This paper was written and presented by Ashley E. Tremain at the 2012 Annual Convention of the National Employment Lawyers Association (NELA) in San Diego, CA. The convention is attended by hundreds of employment lawyers from around the U.S. The paper was also included in the course materials for the ALI-CLE's 19th Annual "Current Developments in Employment Law" advanced course in Santa Fe, NM. Ms. Tremain is an employment attorney with the Kilgore + Kilgore law firm with offices in Dallas and New York.
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Certain types of FMLA claims are brought fairly regularly – for example, failure to return the employee to a substantially equivalent position after leave, and retaliation for taking leave. There are, however, many other errors that employers commonly make when implementing the FMLA. Although these errors all constitute actionable "interference" with an employee's FMLA rights, they are often overlooked by employers. The FMLA contains a large number of meticulous rules that covered employers must follow. Its requirements are more numerous and more detailed than those set forth in Title VII, the ADA, the ADEA, and other employment statutes.
TOP TEN ERRORS IN FMLA IMPLEMENTATION
Failure to Post Notice of Rights:
Under 29 CFR § 825.300(a), every employer covered by the FMLA is required to post a notice of rights. Few employers take care to abide by this rule.
They must keep the notice posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. The poster and the text must be large enough to be easily read and contain fully legible text.
If an FMLA-covered employer has any eligible employees, it must also provide this general notice to each employee by including the notice in employee handbooks or other written guidance to employees, or by distributing a copy of the general notice to each new employee upon hiring.
An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $110 for each separate offense.
Failure to Provide Eligibility Notice:
Under 29 CFR § 825.300(b), when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must provide the employee with notice of the employee's eligibility for leave. It must provide this notice within five business days after receiving notice of the employee's need for leave. Many employers fail to provide notice within this time period, or fail to provide it at all.
Note: The employer's obligations are triggered as soon as it receives notice that an employee needs leave, and that the leave "may be" for a qualifying reason. The burden is on the employer here – the employee does not need to use any "magic words" or definitively prove that the leave qualifies under the FMLA. If there's a chance that the leave "may" qualify, the employer must provide the notice.
If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible, including as applicable the number of months the employee has been employed by the employer, the number of hours of service worked for the employer during the 12-month period, and whether the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. Often, employers will send a one or two sentence letter which simply states that the employee is not eligible (and often this type of letter is not sent in a timely manner). This type of notice is insufficient. If eligibility is denied, the employer must be specific about the reasons why.
Note: The notification of eligibility may be oral or in writing. However, the notice of rights and responsibilities that must accompany the eligibility notice (discussed below) must be written.
Under 29 CFR § 825.300(c), employers must also provide a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. This notice must be provided to the employee each time the eligibility notice is provided (discussed above).
If the FMLA leave has already begun, the notice must be mailed to the employee's address of record. The document must include notice of the following:
- That the leave may be designated and counted against the employee's annual FMLA leave entitlement if qualifying and the applicable 12-month period for FMLA entitlement;
- Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to do so;
- The employee's right to substitute paid leave, whether the employer will require the substitution of paid leave, the conditions related to any substitution, and the employee's entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave;
- Any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis ( i.e. , the circumstances under which coverage may lapse);
- The employee's status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial
- The employee's rights to maintenance of benefits during the FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave; and
- The employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.
Note: Employers are required to responsively answer questions from employees concerning their rights and responsibilities under the FMLA. 29 CFR § 825.300(c)(5).
Failure to Provide Designation Notice:
Under 29 CFR § 825.300(d), the employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee.
When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated as FMLA leave within five business days. If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination. The designation notice must be in writing.
Note: The eligibility and designation notices are two separate requirements. The eligibility notice must be provided first, as soon as the employer receives notice of the need for potentially qualifying leave. Once the employer receives enough information to determine whether the leave does in fact qualify, it must provide the designation notice.
The designation notice must also state: (1) whether the employer requires paid leave to be substituted for unpaid FMLA leave; (2) whether paid leave taken under an existing leave plan will be counted as FMLA leave; and (3) whether the employer will require the employee to present a fitness-for-duty certification to be restored to employment; and (4) if so, whether the employer will require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the employee's position.
Note: If the employer requires the fitness-for-duty certification to address the employee's ability to perform the essential functions of the job, it must include a list of the essential functions of the job in the designation notice.
