Although enacted more than 25 years ago in 1993, the Family and Medical Leave Act (FMLA) still presents numerous challenges for employers. In light of changes in the U.S. Department of Labor’s (DOL) FMLA regulations over the past several years, many employers are making mistakes that put them at risk for violations and fines through the Department of Labor. This article will cover some of the most common mistakes employers make so that they can avoid them when enforcing FMLA.


It is important for employers to have a written FMLA policy as the FMLA allows employers to decide specific guidelines around the FMLA leave. One of those is that employers can define the 12-month period under FMLA. The FMLA entitles eligible employees who work for covered employers to take unpaid job-protected leave during a defined 12-month period for specified family and medical reasons. Generally, an employer may select one of four options to establish the 12-month period: (1) the calendar year, (2) any fixed 12 months, (3) the 12-month period measured forward from the first date an employee takes FMLA leave, or (4) a “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

This is important because unless an employer defines the method of 12-month calculation for FMLA, employees will usually choose a calendar method. This means that technically an employee can take the last 12 weeks of the calendar year off and the first 12 weeks of the new calendar year. Unless the employer has already defined and notified employees of the methods of FMLA 12-month period, employees can choose to take their leave this way.

  1. Failing to communicate your FMLA policy and procedure

Many employers assume that employees already understand or know about their rights under FMLA. However, as an employer, you must inform employees about their rights under FMLA. According to the ruling in Carl L. Thom Jr. vs. American Standard Inc. the court goes far as to suggest that employers must also communicate the procedure by which leave needs to be taken and how you are tracking employees’ time (i.e. rolling calendar year measured forward/measured backward etc.). Even misinforming employees of the time in which they are eligible for FMLA can be a liability.

Employers are required to notify employees of their FMLA leave rights in two separate ways. First, employers must post FMLA rights for employees. This can happen electronically in an employee self-service portal or it can be physically posted at the employer’s business location in a commonly used area. Secondly, employers must notify new employees of FMLA rights upon hire. The notice can be included in an employee handbook, on a form, or it can also be provided in an electronic format. Employers should not automatically assume employees will know if an employer is a covered employer under FMLA or what the employee must do to qualify.

  1. Failing to Confirm when Employees will Become Eligible for FMLA

To be eligible for FMLA leave, an employee must (a) have been employed by a covered employer for at least 12 months, (b) have worked at least 1,250 hours during the 12-month period immediately preceding start of the FMLA leave, and (c) be employed at or within 75 miles of a worksite where 50 or more employees are employed by the same employer. A court recently extended FMLA rights to an otherwise ineligible employee merely because the employer’s policy didn’t include all of the eligibility criteria. Therefore, you should update your policy to reflect all three eligibility requirements.

  1. Failing to Follow FMLA Requirements Regarding Employee Medical Certifications

An employee is never required to provide his employer with extensive medical records. However, the employer does have the right to request a Medical Certification (to be completed by the treating physician) that sets forth sufficient medical facts to establish the existence of a serious health condition. If an employer has suspicions about the duration or appropriateness of leave, it may require a second (or third) opinion for initial certification purposes; it can also request a re-certification at a later date.

  1. Making assumptions about an employee’s health condition

Making judgments about whether employees have a serious health condition or not without the necessary information can be disadvantageous. Employees may present clear signs of a serious health problem or the condition may be less visible. Identifying a qualifying “serious health condition” can be as difficult for many employers. “Serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, including any period of incapacity subsequent treatment related to the inpatient care or, continuing treatment by a healthcare provider if certain conditions are met (incapacity of more than 3 consecutive days with treatment 2 or more times, or at least one treatment plus ongoing treatment).

Routine medical or dental exams and, unless there are complications, cosmetic treatment, colds, flu, earaches, upset stomachs, etc., are not “serious health conditions” unless complications develop or inpatient care is required. An employee who is incarcerated or incapacitated for drug or alcohol abuse isn’t entitled to FMLA.

  1. Taking Adverse Action Against employees for taking FMLA leave

Taking any adverse employment actions, such as demotion, termination, failing to promote, benefit reduction, etc., against employees upon their return from FMLA leave is retaliation, and is the number one cause of all FMLA complaints with the EEOC. Also denying a request for FMLA leave and then taking adverse action against the employee can also be considered as retaliation. While adverse action may have already been in the works and may be completely justified, the employee could view the FMLA leave or the request for FMLA as the reason for the adverse action. Since the courts and EEOC are very sensitive to such retaliation, the timing of the justified and reasonable adverse action should be taken in to consideration prior to any adverse employment action.

  1. Failing to keep exact records of FMLA leave

FMLA puts the burden on employers to keep detailed records or risk repercussions for non-compliance. If employers don’t accurately count FMLA leave, then an uneven distribution of leave could occur among employees. This could leave the employer open to a discriminatory lawsuit if some employees are inadvertently given more leave than other employees. It could also mean that absences that should be FMLA leave are not counted as FMLA leave and that the employee gets punished or held back from promotions because of those absences.

  1. Untrained Managers Who Don’t Understand FMLA Leave

Some managers are not trained well enough about FMLA to recognize an FMLA leave or to understand the protection that employees gain from the law. The courts have consistently ruled that if an employee provides enough information to the employer for the employer to know that the leave should have been FMLA covered, that the employer must abide by FMLA law. This means that if an employee mentions a serious health condition and a manager doesn’t recognize the leave as FMLA qualified, the employer might be found out of compliance. This could be as simple as an employee taking time off work to care for a parent who had an overnight stay at the hospital.

Another aspect of untrained managers is that employees may be given repercussions from taking FMLA leave because they don’t realize that FMLA time is protected or don’t realize that certain absences are covered under FMLA. Employers who retaliate against an employee for absences that should be counted as FMLA absences will be found non-compliant and will be liable for all penalties and fines.

  1. Failing to correctly deal with Intermittent & Reduced Leave

FMLA leave allows for intermittent FMLA leave. If an employee requests FMLA leave in hourly or daily increments for a serious health condition of the employee or his/her family member, an employer cannot deny this request. Also, intermittent FMLA leave could include an adjusted work schedule, part time work, or adjusted work duties. However, if an employer is allowing an employee to take an intermittent leave with reduced work duties, they must remember that an intermittent leave is optional. Employees can still request actual leave time as FMLA leave.

  1. Failing to provide to reasonable accommodation

Although FMLA only allows for 12 weeks of unpaid leave, some employers may need to explore other reasonable accommodations following FMLA leave if employees have a disability or medical condition that is protected under the Americans with Disabilities Act (ADA). Under ADA, an extension of unpaid leave could be a reasonable accommodation in some circumstances. Oftentimes, both FMLA and ADA apply, especially when serious health conditions are present.

Should you have any questions about the FMLA or any other laws that may affect your business, or would like to schedule a consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law, Collaborative Divorce & Mediation.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

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