FMLA LEAVES – Dos and Don’ts

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FMLA LEAVES – Dos and Don’ts

Employer Family and Medical Leave Act (“FMLA”) mistakes often result in employee lawsuits. Here are some Dos:

  •    •Ensure absent employees promptly notify (1) a designated company manager of their absence, usually the employee’s manager; and (2) a designated company person, whether in-house or the company’s outside 3rd party administrator, of the employee’s need for a leave of absence.
  •    •If an employee cannot promptly complete BOTH notifications, the employee must do so as soon as possible and must specify the unusual events that caused the employee to not promptly make both notifications.
  •    •When considering an unexcused absence and potential termination of the employee because of that, the company should consider whether the employee will later claim the unexcused absence was an unrequested FMLA leave and point the employee back to the two notices the employee is required to give.
  •    •Ensure the employee is fully relieved of work while on leave.


These requirements should be clearly articulated in the company’s employee handbook or FMLA leave policy.  Here are some Don’ts:

  •    •Do not retaliate or treat the employee differently because the employee asked for or took FMLA leave.
  •    •Do not call the employee about work issues while on leave. While transition questions and calls to move the employee’s work to another to complete, within reason, may be fine, ongoing work contact during the leave is not.
  •    •Do not communicate the employee’s medical condition to others – it is confidential.
  •    •Do not automatically assume that an employee who cannot/does not return after the exhaustion of the FMLA leave period can be terminated, as other employee accommodations may be required, e.g., the Americans with Disabilities Act (“ADA”) may require the employer to confer with the employee as to any reasonable accommodation that the employer can provide that will allow the employee to return and do their job.


The employer and the employee working reasonably and fairly with each other, with clear communications, will help to ensure that both sides understand the decisions being made about work, leave and even termination decisions.

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Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is likely considered advertising.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

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