Employees who need to take care of a disabled relative may be eligible for FMLA leave if the disability qualifies as a serious health condition—but only if the employee has worked enough hours to be eligible for FMLA leave. Likewise, employees sometimes think their employers must provide them with reasonable accommodations so they can care for a disabled relative under the ADA’s so-called association clause—that’s simply not true.

Employees sometimes think that just calling in sick is enough to put their employers on notice that they need FMLA leave. That’s simply not the case. In the following case, the 8th Circuit concluded the new language in the FMLA means employers aren’t obligated to guess about an employee’s need for FMLA leave based on behavior.

Q. What rights does an employer have if an employee fails to give timely notice of FMLA leave?

Some employees believe the Pregnancy Discrimination Act makes it illegal to discharge a pregnant woman for any reason related to the pregnancy. That’s not quite true. The PDA merely requires employers to treat pregnant women no differently than other employees. That may mean discharge for complications associated with pregnancy—under the right circumstances.

Q. Can our employee take FMLA leave without first giving us notice that she needs leave?

You’re asking for trouble if you consider FMLA leave-related absences a negative factor when making employment decisions. Courts view such decisions as direct evidence of retaliation—which makes it almost impossible for the employer to win a lawsuit.

A federal trial court has concluded that coming to work is an essential function of one’s job. Therefore, the ADA doesn’t cover disabled employees who can’t meet that basic requirement.

Employees who sue under the FMLA for alleged interference with the right to take covered leave can’t throw in an additional claim for wrongful termination under state common law. That’s because North Carolina allows wrongful termination claims only in very limited circumstances ...

A federal court hearing a North Carolina case has dismissed a discrimination lawsuit based on failure to file that lawsuit within a shortened time limit that the parties had agreed they would use.

Employers can terminate employees who are on FMLA leave if the employers are sure they can later prove to a jury that they would have made the decision to terminate whether the employee took leave or not. That’s a tough burden, so you must make sure you have a solid reason—and you must document it.

Q. We have a point system for absences and lateness. Our no-fault attendance policy states that if employees call in after the start of their shifts, they’ll receive two points. What if the reason for an absence is covered by the FMLA? Should the employee still receive the two points?

A federal court has refused to accept the notion that a standard FMLA eligibility form sent to an employee creates a contract.

Employers that must decide whom to cut during a reduction in force sometimes mistakenly fear they can’t terminate someone who is out on FMLA leave—even if the employee had an atrocious attendance record before she went on leave. That’s simply not fair to other employees.

As the winter months set in, some people may notice that they feel more tired, experience weight gain or struggle to get out of bed in the morning. While the majority of people who experience these symptoms have nothing more serious than the “winter blues,” others suffer from a potentially debilitating condition known as seasonal affective disorder (SAD). Be careful not to brush off employees who complain of SAD.

It’s not surprising that employees and employers can view the same circumstances differently. Consider, for example, the following case, in which an employee thought she had been replaced and promptly left. She was entitled to unemployment compensation based on her reasonable belief that she had been fired even though her employer never told her so.

Here's a collection of creative employee benefits programs, excerpted from the "What's Working" column in our sister newsletter, Compensation & Benefits.

In Reaux v. Infohealth Management Corp., a federal judge recently ruled that employers that are not otherwise required to provide FMLA leave could wind up subjecting themselves to the FMLA by promising it to employees.

Employees who suffer from chronic conditions may have to see their doctors regularly. Under the FMLA, if those employees give you 30 days’ notice, they’re allowed to pick the day for their appointment. You can’t simply argue that they don’t need to take off that particular day because there is no emergency or urgency.

Some employees have learned how to play the FMLA game very well. For example, you may notice a suspicious Monday-Friday pattern of intermittent leave for an illness. If you really believe an employee is trying to pull a fast one, don’t play the termination card right away. Instead, your first—and safest—option is to request a medical certification stating the employee has a serious health condition.

