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Don’t Make These FMLA Mistakes

If you’re a public agency or a company with 50 or more employers, you may feel intimately familiar with the Family and Medical Leave Act (FMLA). But do you know it as well as you think you do? FMLA provides certain employees up to 12 weeks of unpaid, job-protected leave each year for the birth of a baby or for serious health conditions. But that’s where the simplicity stops. Take a look at the following areas employers often get wrong when it comes to adhering to today’s FMLA regulations.

  1. Overly customizing the forms. If you use the FMLA-related forms and notices provided directly by the Department of Labor (DOL), rest assured those documents are valid until August 31, 2021. But the use of those forms isn’t mandatory and many employers prefer to customize them to integrate into their own corporate branded onboarding materials. While it’s recommended to copy and paste the wording used by DOL into your customized documents, editing isn’t necessarily illegal as long as it doesn’t “cause harm” by misleading employees. Therefore, any changes should be reviewed by your company’s legal counsel just in case.
  2. Assuming only doctors know best. Medical doctors aren’t the only health care providers who may certify FMLA leave. As SHRM points out, podiatrists, dentists, clinical psychologists, optometrists, and chiropractors can all certify leave, as can nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and certain Christian Science practitioners. However, be sure the provider is licensed to practice in the state and that no other clues that the leave could be fraudulent are present (a dentist certifying leave for a broken toe, for instance).
  3. Not staying updated on the latest changes. From time to time, the DOL will release opinion letters that offer clarification around certain common issues with the FMLA. Last year it released two opinions: one deems organ donation a qualifying condition for leave and the other approves the freezing of an employee’s no-fault attendance record while they’re on leave. So, while the federal FMLA forms may not change for a while, new opinions could change the way you handle certain situations.
  4. Not returning the employee to an equivalent job. FMLA asserts that an employee returning from FMLA leave must receive the same or an “equivalent” job. According to the DOL, an equivalent job is one that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location). So while you may have had to restructure a position or department to accommodate the employee’s absence, that’s not an excuse to onboard them into a different position unless the original position is (and would have otherwise been) discontinued or the individual is considered a “key” employee who is among the highest-paid 10% of all your local-area employees.

Make no mistake, these common problems are just the tip of the iceberg. The changing landscape surrounding mental health conditions, the rights of same-sex spouses, and added protections for the family members of active-duty military are often mishandled within the context of FMLA, too.  It’s important to review requirements and your understanding of those requirements regularly.