FMLA interference and retaliation claims consistently rank among the top employment lawsuits filed in the United States. The median settlement for FMLA cases exceeds $100,000, and the Department of Labor recovered over $1.4 billion in back wages for workers in recent fiscal years — a significant portion related to leave violations.
The uncomfortable truth is that most FMLA violations don't come from employers deliberately denying leave. They come from process failures: missed notices, bad tracking, untrained managers, and systems that inadvertently penalize employees for exercising their rights.
Here are five warning signs that your leave management process is creating legal exposure.
1. Your Managers Are Making Leave Decisions
If supervisors are approving or denying leave requests, deciding whether an absence "counts" as FMLA, or questioning employees about their medical conditions, you have a problem. Managers are not qualified to make FMLA eligibility determinations, and their well-intentioned but uninformed decisions create liability.
The risk: A manager who says "you've been out too much" to an employee on intermittent FMLA has just created evidence of interference. A manager who denies a leave request because "we're too busy right now" has just violated the law.
The fix: All leave requests should route through HR or a dedicated leave administrator. Managers should be trained to say exactly one thing: "Let me connect you with HR to discuss your options."
2. You're Tracking Leave on Spreadsheets
Spreadsheets don't send notices, don't calculate rolling entitlement balances, and don't flag when an employee's 12-week clock is running out. They also don't create the kind of audit trail that protects you in litigation.
The risk: Inaccurate tracking leads to employees being denied leave they're entitled to (interference) or being given more leave than required (which sets a precedent that's hard to walk back). When a DOL investigator asks for leave records, a spreadsheet full of manual entries and formula errors doesn't inspire confidence.
The fix: Use a leave management system that automates entitlement calculations, generates required notices, and maintains a complete audit trail. If a dedicated system isn't in the budget, outsourcing leave administration often costs less than the software alone.
3. Your Attendance Policy Doesn't Exempt FMLA Absences
This is one of the most common — and most expensive — FMLA violations. If your attendance or points-based system counts FMLA-protected absences toward disciplinary thresholds, every termination or warning based on attendance is potentially an FMLA retaliation claim.
The risk: An employee terminated for "excessive absences" who had FMLA-protected time included in that calculation has a strong retaliation case. Courts consistently rule that FMLA absences cannot be counted against employees in attendance policies, period.
The fix: Audit your attendance policy immediately. Ensure that all FMLA-designated absences are explicitly excluded from point calculations, occurrence tracking, and any other attendance-based disciplinary triggers.
4. You Don't Have a Return-to-Work Process
What happens when an employee's FMLA leave ends? If your answer involves "figuring it out when they come back," you're creating risk. FMLA requires that employees be restored to their same or equivalent position. "Equivalent" has a specific legal definition that covers pay, benefits, working conditions, and status.
The risk: Returning an employee to a different shift, a reduced schedule, a different location, or a position with less responsibility — even if you consider it equivalent — can constitute a failure to restore. And if the employee was replaced while out, you need to have a plan that doesn't leave them without a position.
The fix: Build a documented return-to-work process that includes position confirmation before the return date, fitness-for-duty certification if required, ADA accommodation assessment if the employee has ongoing limitations, and a first-week check-in.
5. You Can't Answer Basic FMLA Questions
Quick test: How many hours of intermittent FMLA has your employee with the chronic condition used this year? When does their 12-month period reset? Have all required notices been sent within the required timeframes? Did you send the designation notice within five business days?
If you can't answer these questions immediately and with documentation, you have a compliance gap. And the gap exists whether or not anyone is currently looking.
The risk: The inability to produce accurate leave records is, by itself, a problem in any DOL investigation or litigation. It also means you're likely making decisions based on incomplete information, which increases the probability of an inadvertent violation.
The fix: Implement systems and processes that make these questions easy to answer. Whether that's internal technology, outsourced administration, or a combination, the goal is real-time visibility into every employee's leave status.
The Bottom Line
FMLA compliance isn't about good intentions — it's about good systems. Most employers who face FMLA claims aren't trying to violate the law. They just don't have the processes in place to manage leave correctly.
If any of these warning signs apply to your organization, schedule a free compliance audit. We'll assess your current leave management practices and show you exactly where the risk is — and how to eliminate it.