The #1 biggest mistake SMBs make when it comes to FMLA compliance

Compliance with FMLA featuring a mother and newborn

As an SMB owner, you work hard to balance your time between growing your business and staying compliant. Among compliance laws, FMLA is usually one of high focus. This is because the penalties are costly and violations common. But, what’s the biggest mistake SMBs make when it comes to FMLA compliance? The #1 mistake SMBs make when it comes to FMLA compliance is failing to track 100% of their employees’ time 100% of the time.

Why is this an issue? 

In this article, we will discuss three major ways that employee time tracking helps to protect employees.

  1. It helps employers to definitively determine eligibility
  2. It makes it possible for employers to accurately track intermittent leave and reduced schedule leave
  3. It protects employers against erroneous leave awards and claims of discrimination

But, first, let’s review some basics of FMLA law.

Recently, a Tennessee employer paid out over $43,000 to a single employee who was incorrectly terminated for absences that qualified under FMLA leave.

Like this employer, most employers don’t willfully violate FMLA. In fact, most employers follow most of the FMLA laws.

But,

It’s the small errors, the missed clues, and the incorrect records that lead to most FMLA violations.

Did you know?

The #1 biggest mistake SMBs make with FMLA

In case, you want to skip ahead, here are the topics we will be covering: (Otherwise skip to Section I)

I. Understanding Common FMLA Violations 

  1. Overview of FMLA leave
    • 12 weeks leave
    • Qualifying for Leave
    • Types of leave (covered section 3)
    • Employer guilt is assumed
  2. These 4 steps are mandatory to comply with FMLA
    • Train managers to spot FMLA
    • FMLA not counted against your absence policy
    • Employees must be notified that leave counts as FMLA
    • Track employee time and FMLA leave Benefits employers

II. The importance of Time Tracking to Determine FMLA eligibility

  1. FMLA compliance depends on tracking part-time employees
      • Determining Variable employees’ eligibility under FMLA
      • FMLA compliance with Exempt Employees
      • FMLA compliance for Overtime Employees

III. The importance of Time Tracking to determine FMLA Intermittent and reduce Schedule Leaves

      1. FMLA leave taken in Blocks of time
      2. Overview of Intermittent Leave
      3. Overview of Reduce Work Week leave
      4. Determining FMLA Award Hours During intermittent  or Reduced Schedule Leave
      5. Calculating FMLA Protected Hours for Intermittent leave

IV. The importance of time tracking to protect against extra FMLA leave and to protect against discrimination

      1. The problem with Awarding an Employee leave Who hasn’t earned it yet.
      2. Discrimination: The Problem with Awarding an Employee Too much Leave
      3. FMLA compliance: Reinstating Employees to a comparable job position
      4. Automated Timekeeping is the Only way to stay compliant

V. Other Tracking – Employee Certifications

VI. Conclusion

Understanding Common FMLA Violations

I. Understanding Common FMLA Violations

You already understand the basics of FMLA law. However, there are key parts to FMLA that you should be aware of.

Overview of FMLA Leave Rules

  1. FMLA provides 12 weeks of protected leave in a 12 month period. Military reasons under FMLA allow up to 26 weeks in a 12 month period. As an employer, you can choose from a variety of 12 month periods. It can be a calendar year or a fixed 12 months (such as the business year). It can include, a rolling 12 months from when the employee first takes FMLA leave or a backward rolling 12 months from when the employee uses FMLA leave.
  • Calendar Year
  • Fixed 12 month period (a business year or based on employee hire date)
  • Rolling 12 months from the first use of FMLA leave
  • Rolling Backwards 12 months from when the employee uses FMLA leave

FMLA law provides employees with job-protected unpaid leave. Although the leave provided by law is unpaid, employers can require employees to use paid leave available to them. This can include PTO, state-required paid family leave, or other types of paid leave available to employees.

  1. Qualifying for FMLA leave

Two main qualifications must be met in order for an employee to take FMLA leave. The employer has to qualify for FMLA coverage and the employee has to qualify. 

