It continues to be a dangerous and expensive cocktail for businesses: employee supervisors and the FMLA.
It stems from the fact that supervisors are usually promoted to their positions because they were top performers or natural leaders — and not because they’re well-versed in HR law.
That leaves the burden on you, the HR and benefits professional, to train them on how to administer the FMLA.
It’s no easy task given the complexities of the law.
Don’t mention it
One of those complexities that can really trip up supervisors — and lead to problems that will cost their employers dearly: The fact that an employee doesn’t even have to mention “FMLA” for the law’s requirements to be triggered.
Case in point: Christine Dollar worked for Smithway Motor Xpress and suffered from depression. One day her depression worsened to the point where a friend had to take her to the emergency room, from which Dollar phoned her supervisor to indicate that she wouldn’t be at work that day.
The next day, she called her supervisor to inform him that she was seeking treatment at a mental health facility and had been given a doctor’s note indicating that she should be off work for another week.
Later, Dollar provided the note, which did indicate she was being treated for depression, to her employer.
In the weeks that followed, Dollar sought several extensions of her leave of absence, accompanied by doctors’ notes informing Smithway that she was suffering from depression.
The company then fired Dollar for not returning to her post.
You can probably guess what happened next: Dollar found a lawyer and sued the company, claiming it had interfered with her FMLA rights.
Took none of the required actions
Dollar claimed Smithway had received enough info to realize that her request for time off should’ve fallen under the umbrella of FMLA leave.
As a result, Smithway interfered with her rights by failing to provide her with a notice of her FMLA rights and an FMLA certification form, Dollar said.
Smithway, not having much ground to stand on, was found to be guilty of interfering with Dollar’s FMLA rights.
As a result, the court ordered Smithway to award her with back pay in the amount of $80,793 and statutory liquidated damages in the same amount — for a grand total of $161,568.
Spot the signs, issue notices
This case underscores the fact that supervisors need to be taught the signs that FMLA leave may be in play, such as:
- hints that an absence may be medical-related
- assertions that an employee has “been to the doctor”
- intermittent absences within a short period of time, and
- statements that an employee has taken time off to care for a family member.
None of those scenarios mentions “FMLA,” but it’s a pretty safe assumption that they’ll trigger FMLA obligations on the part of an employer.
If supervisors are still unsure whether an absence should be designated as FMLA leave, have them consult HR or err on the side of caution and assume it should be.
In cases when it’s believed FMLA may be in play, employees should always be provided with the following notices:
- Eligibility Notice: Following a worker’s notice that he/she could require FMLA leave, employers must notify that person of his or her right to take FMLA leave “within five business days” of learning of the request for leave. This notice also explains expectations and obligations of workers on leave, and warns them of consequences for failing to meet those requirements.
- FMLA Certification Form: After informing a worker of his or her rights under the FMLA, you’ll want to provide the person with a certification form that must be completed by his or her doctor as evidence that a medical condition exists qualifying them for FMLA leave. You must give the person at least 15 calendar days to return the form. And if it’s not returned, the employee’s leave is not FMLA-protected.
- Designation Notice: This is a written notice letting an employee know whether or not their leave will be designated and counted as FMLA leave. It must be provided within five days of when the employer has enough info to determine if the employee’s leave is FMLA-qualifying.