FMLA rules put HR pros to the test: 5 pitfalls to avoid

When it comes to laws that require HR pros to put on their thinking caps and really think things through, the federal Family and Medical Leave Act is near the top of the list.

From eligibility issues to how to calculate leave to pay-related questions, the issues that can come up really run the gamut.

Here are five pitfalls to avoid when it comes to administering FMLA leave.

1. Miscalculating leave involving holidays

How are employers supposed to calculate FMLA leave entitlement when an employee takes leave during a week that includes a holiday?

An applicable FMLA regulation makes it clear that if an employee takes a full workweek of FMLA leave during a week that includes a holiday, that employee uses a full week of FMLA leave – even though the week has a holiday within it.

What happens if an employee takes FMLA leave for less than a full week during a week that includes a holiday?

In that case, the holiday would not count as FMLA leave – unless the employee was scheduled to work on the holiday and took FMLA leave instead.

The DOL has explained that when FMLA leave is used as a fraction of a workweek, the fraction is calculated by reference to the actual week during which the leave was taken – and that actual workweek includes the day of the holiday.

Example: An employee works Monday through Friday. Tuesday is a holiday, and the employee takes FMLA leave on Wednesday. This employee has used 1/5 of a workweek of FMLA leave – and not 1/4 of a workweek — because the holiday counts as part of the workweek.

2. Not paying exempt employees properly

The FMLA only requires unpaid leave. However, it allows employers to require employees to use accrued paid leave, while also allowing employees to choose to do so.

If a salaried employee uses intermittent FMLA leave, the employer may deduct the leave time from the employee’s pay.

Let’s say a salaried employee works 40 hours a week and takes four hours of unpaid FMLA leave during a week. In that case, the employer can deduct 10% from the employee’s pay for that week.

3. Paperwork and notice-related missteps

Within five days of learning of an employee’s need for FMLA leave, employers must give the employee a written rights and responsibilities notice.

Employers can require employees to support their request for FMLA leave relating to a serious health condition of the employee as well as a serious health condition of the employee’s parent, spouse, son or daughter.

This requirement must be stated in the rights and responsibilities notice. The employee generally has 15 calendar days to provide the requested certification.

The DOL has advised, however, that if an employee does not provide the certification within 15 days despite their best efforts to do so, they are entitled to additional time.

This is an important rule to remember: Essentially, the 15-day deadline is not always a hard deadline.

Another important point: If the employee misses the 15-day deadline without good reason, those first 15 days of leave are still FMLA-protected.

Example: For no good reason, an employee does not submit requested certification until day 60 after the employer requests it. Leave taken in days 1-15 of that 60-day period is FMLA protected, while the rest is not.

If a requested certification is provided but is incomplete or insufficient, the employee generally gets seven calendar days to fix it.

Again, however, the DOL says this is not a hard deadline. Instead, the agency advises that the employer should provide more time if the employee is making a good-faith effort to comply with the request.

Generally, employers can ask for recertification not more often than every 30 days. In all cases, they can ask for recertification every six months.

4. Getting eligibility wrong

Employees are eligible for FMLA leave if they have worked for a covered employer for at least 12 months and 1,250 hours before the leave begins. They must work at a location where the employer retains at least 50 employees within 75 miles of that worksite as of the date when they ask for leave.

Here’s an important point that may cause employers to mistakenly conclude that an employee is not eligible: The required 12 months of employment do not need to be consecutive months.

In addition, if an employee is maintained on a payroll for any part of a week, that week counts as a week of employment.

Also remember that part-time, seasonal and temporary work all generally count toward the 12-month requirement.

When there is a break in employment of seven years or more, the time before the break generally does not count toward the required time. Exceptions apply in cases involving military service and applicable written agreements indicating otherwise, such as a collective bargaining agreement.

5. Replacing workers for using leave

This one’s pretty basic, but some employers still get it wrong: During a period of FMLA leave, an employee’s job is protected. That means you can’t move to replace an employee just because they took FMLA leave.

A recent real-life example: The DOL determined that an employer wrongfully terminated an employee after they exercised their right to take protected FMLA leave.

According to the agency, the employer circulated a job posting for the employee’s position just a few hours after receiving the employee’s FMLA certification letter.

That’s a big no-no.

When the employee was ready to return to work, the DOL said, the employer called the employee into a meeting and told them it was not renewing their contract to work.

The cost to the employer of those alleged mistakes: $61,224.