Qualified employers have at least 50 employees within a 75-mile radius. Without at least 50 employees, employers are not qualified for FMLA. Small employers who grant FMLA leave without being qualified are at risk of other forced leave, discrimination accusations and other things covered in Section IV.

Employees must also meet the qualification requirements of working for their employer at least 12 months. 12 previous months of employment can be met over the preceding 7 years. It does not have to be the previous concurrent 12 months before leave is taken.

However, employees do have to have worked at least 1,250 hours for their employer in the previous 12 months.

In other words, an employee may have worked for your company for a year and then quit. Upon returning to employment with your company, they work 1,250 hours before needing FMLA leave. Although the employee only returned 6 months ago- they are eligible for FMLA leave based on both qualifications.

  1. FMLA provides several types of leave: Block leave, Intermittent leave, and Reduced Work Schedule leave. We will cover these in Section II.
  2. FMLA law assumes employer guilt and places the burden of proof upon the employer. This means that if/when an employee files a complaint against your company for an alleged violation, the burden of proof rests with you, the employer. Unless you have adequate records, the odds of a settlement and penalties from the DOL are extremely high. Timekeeping is an essential function of adequate records for many reasons. We will discuss those reasons in sections 2, 3 and 4.
The Department of Labor Places the Burden of Proof on the Employer infographic

In addition, there are four important steps employers can take to maintain compliance with FMLA.

These 4 Steps are Mandatory to Comply with FMLA

  1. Train managers to spot and respond to possible FMLA time off. The Department of Labor continues to penalize employers who failed to respond appropriately to FMLA time off.

Did you know?

Your employees don’t have to specifically state that they need FMLA time off. In other words, employees don’t need to ask for “FMLA” time off. He or she only needs to provide enough information that the manager should have realized the employee needed time for FMLA-related time.  

Take, for example, an employee that mentions needing time to care for a family member, a recurring condition, or taking time off for a newborn child. The manager should be trained to ask further questions.

Managers should notify and alert HR that the employee’s absence may be due to FMLA related reasons. This allows HR to obtain further information from the employee and to notify them of FMLA leave.

  1. FMLA should not be counted against your attendance policy. Employees who are absent for FMLA reasons cannot be penalized for their absences. This includes perceived discrimination. For example, do your managers understand that a comment such as “June, I can’t keep covering for you” or “I need to have you back in the office” or “I can’t believe that HR gave you that time off” counts as retaliation and discrimination. Those comments show an attitude of discrimination against an employee who takes FMLA and can poison others in your company against that employee.
Steps for Compliance with FMLA infographic
  1. Employees must be notified that leave counts as FMLA leave. Unless the employee is notified, the original leave may be simply “awarded leave.” Under FMLA law, it is extremely difficult to retroactively apply FMLA leave.

The DOL provides the following example:

Henry plans to take 12 weeks of FMLA leave beginning in August for the birth of his second child. However, earlier in the leave year, Henry took 2 weeks of annual leave to care for his mother following her hospitalization for a serious health condition. Henry’s employer failed to notify him at the time of his mother’s hospitalization that the time he spent caring for his mother would be counted as FMLA leave. If Henry can establish that he would have made other arrangements for the care of his mother if he had known that the time would be counted against his FMLA entitlement, the 2 weeks his employer failed to appropriately designate may not count against his FMLA entitlement.

  1. Track Employee Time and FMLA Leave Benefits Employers

Your company’s compliance with FMLA is dependent on your company’s ability to track employee time and FMLA leave time. Without these two records, your company will struggle to prove compliance in the event of a DOL investigation.

Let’s cover why this is so important!

Time-Tracking Importance to Determine FMLA Eligibility

II. The Importance of Time Tracking to Determine FMLA Eligibility.

FMLA compliance starts before employees even take leave. If you wait until an employee has taken off on FMLA leave, you are likely to find yourself the unlucky recipient of a compliant. Or, best case, find yourself scrambling to meet compliance deadlines and make sure that FMLA rules have been met.

In addition to providing employees with the required notifications, you also need to track employee time before they take leave.

Did you know?

Employers need to track employee time for a full 12 months before they take leave!