Employers don’t have to put up with employees who pose a safety hazard to others—or themselves. While suicidal behavior may indicate an employee is suffering from a serious health condition under the FMLA or a disability under the ADA, it isn’t an excuse for violating safety rules.

It may be terribly annoying and very disruptive, but it is also the law: Employees eligible for intermittent FMLA leave are entitled to take that leave at the beginning of their scheduled shifts if they need to. While that may make them late for work, you can’t punish that tardiness as long as the employee follows your call-in policies and the underlying reason for being late is related to intermittent FMLA leave.

If you use mandatory arbitration agreements, take the extra time to make sure courts will enforce them. In New York, that means showing that the applicant or employee knew that getting and keeping her job required agreeing to arbitration of all employment disputes.

Employers sometimes have the mistaken belief that employees with serious health conditions who have used up all their FMLA leave can be terminated if they can’t return to work. That’s simply wrong. In fact, those employees may be entitled to reasonable accommodations—including additional time off—under the New York State Human Rights Law and the New York City Human Rights Law.

Here’s a potential trap you may not have considered: Punishing a former employee may be retaliation, too. That means that you must carefully consider anything you do involving a former employee before you act.

Employees who think they’ve suffered discrimination sometimes have a hard time finding a lawyer to represent them. Then, instead of accepting that maybe they don’t have a case worth pursuing, they file their own suits and try to represent themselves. Take those cases seriously.

Q. We have an employee out on a medical leave who is collecting short-term disability benefits. We have also designated the leave as FMLA leave. Our FMLA policy allows us to require the employee to use accumulated paid leave benefits concurrently with FMLA leave. Can we reduce this employee’s paid leave bank for the FMLA time he is taking?

Employees sometimes think taking FMLA leave—or even just asking for the time off—protects them from being disciplined or discharged. Not so. Employers are free to discipline or discharge employees if they can show they would have taken the same action even if the employee never asked for or received FMLA leave.

Employees who take their full 12 weeks of FMLA leave and can’t return to work lose their FMLA job protection. But that doesn’t mean they’re not still protected by the ADA. In fact, if an employee who can’t yet return to work asks for a reasonable accommodation—such as additional time off or a reduced schedule until she is ready for full-time work—you should consider the request.

Some good news: A federal court has ruled that an employer that mistakenly tells an employee he is covered by the FMLA isn’t bound by that mistake.

Q. One of our employees is out sick and has already used up all her sick leave hours. Can we legally subtract from her vacation time instead?

Lawyers are always looking for new and different reasons to sue employers on behalf of employees and applicants. That’s bad news for employers, because additional charges mean greater legal costs, more lost time and potentially higher jury awards. Fortunately, courts are growing impatient with this practice ...

Employees who are unable to perform anything but sedentary work may be disabled under the ADA. That means employers may have to find ways to accommodate them, including finding open positions for them to fill elsewhere within the company.

Employees who need FMLA leave don’t have to specifically say so. They just have to give enough information to let their employers know they may have a serious health condition. That’s why you need to train supervisors to let HR handle all leave requests involving health problems of any sort.

You shouldn’t have to worry about losing a retaliation lawsuit if you consistently follow your internal rules for seeking medical information from employees who ask for sick leave. That’s true even if the employee has already complained about discrimination, either internally or to the EEOC.

Performance improvement plans (PIPs) are great tools to help underperforming employees come up to standards. But some employees think they can file a lawsuit anytime they are placed on a PIP or are justified in quitting. As the following case shows, that’s not necessarily true.

Does your handbook include a formal policy regarding FMLA leave requests and absences? If so, make sure you stick to that policy. Bending the rules creates a slippery slope that could land you in court.

In January 2009, the DOL issued new FMLA regulations that incorporated the National Defense Authorization Act of 2008, which granted new leave rights to family members of employees in the military. The regulations, for the first time, defined what a “qualifying exigency” is under the law that entitles military families to take leave. Qualified exigencies are divided into seven categories:

If an employee’s FMLA medical certification is incomplete (required information is omitted) or insufficient (the information provided is vague, ambiguous or nonresponsive), an employer is now entitled to request additional information directly from the employee’s health care provider, subject to certain key limitations.

