Avoid Litigation: 10 Fast Facts About FMLA


 (1) Private employers are subject to the FMLA if the business employs 50 or more employees within 75 miles of the worksite for at least 20 workweeks in the current or preceding calendar year.

(2) Employees (men and women) are eligible for FMLA if they have a “qualifying health condition,” which includes:

  • Birth of a child or need to care for a newborn child
  • Need to care for a family member with a serious health condition
  • Employee’s own serious health condition
  • Qualifying exigency arising out of active military duty of employee’s child, spouse, or parent

(3)  When FMLA leave is complete, an employee has the right to return to either the same position or an equivalent position, i.e., a position with equal pay, benefits, and working conditions.

(4)  FMLA covers incapacity for 3 or more consecutive days or a condition that requires periodic medical treatment over an extended period of time. Other short leave is covered by the employer’s sick-leave policy.

(5)   FMLA leave can be foreseeable or unforeseeable. If foreseeable, employers are entitled to at least 30 days advance notice of the need for leave or as soon as practicable. If the need for leave is immediate and notice is not possible, you still must grant the FMLA leave if the employee is otherwise eligible.

(6)  The FMLA is enforced by the Department of Labor. The regulations governing the act are part of the federal code of regulations. Unless you have taken the time to review and familiarize yourself with the Code, it is likely you are overlooking some of the Act’s requirements. For instance, did you know the Department of Labor places an affirmative duty on employers to notify an employee of their eligibility for leave within five (5) business days if the employer “acquires knowledge” that the leave may be for an FMLA-qualifying reason? In other words, you can’t wait for the employee to ask for the leave for which they may be entitled. You must advise the employee that he or she may be eligible for unpaid, job-protected leave.

(7) Did you know that in addition to displaying a posting about the FMLA at your office, you also have to provide written notice to employees’ of their rights under the FMLA? In other words, does your Employee Handbook spell out employee rights and your responsibilities?

(8) If you don’t advise an employee of his or her FMLA eligibility, you face claims of FMLA interference. FMLA interference includes scenarios where an employee is terminated for absences that were otherwise protected, or an employee being forced to return to work when he or she could otherwise have used additional time off to continue medical treatment. Damages for FMLA interference include lost wages and benefits, actual monetary losses, liquidated damages (double damages), attorneys fees, reinstatement.

(9) Are you aware of the risk of terminating an employee who is returning from FMLA leave? Similar to FMLA interference claims, FMLA retaliation claims carry significant financial consequences. Documentation supporting any adverse employment action against an individual returning from protected leave is essential.

(10) Employers have the right to request that medical certification be full and complete. If an employee requesting medical documentation returns a certification that fails to provide the information necessary to grant leave, the employer is entitled to ask for clarification or for the insufficiencies to be addressed. However, an employer must provide the employee with at least seven (7) calendar days to remedy the issue.

If you have questions on how best to avoid litigation and remain compliance with the FMLA, please contact me. To subscribe to this blog and learn more “fast facts” in the future, visit me here.