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Family Medical Leave (FMLA)

The FMLA is employer-driven. This means that when an employer knows or should know that there is a need for leave, the employer must provide documentation for certification of the leave and written confirmation of the designation of FMLA leave. Although the Department of Labor has provided numerous forms and documents to assist both the employer and the employee through this process, it remains a source of great confusion and frustration for both parties. By way of example, there are specific time deadlines for the return of the certification documentation. If an employee fails to provide the necessary certification documentation to the employer within the prescribed deadline, they could compromise their rights to family and medical leave. This, in and of itself, seems straightforward. However, when you add in the real life practicalities of the untimely or incomplete response of the healthcare provider, as well as the complexities of the form, the process can, and often does, quickly deteriorate.

Difficulties with the effective administration of the FMLA do not rest solely with the employee or their healthcare provider. Despite recent amendments enhancing the protections afforded employees, and the requirements governing employers, many businesses fail to effectively post the Act, follow its procedures, or designate a leave of absence covered by the FMLA at all. In fact, the leading cause of most FMLA-related lawsuits is termination of employment without extinguishment of protected rights under the Act. These suits are followed closely in number to those brought for simple errors and omissions committed by employers in the administration of family and medical leave.