Dive Brief:

• General Motors Co. has paid $12,265 to settle charges that it improperly disciplined an employee for absences protected by the Family and Medical Leave Act (FMLA), according to the U.S. Department of Labor (DOL).
• An investigation by DOL’s Wage and Hour Division (WHD) determined that GM’s delay in approving FMLA leave for the employee caused the worker to be suspended for missing work.
• GM agreed to pay back wages the employee would have earned during the suspensions, to remove three absences from the employee’s record and to comply with the FMLA in the future.

Dive Insight:

The FMLA entitles eligible employees to take unpaid, job-protected leave for defined family and medical reasons. The federal law makes it unlawful for an employer to "interfere with, restrain, or deny the exercise of, or the attempt to exercise" the rights provided by the FMLA, meaning that employers can't discriminate or retaliate against employees who take or attempt to take FMLA leave. Although the designation responsibility remains with employers, employees generally must be permitted to take FMLA leave when they are entitled to do so.

DOL has warned employers not to delay FMLA designation. In a Sept. 10, 2019, opinion letter, the federal agency said employers may not delay designating leave as FMLA leave, even if the delay complies with a collective bargaining agreement (CBA) and the employee prefers that the designation be delayed.

Courts have found that delays can amount to FMLA interference. Last year, the 7th Cir. ruled that a school district interfered with a worker's rights by failing to provide her with notice or information about her right to take job-protected leave.

Generally, once an employer is aware that an employee needs leave for a reason that might be covered by the FMLA, it has five days to give the employee an eligibility determination and a notice of rights and responsibilities. DOL's Form WH-381 can satisfy this requirement. Once returned (and once the employer has received any certifications requested), an employer has five days to provide a designation notice, which can be satisfied with Form WH-382.

Experts say that manager and supervisor training is critical, including training on how to identify requests for time off that may qualify for the law's protection and escalating those requests to HR or a leave administrator responsible for complying with the law's mandates.