FMLA POP QUIZ -- DO YOU KNOW ENOUGH TO COMPLY?
by Bruce M. Luchansky

The Family and Medical Leave Act (FMLA) can be a snake in the grass for employers who are required to comply with this statute but fail to do so. The FMLA requires covered employers to provide up to 12 weeks of unpaid leave to eligible employees under certain circumstances. Most employers comply, but many do not. In most cases, lack of compliance is caused by lack of knowledge -- some covered employers simply do not know enough about the FMLA to know that the law applies to them, and some employers who know that the law applies to them do not know enough about the law to know how to comply.

The consequences of such ignorance can be dire. Employers who violate the FMLA can be sued by their employees for damages in the amount of the employee's lost compensation and benefits (plus interest on that amount), plus an equal amount as liquidated damages -- in essence, double damages. A prevailing employee also "shall" be awarded reasonable attorneys' fees, reasonable expert witness fees, and other costs incurred during litigation. Moreover, the FMLA imposes personal liability on the employer's decision-makers who violate the law. That means that an employee not only may sue the company, but he or she also may sue -- and obtain a money judgment against -- the supervisors, HR personnel, or company officers who were involved in making the FMLA decision.

To test your knowledge of FMLA basics, see if you or your HR personnel know the answers to these questions about the FMLA:

A. FMLA Eligibility:

1. How many employees must an employer have before the FMLA applies to it?

2. How long must the employer have had that number of employees on its payroll before they count toward FMLA coverage?

3. If the employer is large enough (i.e., has enough employees) to be covered by the FMLA, are new employees immediately eligible for FMLA protection? How long must an employee work for the employer to become eligible?

4. If the employer operates in different locations, how does that affect the determination of whether an employee at one of those locations is eligible for FMLA leave?

B. FMLA Leave:

1. For what purposes must the leave be used in order to qualify as FMLA leave?

2. How much leave does each eligible employee receive?

3. Must the employee take all of this leave at once?

4. Does the employer have any obligation to continue the employee's benefits during the leave?

5. May the employer replace the employee while he or she is on leave?

6. Does the employer have to return the employee to precisely the same job when he or she returns to work?

C. FMLA Notice Requirements:

1. What obligations does an employer have to notify its employees of their rights under the FMLA?

2. How much advance notice must an employee give an employer of his or her need for FMLA leave?

3. What can the employer do if the employee does not give adequate notice?

4. Does the employee have to specify that he or she is requesting "FMLA leave"?

5. Can an employer request verification of the employee's need for the leave?

D. FMLA Compliance:

1. May an employer require an employee to take more FMLA leave than he or she has requested?

2. May an employer require an employee to take a fitness for duty exam before returning to work?

3. May an employer fire an employee while the employee is out on leave?

How well did you do? If you did not ace this exam, you may want to brush up on your FMLA facts. You never know whether the next pop quiz may be given by a disgruntled employee.

Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093   Phone: 410-727-4300
Fax: 410-727-4391   © 2008 Kollman & Saucier, P.A. All rights reserved.
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