Why FMLA Interference and Retaliation Can Be A Costly Mistake
A common world proverb teaches us that “failures are the pillars of success.” That can be true in life. But for failures like FMLA interference, isn’t it better to learn from others so that you don’t endure the same outcome?
Take the Family and Medical Leave Act (FMLA). At its core, FMLA has a simple principle: employees should not have to choose between the job they need and the family members they love who need their care.
But HR professionals know FMLA is far from simple. All it takes is a single ill-informed manager or improper communication sent with careless haste, and suddenly it becomes a costly mistake. In this case, HR leaders are better off learning from the failures of others to build their pillars of success.
Oftentimes, delicate conversations take place when a leave of absence is requested, and a misplaced notion or wrong line of questioning, no matter how well-intentioned, can quickly become interference. HR managers, people managers, and company executives who make the wrong decisions with employees on FMLA can see their organization become ensnarled in lengthy and expensive lawsuits. If the organizations lose, the monetary stakes could be high.
So, what are some examples of FMLA interference and retaliation, and what are ways to avoid them? Let’s explore.
First, what is interference and retaliation under FMLA?
Stay with us, we’re about to give an overview of legal terminology.
FMLA is the federal law that requires many employers to provide eligible employees with unpaid, job-protected leave for qualified medical and family reasons.
It helps to understand the difference between FMLA interference and FMLA retaliation.
FMLA interference is when an employer (at any level of management) interferes with an employee’s ability to take FMLA leave or take part in any other federally guaranteed right as outlined by the law.
FMLA retaliation is when an employee participated in FMLA-protected activities and/or leave, and their employer penalized them for doing so. They must prove they were punished because of their FMLA leave participation to have a retaliation claim.
- Refusing to authorize FMLA leave when legally permitted
- Discouraging an employee from taking leave
- Requesting the employee complete work-related tasks while on leave
For an employee to have an FMLA interference claim, they need to prove:
- The employer somehow interfered, restrained, or denied FMLA rights the employee is entitled to, which includes proper notice delivery
- The interference directly resulted in monetary loss for the employee
Examples of FMLA interference and retaliation include:
- Interference: The employer mischaracterizes or provides misinformation regarding an employee’s FMLA, and it affects when/how an employee takes leave
- A few examples include:
- Telling an employee they can take FMLA leave if they agree to certain work conditions when they return
- Recommending an employee delay FMLA leave to complete a work project
- Interference: An employee is explicitly asked to work while on leave
- Interference: An employee is contacted on leave against their instruction and/or regarding work matters
- Retaliation: FMLA is considered as a negative during an employee performance evaluation
- Retaliation: Promotions or salary raises are denied due to an employee’s leave
Now that we’ve covered the difference between interference and retaliation and what it looks like, let’s get into why it matters so much.
So, what’s at stake?
Here’s where HR professionals and people managers will want to learn from the failures of others.
Aside from the time and expense of defending one’s company in court against claims of FMLA violations (which by some estimates averages $78k), those found guilty can incur significant fines.
In an extreme example related to FMLA retaliation, one employer in Massachusetts was fined $1.3 million after it fired an employee in good standing. The reason he was fired? He and his wife took a vacation to Mexico while he was on FMLA leave following surgery on his foot.
After the employee was fired, the organization was sued and lost. A jury concluded (and the state Supreme Court affirmed), that the employer’s HR director wrongly assumed the employee was abusing his FMLA rights. She thought that taking a vacation while on medical leave was not permitted. Her assumption was wrong. The employee was lawfully permitted to take a vacation as long his activities were within the limits of his doctor’s instructions (they were).
In an even bigger judgment related to FMLA retaliation, a Chicago jury awarded a longtime hospital maintenance worker a staggering $10 million in punitive damages and $750k in compensatory damages. In this case, the worker’s FMLA leave was not taken into account when the hospital evaluated his monthly work output relative to the other maintenance workers, and he was fired for poor performance.
Moreover, two of the hospital worker’s supervisors were deemed responsible by the jury, and the court ordered each to pay $450k in damages. So, a lot is at stake. Judgments amounting to millions of dollars are rare, but your organization could still face substantial fines, plus legal fees and the loss of time.