How do you know when an employee is going to take leave with 12 months notice?

You don’t. That’s why employee time tracking 100% of the time 100% of your employees is vital. That includes exempt employees.

Employee Hours-Worked Should be Tracked for 12-Months Prior to FMLA Infographic

FMLA Compliance Depends on Tracking Part-time Employees

In theory, if you have a part-time employee who always works the exact number of hours each week, you might be able to get away with FMLA compliance without tracking their time.

But, that probably only happens in theory.

In reality, most part-time employees vary slightly on the actual hours they work each week. For example, an employee scheduled for 25 hours a week may work 28 hours one week and 23 hours the next.

And compliance with FMLA requires tracking variable employees’ schedules.

FMLA compliance for part-time employees

Determining Variable Employees’ Eligibility Under FMLA

Do you have employees who work from home, telecommute, or have flexible schedules? This complicates FMLA compliance.  

In addition, part-time employees often have work schedules that vary from week to week. How should you estimate FMLA leave for these employees?

If your employee is taking leave in a 12-week chunk that’s easy. But what if they take an intermittent leave? It is even more complicated if you allow a reduced work schedule for that employee!

And don’t forget!

You must be able to prove an employee’s previous hours when they return from FMLA. This is vital for proving that they returned to the same or similar schedule as before FMLA. (More on this in a moment).

So take, for example, an employee who works 15 hours one week, but 25 hours the next week. This employee will need to have their FMLA leave benefit calculated.

The only way to calculate their average weekly hours is to average their hours worked each week for the previous 12 months. This provides a baseline of weekly hours for employees. Check out the following situation for an example of how this will help you.

Sally has worked for you for 12 months. Her schedule varies. Originally, when she was hired, there weren’t as many hours for her to work. She worked about 10-15 hours a week.  After that, her hours fluctuated.

Recently, in the last two months, her hours have increased to nearly 35 hours a week. This is due to some vacancies in the schedule and Sally’s willingness to work extra shifts. Now, Sally needs to take some FMLA time and several questions need to be answered.

  1. Does Sally have 1,250 hours in the last 12 months?
  2. Is she qualified for FMLA leave?
How can you tell if a part time employee qualifies for FMLA infographic

Of course, we aren’t going to go over her entire 12 months of work schedules to determine her average work week. But, if you’ve kept track of all her working hours, you can then easily add up all her worked hours over the last 12 months and determine if she has worked 1,250 hours or not.

You determine that Sally does qualify for FMLA leave and she can now take 12 weeks’ leave. But what if she needs to take intermittent leave or have a reduced work schedule? Skip to those sections to find out what to do next.

Now, we will take a look at why FMLA compliance for exempt employees depends on time tracking.

FMLA Compliance Depends on Tracking Exempt Employees’ Time

Did you know that many employers fail to track exempt employee’s time?

Are you one of them?

Although exempt employees by nature aren’t required to work a set number of hours, there are many benefits to tracking their time.  The Department of Labor has specific rules regarding the treatment of exempt employees. Typically exempt employees must be paid a full week’s salary or risk losing exempt status.

However, when an exempt employee takes FMLA leave and that employee has no paid vacation or sick leave left, the employer can dock their pay. But, if you grant FMLA leave to an exempt employee who didn’t yet qualify for FMLA- you risk them losing their exempt status.

Typically, exempt employees are assumed to work 40 hours a week. But by nature of being exempt, they may work more or less than 40 hours in a given week. One of the biggest benefits of tracking exempt employees’ time is for FMLA compliance.

Exempt employees must also qualify for FMLA. Take, for example, Joe. He worked for you but left a couple of years ago. Now, he’s back as an exempt employee. He’s only been back about 7 months and needs to use FMLA leave.

Does he qualify?

Qualifying for FMLA without time tracking is asking for employer violations infographic

You don’t know if you haven’t been tracking his time. 1,250 hours at 40 hours a week breaks down into just over 31 weeks, about 7 ½ months. But, has Joe worked a full 40 hour weeks or has he taken off early of Friday? He’s right at the threshold of qualifying, but you need to know if he qualifies or not.

