Skip to content

What are the 5 Most Common FMLA Violations? 

January 9th, 2020 Emma O'Connor

fmlaThe Family Medical Leave Act (FMLA) guarantees that certain employees have up to 12 weeks of unpaid leave every year with no threat of job loss in the event that they or their immediate family member is diagnosed with a specific medical condition. For example, some situations in which employees are eligible include the birth or adoption of a child; the need to care for one’s spouse, child, or parent with a serious health condition; the need to receive medical attention for one’s own health condition; or the need to care for an immediate family member who obtained a serious injury during their service in the military. Although FMLA has been around for 20 years, these 5 violations are still prevalent amongst employers. 

1) Failing to Recognize an FMLA Request 

Employees do not have to directly ask for “FMLA leave” or any other legal synonym in order to qualify for FMLA.  Employees must only give enough information for the employer to know that their leave would be covered by FMLA. For example, an employer must realize that an employee who asks to care for a newborn child is covered by job-protected FMLA leave.  In other words, it is the employer’s burden to recognize that an employee is entitled to FMLA leave.

2) Confusing FMLA Leave with Working from Home 

FMLA strictly prohibits your employer from asking you to complete any work while on leave.  While some employers hesitate to have any communication with their employees at all, communications regarding updates with the employee are allowed and encouraged.

3) Not Handling Employee Benefits Properly 

Employers must maintain employee health insurance while they are one leave, but they can require employees to contribute.  Any benefits that an employee accrued prior to or during leave must also be continued. This includes seniority, perfect attendance, or automatic cost of living increases.  While certain benefits like life insurance can be paused during FMLA leave, they must be immediately reinstated upon the employee’s return. 

4) Counting FMLA Leave Days as Absences 

Family medical leave cannot be used against employees in performance reviews.  They also cannot be counted towards a predetermined amount of absences that, if exceeded, results in disciplinary action.  As mentioned, bonuses or rewards for perfect attendance cannot be withheld due to FMLA leave. 

5) Reinstating an Employee to a Lesser Position 

Employees who return from family medical leave must be reinstated to their identical or equivalent positions.  In other words, their positions must have the same benefits, salary, duties, worksite, etc. Employees must be reinstated to their identical or equivalent job on the day that they return to work as long as they gave their employer two business days’ notice. 

Seek Legal Assistance 

If your employer is violating your right to FMLA leave, the Working Solutions Law Firm, located in New York City, can assist you. Contact us today at (646) 430-7930 to schedule a free case evaluation and receive experienced legal counsel.  You don’t pay unless we win.