HR Specialist: Texas Employment Law

Everything’s bigger in Texas – including employer liability. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This Texas-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: Texas Employment Law and the free report you’ll get when you subscribe...

Make sure your supervisors (and you) know how to respond when an employee requests leave for his or her own serious illness or a family member's illness. If you don't follow the FMLA's rules on how and when to request written proof about the illness or injury, you lose your right to challenge the employee's leave request.

Case in point: The city of Arlington warned certain employees that they couldn't take time off in the last few weeks of the year. But when employee Kim Lubke's wife got sick, he called in sick anyway.

When Lubke returned to work, he asked what kind of proof he needed to show regarding his wife's illness. Neither the HR office nor his supervisor would tell him exactly what he needed to provide, but both threatened to fire him if he didn't substantiate the illness. The company eventually fired him and then he filed an FMLA lawsuit, claiming that time caring for his wife should have been qualified FMLA leave.

A jury sided with Lubke, and the 5th Circuit upheld the jury's award, reasoning that because the city never followed FMLA regulations on obtaining certifications, Lubke wasn't required to provide proof. (Lubke v. City of Arlington, No 04-11213, 5th Cir., 2006)

How to request certification

FMLA regulations set clear rules on how employers should react to FMLA leave requests:

• When leave is unforeseen, employers have two days to request that the employee substantiate the need for leave with a medical certification.
• The request must specify that a health care provider has to certify that the employee or relative being cared for has a serious medical condition under the FMLA.
• The employee must be given at least 15 days to respond to the request.
• If the certification is incomplete, the employer must give the employee a reasonable opportunity to complete or correct the certification.