Mar 14th 2011

As a manager, what are the top FMLA mistakes that you need to avoid?  Without a doubt, number 1 mistake is not understanding the definition of "serious health condition".  Managers need to understand that "serious" is a misnomer.  What qualifies as a serious health condition under the FMLA has nothing to do with whether the condition is actually serious or not.  Rather, it depends on whether the employee who has been out or who needs to take a leave, is requesting leave for a condition that meets the definition as set forth in the department of labor regulations.  If it does, it is a serious health condition and if not, it would not constitute a serious health condition within the meaning of the FMLA.  So here, in a nutshell, are the definitions of a serious health condition as set forth in the regulations:

  • If the employee has been out of work, school or daily regular activities for more than 3 days and has seen a doctor once for an illness, injury, impairment within 7 days of the incapacity and the doctor gave the employee a "regimen of continuing care" which can be as simple as just giving the employee a prescription, then it is a serious health condition, or
  • If the employee was out of work, school or regular daily activities for more than 3 days and saw a doctor two or more times within 30 days of the incapacity when the first visit was within 7 days of the first days of the incapacity then it constitutes a "serious health condition", or
  • If the employee has not been out for 3 or more days but is out for any period of incapacity and the employee saw a health care provider for either a
  • chronic condition such as asthma, or
  • a permanent or long-term condition for which treatment may be ineffective such as the terminal stages of a disease, or 
  • for a pregnancy
  • then these would constitute serious health conditions within the meaning of the FMLA. 

Another mistake that managers often make is to terminate an employee when the employee's short-term disability benefits have been exhausted not realizing that the employee's condition also qualifies as a "serious health condition" under the FMLA and that they are entitled to stay out of work for the remainder of their 12-week FMLA entitlement.  In addition, managers can often inadvertently violate the FMLA by disciplining employees for absences that are FMLA protected.  It is important to remember that even if the employee has not requested FMLA leave, if the employee is an FMLA eligible employee and if he/she has not exhausted his/her 12-week FMLA entitlement, then if they go out for an FMLA qualifying reason it is protected leave.  The employer would be prohibited from disciplining them for taking this leave.

Another frequent mistake that can cost employers big time is when managers or HR fails to designate the leave as FMLA.  Managers often don't understand that it is not the employee's decision but rather it is up to the employer to designate all FMLA qualifying leave as FMLA leave so that it will count toward the employee's 12-week entitlement.

Employers can protect against these top FMLA mistakes by ensuring that they have well-drafted and legally compliant FMLA policies that set forth the employee's and employer's rights under this legalistic and technical leave of absence law.  For assistance with the drafting or your FMLA policy and/or any FMLA-related questions, feel free to contact us at or 914-417-1715.