainer . Ruth resides in North Carolina and works from her office in the nation's capital, Washington, D.C.