FMLA

Manage interplay of all state and federal laws affecting pregnant employee's leave rights

03/23/2015
California has one of the nation’s most complex set of laws covering employees who need time off for illness, disability, pregnancy and parenting. Federal and state laws combine to create a complicated mess.

What is the protocol on asking for doctors' notes?

03/23/2015
Q. When an employee calls off sick for more than one day, is there a minimum amount of days off required before an employer can ask for a doctor’s note? Can we ask the specific reason for the absence?

Consider extended leave as accommodation if disabled employee is likely to return to work

03/11/2015
Before rejecting a disabled employee’s request for additional time off as a reasonable accommodation, consider whether the time would allow the employee to return. If not, you probably won’t have to provide the additional leave.

Carefully document discipline after FMLA leave

03/11/2015

When slapped with discipline shortly after taking FMLA leave, some employees jump to the conclusion that it’s retaliation for taking time off. That would be illegal, and could prompt a lawsuit. Don’t make their legal case easy.

Employee leave: When must you grant it to accommodate disabilities?

03/10/2015
The goal of leave is “to provide job-protected time in order to enable a qualified employee with a disability to manage his or her medical impairment and ultimately remain in the workforce.” Follow these guidelines when granting it.

Remind bosses: Don't comment or ask details about employee doctor visits

03/09/2015
Warn supervisors that they should avoid making derisive comments when employees take time off for medical treatments. If the underlying medical condition is a disability under the ADA, such comments may come back later to haunt the employer.

Invoke FMLA when employee can't perform essential functions of the job

03/05/2015

Sometimes a pregnant employee develops problems that amount to a temporary disability. But to be protected under the ADA, an employee with disabilities must be able “to perform the essential functions of the job, with or without reasonable accommodation.” If she can’t perform the essential functions, you can place her on FMLA leave.

Require health clearance before FMLA return

03/05/2015
When one of your employees takes FMLA leave, you may require a fitness-for-duty exam showing she is fully able to perform her job before you allow her to return. As long as you require everyone who takes FMLA leave to undergo such exams, the rules authorize you to discharge workers who can’t or don’t provide certification before their return.

Firing for attendance? FMLA doesn't count

03/03/2015
Here’s something to remember when you are ready to dismiss an employee for poor attendance: You can’t use any FMLA leave as a negative factor, and you can’t include any FMLA leave when tallying absences.

Use updated FMLA forms--at least for the rest of March

03/02/2015
With almost no advance notice, the federal government has revised recently expired FMLA forms to reflect a new effective date: March 31, 2015. The core suite of FMLA forms—doctors’ certifications of serious health conditions, notices of rights and responsibilities and designation notices—was set to expire Feb. 28.

FMLA rights extended to all same-sex spouses

02/26/2015
The rule change grants FMLA leave rights to same-sex spouses even in states that do not sanction or recognize gay marriage.

Beware handing out discipline so soon after FMLA request

02/20/2015

When it comes to the FMLA, courts always pull out their stopwatches and calendars to see how closely the employee’s protected activity (requesting or taking FMLA leave) coincides with the adverse action (discipline or firing). As this case shows, the smaller the time, the bigger your risk of liability.

Choose one: Total disability or accommodation

02/10/2015

Here’s something to consider if a discharged disabled employee who simply could not do her job sues, alleging disability discrimination. Check to see if she has applied for disability benefits and get a copy of the application. If she didn’t qualify her disability by claiming she could perhaps do some work if reasonably accommodated, she may have killed her chances to argue she was qualified for her old position, too.

Invoke FMLA when employee can't do job

02/09/2015

Sometimes a pregnant employee develops problems that amount to a temporary disability. Then she may need accommodations. But if those accommodations don’t allow the employee to perform the essential functions of the job, you can place the employee on FMLA leave. If she can’t return to work when her FMLA entitlement is up, you may terminate the employee without violating the FMLA.

OK to base discipline on pre-FMLA absences

02/04/2015

Until an employee has logged 12 months of service with her employer, she’s not eligible for FMLA leave. After she becomes eligible, you can’t use FMLA-related absences against her. But what about absences occurring before she became eligible? Can you count those? The answer is yes.

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