Mastering Application of the Family and Medical Leave Act: Avoiding common pitfalls associated with gray areas

As any HR leader knows, applying the Family and Medical Leave Act (FMLA) is often not a straightforward process. While some cases are clear cut, there are many others involving nuance, gray areas, and other circumstances that can add up to confusion. Unfortunately, this often leads to costly mistakes and misapplication of the law.

Guardian Absence experts Rene McDonald and Accai Bailey joined forces recently to present a webinar breaking down some of the subtleties around FMLA cases and common mistakes that can plague HR departments. Here are the most frequent errors they identified:

Not reviewing FMLA eligibility immediately

Often, employers put off reviewing FMLA eligibility and/or don’t provide employees with the required FMLA documents immediately, which puts them at risk of violating Department of Labor (DOL) timelines. This can often arise if an employee is taking intermittent absence.

Rubber-stamping leave requests

Some HR departments adopt the practice of approving all leave requests to avoid conflict and compliance issues, and to be more flexible and empathetic toward their employees. While well-meaning, this can lead to FMLA leaves being wrongly approved, because the employee isn’t eligible (for example, because the employee has not yet worked at the company long enough). This can backfire if the employee then has another situation arise shortly thereafter that warrants taking FMLA leave.

If it’s an employer’s goal to offer more generous leave policies to employees – which is laudable – a better move would be to create a separate company policy that includes leave options for employees who aren’t eligible for FMLA.

Using calendaring methods improperly

There are four calendaring methods available to employers: calendar year, fixed year, rolling forward, and rolling backward. All methods have pros and cons, but sometimes employers mix methods, which creates inconsistencies. For example, an employer uses the calendar method to track FMLA entitlement, but neglects to refresh an employee’s FMLA “bank” on January 1 if the employee is already out on leave.

Not knowing the latest DOL guidance on remote workers

With the pandemic, the way in which we work has drastically changed, resulting in more employees working remotely on a permanent basis. While the FMLA itself doesn’t address remote workers, the DOL has provided guidance around remote workers. Specifically, an employee’s personal residence is not a worksite for employees who work at home by telecommuting (29 C.F.R. § 825.111(a)(2). Further, “[f]or employees with no fixed worksite … the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”¹

Confusion around integrating state and short-term disability (STD) benefits

It’s important for HR managers to understand how both paid and unpaid leave benefits can apply in conjunction with state leave plans, so they can direct employees to the appropriate resources. STD benefit durations are often either longer or richer than state paid programs, so they should always be evaluated concurrently.

One way to ensure compliance with all applicable leave laws is to work with a carrier who can administer both state benefits and STD. That way, the vendor can support the employer and ensure that employees receive all applicable benefits – STD, FMLA, and state leave programs, if available.

For more detail around these common pitfalls and to test your knowledge, tune into the on-demand replay of our FMLA FAQs webinar to walk through some gray-area scenarios with Rene and Accai.