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Ask the Attorney Archives

How much contact can we have with someone out on FMLA leave?

02/24/2014

Q: Once an employee is on approved FMLA, what are the employer’s rights in contacting the employee during the leave? Can we contact him/her to see how they are doing? Can they leave their premises at will, or do we have an expectation that they will be at home recuperating in accordance with the doctor’s direction? — Terry, New Jersey

What do we owe employees who won’t be making the move with us?

02/24/2014

Q: We are relocating to another state and I am about to make an announcement to the staff. Several will not be given relocation packages; however, I plan on giving them severance packages. I will require them to stay to a certain date in order to receive the package. Is that legal? – Jeff, Texas

Late for work again: Can vacation pay be deducted?

02/24/2014

Q: Can a company with less than 25 employees deduct vacation pay for tardies? For example, every time an employee is tardy three times, one hour of vacation pay is deducted. – Susan, Kansas

Must we pay taxes in each state where our employees reside?

02/24/2014

Q: My company is based in Florida, but we have employees in New York, Colorado, Virginia and Puerto Rico. We currently pay Florida taxes; in order to stay in compliance, should we register each employee in their state? What are the repercussions if we don’t and keep paying Florida taxes for them? —Anonymous, Florida

FMLA leave–for a cold?

02/24/2014

Q: We are finding that some employees are calling in and saying they want to use intermittent FMLA leave when they have a cold, but their FMLA certification is to care for an elderly parent. Can we require them to answer certain questions? If so, what is allowed? – Susan, North Carolina

Employee’s performance is slipping because of medication–what are our options?

02/18/2014
Q: A long-term employee has been working part time for a year now due to double knee replacement surgery. The employee must use painkillers, but does not take them when at work. Our concern is that in recent months, she has not always displayed good judgment, like she did before. In addition, she sometimes shakes all over and is not able to concentrate well during a conversation. Due to the fact that we are a mental health agency, we are concerned that she may be addicted to the painkillers. We are curious as to what our options are other than the steps we have already taken.  – Lisa, Alaska

Must PTO continue to accrue during an FMLA absence?

02/18/2014

Q: I have an exempt employee on FMLA who was out on leave for a month. Can we stop PTO from accruing while this employee is on leave? I have read the DOL regulations on this and it’s unclear. In addition, I contacted the Society for Human Resource Management (SHRM) and they said that if we allow the accrual of PTO for other employees taking other types of unpaid leave, we must allow an employee on FMLA to accrue also. Is the distinction “unpaid”? Because FMLA time can be paid. What about an employee who takes an unpaid vacation? Lastly, what if the employee comes back to work on a part-time basis for a few weeks? Can we allow only half PTO accrual? – Shanna, Florida

Can we ask for details of an applicant’s felony conviction?

02/18/2014
Q: We have a question on our application that asks if the applicant has ever been convicted of a felony. However, one applicant did not explain the basis for this response. During an interview, is it legal to ask about the details of the felony conviction? We are a service company that deals with commercial, industrial, healthcare and education clients. – Bill, Connecticut

Can we require that PTO be used for doctor’s appointments?

02/18/2014

Q: An employee was injured at work. We have filed a claim with our workers’ compensation insurance policy, and it is currently paying for medical expenses related to the claim. The employee did not have lost wages for the minimum required three days, so workers’ compensation is not paying for any lost wages. The employee is still going to doctor appointments related to the injury and has been taking time off work to attend the appointments. Can we make her take paid time off (PTO) to cover the time missed due to the doctor appointments? – Ann, Illinois

Applicant flunked the background check–must we provide her with specifics?

02/18/2014
Q: North Dakota is an at-will state. I had an administrative assistant work for us for one day. and we opted to terminate her due to her background check and her providing false information on her résumé. Can I advise her that not keeping her employed was due to criminal and credit items on the background check? She says she is entitled to a copy of the background check or our findings, but I didn’t think I needed to provide that?  – Kim, North Dakota