Generally, employees aren’t entitled to FMLA leave to care for adult children who suffer from serious health conditions—unless the child is disabled. The test is whether the child suffers from a physical or mental disability that makes self-care impossible.

Employers that support pregnant and working mothers fare better if they do get sued by someone who believes she suffered pregnancy discrimination. That’s because courts are reluctant to believe that an organization would suddenly become biased after demonstrating a history of progressive policies for pregnant women and working mothers.

Q. An employee called in sick but did not provide any information, other than that he was sick and would not be at work. He didn’t mention the FMLA by name. Was his phone call sufficient notice that he might need FMLA leave?

When an employee takes FMLA leave, chances are you’ll have to replace him with a temporary employee or assign the work to others. What happens if the fill-in worker discovers that the employee currently out on FMLA leave wasn’t doing as good a job as you thought? Can you then fire the employee while he’s on FMLA leave?

For the past 15 years, complying with the FMLA has been complex, but at least the law stayed the same. But earlier this year, that all changed when the first major overhaul of the FMLA took effect. Here are the details on the changes every HR pro must understand.

Nothing will land you in FMLA trouble faster than ignoring an employee’s request for leave. You’d never do that, you say. But what about an untrained supervisor? Make sure all managers and supervisors know how to handle medical call-ins. Ignoring a leave request could amount to “interference” with the employee’s right to take FMLA leave.

Q. An employee who’s been employed since May is out on workers’ comp and will be for a while. Do I send her FMLA paperwork even though she hasn’t met the criteria of being employed for at least a year? It’s my understanding that I should send it to everyone who requests leave, and only after they return the paperwork should I determine if the person is, in fact, eligible.

Employers have to meet thresholds before they’re required to comply with most statutes. For example, the FMLA applies only to organizations that employ 50 or more employees within 75 miles. But smaller employers can effectively render themselves covered by the FMLA if they make certain representations about FMLA coverage to their employees. If they say the FMLA applies, then it does. That’s commonly referred to as coverage-by-estoppel.

When an employee is discharged shortly after returning from FMLA leave, she may charge retaliation. The timing alone may be enough to send the case to trial. If an employer has a solid reason for the firing, however, it can win.

Do you require employees to sign an agreement to arbitrate workplace disputes as a condition of employment? If so, you don’t lose the right to force the case into arbitration if you don’t ask for it during an EEOC investigation.

Of course, employees have the right to take protected FMLA leave. But that doesn’t mean you can’t take action you already planned to take for other legitimate reasons before you found out the employee needed FMLA leave.

Employee benefits have been in the national spotlight right from the start of 2009. From the new FMLA and ADA rules that took effect in January to today’s white-hot health care debate, employers are dealing with important changes and “could-be” changes. Let's look back at the year in benefits and ahead to what could be coming.

Q. We provide a perfect-attendance bonus to any employee who is not absent or tardy during the calendar year. If an employee’s only missed time is for a medical leave of absence, does the FMLA require us to nevertheless provide the perfect-attendance bonus?

Some employees have learned how to play the FMLA game very well. For example, you may notice a suspicious Monday-Friday pattern of intermittent leave for an illness. If you really believe an employee is trying to pull a fast one, don’t play the termination card right away. Your first—and safest—option: request a medical certification stating the employee has a serious health condition.

The FMLA applies to employees who have worked more than 1,250 hours and for one year—provided their employer has a staff of 50 or more working within 75 miles of the employee’s base. Typically, the base is where the employee reports. But what about a salesperson who travels over a set territory and works from home?

Q. We have an employee out of work due to a workers’ compensation injury. Does the employee’s time off count against his FMLA leave?

Q. Can we require an employee who is out on FMLA leave to use accrued paid time off if he or she is receiving disability payments?

The FMLA seems straightforward in theory, but in real life, it’s full of tricky and delicate nuances. For example, what happens upon the death of a relative for whom an employee on FMLA leave has been providing care? How does compassion square with the law’s requirements?

