Many of us need time off occasionally to help family members with medical problems or for the birth of our child. However, certain requirements must be met for someone to be given FMLA leave. So, many people wonder can an employer deny FMLA?
Here’s what I know from having managed thousands of employees:
An employer can deny an FMLA request if the employer has fewer than 50 employees, if the employee has been employed less than 1 year, or has worked fewer than 1,250 hours in the prior 12 months. But if none of those apply, they must grant the leave.
But there’s a lot more to know about the Family Medical Leave Act, what the rules are and how to make sure your request is approved.
So let’s keep going!
If you want to know what FMLA is and why employers can deny the request, you’re in the right place. Below, you’ll find the medical act reviewed in detail.
The Fifth Circuit Court of Appeals recently considered the “temporal proximity” between the #FMLA leave and an employee’s termination, noting that the employee did not need to show taking protected leave was the sole reason for his #termination. https://t.co/xsv5c6FD6U #EAP pic.twitter.com/K4uPSDCJXX
— Employment Practices Solutions, Inc. (@epspros) September 14, 2021
What is an FMLA Leave?
The Family and Medical Leave Act (FMLA) is a labor law created in 1993 in the USA. This act allows employees to take unpaid leave to stay at home and help their family members in certain situations.
The law was signed to promote job security for families who experienced medical emergencies frequently enough to cause an issue.
The health insurance is maintained under the same terms during the period that the employee is on leave.
If you’re an eligible employee, you’re entitled to one of these two options:
1. 12 workweeks of leave in 12 months
This option counts 12 workweeks of leave in a year. It is granted under any of the following medical or family situations:
- Maternity leave when a baby is born or within the year of the child’s birth.
- At the time when an adopted child or a child placed for foster care is put in the custody of the employee and within the year of such placement
- If a family member (spouse, parent, or child) has a serious health condition and requires consistent care
- If the employee has a serious health condition that compromises his/her performance at work
- In case of any military service emergency – If a member of the employee’s family (son, daughter, spouse, or parent) is a covered military member on “covered active duty“.
2. 26 workweeks of leave in 12 months
This option is also described as ‘military caregiver leave’ and grants 26 workweeks of leave in a year.
The purpose is to take care of a seriously ill or injured servicemember who is covered. The eligible employee has to be the servicemember’s spouse, daughter, son, parent, or next of kin.
The provisions of these two options are in review since October 2019 following a 60-day public consultation on proposed revisions.
27 years ago, Pres. Clinton signed the #FMLA into law. This was a critical step to ensure workers can take 12 weeks of leave to care for themselves or their family without fear of losing their job, but we can do more. We must pass the #FAMILYAct to guarantee #paidleave for all. pic.twitter.com/aKQtHJVtEL
— Committee on Education & Labor (@EdLaborCmte) February 5, 2020
Does FMLA Have to Be Approved by an Employer?
No is the short answer.
An employer isn’t required to approve FMLA. But as an employee, you do need their approval before taking the time off work.
When an employee tries to apply for FMLA, they have to have a legitimate reason.
Otherwise, almost anyone would apply for it. The law describes the situation as having a serious medical condition (or having a loved one with such a condition) to qualify.
However, if an employer denies someone who rightfully deserves FMLA leave, they could be in for some trouble. Lawsuits, liability, and all sorts of other issues can arise for a company that doesn’t treat the situation correctly.
For this reason, employees who file for FMLA have to go through a long process to be verified.
This process is designed to look into the situation to know if they truly deserve the additional time off. It also allows employers to see if there would be any liabilities or problems that could occur upon denial.
The U.S. Dept. of Labor released an opinion 📝 that parents can use FMLA time to attend IEP meetings for their children. Get the facts on this important decision from @IStepFunny in her latest blog. 👉 https://t.co/aMVPGYcDqU #LifeAtiLevel #LifeWithQuantum #QuantumRehab pic.twitter.com/csbWJHInix
— QuantumRehab (@QuantumRehab) April 10, 2021
Can an employer reject FMLA?
Yes, employers are allowed to reject FMLA requests if the employer has fewer than 50 employees, if the employee has been employed less than 1 year, or has worked fewer than 1,250 hours in the prior 12 months.
If the filed case doesn’t meet the specified requirements, then it’s unlikely that the employee will receive unpaid leave. There are multiple requirements, some of which are out of the employee’s hands.
