By: Chris W. McCarty
The Family and Medical Leave Act (“FMLA”) continues to present significant compliance challenges for employers, particularly when managing intermittent leave requests and avoiding retaliation claims. Employers should ensure managers and HR professionals understand both the operational requirements of the law and the litigation risks that can arise from improper administration of leave.
The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave during a 12-month period for qualifying family and medical reasons. To qualify, an employee generally must have worked for the employer for at least 12 months, completed at least 1,250 hours of service during the preceding 12 months, and work at a location where the employer has at least 50 employees within a 75-mile radius.
Qualifying reasons for FMLA leave include the birth of a child, placement of a child for adoption or foster care, the employee’s own serious health condition, caring for a spouse, child, or parent with a serious health condition, qualifying military exigencies, and military caregiver leave. In certain military caregiver situations, eligible employees may take up to 26 weeks of leave.
One of the most straightforward forms of FMLA leave is continuous leave, which involves a single uninterrupted block of time away from work. Employees generally must provide 30 days’ notice when the need for leave is foreseeable, and employers may require medical certification within 15 calendar days when reasonable and practicable. Employers are required to maintain health benefits during leave and restore employees to the same or an equivalent position upon return. Employers must also timely provide required notices, including the Notice of Eligibility and Rights and Responsibilities (Form WH-381) and the Designation Notice (Form WH-382).
Intermittent leave, however, often creates the greatest administrative difficulty for employers. Intermittent leave allows employees to take leave in separate blocks of time or through a reduced work schedule and commonly arises in situations involving chronic health conditions, pregnancy-related conditions, recurring medical treatments, or ongoing care for family members. Employers may track intermittent leave in the smallest increment used for other forms of leave, may request periodic recertification, and may temporarily transfer employees to alternative positions in certain circumstances. Employees, however, remain entitled to FMLA protections, and employers must avoid policies or practices that discourage the use of protected leave.
FMLA retaliation claims remain a significant source of litigation risk. The law prohibits employers from interfering with, restraining, or denying the exercise of FMLA rights and also prohibits retaliation against employees who request or take protected leave. Common retaliation claims arise when employees are terminated shortly after taking leave, receive negative performance evaluations tied to absences, experience schedule or duty changes, or are excluded from opportunities after returning from leave.
Several recurring issues frequently create liability exposure for employers. Courts often closely examine situations where discipline or termination occurs shortly after FMLA leave, where managers make negative comments about employee absences, where employers count protected leave under attendance policies, or where employers apply policies inconsistently. Inadequate documentation or shifting explanations for employment decisions may also create the appearance of retaliatory motive and increase litigation risk.
To reduce exposure, employers should train supervisors on recognizing potential FMLA issues, ensure consistent administration of leave policies, communicate clearly with employees throughout the leave process, and carefully document all decisions and interactions relating to leave requests. Employers should also review attendance policies and disciplinary practices to ensure protected leave is not improperly considered when making employment decisions.
Ultimately, effective FMLA administration requires both legal compliance and practical consistency. Employers that proactively manage leave requests, maintain accurate documentation, and avoid retaliatory conduct are in a far stronger position to minimize disputes and defend against potential claims.