If you’re responsible for managing employee leave, 2026 just raised the stakes.
Recent guidance from the Department of Labor (DOL)—combined with a wave of federal court decisions—is reshaping how employers must interpret and apply the Family and Medical Leave Act (FMLA). And the changes aren’t theoretical—they directly impact how you handle everyday situations like attendance, scheduling, and performance management.
The bottom line?
What worked last year may now expose your organization to risk.
Let’s break down what’s changed—and where employers need to pay closer attention.
1. FMLA Is Expanding in Practice (Even Without New Laws)
The DOL didn’t rewrite FMLA—but their recent opinion letters clarified how existing rules should be applied.
That clarification matters.
For example:
- Travel time to medical appointments is now explicitly counted as FMLA leave
- Partial-week school closures don’t always count against FMLA entitlement
These aren’t new laws—they’re interpretations. But in practice, they change how leave must be tracked, calculated, and administered.
👉 If your internal policies haven’t been updated recently, there’s a good chance they’re already outdated.
2. Small Mistakes Are Turning Into Legal Risk
Recent court decisions show a clear pattern:
Employers aren’t losing cases because they deny leave outright—they’re losing because they mishandle the process.
Take this example:
- An employee mentions a serious medical issue involving a family member
- The employer doesn’t recognize it as a potential FMLA trigger
- The employee is disciplined or terminated
- The court rules this as FMLA interference
That’s exactly what happened in a recent federal case involving FedEx, where failure to provide timely notice of FMLA rights became a central issue.
Lesson:
You don’t have to deny leave to violate FMLA—you just have to mishandle it.
3. Attendance Policies Are Under Scrutiny
“No-fault” attendance policies have long been standard.
But recent rulings make one thing clear:
👉 You cannot count FMLA-protected absences against an employee—even accidentally.
In one case, an employer approved FMLA leave—but still assessed attendance points. The court ruled that this was unlawful, even under a neutral attendance policy.
What this means for employers:
- Retroactive approvals must trigger retroactive corrections
- Systems and managers must align
- Policy neutrality is not a defense
4. Medical Certifications Are Not Hard Limits
Many employers rely heavily on certification estimates (e.g., “2 days per month”).
But courts are now reinforcing that:
👉 These estimates are guidelines—not caps.
If an employee exceeds the estimate due to an unpredictable condition:
- You cannot automatically deny leave
- You cannot immediately discipline or terminate
Instead, the appropriate step is:
- Review usage
- Request recertification if needed
This shift requires a more nuanced, case-by-case approach—something many organizations aren’t prepared for.
5. Performance Management Still Matters—But It Must Be Clean
Here’s the good news:
Employers can still manage performance and enforce workplace standards, even when an employee is on FMLA.
But here’s the catch:
👉 Your documentation must clearly show that performance issues are separate from FMLA leave
Courts are looking for:
- Consistency over time
- Evidence that issues existed before leave
- Clear, objective performance metrics
When those elements are present, employers are winning cases. When they’re not, risk increases significantly.
What Employers Should Do Right Now
If you’re reviewing your FMLA practices, start here:
- Revisit your leave policies—especially around travel time and intermittent leave
- Audit attendance tracking systems for FMLA compliance
- Train managers to recognize FMLA triggers earlier
- Ensure documentation aligns with actual decision-making
- Establish a process for handling certification overages
Final Thought: FMLA Is No Longer Just an HR Function
What these updates make clear is this:
FMLA administration is no longer just about compliance—it’s about decision-making across the organization.
Managers, HR teams, and leadership all play a role. And when even one step breaks down, the risk compounds quickly.
Want to Go Deeper?
Understanding FMLA at this level requires more than surface knowledge.
IEA’s Certified Professional in Disability Management (CPDM) program is designed to help professionals:
- Navigate complex leave laws with confidence
- Reduce legal risk across the organization
- Become a trusted resource for absence management decisions
👉 Learn more at ieatraining.org/cpdm
Additional Resources
U.S. Department of Labor: https://www.dol.gov/agencies/whd/fmla
Webinar: FMLA Under the Microscope: REcent DOL Guidance and Court Decisions
FMLA Under the Microscope: Recent DOL Guidance and Court Decisions
