5 FMLA Myths You Might Believe in Texas by Fort Worth employment attorney Adam Kielich

Employment lawyers like myself deal with my fair share of FMLA cases for clients. (Probably more than my fair share in Dallas and Fort Worth.) Among those FMLA claims I see employers violate FMLA often because the employer was ignorant of FMLA regulations or had serious misconceptions about FMLA. I also get plenty of calls from employees who believe their employer violated FMLA but the employee misunderstood his or her rights under FMLA. Today’s post is a helping of debunking so people can better understand their FMLA rights.

1. My employer has to approve FMLA leave when I ask for it.

Remember The Office episode where Michael tries to declare bankruptcy by screaming, “I DECLARE BANKRUPTCY!” due to Jan’s spending habits? Just like you can’t scream “BANKRUPTCY” you cannot obtain approval for FMLA leave by screaming “FMLA!” at your manager.

Under the Family Medical Leave Act, you cannot be denied FMLA leave if: (1) you are an eligible employee; (2) of a covered employer; (3) requesting leave for a reason covered by FMLA; (4) and you provided sufficient information for your employer to determine that you requested medical leave covered by FMLA; (5) and the request was thirty days prior to the required leave (or as soon as reasonably possible if thirty days is unfeasible); and (6) you have not already exhausted your protected leave for the current twelve month period.

If you do not meet each of those conditions then your employer can deny your request for FMLA leave. Employers do not have discretion to deny FMLA leave (with some rare exceptions for intermittent leave) for a proper request; but they do not have to approve every request merely because it appears on an FMLA form. When you apply for FMLA, your employer can seek certification of the serious medical condition. Sufficient information must be produced before the employer must approve a request for FMLA.

2. My employer cannot make me use paid leave with FMLA.

Your employer definitely can. FMLA specifically permits employers to require employees to exhaust paid leave time (vacation pay, sick pay, personal days, etc.) during FMLA leave. FMLA does not protect paid leave periods. If the statute required employers to give FMLA leave on top of paid sick leave then we likely would have seen employers reduce paid leave time to account for FMLA unpaid leave. It usually works out for employees to use paid leave during some or all FMLA leave to keep receiving paychecks during a medical leave.

You may be eligible for short term disability from your employer for your FMLA leave, if your employer offers STD and your leave qualifies for the STD plan’s benefits. Employers are not required to exhaust paid leave time during your FMLA leave but if it is your employer’s policy then there is no claim against the employer for following its own policy.

3. Once approved for FMLA I can take sick time for my medical condition when I want.

If you have approval for FMLA leave then your protected leave time is only the leave periods approved. If the additional leave time is unforeseen then you need to make an FMLA request as soon as possible to gain the same protections. Also, if you need sick leave for any other medical condition then you need to make a new request for the other sick leave time.

Intermittent FMLA leave rules are slightly different. Your intermittent leave may be at unforeseeable times (such as an episodic medical condition) and you cannot schedule intermittent leave or you may be approved for leave beyond any scheduled leave periods. If this is the case then you can take leave as appropriate for your medical condition provided that your FMLA leave requests legitimately relate to the medical condition for which you requested FMLA leave and you follow your employer’s normal call-in procedures (at least to the extent physically possible) for each intermittent leave period.

You cannot use FMLA-approved leave to give yourself extra sick leave or vacation.

4. Once I am on FMLA leave my employer cannot talk to me.

No, your employer has some opportunity to communicate with you during leave periods. If you have approved intermittent leave then you must follow your employer’s call-in procedures to notify them of your leave time. Additionally, if you are on a continuous FMLA leave period then your employer can contact you to inform you that you must recertify your FMLA leave. Recertification means your employer is requesting that your treating physician provide an update that confirms you still require leave time for the same medical conditions. Employers can also contact you within reason about work issues.

Recertification requests

There are specific rules about the timing of recertification requests. If any type of FMLA leave may extend beyond a single year (as the employer calculates the twelve month period for FMLA) the employer can request annual recertification. An initial certification that does not designate a specific leave period will allow the employer to request recertification every six months for absences. (If approved for FMLA but do not take any absences for the FMLA-approved reason then the employer is limited to the annual recertification.) If your FMLA request is for a defined period of time then the employer generally must wait until the end of the minimum time duration in the initial certification to request recertification.

Your employer may request recertification every thirty days after the minimum duration expires. The employer can also request recertification in less than thirty days if you request an extension of FMLA leave, the circumstances that led to the previous certification have changed considerably, or the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the medical certification. Employers cannot request certification if the reason for FMLA leave is bonding with a newborn child or to adopt a foster child.

Sending recertification requests

Employers typically send requests for recertification by mail and often send letters notifying the employee of the looming return to work to give the employee the opportunity to recertify or prepare to return to work. These letters are certainly permitted under the employer’s right to request recertification, so long as the letters are sent at appropriate intervals and do not threaten an employee with adverse consequences for taking FMLA leave. (Other than the employer’s options when FMLA leave expires and your job loses FMLA protection if you take continued leave.) Employers do not have to send these communications by mail. They can come by email or simply by making phone calls.

Professional courtesy requests

Employers can also contact you within reason about work issues. It is “professional courtesy” to answer these communications if infrequent and do not meaningfully interfere with leave. There is no hard and fast rule on frequency or what subjects can be discussed; except your employer cannot contact you to threaten your job for taking leave. (That is never acceptable when FMLA protects your leave.) At a certain point your employer’s communications can be FMLA interference. For that reason employers are typically very careful about communicating with you while on leave beyond recertification requests.

5. My employer has to put me back in my same job after my FMLA leave.

Not necessarily. Your employer must return you to the same or equivalent position with the same benefits, responsibilities and conditions. If placed in a different position then pay attention to the differences between the new job and the prior. The job does not have to be identical; but it needs to be essentially the same (or better) benefits, responsibilities and conditions. Whether the new job is equivalent is heavily dependent upon the particular merits of each job.

There is no bright line test to determine how different the jobs can be. Often the more important issue is whether it is worth souring  your relationship with your employer over minor differences. If the positions are significantly different then your employer may be violating your rights under FMLA. You may have claims against your employer.

Temporary positions and intermittent leave

Related is a misconception that your employer has to keep you in your current position when on intermittent leave. During the intermittent leave your employer can move you to a temporary position that will better accommodate the intermittent leave. The temporary position must have the same pay and benefits but does not have to have the same duties. The temporary position must be one that you are qualified to assume. This prevents your employer from putting you in a job you cannot perform to create an excuse for corrective action.

After the intermittent leave ends your employer must restore you to the same or similar position as before your leave. Your employer may not keep you in the temporary position, unless it is an equivalent position.

If your employer has violated your FMLA rights…

FMLA can be a landmine for both employers and employees. The regulations are extensive and not well understood (especially by HR and managers, who tend to be undertrained in FMLA). Employers typically do not help employees understand their rights. Many employers are on the offensive against FMLA. If your employer violated your FMLA rights then it is important that you move quickly to protect your job. There may be opportunities to intervene and prevent a bad situation from getting out of hand. It may be too late and you have been wrongfully terminated and need help recovering your losses.

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