The key to determining whether someone has a condition that meets the FMLA’s definition of “serious health condition” is the medical certification the employer receives from a health care provider. But the rules on how to get that certification have changed. Here's what you need to know to comply with the law.

When an employee threatens litigation, take your time building the case against him. Make sure you base your decision on solid facts. Double-check to see that there’s no way the employee can claim you singled him out for unfair or inequitable treatment. Then rest easy, knowing that if you’re sued, you can counter the allegations with facts and get the case dismissed quickly.

Every HR pro has to deal with especially difficult and argumentative employees now and then. You may believe an employee is having emotional problems—maybe even a diagnosable mental disorder. But don’t mention your suspicions. You would risk being charged with regarding him as disabled, which gives the employee protections under the ADA or state disability-bias law.

Q. Last year an employee explained an absence by referring to his rights under Minnesota law to attend school activities. What exactly do Minnesota laws say about a parent’s right to be away from work because of school activities or to take care of children?

Employees who know they are in trouble often try to protect themselves by asking for FMLA leave. That tactic might work only if the employee can show he was eligible for it.

Under the FMLA, only employers that have 50 or more employees within 75 miles of the company’s work site are required to provide FMLA leave to their employees. The requirement is commonly known as the “50/75 rule.” Can an employer that has fewer than 50 employees within 75 miles of the company’s work site willingly agree to provide its employees with FMLA rights and benefits? That situation recently occurred in Reaux v. Infohealth Management Corp.

If an employee rebuffs your offers to consider her for ADA accommodations or FMLA leave, make sure you document her desires. That way, she can’t come back later and claim you didn’t accommodate her or give her leave.

Some employees think that taking FMLA leave gives them complete protection from disciplinary action. That just isn’t so. For example, when an employee takes FMLA leave, her work may have to be redistributed. If, during that process, you discover that the employee had been doing a poor job, you can take disciplinary action against her.

Under the FMLA, employers with 50 or more employees within 75 miles of the company’s work site are required to provide FMLA leave to their employees. But even if you're a small employer, innocent mistakes could make the “50/75 rule” meaningless to you — and force you to provide FMLA leave. Learn how to avoid that trap.

Q. We have an employee who is going on eight weeks’ leave for a qualifying serious health condition. She isn’t requesting to use FMLA leave because she has enough paid sick leave. Can employees choose not to use FMLA leave even though they qualify?

Employers don’t have to provide a disabled employee with an indefinite leave of absence when the employee has a medical emergency and doesn’t know how long it will take to return to work. As long as the employee isn’t covered by the FMLA (in which case, she would be entitled to 12 unpaid weeks of leave), you can terminate her without violating the ADA.

The federal government has slowly been introducing laws that force employers across the country to provide employee benefits: for example, the FMLA, USERRA and the ADA. Now Congress is considering several legislative initiatives that would require employers to provide additional benefits.

Many employers are discovering they have to cut staff to survive. It’s tempting to eliminate those positions where the least work is being done. After all, the employees doing the least work should be the least missed. But before you decide to RIF someone, remember that you cannot consider FMLA leave in the calculation.

It’s easy enough to do. While calculating an employee’s remaining FMLA leave, you make a mistake and tell the employee he has to return by a certain day when in fact his leave expires earlier. How can you fix the problem if you discover it while the employee is out on leave? Just let him know that you made a calculation mistake and give him the correct information—before he has to return.

Q. Under what circumstances can my business make deductions from an exempt employee’s weekly salary without putting the employee’s FLSA exemption in jeopardy?

FMLA rules say employers are required to let their workers know about the law and how to go about requesting FMLA leave for a serious health condition. Ignoring a leave request could amount to “interference” with the employee’s right to take FMLA leave. Make sure all managers and supervisors know how to handle medical call-ins so that a potential FMLA request doesn’t get lost.

Some employees think that any disability that periodically acts up entitles them to unlimited time off. Sometimes, courts view extra time off as a reasonable accommodation, but there are limits.

