26.3% surge in FMLA lawsuits (2014): Why the “epidemic” of FMLA lawsuits?

Posted on 05-18-2015 by
Tags: Trending News & Topics , Labor & Employment , Employment Law

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According to an article by LaborDays, the Administrative Office of the US Courts reported an alarming 26.3% jump Family Medical Leave Act (“FMLA”) lawsuits in 2014. This comes after an increase in the preceding two years: 291 cases (2012) and 877 cases (2013). In 2014, the jump resulted in 1108 FMLA lawsuits.

  • FMLA statute has become more widely known as the Department of Labor expands its reach and publicizes the law.

  • FMLA definition of a “serious health condition” is (unfortunately) very broad and very easy for employees to satisfy.

  • Once certified, employees can take a FMLA day and cannot be disciplined for poor attendance. This ends up being a very convenient way for employees who want to take more time off to get that time off, without fear of discipline.

  • Many FMLA lawsuits are the result of ignorance of the law or frustration by employers (or both).

So what should the employers do to combat this?

The best way to combat these issues is to not only know the law yourself, but to educate Human Resources or outside counsel about the rights so they can monitor your employees’ behavior:

  • Be as aggressive as the law allows when certifying leave. The FMLA does allow an employer to request more information from an employee and the employee’s physician, if the original FMLA application is not “sufficient.” 29 C.F.R. §825.307.

  • Once leave is certified, monitor the use. Make sure managers require the employees to tell them when they are using a FMLA day. If the number of days used are more than was originally requested or predicted, you may then have the right to go back and request re-certification. 29 C.F.R. §825.308.

  • If you suspect abuse of intermittent or other FMLA leave, you may have the right to investigate and discipline the employees. This is a tricky area, as you need some good faith basis for the belief. You would be well advised to ask outside counsel before taking action. 29 C.F.R. §825.216(d).

  • Educate your managers. Make sure that those who supervise employees are generally aware of the FMLA, know how to recognize a possible serious health condition, and know that they need to involve Human Resources when a possible FMLA issue arises.

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