In recent years, the number of federal lawsuits filed under the Family and Medical Leave Act (“FMLA”) has been steadily increasing. In 2012, there were 406 new federal FMLA cases filed nationally. In 2013, that number more than doubled to 992; and, in 2014, there were 1115 FMLA lawsuits filed in federal courts throughout the country. After a record year for FMLA lawsuits, it is important for employers to review and re-evaluate their FMLA policies and procedures to avoid becoming part of the FMLA litigation statistics in 2015.
One possible reason for the dramatic increase in FMLA lawsuits is that employees are becoming more and more aware of their rights under the FMLA. Given that possibility, to minimize risk, you, as an employer, must make every effort to be in full compliance with the law and all of its nuanced, technical requirements. Plaintiffs may generally pursue two different theories of liability when bringing FMLA claims: (1) retaliation for having invoked their rights under the FMLA; or (2) interference with the exercise of their FMLA rights. Below is some guidance to help you navigate the murky waters of the FMLA and avoid being hit with either type of claim.
Centralize FMLA Compliance Functions
Your managerial employees undoubtedly have more than enough work to keep them busy without having to take on the added burden of administering FMLA leave. Also, unless they are trained HR professionals, it is unlikely that your managerial employees are familiar with the technical requirements of the FMLA. Therefore, whether it be designating a leave administrator internally or contracting with a third-party FMLA administrator, it is essential that you centralize your FMLA compliance functions. Once you designate an FMLA administrator, you should require that all employees direct their FMLA requests and inquiries to this person. Centralized FMLA administration will help to ensure that your FMLA policies and procedures are being followed uniformly throughout your organization.
Train Your Managers to Recognize When an Employee May Need FMLA Leave
The law does not require that an employee requesting time off to specifically say, “I need FMLA leave,” to trigger an employer’s obligation under the FMLA. It is enough that the employee provides the employer with sufficient notice of her possible need for FMLA leave – that alone can trigger the employer’s obligation to send a notice of eligibility and rights and responsibilities under the FMLA.
For instance, an employee may call her manager to advise that her mother has been hospitalized and that the employee will be out for a few days to care for her. If the manager is not familiar with what constitutes an FMLA qualifying event, he may mark the employee absent and never notify the designated leave administrator. If the employee has other attendance issues, these potentially FMLA-qualifying absences could lead to disciplinary warnings, and in some cases discharge, for excessive absenteeism. Such discipline would be fodder for an FMLA interference claim as the employer arguably denied her FMLA benefits to which she was entitled.
Therefore, to minimize the risk of unknowing FMLA violations such as this, you should train all of your managerial employees to recognize when an employee may be in need of, and potentially entitled to, FMLA leave. Managers should also be trained to contact the designated leave administrator immediately whenever they believe that an employee may be in need of FMLA leave.
Use the FMLA Forms Created By the Department of Labor
There is no need for you to reinvent the wheel and create FMLA compliant forms of your own. The United States Department of Labor (“DOL”) has created helpful forms that employers can use to comply with the FMLA notice requirements. For instance, the FMLA requires that covered employers post a general notice explaining the provisions of the FMLA in a conspicuous place and also provide all employees with this general notice by either including it in the employer’s handbook or other written guidance related to benefits and leaves of absence. The FMLA regulations specifically allow a covered employer to satisfy these requirements by duplicating the DOL’s WHD Publication 1420 for posting and circulating to the employees.
Additionally, once an employee makes a request for FMLA leave and/or the employer has notice of an employee’s possible need for FMLA covered leave, the designated leave administrator should immediately, but no later than five business days later, send the initial FMLA paperwork to the employee. The initial packet of paperwork should include the following:
- DOL Form WH-381 (Notice of Eligibility and Rights & Responsibilities, which serves as the Employer’s Response to the Request for Family and Medical Leave); and
- The applicable DOL Certification form: WH-380-E (Certification of Health Care Provider for Employee’s Serious Health Condition), WH-380-F (Certification of Health Care Provider for Family Member’s Serious Health Condition), WH-384 (Certification of Qualifying Exigency for Military Family Leave), WH-385 (Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave).
Upon receipt of a complete and sufficient DOL certification form, the designated leave administrator must immediately, but no more than five business days later, send DOL Form WH-382 (Designation Notice). By using the forms created by the DOL, you will be in a better position to defend yourself against a potential claim of failure to provide an employee with sufficient notice of his FMLA rights.
Proceed with Caution When Disciplining an Employee Who Has Recently Taken FMLA Leave
Simply because an employee has invoked his rights under the FMLA does not mean that he is immune from being disciplined for poor performance, non-FMLA related absences or other violations of company policy. However, if you are not careful when disciplining an employee who has recently invoked his rights under the FMLA, you could face an FMLA retaliation claim. As is the case generally, before issuing a disciplinary warning to or terminating an employee who has recently returned from FMLA leave, you should be careful to have previously documented his performance issues and to have consistently disciplined other employees for similar violations in the past. If you have never advised the employee that his performance is unsatisfactory, or if you have never disciplined any other employee for similar issues, then you may find it difficult to defend a potential FMLA retaliation lawsuit in the future.