If he doesn’t qualify- you need to know and be able to tell him when he will qualify.

But, what if he’s actually worked overtime in the last 7 months? He may have clocked all the hours he needs to qualify before 7 months and if you deny him FMLA- your company could be in hot water and facing expensive fines.

The only way to solve this problem is to ensure that exempt employees clock their time.

FMLA Compliance For Overtime Employees

Let’s consider one last employee: The employee who works overtime hours. Let’s name her June. Since June works overtime regularly, she meets her 1,250 worked hours threshold faster than Joe. She has also previously worked for you so the 12 months of employment requirement is already met. In addition to qualifying for FMLA leave, you must also be able to calculate the average number of hours June works in a week.

Why?

June’s average weekly hours prior to FMLA leave will determine the number of FMLA hours she gets when taking intermittent leave and how many hours count toward FMLA leave during an intermittent or reduced work schedule leave.

For example, if June averaged 45 hours of work a week, then she’s eligible in just over 27 weeks. If she works an average of 50 hours a week, she’s eligible for FMLA leave after 25 weeks.

time tracking is critical to FMLA compliance inforgraphic
Time-Tracking is Vital to Determine FMLA Intermittent and Reduced Schedule Leave

III. The importance of Time Tracking to determine FMLA Intermittent and Reduce Schedule Leaves

Did you know that employees can take up to three different types of leaves through FMLA? Employee time tracking is vital for administering FMLA leave. In this section, we will cover why time tracking is vital to FMLA leave. These three types of leave are:

  • FMLA block leave (up to 12 weeks)
  • Intermittent leave (the equivalent of 12 weeks)
  • Reduce work schedule leave (the equivalent of 12 weeks)
FMLA leave includes Block leave, intermittent leave and reduced schedule leave

FMLA Leave taken in blocks of time

If your employee takes FMLA in blocks of time, then FMLA is easy to calculate. A full week of FMLA counts toward a full week of the 12 weeks FMLA allowance.

Any holiday that falls during a full week of FMLA counts, not as a holiday, but as part of the FMLA leave. If the holiday falls during a partial FMLA week- then the holiday doesn’t count toward FMLA leave.

The only exception is if the employee was expected to work during the holiday and used FMLA for leave that day.

When do holidays count as FMLA leave infographic

Overview of Intermittent Leave

Intermittent leave is considered time used when employees take leave that includes partial days leave or sporadic full day of leave. It can be used for doctors appointments, incapacity due to a serious health condition, or to care for a family member’s serious health condition. Intermittent leave can also be used for the many purposes allowed for Military FMLA leave.

Employers can restrict employees from using leave intermittently for the birth, adoption, or placement of a child.

Employees who require intermittent leave have obligations toward the employer. Whenever possible, they must try to schedule intermittent leave in a way that is least disruptive to the business operations of the employer.

As an employer or HR manager, you can require the employee to provide a schedule of planned intermittent leave.

Even so, there may be situations when the employee is incapacitated and unable to work due to their serious health conditions that cannot be pre-scheduled. There will be times when employees leave early during a partially worked day due to incapacitation.

Two questions must be answered.

  1. How do you determine the # of hours they are awarded in FMLA leave. These hours will be spread over weeks and months of intermittent or reduced schedule leave.
  2. How do you determine how many hours each week are counted toward FMLA leave?
How to count FMLA hours for variable or flexible hourly employees

Overview of Reduced Work Week FMLA Leave

A reduced work week is another type of leave allowed by FMLA. Employers can agree to an employee working a reduced work week as part of their FMLA leave. There are many reasons to do this including compliance with the Americans with Disabilities Act, retaining quality employees, and improving employee morale.

In a reduced work week leave, employees work reduced hours. The difference in the number of hours they work under the new schedule and their previous average hours is considered FMLA leave.

Take a look at Joe again. He works full time, but in our previous scenario, he may have worked between 35 -40 hours a week on average (possibly taking off early one day a week). Let’s say he works exactly 40 hours a week. He then takes a new schedule that works him 30 hours a week while he recovers from a serious health condition. You can credit Joe with 10 hours of FMLA leave each week. Now you just need to know how many total hours he gets of FMLA leave before he’s used up how 12 weeks.