Sure, at one time or another, we’ve all worked for some great bosses and some bad bosses. But nothing can be more debilitating than working for someone who is ignorant of the laws. In the following case, a company president walked right into an FMLA lawsuit because he had never even heard of the Family and Medical Leave Act. He knows about it now ...

An employer fired a worker just six weeks after she returned from FMLA leave. Six weeks is like a nanosecond on the retaliation stopwatch. But the court still dismissed the case. Why?

Employers have an obligation to engage with disabled employees in an interactive accommodations process. But exactly how do you go about proving you complied when the employee says you didn’t try to help? Your best approach is to track all your efforts to accommodate, including every contact with the employee, whether by phone, e-mail, memo or snail mail.

The 7th Circuit Court of Appeals has ruled in a long-running case that a jury acted properly when it concluded an employer’s retroactive termination of health insurance violated the FMLA.

Q. We have an employee who has missed the last several days of work without notice. We also have a policy that says employees who miss three days without notice are deemed to have resigned and are terminated. Are there any legal risks associated with terminating this employee?

All by itself, a negative performance review after an employee has taken FMLA leave doesn’t give the employee a reason to file a lawsuit. Unless the poor review is accompanied by something tangible—like a demotion or the loss of a pay increase—courts won’t see the review as retaliation.

When an employee announces she’s pregnant, it’s important for HR and supervisors to know what they must do—and what they can’t do (or say) under federal anti-discrimination and leave laws. Most employers must comply with the Pregnancy Discrimination Act and the FMLA. The ADA may apply if pregnancy complications arise.

Employees who take intermittent FMLA leave can often cause real problems for employers because they take time off so sporadically. But sometimes you may detect a pattern that indicates the employee might be abusing authorized intermittent leave. Can you fire him?

A federal court has awarded more than $100,000—plus enhanced pension benefits—to an employee who was fired when the company wrongly believed his FMLA leave had expired.

Employees who take FMLA leave are entitled to return to their jobs, or substantially equivalent ones. Employers often want a return-to-work certification to show that the employee is healthy enough to come back. But it can be risky to insist that the employee return without any restrictions at all ...

In today’s down economy, nearly every termination and layoff is fraught with risk. Layoffs are supposed to be blind on issues of race, sex, age, etc. But, if you are making these decisions in the dark, you are making a big mistake that could prove very costly. Before implementing a layoff, it’s crucial to review the demographics of who is staying and who is leaving.

Employees who can’t come to work at all because of a disability can’t perform the essential functions of their jobs. Someone who is so incapacitated they cannot work can be discharged.

Employees who take FMLA leave or engage in other protected activities sometimes look for signs their employer is illegally punishing them. They interpret every legitimate request for improvement as retaliation. Fortunately, courts are beginning to reject those frivolous claims.

Some employees are under the mistaken impression that merely asking for FMLA leave means they cannot be fired. That’s simply not true. Employees who take FMLA leave don’t have greater rights than other employees.

Employees who take FMLA leave are entitled to their former jobs or equivalent ones when they return to work. But sometimes employers that operate many locations move employees around to cover for the employee on FMLA leave. They may not want to move those employees again. Can the returning employee be assigned to another location?

When you settle a lawsuit involving discrimination or some other employment matter, you typically want that to be the end of it. But what if the former employee applies for an open position? Avoid a second lawsuit by including a condition in the settlement that bars the employee from ever seeking employment with the company again.

Employers don’t have to provide a disabled employee with an indefinite leave of absence when the employee has a medical emergency and doesn’t know how long it will take to return. As long as the employee isn’t covered by the FMLA (in which case, she is entitled to 12 unpaid weeks of leave), you can terminate the employee without violating the ADA.

In today’s competitive and troubled economy, employers may have to demand more of employees. But that can take a psychological toll on employees who don’t handle stress well. Employers need to be aware that additional burdens heaped on employees may actually trigger new disabilities that in turn have to be accommodated.

