The most common FMLA violations by employers include:
- Denying FMLA leave requests for a covered employee
- Guilt tripping you into not taking your leave
- Changing your work hours to avoid giving you FMLA benefits
- Limiting your career because of FMLA use
- Asking you to continue your work life while on FMLA (e.g., teleworking)
- Retaliatory actions, such as termination for using FMLA time
- Stating your leave isn’t covered
- Constantly contacting you during leave
- Not reinstating you to your previous position or equivalent position
- Mandating notice requirements of more than 30 days
- Not recognizing your notice for FMLA
- Not informing employees of their rights
- Discontinuing health insurance
- Delaying reinstatement to your position
- Delaying reinstatement of your benefits
A covered employer under the family medical leave act may not take adverse action when an eligible employee exercises their leave rights or returns to work. Any violation of an employee’s FMLA rights is considered unlawful, and subject to legal action.
Unfortunately, it’s easy for employers to forget or ignore employee’s rights under FMLA. Fortunately, I put together this guide to help walk you through your options and help you identify if your employer is violating your rights.
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Common violations of the FMLA by employers
The family medical leave act protects you with an entitled leave of absence for:
- Birth of a child
- Adoption or foster care
- To care for a direct family member with a serious health condition
- Medical reasons which make it difficult to perform the employee’s job
- An urgency arising from a direct family member on covered active duty or call to active duty status.
Under Federal Law, an employer cannot deny you your job-protected leave if you are a protected employee. Should your employer be in violation of the FMLA, you can:
- Contact your states department of labor
- File a FMLA interference claim
- Contact an FMLA attorney
- Discuss the violation with your HR managers
Let’s take a look at the common reasons in which employers violate FMLA regulations.
#1 Denying leave for FMLA-eligible employees
An employer cannot deny FMLA leave under any circumstances if the employee:
- Works for a company that meets the requirements of FMLA
- Has a legitimate reason to take FMLA leave
- Has gone through the proper channels to receive the leave
Employees have rights and are protected under FMLA. When granted leave, they can take it without:
- Disciplinary actions
- Career-limiting practices
- Being asked to work from home or complete part-time work. Denying leave for FMLA eligible employees would be an FMLA violation by employers.
Employers covered under FMLA include:
- Local, State, and Federal public agencies
- Private sector businesses with 50 or more employees who work 20 workweeks in the current or preceding calendar year
Suppose an employee works for an FMLA employer. In that case, they are eligible for FMLA leave if they have completed 1,250 hours of work within the past 12 months and have medical documentation from a physician explaining the amount of medical leave required. If all these stipulations are in place, the employer cannot deny FMLA leave.
#2 Attempting to make you not take FMLA leave
If an employee is eligible for FMLA leave, they are protected under the law to take that approved leave. Sometimes, employers may try to guilt employees into not taking leave. Doing so is in complete violation of FMLA and is considered FMLA interference.
For example, an employer attempting to coerce the employee into not taking leave for scheduled surgery.
A physician may tell the employee they must have major surgery in one week with FMLA-approved leave. The employer cannot request that the employee reschedule the surgery to a week that best serves the employer, such as off-season or a less busy time of the year.
#3 Changing your work hours to avoid FMLA
For an employee to be eligible for FMLA leave, they must have worked at least 1,250 hours within the 12 months before the start of their leave. If an employer is cutting an employee’s hours so they won’t qualify, that is considered one of the FMLA violations by employers.
The 1,250 hours only include hours worked for the employer and do not include paid, unpaid, and FMLA leave.
#4 Limiting your career due to using FMLA
Employees covered under the FMLA leave should not face disciplinary action or be limited in their career for taking their legal, approved leave. One common career limit is counting FMLA leave days as absences and using this against employees in performance reviews, bonuses, or rewards for perfect attendance.
FMLA should not affect or limit the employees’ careers in any way. If an employer attempts something like this, it is considered FMLA retaliation and is illegal.
#5 Expecting you to work while on FMLA
While an employee is on FMLA leave, the employer is strictly prohibited from asking the employee to work. This includes coming into the office or working from home or remotely.
It may seem insignificant for an employer to ask an employee to check a quick email, but the reality is that FMLA employees are protected and shouldn’t be expected to work while on leave. Unfortunately, this is a common FMLA violation by employers, but it puts undo stress on the legally covered employee and should not be happening.
