Managing Employee Leave: 7 Real-World FMLA Scenarios You May Encounter

In most cases, the decision to approve or deny an employee’s request for time off is reasonably straightforward. Does the employee have available PTO? Did he or she follow established procedures, such as giving proper advance for the request? Will other employees be available to cover the work?

However, in situations where the request falls under the Family and Medical Leave Act (FMLA), approving or denying time off can get tricky fast. If you find managing FMLA difficult — which involves permitting unpaid leave for certain medical and family reasons — you’re not alone. Many business owners covered under this federal law struggle to interpret and uphold FMLA guidelines. The decision gets even trickier when more generous state and local laws apply.

With a deeper understanding of the rules and a fair approach, however, you can keep your company in complete compliance. Here are six real-world FMLA scenarios and what you should do to stay on the right side of the law.

Scenario #1:

Addressing a pregnant worker’s request for leave

Janet, your recently hired accountant, has just informed you that she is pregnant with her first child. She wants to know if she will be paid during maternity leave and whether you will hold her job while she is out.

Legal Considerations

• Does the FMLA apply here? It does if you have 50 or more employees on the payroll (including part-timers). If FMLA does apply, you are required to hold the job for 12 weeks, but the leave can be unpaid.
• Does Janet meet eligibility requirements? Under FMLA, the employee must be with the company for more than a year. In this case, Janet does not meet FMLA eligibility requirements because she has been at the job less than 12 months.
• Do local laws apply? Many states, cities and local governments have passed laws that give employees expanded leave rights over and above federal law. The laws may apply to smaller employers, provide longer leave periods or even require paid leave instead of unpaid leave. If laws conflict, you must go with the one that is most generous to the employee.
• Any other things to consider? The Pregnancy Discrimination Act requires you to treat Janet’s request like any other leave of absence, for any other reason, under company policy. That means her pay and benefits, eligibility, length of permitted time off, status during time off, reinstatement, the need for medical documentation and return-to-work releases should be consistent with other types of leave.

Managing medical leave requests properly can seem overwhelming, but with a deeper understanding of the rules and a fair approach, you can keep your company in complete compliance.

Scenario #2:

Recognizing absences that fall under the FMLA

Frank, a warehouse coordinator, has been with the company for eight years. Frank mentions over lunch with a few managers that he is tired from all the driving he’s been doing taking his son to physical therapy appointments. His supervisor, Susan, is part of the discussion. But it’s her last week with the company, so she isn’t too concerned with Frank’s attendance. She knows he’s been missing a lot of work, but she trusts that Frank will get his work done, so she doesn’t address it. A few weeks later, Frank’s new supervisor writes Frank up for excessive absences and demotes him to a part-time schedule.

Legal Considerations

• Did Frank give enough information to indicate that his absences might be protected under the FMLA? Yes, by law, he did. Just by mentioning it in conversation, Frank gave sufficient information to put the company on notice that his absences might be protected under federal law.
• What should Susan have done? The correct response would have been to recognize that Frank’s absences could potentially be covered under the FMLA and report it. Managers and supervisors need to be trained to spot potential FMLA-qualifying absences. And any situation of potentially protected leave must be reported to HR or a senior manager. Finally, reporting procedures should be included in your employee handbook.
• What could happen now? Frank’s demotion and reduction in pay based on his absences could give rise to an FMLA lawsuit against the company.

Scenario #3:

Determining whether a medical condition qualifies for FMLA leave

Your office manager, Lisa, has chronic back pain and starts missing work due to flare-ups. She’s an “eligible employee” under the FMLA, so you provide her the proper FMLA notices and a medical certification form so you can determine whether the time off qualifies for FMLA leave. She returns the medical certification on time. When reviewing the form, you see that under “Frequency” the doctor wrote “unknown,” and under “Duration” the doctor wrote “indefinite.” Should you designate her absences as FMLA?

Legal Considerations

• Can you request more information? Yes. You have the right to get an explanation of the frequency and duration of Lisa’s leave from the doctor.
• How should you proceed? You should give Lisa at least seven days to resolve it on her own, and then you may contact her healthcare provider for more information, with Lisa’s authorization. Note that contact should never be made by the employee’s direct supervisor. Instead, have your human resources specialist or leave administrator, a senior manager of the company, or another healthcare provider make the call.
• Can you verify other details provided? You have the right to seek clarification or authentication of the information provided — but don’t go beyond what’s asked on the form. For example, you can call the doctor to confirm the answers to those questions, but you can’t ask other questions about the employee’s medical situation or personal data.

