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Q&A

What can we ask job applicants? We want to make sure they can physically perform the work

04/20/2011
Q. We are looking to hire several new workers in our receiving department. The job will require lifting heavy boxes. Can we ask applicants about any current medical conditions or disabilities that would prevent them from doing so? Can we ask applicants to pass a physical test to see if they can fulfill the requisite job duties?

Accruing sick leave while on FMLA

04/15/2011
Q. If an employee is on FMLA paid sick leave, can we stop her from accruing sick leave while out?

She’s not our employee! Are we liable for subcontractor harassment?

04/15/2011
Q. We recently received a complaint of harassment from an employee of one of the contractors we hire to do some work around our facility. I know, of course, all about our duty to prevent and stop sexual and other kinds of harassment of our own employees. But we don’t have a duty to do the same for the employees of another company, do we?

After Google search revealed that applicant smokes and drinks, can we refuse to hire him?

04/14/2011
Q. We did a Google search on someone we wanted to hire and we found several pictures of the individual smoking and drinking alcohol at bars. We had wanted to hire this employee for a position in which he will work closely with clients and now we are having second thoughts. We certainly do not want him to smell like smoke when he meets with clients. Is there any legal problem with not hiring him?

Can we fire? Doctor added 3 months to injured worker’s restrictions

04/14/2011
Q. One of our employees broke his ankle while on vacation last summer and he has still not fully recovered. He has been on work restrictions from his physician since the accident, and those restrictions limit his ability to perform job duties that involve walking, standing or lifting. We have accommodated the restrictions, but we recently received a note from his doctor asking us to extend the restrictions for another three months. Do we have to do that or can we simply terminate the employee?

Does the FMLA grant leave for foreign adoptions?

04/14/2011
Q. One of our employees is adopting a 5-year-old Ethiopian child and has asked for leave to travel to complete the adoption and bond with the child when they return to Minnesota. Does this count as FMLA leave, since it is not leave within the first year of the child’s life? If it does, is the travel time eligible for FMLA leave?

How do the new Illinois Equal Pay Act rules affect my record-keeping obligations?

04/14/2011
Q. I’ve heard that there are new Illinois Equal Pay Act regulations I have to follow. Does this affect my record-keeping?

Do we have to pay for smoking breaks?

04/07/2011
Q. We give employees a one-hour unpaid lunch break. We don’t provide additional paid breaks during the day. If an hourly employee also chooses to take short smoke breaks (less than 20 minutes) in the morning and afternoon, do we have to pay her for the breaks?

Are all cancer treatments eligible for FMLA leave?

03/31/2011
Q. Do we always have to allow intermittent FMLA leave for cancer treatments (e.g., chemo and radiation)? The employee is capable of working and says the treatments are available only during the day.

How does FLSA administrative exemption work?

03/29/2011
Q. I think one of our employees falls within the administrative exemption under the Fair Labor Standards Act (FLSA), but I’m not sure if he “regularly exercises discretion and independent judgment.” How can I make that determination?