As COVID-related work leave is ending and things gradually get back to normal, many workers still have FMLA leave for serious health conditions. The FMLA (Family and Medical Leave Act) grants certain workers 12 weeks of unpaid leave per year. Employers with at least 50 employees are required to offer FMLA leave to employees who have been with the company for one year and worked at least 1,250 hours during the previous year.
Valid reasons for taking leave under the FMLA include:
- The serious health condition of the employee or a close family member;
- “Qualifying” exigencies concerning military deployment of a family member; and
- Arrival of a new family member through birth, adoption, or foster care placement.
Although the FMLA has been federal law since 1993, many employers (intentionally and unintentionally) violate it. In light of COVID and virtual working arrangements, FMLA compliance can easily slip through the cracks for companies. Here are four common FMLA violations:
- Requiring employees to work while on FMLA leave.
The purpose of FMLA leave is to let workers deal with the reason for the leave. Qualified companies are not doing workers a favor by offering FMLA leave—it is, after all, unpaid. Employers who ask workers to do some work on FMLA leave or so much as “check in” during the leave may be in violation of the law.
- Making FMLA leave as unexcused.
Policies regarding vacation and personal days vary among companies. Some employers let workers accrue a certain number of unexcused absences before disciplinary action. Generally, FMLA leave may not count as an unexcused absence for covered employees.
- Requiring more than 30 days’ notice.
When FMLA leave is reasonable foreseeable for covered employees, they typically must let their employer know 30 days in advance. For instance, pregnant employees should have a good idea of when they will take FMLA leave.
Employers, however, are generally prohibited from requiring notice greater than 30 days. Similarly, employers are not always allowed to require 30 days’ notice. If the FMLA leave was not reasonably foreseeable, the employer must assess the facts of the particular situation and decide when to allow the leave.
- Not properly reinstating the employee.
As long as the employee took FMLA leave for a valid reason and can perform the job’s essential functions, he or she is entitled to reinstatement of the job or a similar position. Similar positions must have comparable pay, benefits, job duties, and work schedule.
Not providing an employee who took FMLA leave with a satisfactory position and benefits could land an employer in legal trouble. The law provides for some reinstatement exceptions, but employers occasionally violate these safe harbors.
A Professional Employment Law Firm is Your Best Resource
As Florida welcomes transplants from across the country, workers continue to shuffle between employers and make strategic decisions about their careers. Depending on an employer’s virtual work policies, urbanites might be thinking about buying cheaper homes in suburbs or exurbs. No matter where employees are working from, FMLA still applies to many companies.
Salas Law Firm is prepared to represent employees and employers in FMLA disputes. Our team helps ensure the law is followed and guides clients through complex legal processes. To schedule a consultation today, call us at (954) 315-1155.
John Salas