Easy right?

How to calculate FMLA reduced schedule leave

Determining the Award Hours for FMLA During Intermittent or Reduced Schedule Leave

For any employee who does not take a full block of leave, you must determine how many leave hours are available to that employee. How many hours of leave should you provide to an employee who starts FMLA leave on an intermittent basis?

You may have answered 480 hours. You probably calculated 12 weeks and multiplied it by 40 hours a week. That’s correct for Joe. He gets 480 hours.

Calculating FMLA benefit hours

But, that’s not correct for Sally or June.

Employee entitlement hours can vary. Employee schedules can vary. Let’s take a look at our employees during intermittent FMLA leave. Do you remember Sally? She worked a fluctuating work schedule prior to taking leave. How do you determine her leave benefit hours when she takes sporadic days off?

Although Sally initially worked 10-15 hours a week initially and 35 hours a week just before her leave started, she worked many varied weeks in between. You add her total hours for the previous 12 months and find that she worked a total of 1,404 hours in the last 12 months.

Now, divide that by 52 weeks. You calculate that she averaged a work week of 27 hours over the last 12 months. This gives you a baseline for her award hours.

Next, multiply her average hours each week (27) by 12 weeks. Her award level is 324 hours. This will be vital when calculating her intermittent hours and reduced work hours.

  1. Calculate the employees’ total hours (including overtime) for the previous 12 months.
  2. Divide that total by the number of weeks worked. This is your baseline of average weekly hours worked.
  3. Multiply baseline by 12 weeks of benefit.
How to calculate FMLA number of benefit hours for employees infographic

Next, take a look at June. If you remember, June worked regular overtime. What are her benefit hours if she takes intermittent leave?

June has worked for you for the last 10 consecutive months. (Remember she previously worked for you so she still meets the minimum of 12 months employment requirement.) In the last 43 weeks, she has worked 2,064 hours. (calculate the total hours worked)

She has averaged a weekly schedule of 48 hours. (Divide total hours worked by the number of weeks worked 2,064 / 43 weeks) Multiply 48 hours by 12 weeks of benefit. June should get 576 hours of FMLA leave.

How to calculate FMLA benefit hours for overtime employees

Now, let’s look at how the number of hours for FMLA leave has been calculated for our variable/part-time employee, Sally, our basically full-time employee, Joe, and our regular-overtime employee, June.

Calculate FMLA benefit hours based on weekly average of hours worked infographic

Determining FMLA hours Used during Intermittent or Reduced Work-Week Leave

When an employee works a regular schedule, intermittent leave is determined by comparing the employees’ work hours during a partial FMLA week against their regular work hours.

If Joe continues to work 40 hours a week, but occasionally takes of time for FMLA related appointments, then you can determine his FMLA use the same way as during a reduced schedule leave. Last week, he took off early twice and took an entire day off. For the week, he worked 27 hours.

To figure his FMLA use, just subtract the 27 hours worked from his regular schedule of 40 hours. You can take 13 hours of FMLA away from his total benefit of 480 hours.

How to track FMLA balance for intermittent leave

But what about Sally and June?

How do you credit Sally’s FMLA balance when she takes intermittent leave or a reduced work week? What if she works a max of 10 hours a week. How many other hours are counted toward FMLA?

What if Sally takes an intermittent FMLA leave. How many hours are counted for specific days that she takes off? We already calculated that Sally has an average work week of 27 hours. She has a total benefit of 324 hours.

If Sally takes a reduced schedule of 15 hours a week, then her weekly FMLA use is 12 hours. (27 weekly average minus new schedule of 15 hours).

How to track FMLA benefit during a reduced schedule FMLA leave infographic

You would calculate intermittent leave the same way. In the weeks that Sally takes a full or partial day off for FMLA leave, simply calculate the total hours she worked for the week. Then subtract that from her weekly average and count that toward FMLA leave.