#6 Termination from using FMLA
It is an employee’s right to take FMLA for medically necessary reasons, and the company and employee are approved to receive it. Employees who take this legal leave cannot be fired for using their approved leave.
Employees also can’t face disciplinary or career-limiting action for taking their leave. Upon returning to work, they must be given the same or nearly identical job as before, including:
If an employee gets terminated after using or returning from FMLA leave, this is considered a wrongful termination and is protected under the rule of law.
#7 Stating your leave isn’t covered under FMLA
The right of an employee to take a leave covered under FMLA is determined by FMLA laws and the medical information given by a physician. It is not within the employer’s right to determine what is covered. Instead, they need to follow the proper protocol.
Once an employee asks for medical leave and gives the proper notice and documentation, the employer must submit it to the FMLA, which will determine whether the employee’s leave is covered. It is one of the FMLA violations by employers if they tell an employee their leave isn’t covered under FMLA when it in fact, is.
#8 Constantly contacting you while on leave
Communication between the employer and employee is encouraged and can help with transitions in and out of FMLA leave, but constant contact is unnecessary. The amount of communication depends on the employee’s specific leave.
This may require the employer to be updated as often as every month or as little as six months. This type of communication is usually in regards to updating medical information to determine the employee’s amount of leave.
Suppose an employer is constantly trying to communicate with the employee about work. In that case, this is taking away their leave and could add extra stress to their medical condition or situation. Constantly contacting an employee on leave violates FMLA rights and should not be tolerated.
#9 Your employer doesn’t give you an equivalent position after FMLA leave
The FMLA states that employees should receive their exact job position or one equivalent after their leave once they return to work. The position must have the same duties, salary, benefits, and worksite.
Refrain from allowing your employer to give you a job with more duties with the same pay, a position at another worksite, or give you fewer benefits or life insurance. This is illegal and considered FMLA discrimination.
#10 Requiring employees to submit longer notice than is required
Employees requesting time off for a foreseeable medical leave are only required to give 30 days’ notice. Requiring any longer is illegal.
In some cases, FMLA-protected leave is due to a medical emergency needing unforeseeable leave or a leave of fewer than 30 days. These are determined on a case-by-case basis. Unfortunately, this is one of the common FMLA violations by employers, with some stating they require no less than 60 days’ notice to approve FMLA leave. This statement is in complete violation of FMLA.
#11 Not recognizing your FMLA notice
Once an employee gives their employer an FMLA notice, it is the employer’s responsibility to notify the employee of their FMLA eligibility within five business days.
The employee isn’t even required to mention FMLA by name. All the employee has to do is ask for leave with enough information to prove it falls under FMLA protection. It is the employer’s responsibility to realize it is an FMLA request and act accordingly.
An example is if an employee asks for time off for chemotherapy but doesn’t specifically ask for FMLA leave. The employer should treat the request as FMLA leave based on the information. Not recognizing it as such is an example of FMLA violations by employers and should not be accepted.
#12 Employers not informing employees of their legal rights
Employers covered by FMLA, either because they are a government agency or have more than 50 employees within 75 miles of the workplace, must have a notice posted explaining employee rights under FMLA. This notice should be displayed conspicuously in the workplace where employees can see it and know their rights.
Also, employers should openly tell all new employees about their FMLA rights.
#13 Discontinuing health insurance coverage
By law, employers must keep their employees on the same health insurance plan even during their FMLA leave, but employers can require their employees to contribute. The bottom line is FMLA covered employees should still receive the same health insurance benefits throughout their leave, and a loss of coverage is one of the FMLA violations by employers.
#14 Not giving your job back immediately
Per FMLA law, employees must be given the same or an equivalent job back on the exact day they return to work as long as that employee gives the proper notice of two business days to their employer.
Usually, the employer and employee have ongoing communication throughout the leave, and the employer should be well aware of the employee’s return and have the same or equivalent job position for the employee immediately.
#15 Not giving you your benefits back immediately
Some employee benefits may be temporarily disbanded while the person is on FMLA leave, such as life insurance coverage. Still, employers must reinstate all benefits immediately once the employee returns to work. This can also include earned benefits such as perfect attendance and seniority, which should be put back in place immediately upon the employee’s return to work.
A good employer knows when to give employees time to recover so they can make a speedy re-entry into the workforce. However, not all employers respect your rights or may just be negligent. Always try to work things out with your employer before doing anything drastic, like legal action.
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