Employee illness can be stressful for everyone. The Family Medical Leave Act (FMLA) of 1991 requires employers with 50 or more employees to provide 12-weeks of absences without penalty for those with qualifying conditions. Employers face potential liability for terminating employees entitled to FMLA.

That being said, a recent court decision from Texas illustrates that the right to FMLA is not absolute. In Byrd v. City of Houston, 2019 U.S. Dist. LEXIS 13807 (S.D. Texas 2019), the court found that an employer’s decision to terminate an employee who did not qualify for FMLA potentially violated the statute – because they originally mistakenly offered her FMLA. The court opined that the employer was arguably liable for later denying the employee FMLA because of the employee’s reliance on their original offer of FMLA leave.

The following Human Resources tips are aimed at proactively addressing FMLA requests while minimizing liability:

1. Check the employee’s timesheet.
   Employees are only entitled to FMLA if they work for an employer for one year or 1,250 hours. The hours requirement relates to hours actually worked and therefore an employee who was frequently absent during their first year of tenure with the employer may not be covered. It is best to check their timesheet before jumping to provide FMLA.
2. Create a policy for employee illnesses/absences.
   Every employer should have a published policy on what to do in the event of employee illness. This policy should be readily accessible and frequently communicated. Successful policies include information such as how to submit FML requests, who qualifies to request FML, and when such leave applies.
3. Streamline FMLA requests.
   Responses to request for FMLA should be taken seriously and addressed promptly. To minimize liability, assign select individuals with the task of reviewing the requests and responding to employees. This prevents the scenario of a request “slipping through the cracks” or an incorrect decision to award or deny FML. The individuals selected to administer FML should receive regular trainings and updates in the law so that the company is consistently kept in compliance.

Feel free to reach out to me at tstringham@offitkurman.com or 703-745-1849 discuss a FMLA policy or question you may have.

ABOUT THEODORA STRINGHAM

tstringham@offitkurman.com | 703-745-1849

Theodora Stringham assists individuals, businesses, and organizations with growing successfully while minimizing liability. Focusing on real estate and personnel needs, Ms. Stringham executes sustainable plans for real estate development and employee matters. She provides comprehensive representation for everyday growth issues, including, but not limited to, re-zonings, site plan approvals, eminent domain/valuation concerns, employment discrimination, and disciplinary issues. Ms. Stringham’s scope of representation ranges from identifying potential liability and providing counseling/trainings, all the way through representation at trial.

ABOUT OFFIT KURMAN

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