Failure to Elect a Counting Method:
When the employer provides the eligibility notice, it must inform the employee of the applicable 12-month period for FMLA entitlement. 29 CFR § 825.300(c)(1)(i).
The employer has several options for determining when this 12-month period begins to run:
- The calendar year;
- Any fixed 12-month “leave year,” such as a fiscal year, a year required by State law, or a year starting on an employee's “anniversary” date;
- The 12-month period measured forward from the date any employee's first FMLA leave under paragraph (a) begins; or,
- A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave as described in paragraph (a).
W29 CFR § 825.200(b). Employers can choose any one of these alternatives, but its choice must be applied consistently and uniformly to all employees. An employer wishing to change counting methods is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act's leave requirements.
Note: If an employer fails to select one of these options, the option that provides the most beneficial outcome for the employee must be used. 29 CFR § 825.200(d).
This is one reason why a fully-compliant eligibility notice is so important. Employers often fail to notify employees of their chosen counting method, and then attempt to retroactively choose a method once the employee has already begun leave, or after the employer decides to terminate. In this situation, the employee is entitled to the method which gives him the most amount of leave – not whatever method the employer chooses.
The employer may select a new option only by providing 60-days' notice to all employees of the option the employer intends to implement. During the running of the 60-day period, any other employee who needs FMLA leave may use the option providing the most beneficial outcome to that employee.
Failure to Document Dispute Resolution:
Note: If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employer. Such discussions and the decision must be documented. 29 CFR § 825.301(c).
Often, employers will unilaterally determine that an employee's leave does not qualify for protection under the FMLA, and then notify the employee of that decision. Employees should, in all circumstances, inform the employer of their disagreement with that decision. Doing so triggers an obligation on the part of the employer to attempt to resolve the dispute, and to document the dispute resolution process. The employer's failure to do so constitutes actionable interference with the employee's FMLA rights if the failure harms the employee (for example, if the employee is terminated because her absences are denied FMLA protection). 29 CFR § 825.301(e).
Failure to Understand the Certification Process:
An employer may require that an employee's leave be supported by a certification issued by the health care provider of the employee or the employee's family member. 29 CFR § 825.305(a). An employer must give advance notice of the requirement for a certification, and the notice must be written. Id. At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification. 29 CFR § 825.305(d).
Note: The employer cannot require a certification unless it has given the written notice, and as such, cannot terminate an employee for failing to provide adequate certification if it has not provided the written notice.
In most cases, this notice should be provided at the time the employee gives notice of the need for leave, or within five business days thereafter. 29 CFR § 825.305(b).
Once the employee receives notice of the requirement to provide a certification, it must provide the certification to the employer. In all instances in which certification is requested, it is the employee's responsibility to provide the employer with complete and sufficient certification. 29 CFR § 825.306(e).
Note: Many employees mistakenly believe that their obligations are fulfilled once they give the certification form to their doctor – not so. Even if the certification is given to the health care provider, it is the employee's responsibility to ensure that the provider gets the form to the employer on time.
The employee must provide the requested certification to the employer within 15 calendar days after the employer's request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts, or if the employer provides more than 15 calendar days to return the requested certification. 29 CFR § 825.305(b).
Note: The employer's failure to comply with 29 CFR § 825.300(c)(5) (requiring them to responsively answer questions from employees concerning their rights and responsibilities) can easily make it "not practicable under the particular circumstances" to return the certification on time – precluding the employer from terminating the employee on that ground.
The medical certification from a health care provider may be required to set forth the following information:
- The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization;
- The approximate date on which the serious health condition commenced, and its probable duration;
- A statement or description of appropriate medical facts regarding the patient's health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment; If the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of the employee's job as well as the nature of any other work restrictions, and the likely duration of such inability;
- If the patient is a covered family member with a serious health condition, information sufficient to establish that the family member is in need of care, and an estimate of the frequency and duration of the leave required to care for the family member;
- If an employee requests leave on an intermittent or reduced schedule basis, information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of the treatments, periods of recovery, or episodes of incapacity; and/or
29 CFR § 825.306(a). Employers may not ask health care providers for additional information beyond that required by the certification form. 29 CFR § 825.307(a). Once the employee submits the certification, the employer may not request additional information from the health care provider, except for the limited purposes of:
- clarification (“contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response.”) or
- authentication (“requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider”).
