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Common FMLA mistakes made by employers

For employers, navigating the Family and Medical Leave Act (FMLA) can seem like a minefield. There are myriad details and legal technicalities to keep in mind.

Employers must be careful to avoid mistakes when dealing with employees who use FMLA. Making a single mistake, no matter how innocent, could lead to a contentious, time-consuming and expensive legal battle. These are a few common mistakes made by employers regarding FMLA.

Counting intermittent FMLA as absence

Employers are not allowed to count an employee's intermittent FMLA as absence. Even if an employee's attendance has been subpar, it is not legal for employees to conflate this with FMLA leave. When you are tracking an employee's absences, make sure you do not count their FMLA use as well.

Failing to accurately track FMLA

Intermittent use of FMLA can be difficult to track. But it is still necessary to carefully measure all of an employee's FMLA time. Some employers choose to have human resources track employee's FMLA leave because it can be difficult to calculate accurately. To determine an employee's total intermittent FMLA, it is helpful to keep accurate, up-to-date records.

Replacing the absent employee

Sometimes, it is necessary to hire a temporary replacement for an employee on FMLA. But when the worker returns, they are entitled to the same job or one that is equivalent in pay, responsibility and benefits. If the temp is doing a better job, the employer may be tempted to fire the old employee and hire a new one. But this is very risky--it could lead to an FMLA-based retaliation claim.

Timing a demotion or firing poorly

When it comes to demoting or terminating someone who has used FMLA, timing is everything. Disciplining, demoting or firing someone immediately after they have used FMLA could easily lead to a lawsuit. Employers must act with caution and time their decision carefully.

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