But don’t be too alarmed. Once you’re aware of what has gone wrong with others, you can quickly learn from their mistakes.
Here are 5 suggestions to help you avoid the FMLA legal sandpit
1. Create an FMLA playbook with managerial interference & retaliation no-go zones
Have a company FMLA playbook with basic protocols for the entire managerial staff in the organization
- Conduct a virtual or in-person annual/biannual managers’ meeting where the team reviews the company FMLA playbook
- The review should be both verbal and in writing
- Give all managers the ability to review and sign that they agree to the company policies
- If a manager doesn’t feel comfortable signing, HR should immediately reassign their FMLA leave responsibilities
- Ensure the playbook encompasses procedure, checklists, and form examples for the entire FMLA leave process
- Include it in new manager training and onboarding
- Explain at length what FMLA interference and retaliation are and give examples of how they can be triggered and avoided.
- If you have a leave platform like Sparrow, provide a live demo to show them how compliance is being updated with the latest regulations and managed according to each unique FMLA request.
2. Make sure your notices are in order and timely
With FMLA, there are 4 key notices required by law before, during, and after an employee requests leave:
- General Notice: Employers are required to post a general notice explaining FMLA as required by federal law. Be sure to provide it digitally on HR platforms and intranets, in employee handbooks, as posters in breakrooms or company notice boards, and send it via email as needed.
- Eligibility Notice: Either verbally or in writing, when an employee requests FMLA leave for the first time in any given year, the employer must notify the employee within 5 days of their eligibility status with an eligibility notice.
- Rights & Responsibilities Notice: Employers must also provide, in writing, notice to the employee about the employee’s rights and the employer’s responsibilities.
- Designation Notice: This notice is provided by employers to employees which specifically confirms that their leave qualifies as FMLA leave.
Failure to follow the notice requirements can be considered FMLA interference, so be sure to provide all the notices required.
Don’t forget: HR may also be required to provide notices in languages other than English depending on their workforce and may need to provide notices for sensory-impaired individuals.
3. Establish and follow consistent processes
HR managers are on the front lines of managing FMLA requests for the entirety of an organization. As such, they are best positioned to see if a company’s FMLA policies are inadvertently creating unlevel playing fields. To avoid an FMLA interference claim because of unequal employee treatment, make sure leave process applications remain consistent for all employees, particularly when it concerns payroll.
There should be no favoritism, only adherence to the relevant laws and regulations
4. Keep your composure
HR leaders should advise their people managers to not express any emotionally charged or careless thoughts in their written communications. It could come back to haunt your organization. A major bank got in trouble for this. If managers need to reference FMLA leave in any way with their employees, HR managers should advise them to pick up the phone and talk to the HR department about their concerns first.
Also, HR leaders and managers should not reach out to employees while they are on leave unless it relates to their leave documentation or to do a wellness check. And even in those circumstances, make absolutely sure there is no reference to work projects. It can be misconstrued as pressure to return to work.
5. Disciplining/terminating employees on or returning from FMLA
This is a tough one. No HR department wants this to happen, but it does occur.
Make it mandatory for all managers across an organization to require HR notification and leadership oversight if disciplinary action or termination is being considered for an employee who has taken FMLA leave. Vet this decision with the utmost care along with supporting documentation and rationale that has nothing to do with the taking of FMLA.
HR managers and the employee’s manager should have documented:
- A repeat pattern of underperformance
- Any company-wide layoffs occurring and how it directly relates (or does not relate) to the employee
- Consider if other employees are equally underperforming. If so, are they also being considered for termination? Why/why not?
Regardless - HR leaders and managers should consult a legal professional for any performance or termination conversations surrounding an employee who has taken FMLA leave.
By incorporating these 5 suggestions into your FMLA leave policies, we hope you can avoid the legal ramifications of FMLA mistakes and make the failures of others the pillars of your HR team’s success.
Finally, because all these steps might seem overwhelming, especially with so much at stake, consider an end-to-end leave management solution like Sparrow. Sparrow combines world-class leave specialists who help you navigate all of your leave programs, with a single, streamlined employer portal. Sparrow automates leave planning and paperwork so that you can feel confident every one of your leave policies will be compliant.