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FMLA

Don’t tell employee she can take FMLA leave until you have checked her eligibility

10/15/2010

Under limited circumstances, employees who aren’t actually eligible for FMLA leave may become eligible if their employers tell them they are. That’s why you should tell employees that you won’t have a definitive answer about whether they can take FMLA leave until you have checked on their eligibility.

FMLA: Who is considered a ‘key employee’?

10/15/2010
Q. On the U.S. Department of Labor’s Form WH-381 “Employer’s Response to Employee,” there is a line that asks whether the worker is a “key employee” as described in the FMLA regulations. I always check the box indicating that the worker is a key employee. How should I mark these boxes? I consider most of our workers key employees, and I do not want to offend anyone by suggesting that they are not.

No automatic FMLA leave for employer-caused condition

10/15/2010
A federal court has refused to expand the FMLA, rejecting an employee’s attempt to force automatic FMLA leave for a serious health condition allegedly caused by her employer.

Fitness-for-duty exams: When can they be used?

10/15/2010
We’ve all tussled with sending employees to fitness-for-duty exams when returning from an injury or illness. When are they the right decision? When do they create liability? As this case shows, it’s best to let the doctor make the right call …

On eve of flu season, know what FMLA covers

10/12/2010

After last year’s swine flu scare, there’s good reason to worry about the upcoming flu season. A serious outbreak could incapacitate employers operating with lean staffing. Some employees may want to take time off if they suspect they’re coming down with the flu. And at least some of those workers may assume that sick time off will be covered by the FMLA. That’s where things get tricky.

Remember: You must consider chronic conditions when employees request FMLA leave

10/12/2010
Employers sometimes mistakenly focus only on the FMLA provision that defines a serious health condition as one that incapacitates an employee for three calendar days or more. Don’t focus solely on illnesses of three days’ duration. If the employee has a brief flare-up of an underlying condition that has been treated in the past, he may be eligible for FMLA leave.

Feel free to set generous FMLA notice terms, but rely on the law if you wind up in court

10/12/2010
Some employers cut more slack than the FMLA requires when employees fail to give timely notice that they want to take FMLA leave. The company typically might send an employee a letter informing her that, since she didn’t show up for her last scheduled shift or offered an explanation, she has five days to return or explain why she can’t work. If the reason is one covered by the FMLA, she may already have lost the right to claim FMLA leave.

What should we do when an employee provides conflicting FMLA certification notes?

10/12/2010
Q. An employee seeking FMLA leave presented medical certification from her doctor that stated that her medical condition didn’t prevent her from performing the essential functions of her job. A few days later, she presented a second form that stated the opposite. Can we hold her to the first certification, or do we have to accept the second form and grant FMLA leave?

Department of Labor to study FMLA usage; may signal more upcoming regulatory changes

10/12/2010
The DOL announced it plans to conduct a study next year of how employees use leave under the FMLA, a move that could be a sign the agency is planning more regulatory changes to the law. The timing of this announcement suggests any FMLA regulatory changes won’t be rolled out until 2011 at the earliest.

When it comes to firing offenses, be sure you can show you treated everyone equally

10/08/2010

Especially in a lousy economy, fired employees will look for a reason to sue. You must be able to defend every discharge against possible discrimination and retaliation claims. The only safe approach is to document that you treated every employee equally. You simply can’t cut slack for one employee and not another.