Scenario #4:

Dismissing a worker while on FMLA leave

Bob, a sales associate, is on FMLA leave for hip surgery. While he’s out, you discover in a routine audit that Bob was entering false sales to boost his commissions, essentially having items shipped to friends and returned once he was paid his commissions. The scam was going on for several months before his surgery, and he received a lot of money in unearned commissions. How should you handle this, knowing Bob is on job-protected FMLA leave?

Legal Considerations

• Can you fire him? Yes. You have the right to discipline or terminate an employee for a legitimate business reason unrelated to the FMLA leave or health condition.
• What should be your approach? It’s critical to conduct a proper investigation supported by thorough fact-finding and documentation. This will help your defense in an FMLA lawsuit. It’s a best practice to consult with an attorney if you’re considering firing someone who is on protected leave.

Scenario #5:

Intermittent leave for certain qualifying conditions

Your IT manager, James, has severe depression that requires him to stay home sometimes. The condition also demands frequent doctor’s office visits, where he works for a few hours and then leaves for the rest of the day. How do you account for his hours away from the business?

Legal Considerations

• What are your options? Under some circumstances, employees may take FMLA leave intermittently — which means taking leave in short blocks of time, or by reducing their normal weekly or daily work schedules.
• What qualifies? Intermittent leave may be used for: medical appointments (e.g., prenatal or related to a serious health condition, of which mental health may qualify), continual treatments (e.g., chemotherapy, physical therapy or dialysis) and periods of severe morning sickness due to pregnancy.
• How to manage intermittent leave? James needs to fill out a leave request form and provide medical certification. He also needs to inform his supervisor every time he takes intermittent leave, and complete the FMLA and/or state law time sheets accurately to track authorized leave.

Scenario #6:

Military caregiver leave under the FMLA

The husband of one of your call center employee’s suffered a severe leg injury in the line of duty. She’d like to assist him with his medical appointments for the injury, but it would require taking time off. Is the permitted to do this?

Legal Considerations

• Are you aware? The FMLA provides eligible employees up to 26 workweeks of job-protected leave to care for a spouse, son, daughter or next of kin who is a member of the Armed Forces (including the National Guard and Reserves) or a covered veteran and who is undergoing medical treatment or recuperating, in therapy or outpatient status or on temporary disability retired list for a serious injury or illness.
• Do you understand the distinctions? Employers should recognize this type of leave exists … and that it’s different from the usual 12-week FMLA scenarios. Leave is longer and more broad; plus it’s not for an employee who is sick, but for an employee who is acting as a caregiver.
• What steps to take? The most important tasks are obtaining medical documentation/certification and, like other types of FMLA leave, carefully tracking time taken.

Scenario #7:

Time off for COVID-19 or another pandemic

Carol, a sales associate who has been feeling under the weather with flu-like symptoms, tests positive for coronavirus. It is essential that she quarantine to prevent the spread of the virus, but she has no available PTO. Does the FMLA apply?

Legal Considerations

• Can she take FMLA leave? Yes, it could apply if your business is covered by the FMLA and the employee meets FMLA eligibility requirements. In general, if the eligible employee – or the employee’s child, spouse or parent – is infected, the worker is entitled to FMLA leave.
• What else to consider? Additionally, the newly enacted Families First Coronavirus Response Act expands FMLA protections, covers childcare obligations due to school closing and provides other benefits on a temporary basis. In general, the law provides 80 hours of paid sick leave for eligible full-time employees through December 31, 2020.
• Did you know? Employers are responsible for a new mandatory posting related to the above legislation. Families First Coronavirus Response Act Poster is a stand-alone poster that summarizes the provisions for immediate compliance during this time period.

Simplify Management of Time Off Requests

To comply with employee leave laws, it’s important to check all applicable federal, state and local regulations before you deny an employee time off from work.

Follow a consistent, streamlined request and approval process, as well. The Time off Request Smart App provides you employees self-service access to submit time off requests electronically. You’ll receive a notification when a request is submitted, at which point you can approve or deny the request.