Here’s a list of reasons that an employer could deny FMLA:
- If the company has less than 50 employees, they’re not required to accept FMLA cases. This is because they could be understaffed if they allowed multiple employees to use FMLA leave. It’s part of the law, which protects the employer from excessive absences.
- The employee has been employed for fewer than 12 months by this company.
- The employee has worked fewer than 1,250 hours during the prior 12 months of employment.
Now I mentioned 50 or more employees.
That counts for any location of the business within a 75-mile radius of the job. So even if your location only has 25 employees, if there are other locations nearby that bring the total number of employees over 50, they can’t deny your leave based on that.
There’s also a bit of a gray area in certain situations.
For example, it states that the presence of a physical or mental issue alone isn’t enough to guarantee FMLA leave. Instead, the employer may require a note from a licensed medical professional.
This note is usually required within 15 days of the application period.
— PeopleCapitalHR (@PeopleCapitalHR) April 12, 2021
When Should an Employer Offer FMLA to an Employee?
Employers are also allowed to offer FMLA on the employee’s behalf if they believe that there’s an issue that qualifies such as a medical emergency or if the employee routinely complains of pain or mentions a medical issue.
So even if the employee doesn’t request FMLA leave, the employer is responsible for following through if necessary.
An employer should offer FMLA to an employee if they notice any serious medical ailment. Information gathered from the employee, their friends, family, or other coworkers could be enough to warrant an FMLA case.
If the employer refuses to request FMLA for their employee or they don’t follow through with it, they could be held responsible in the event of a medical emergency. It might not always be obvious or directly in the employer’s hands, in which case, the employer might not be in a bad situation.
The main problem is when an employee consistently expresses discomfort or refers to a medical problem (with themselves or a dependent family member) without any action taken by the employer.
In these scenarios, employers should always file FMLA paperwork.
It should be noted that, even if the employer files for the employee, it still has to work its way up the chain of command in the company. It can be denied on several levels, though it’s unlikely if the employer is the one requesting it for their employee.
— AbsenceSoft (@AbsenceSoft) February 2, 2020
There are also HIPAA laws associated with this aspect too.
HIPPA stands for Health Insurance Portability and Accountability Act and it’s a law put into place to protect an individual’s sensitive medical information.
Technically, as an employer, it would be against the law for me to discuss with an employee about their medical condition without them first signing a HIPAA release to authorize that discussion.
Now in the case of a serious injury, an employer is obviously going to put the care of the employee above paperwork. But in the case of filing an FMLA leave request on their behalf, many employers will want to have the employee sign that release first authorizing the employer to be privy to their personal health information.
FMLA Denied. What Now?
If you’re denied FMLA leave by your employee, you should start by figuring out why.
Request an inquiry to learn what issues they found with your specific case. Keep in mind that you have to fit the employment qualifications listed above to even be considered.
Once you’ve reviewed the denial and you know that you’ve been with the company for 12 months with 1,250 hours of work (in a company with 50+ employees), you can move forward. You can either file another FMLA request or inform the employer that you’ll be hiring an attorney.
You should always make sure that your reason is legitimate.
Hiring an attorney should be something that you do once you know that you’ve checked all of the requirements, and you have a medical issue that falls in the FMLA category.
An attorney will work with you to get you the FMLA leave if you’re supposed to have it. Some employers might renegotiate if they know you’re reaching for an attorney.
If your FMLA leave request follows the law it will be granted. Hopefully, that will be without requiring legal assistance.
Did I cover all you wanted to know about FMLA leaves and whether an employer can deny one?
In this article, we took a quick look at FMLA leave.
We explored who is eligible, what the laws say, and what to do if you get denied leave. But ultimately, we answered the question of can an employer deny FMLA with the answer of maybe, depending on the circumstances.
It’s both the job of the employee and the employer to make sure that FMLA leave is given when required. FMLA grants additional unpaid days off for medical conditions of the employee or a dependent.
If your FMLA request was denied, make sure your employer lets you know the exact reason. If they won’t, or you believe they have not followed the law correctly, it may be time to consult an attorney.
Of course, I am not an attorney and nothing here should be interpreted as legal advice. As a leader with Whole Foods Market for more than 20 years, I have hired thousands of employees and dealt with countless FMLA leave requests. As such, I do have a wealth of first-hand knowledge of the laws and processes. But if you need legal advice, you should consult an attorney in your area.