Id. It may do so only after giving the employee the opportunity to cure any deficiencies in the certification (see below). Id.
Note: Under no circumstances may the employee's direct supervisor contact the employee's health care provider. 29 CFR § 825.307(a).
Note: While an employee may choose to comply with these requirements by providing the employer with an authorization allowing the employer to communicate directly with the health care provider, the employee may not be required to do so. 29 CFR § 825.306(e).
Failure to Allow Cure of Insufficient Certification:
As set forth above, the employee must provide a complete and sufficient certification to the employer if the employer requests it. If the employer finds the certification to be incomplete or insufficient, however, it cannot simply deny the leave on that ground.
Note: The employer must advise the employee whenever the employer finds a certification incomplete or insufficient, and must state in writing what additional information is necessary to make the certification complete and sufficient. 29 CFR § 825.305(c). The employer must provide the employee with seven calendar days to cure any such deficiency. Id.
The employer may also be required to allow the employee more than seven days to cure if it is "not practicable under the particular circumstances despite the employee's diligent good faith efforts." Id. Only if the deficiencies specified by the employer are not cured in the resubmitted certification may the employer may deny the taking of FMLA leave. Id.
Very often, employers will unilaterally decide that an employee has failed to provide the required certification, and that the employee's absences were therefore unprotected under the FMLA (and therefore in violation of the employee's absence policy and grounds for termination). The FMLA, however, places a heavy burden on the employer to work with the employee to obtain the certification, including giving second chances. Unless an employee has utterly failed to even attempt to comply, certification issues are rarely a justifiable excuse for termination.
Excessive Contact with the Employee on Leave:
An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. 29 CFR § 825.311(a). It may not, however, ask the employee to perform work related tasks, or excessively contact the employee with requests for status reports or other information. Doing so constitutes actionable interference with the employee's right to take leave.
Improper Use of the Fitness-For-Duty Requirement:
As a condition of restoring an employee whose FMLA leave was occasioned by the employee's own serious health condition that made the employee unable to perform the employee's job, an employer may have a uniformly-applied policy or practice that requires all similarly-situated employees (i.e. , same occupation, same serious health condition) to obtain and present certification from the employee's health care provider that the employee is able to resume work. 29 CFR § 825.312(a)
An employer may seek a fitness-for-duty certification, however, only with regard to the particular health condition that caused the employee's need for FMLA leave. 29 CFR § 825.312(b).
If the employer requires that the certification specifically address the employee's ability to perform the essential functions of the employee's job, it must provide the employee with a list of the essential functions of the employee's job no later than with the designation notice. 29 CFR § 825.312(b). Failure to do so precludes the employer's ability to require the certification.
As in the certification process, the employer may contact the employee's health care provider for purposes of clarification and authentication. The employer may not, however, delay the employee's return to work while contact with the health care provider is being made. No second or third opinions on a fitness-for-duty certification may be required. 29 CFR § 825.312(b).
Note: The employer may not terminate the employment of an employee while awaiting such a certification of fitness to return to duty for an intermittent or reduced schedule leave absence. 29 CFR § 825.312(f).
Failure to Consider the Requirements of the ADA:
The FMLA explicitly recognizes that after an employee returns from FMLA leave, requirements under the Americans with Disabilities Act (ADA) still apply. 29 CFR § 825.312(h). In other words, if the employee's serious health condition may also be a disability within the meaning of the ADA, the employer is required to consider, as a reasonable accommodation, the provision of additional leave after the expiration of the FMLA leave.
Note: An employee should never be terminated simply because he is unable to return to work after the expiration of his FMLA leave. When the employer does this, it leaves the door wide open for failure to accommodate claims under the ADA.
The ADA also requires any medical examination to be job-related and consistent with business necessity. For example, an attorney could not be required to submit to a medical examination or inquiry just because her leg had been amputated. The essential functions of an attorney's job do not require use of both legs; therefore such an inquiry would not be job related. An employer may require a warehouse laborer, whose back impairment affects the ability to lift, to be examined by an orthopedist, but may not require this employee to submit to an HIV test where the test is not related to either the essential functions of his or her job or to his/her impairment.