What if Sally was scheduled for 35 hours, but ended up working 27 hours after she took off for leave?

Sally would have not used any FMLA leave. That’s because FMLA law states that you must use a weekly average for her because her schedule fluctuates. Her weekly average is 27 hours so even though she may have worked more hours in a particular week, you can’t deduct those extra hours from her FMLA balance. Only the hours she took off that caused her to work less than 27 hours would be counted toward FMLA leave.

Take a look at June. She works a lot of overtime. When deciding whether or not to count missed overtime toward FMLA use, the biggest question is whether or not it is mandatory or voluntary.

  1. Does June’s job require mandatory overtime hours? (This is often answered by the regularity of the overtime. Is it regular? Is it consistent?)
  2. Does June have the “flexibility” to work overtime or to not work overtime? Does June choose to work overtime because she likes the extra income, but it is not required?

When answering these questions, consider the difference between a job where overtime is usually mandated such as a prison guard or a job where overtime is voluntary such as when a sales team stays late the last night of the month to meet a quota.

When overtime is voluntary, then missed overtime does not count toward an employee’s FMLA balance. When it is mandatory, then missed overtime does count toward the employee’s FMLA balance. June’s 12-month weekly average is to work 48 hours a week.

Calculating FMLA weekly benefit for a reduced schedule leave infographic

If June works a reduced work schedule of 35 hours, then you may be tempted to only count 5 hours toward FMLA. But you can actually count 10 hours toward FMLA use because she’s missing mandatory overtime.

One week, June’s department approves a 50 hour work week to meet a deadline. That week, June still works 35 hours. You would still only credit 10 hours toward her FMLA. That’s because the extra 5 hours of overtime were voluntary for the department. It wasn’t required overtime.  

Protect Against Discrimination & Gifted Extra Leave through timetracking

IV. The importance of time tracking to protect against extra FMLA leave and to protect against discrimination

As you’ve seen time tracking is essential for FMLA compliance. Did you know it’s also important to protect your company? FMLA places the burden of proof on employers. When an employee alleges FMLA violations, it is the employer who must prove compliance.

This is not a court of law where employers are innocent and then proven guilty. Employment law assumes employer guilt first. Your company’s lack of documentation will result in a violation of the law.

There are three more major reasons you want to keep time in regards to FMLA award

  1. Awarding too early or too much
  2. Protection against discrimination claims
  3. Reinstating the employee to a “comparable” job or position
FMLA awarded before the employee qualifies is a gift from the employer infographic

The Problem with Awarding an Employee FMLA leave who hasn’t earned it yet.

Did you know that according to FMLA rules, there are problems with incorrectly providing employees FMLA leave?

You can’t deduct an exempt employee’s salary for FMLA leave if they didn’t actually earn it. In other words, it’s not considered FMLA leave. If you deduct pay for non-FMLA leave you risk them losing their exempt status.(See this section for more information)If you award an employee FMLA leave before they have earned it, you may have to award them real FMLA leave once they actually qualify.

In other words, Pete takes 4 weeks of FMLA leave for the birth of his baby. Although he’s worked 1,250 hours, he’s only been employed with your company for 11 months. As a result, those 4 weeks of time off were not FMLA leave time. Unfortunately 6 months later, Pete’s mom is in a car accident and needs critical care. Pete then takes FMLA to care for his mom.

How much time does he have left?

12 weeks. The first 4 weeks he took off didn’t count as FMLA time because he didn’t’ qualify for FMLA yet.

Giving FMLA leave before employees earn it means awarding extra leave

Discrimination: The Problem with Awarding an Employee too Much FMLA leave   

Later, another employee, Peggy, also takes time off for the birth of her baby. She takes off the full 12 weeks. Peggy qualified for leave. Sadly, only 3 months later, Peggy’s son is diagnosed with leukemia. Peggy asks to take off 4 weeks for his chemotherapy.

Since Peggy already used 12 weeks of FMLA leave, you deny her request. All seems ok until you get the notice of a discriminatory lawsuit. It appears that Peggy feels discriminated against. After all, you provided a male colleague of hers with 16 weeks of time off and he’s worked for you fewer years than she has. When she wanted the same 16 weeks of time off, she was denied.

