3 common FMLA mistakes … and how to avoid them

The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave annually for the birth or adoption of a child, their own "serious illness," or to care for a spouse, child or parent with a serious illness.

But while the law has been on the books for more than 10 years, court rulings continue to fine-tune its requirements for employers.

Here are three common mistakes employers make (based on recent important rulings) and strategies to avoid liability:

Mistake 1: Failing to understand employees' full FMLA rights. The law allows eligible employees to take FMLA leave to care for family members with serious conditions. Courts have recently interpreted the term "care for" to include "psychological comfort and reassurance."

The case: Truck driver Joseph Scamihorn took FMLA leave to help his father recover from depression. Scamihorn performed household chores, drove his father to doctor appointments and provided assistance in "working through" the depression.

FMLA Compliance D

When Scamihorn returned to work, his employer forced him to start over as a probationary employee with no seniority. Scamihorn sued and the court sided with him, saying that the comfort he provided his father fit the law's "care for" provision.

Strategy: Don't waste time debating the type of care employees will provide to seriously ill family members. You can, however, still request medical certification that the care the employee intends to provide is medically necessary.

Mistake 2: Failing to recognize 'hidden' triggers to FMLA. Typically, employees must notify employers of their need for FMLA leave. But a federal appellate court recently said the notice requirement could be excused if the employee is unable to provide it because of a serious medical condition.

The case: A highly regarded employee began to sleep on the job and take frequent breaks. Soon after, he was diagnosed with severe depression. When he attempted to return to work, the employer refused and ultimately fired him.

He sued under FMLA. The employer argued that the employee never gave notice of leave, as FMLA requires. But the court sided with the employee, saying that unusual behavior exhibited by an until-then excellent employee may, by itself, be sufficient notice that the employee has a serious medical problem. The court said the employee's depression may have kept him from requesting leave. Therefore, notice was "not feasible" and was unnecessary.

Strategy: Recognize that dramatic changes in an employee's performance or attendance could indicate the presence of a serious condition that qualifies for FMLA protection. Take the initiative to discuss the need for FMLA leave with the worker.

Mistake 3: Failing to use all available enforcement tools. You can deny FMLA leave when an employee fails to provide a qualifying reason for the leave. Also, you can ask for a second (and, in some cases, a third) medical certification.

Most important, you should know that an employee's right to reinstatement under FMLA is not absolute. Courts have said that employers can fire employees on FMLA leave for policy violations or poor performance, as long as the employee would have been fired regardless of the leave.

The case: An employee was fired for working at his wife's restaurant during his FMLA leave. The court upheld the firing, based on the company's written policy that prohibited unauthorized work during leaves of absence.

Strategy: Well-written, consistently enforced policies are critical to supporting your organization's decisions involving FMLA.

Maria Greco Danaher, Esq., heads the Employment and Labor Law Group for the Pittsburgh law firm Dickie, McCamey & Chilcote, and regularly counsels corporate clients. Contact her at danahem@dmclaw.com.