Employers enter a legal minefield when they inquire about the health of applicants or employees. State and federal laws—such as the North Carolina Workers’ Compensation Act (WCA), the ADA and the FMLA—overlap, and any misstep can cause a litigation explosion.

Here’s another reason for managers and supervisors to pay attention during FMLA and Conscientious Employee Protection Act (CEPA) training. If they make a mistake, they may be personally liable under both laws.

You need a clear policy on handling employees who call in sick. That helps ensure you don’t miss a potential FMLA request. Remember, employees don’t have to ask for FMLA leave by name.

Q.  We have an employee who has worked for us for just six months. However, three years ago, she worked for us for about a year before quitting and going back to school. Now she has requested time off under the FMLA. Is she eligible?

Q. An employee has requested one hour of unpaid intermittent FMLA leave. Can we require him to use up a half or full day of leave instead?

An employee approved for intermittent FMLA leave says she only needs to take an hour this week. Can she take leave in such a short increment? Could she take even less?

Q. One of our employees recently went on military caregiver leave to take care of her injured husband. She is also expected to give birth in the coming weeks. Is she entitled to 12 weeks of leave under the FMLA in addition to her 26 weeks of caregiver leave?

Q. We have a pregnant employee who is planning to take maternity leave soon. Her performance has deteriorated badly during her pregnancy, but we don’t think her pregnancy has anything to do with it. Can we terminate?

Q. We employ the unwed parents of a newborn child. They have requested FMLA leave to care for their child after birth. Both parents are eligible for leave, but we would like to limit their leave to a combined total of 12 weeks during the 12-month leave period. Can two parents of the same newborn be limited to a combined total of 12 weeks of leave under the FMLA?

If you provide more than 12 weeks of disability leave, make sure that your employee handbook and policies spell out that employees may lose the right to return to their previous positions if they exceed the 12 weeks of unpaid leave guaranteed by the FMLA.

Sometimes, an employee whose job is in jeopardy will try to protect it by initiating a lawsuit intended to intimidate her employer. She may call in sick instead of showing up for a termination meeting, hoping to create an FMLA retaliation or interference claim. Here’s how to handle such tactics.

If you have a manager or supervisor whose decisions have caused lawsuits that you have lost, be on your toes the next time that manager has to make an employment decision. Make absolutely sure that you can pin the decision on some objective reason.

A federal jury has awarded $74,000 to Melissa Brown, a former food service director at Plymouth House nursing home in Plymouth Meeting, after the contractor employing her dismissed her when she sought maternity leave. But that was just the beginning ...

A former manager at Tyler Roofing Co. recently filed suit against the company, claiming that his employment was terminated because he missed work to receive cancer treatments. He sued for disability discrimination and violations of the FMLA in the Eastern District of Texas.

Terminating a pregnant employee because she has minor medical restrictions can be very expensive. The move may mean you have to make the employee financially whole—plus pay a large punitive damage award and attorneys’ fees. Here’s the best way to handle temporary medical restrictions associated with pregnancy:

If an employee is taking FMLA leave to care for a newborn or to adopt a child, you can require the person to take any planned FMLA leave in one session. FMLA intermittent leave is not guaranteed for birth and adoption the way it is for other serious conditions that require periodic care.

Does your organization allow or tacitly condone it (by ignoring it) when employees criticize a co-worker who associates with members of a different protected class? If so, you should be aware that disciplining that employee can bring on a lawsuit.

Q. We have an employee in her third week of maternity-related FMLA leave who comes to work to check her e-mails, make some work calls, etc. How should we handle this? Could there be liability issues because there’s no doctor’s release yet?

The FMLA now requires employers to give employees serving in the military (or who are next of kin to service members) up to 26 weeks of unpaid leave under specific conditions. While few employers begrudge military families such leave, unforeseen leave can pose scheduling problems as employers come into the summer vacation season.

Pregnant employees of Southfield, Mich.-based accounting firm Plante & Moran count on support from co-workers who’ve been there. HR pairs expectant moms with those who’ve recently had babies so they can ask questions and get support. The buddies also help new moms make a successful transition back to work.