Not only has Peggy legally filed for damages, but she’s also filed a complaint with the State. Sadly, this is one battle that will be hard for you to fight. “I didn’t know” isn’t a plausible defense. Timekeeping could have saved you this lawsuit and the “free” feature in the evening news!

Of course, life isn’t always this clear-cut, but neither are discrimination cases. If you find yourself on the other end of an FMLA complaint, discrimination suit, or other DOL complaint, it will be very costly to defend your company. It will be nearly impossible if you haven’t kept accurate timekeeping of your employees’ hours worked.

Steps for Compliance with FMLA infographic

FMLA Compliance: Reinstating Employees to a Comparable Job Position.

Great news! You just received notice that Sally is ready to resume her regular work duties. After taking FMLA leave in a short block of 2 weeks, using intermittent days off for doctors appointments, and working a reduced schedule, Sally is fully recovered. You are excited for her. You enjoy working with her and are happy that she is healed.

There’s only one problem.

Prior to taking leave, Sally was regularly working 35 hours a week. This had happened for the previous 3 or 4 weeks. Now, that same job position only requires about 30 hours a week. When you inform Sally of this fact, she informs you that she “understands FMLA law and she must be reinstated to a similar position as she had before.”

What will you do? Easy! Since you already know that Sally’s average work week was 27 hours, you can now show her that she is receiving a comparable number of hours after her leave.

Once again, proper timekeeping has saved your company from a potential FMLA disaster! Now Sally is happy and you don’t have to face her in court. (Too bad you didn’t have good employee timekeeping for Peter and Peggy!)

Time tracking ensures that employees receive the same position after

Automated TImekeeping is the Only Way to Stay Compliant.

Did you know that as many as 40% of SMBs maintain paper timesheets? The studies vary and some show even higher percentages. But, paper timekeeping can nearly be considered the same as no-timekeeping. That’s because documents are often lost, destroyed, or misplaced.

A misfiled document will help you as much as a lost document when defending yourself in a DOL investigation. That is to say- It won’t help you at all. Even a single lost document can put your defense in jeopardy.  

You need automated timekeeping. It provides accuracy and automated backups. This also protects you in the case of a natural disaster such as Hurricane FlorenceThis means that you can always pull those needed records.

Other Tracking Employee Certifications

V. Other Tracking: Employee FMLA Certifications

To track employee leave, make sure to require FMLA certification. Whenever the employee’s situation changes, such as needing more days off than a certification provides, request a recertification. Any unclear or vague certifications should be denied until they are properly filled out.

Employers and HR Managers, you don’t have to accept “intermittent leave recommended.” You can require specific needs and enough information to understand specifically what leave is required and how often.

You should request the extent of the FMLA leave, the frequency, and the duration.

If an employee has a certification that states the need for two days of leave a month, but they are taking 4-5 days a month, there are things you can do. Although you still need to grant the extra leave, you can ask for a recertification or clarification from the healthcare provider as to whether or not the additional leave is needed. This can help to curb FMLA abuse.

You are also allowed to understand the specific FMLA reasons for the leave. You can’t ask about the employee’s general health but can inquire about if leave if for a serious health condition.

If you doubt the need for FMLA leave, then you communicate directly with the health care provider to clarify the need of your employee. You can also pay for and require a second opinion.

Conclusion

As you can see, without automated timekeeping, it is nearly impossible to maintain FMLA compliance. This is usually very costly. The average DOL penalty is over $45,000. Not only will automated timekeeping provide you with complete records, but it will also provide your defense.

You will be able to prove that employees maintained the same types of schedules as before their leave.

You will be able to prove without a doubt which employees did and did not qualify for FMLA leave based on their previous 12 months of employment. You will also be able to prove compliance with an employees’ intermittent leave and will know when the full FMLA leave has been satisfied.

What do you think? In what other ways does time-tracking help with FMLA compliance? Will improper FMLA award subject an employer to excessive FMLA leave by that employee? Let us know what you think! 

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