FMLA Fundamentals: From employer responsibilities to the cost of mismanagement
Read more from the Guardian Absence Management blog
Even though the Family Medical Leave Act (FMLA) is more than three decades old and many employers may be familiar with the basics, it’s no secret that applying the law isn’t always so easy. This is especially true in the era of remote work and as an ever-growing number of leave types, including state Paid Family Medical Leave (PFML) laws, may further complicate the leave landscape, changing and evolving almost by the week.
In our recent webinar, Guardian's Regional Absence Practice Leader, Accai Bailey, and Absence Product Consultant, Tracey Collins, came together to help reorient employers around the fundamentals of the law, outline employer rights and responsibilities, and talk about the potentially high costs of FMLA mismanagement.
Brushing up on the basics of FMLA
The FMLA is a federal law enacted in 1993 that provides employees with protected, unpaid leave of 12 weeks in a 12-month period for certain qualifying events or conditions, provided they:
have at least 12 months of employment
have worked at least 1,250 hours in the prior year
work at a location within 75 miles of an employee worksite
Employers who must adhere to the law include any public employer or school, as well as private employers with 50+ employees.
The challenges that employers cite in managing leave are changing with the evolving landscape. While “keeping up with state and local leave laws” unsurprisingly comes in at number one, “transferring employees to alternative positions” is rising in the ranks of employer-led headaches — and is one possible result of the remote-work environment impacting roles and org structures. “Coordinating all absence types” and “determining eligibility for FMLA requests” round out the top four.1
Employer responsibilities
When it comes to the responsibilities that employers face and the options open to them, the role of communication cannot be overstated. “A theme you’re going to see through the employer side is communication,” says Collins. “Maintaining benefits really is the beginning of communication. So, if you have an employee who is going out on leave, you need to communicate to them how they are able to maintain their benefits.”
While certain employers may be required to maintain group health insurance coverage for their employees under FMLA leave, they may also require employees to pay their share for the coverage under any one of several payment option arrangements — always allowing for a 30-day grace period for a delinquent payment. If the employee does not end up returning to work, however, employers may be able to recover their premium.
Except in the case of contingencies for “key employees” — those employees who are the top 10% of earners at a company, whose absence could cause financial “grievous harm” to the employer — the employee’s status must pick up exactly where it was when they return to work.
“The law requires that an employee returning from FMLA leave be restored to their original job or to an equivalent job with equivalent pay, benefits, terms, and conditions,” says Bailey. “Think of it like a board game. When someone is playing a game and they call time out, everything on that board game pauses. And when they return, they say, ‘time in,’ and we’re picking up right where we left off. The same type of concept applies to FMLA.”
The cost of FMLA mismanagement
One of the most common type of employer FMLA violation is discrimination — for example, disciplinary action for leave — followed by denial of leave, and failure to reinstate a returning employee to the same or equivalent position, pay, and benefits.2
There may be high costs for these types of violations or mismanagement, including those directly related to fines and penalties from violating the law, settlements and judgments awarded, legal fees, lost time, reputational damage, and negative impact on the work environment. For example, the average cost to defend an FMLA lawsuit is $80,000, and the average damages awarded are between $87,500 and $450,000.3
Watch the full webinar to learn more details around employer responsibilities for FMLA management, including areas of flexibility, an in-depth look at tracking methods, and explanations of what to do when the circumstances surrounding a leave request are ambiguous or questionable.