Article · Labor and Employment

Administering FMLA Leave Without Getting Sued: Interference, Retaliation, and the Certification Trap

29 U.S.C. § 2611(4)

Type
Article
Jurisdiction
National
Date
2024-04-27
Topic
Labor and Employment

The Family and Medical Leave Act looks like a simple entitlement — twelve weeks, unpaid, job protected — and produces a startling volume of litigation, almost all of it about administration rather than entitlement. This article explains why. It works through coverage and eligibility, the definition of a serious health condition that turns on treatment patterns rather than diagnosis, the notice obligations that run in both directions on five-business-day clocks, and the medical certification process where most employers lose: who may contact the provider, what may be asked, when a second opinion is available, and how recertification works. It then separates the two causes of action that FMLA plaintiffs plead, interference and retaliation, and shows why the interference claim is the dangerous one because intent is largely irrelevant. It covers intermittent leave abuse and the honest-belief defense, job restoration and the narrow key-employee exception, benefits continuation, the damages structure including liquidated damages, individual supervisor liability, and the interaction with the ADA, workers' compensation, the PWFA, and state paid family leave. A worked example follows a fictional employer through a mishandled intermittent leave request.

Administering FMLA Leave Without Getting Sued: Interference, Retaliation, and the Certification Trap

Labor and Employment > Leave Law | Published 27 April 2024 - Updated 9 February 2026 | UpLaw - uplaw.us

In brief. The FMLA grants eligible employees twelve workweeks of unpaid, job-protected leave for defined family and medical reasons. That sentence is the easy part. The statute generates enormous litigation because liability almost never turns on whether the employee was entitled to leave; it turns on whether the employer ran the process correctly. Did the eligibility notice go out within five business days? Was the designation notice sent? Was the certification request made in writing with the fifteen-day window stated? Did a supervisor call the doctor directly? Was intermittent absence counted against an attendance policy? Each of those is an administrative step, each has a deadline, and each failure supports an interference claim in which the employer's good faith is largely beside the point. The FMLA is not a hard statute to comply with. It is a hard statute to comply with sloppily.

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