One of the biggest problems with the FMLA has always been the certification process. Until recently, employers weren’t allowed to call a health care provider whose form looked suspicious or whose diagnosis sounded suspect. Now, fortunately, employers can at least call the medical provider to ask whether the information on the form is accurate and get clarification on any unclear parts.

Employers have to let their employees know about the FMLA so they can take advantage of the leave guaranteed by the law. But if an employee doesn’t take advantage of his FMLA rights, the employer can’t be held liable for not providing leave even if it turns out the employee was eligible.

Q. Is an employer required to keep a job open for an employee who is out on an indefinite leave due to a workers’ compensation injury? Does the employee have an automatic right to get put back into the same job he was doing right before he was injured?

Sometimes, employees think they’re sick enough to qualify for FMLA leave, but their doctors don’t. Other times, medical staff filling out the medical forms makes mistakes. Either way, if you get a certification or doctor’s note explaining that the employee can work, you are under no obligation to get more information. Instead, you can rely on that “negative” FMLA certification and deny leave.

What should you do if you learn that an employee who is out on FMLA leave will not be able to return when her 12 weeks of unpaid leave are up? If you are absolutely sure that she can’t claim she is disabled under the ADA, you can terminate her. But you still must continue providing any benefits she was receiving while on FMLA leave, such as medical premium payments.

Employees who take leave because of a disability may be entitled to a reasonable accommodation when they return to work. But, as an employer, you have the right to decline an employee’s return if you genuinely believe she won’t be able to perform her job. But if the employee proposes undergoing a medical or psychological exam to prove she is fit to return, cooperate.

Employees are eligible for FMLA benefits if they have worked for their employer for a total of one year and at least 1,250 hours in the last 12 months. The criteria don’t stop there. Employers must comply with the FMLA if they employ 50 or more workers within 75 miles of the employee’s workplace. But what if some of those employees work out of their homes?

In Pennsylvania, employers that make a promise that an employee reasonably relies on may be liable if that promise isn’t fulfilled and the employee suffers harm as a result. This quasi-contract theory has FMLA implications ...

Employers don’t have to blindly accept their employees’ medical certifications. The FMLA allows you to get a second opinion about whether an employee's request qualifies for leave ... If the two certifications don’t agree, you can get a third and final certification to break the tie. But what happens during the interim?

The FMLA grants 12 weeks of unpaid leave to handle a serious medical condition. Military family caregiver leave rules provide for 26 weeks off. But what happens when an employee can invoke both, for example, when she must care for a wounded military spouse while she is pregnant?

Even as we watch the stock market slowly recover, organizations are still laying off employees and searching for ways to cut overhead. If your organization is eliminating even one job, plan it carefully. A hasty layoff can create legal problems that cost more down the road than keeping the employee would have. Here are 10 things to consider:

Employees who are having work troubles sometimes think they can prevent being fired by asking for FMLA leave. Their ace in the hole if they are fired: They can always sue for retaliation under the FMLA. That only works if those responsible for the termination decision actually know that the employee has asked for FMLA leave ...

Q. We received a note from an employee’s physician simply stating that she was ill. On one occasion, she had to go to the emergency room from work, and she subsequently called in sick one day about a month or two later. Is this sufficient notice under the FMLA to require us to regard this as a request for extended FMLA leave?

Q. We have an exempt administrative employee who is on intermittent FMLA leave. She’s unable to work on Fridays for two or three hours due to a serious health condition. By policy, she must use any accrued sick leave when she is out sick, typically in whole-day increments. Can we charge her sick time in hourly intervals because she is utilizing FMLA intermittent leave even if we charge her in larger blocks when she is just plain sick?

Q. I am the HR manager of a company with about 350 employees. I have just learned that the company is eliminating one product line and, as a result, there will be a layoff in that department. One of the employees who would be laid off is on FMLA leave. How do I handle this situation? ...

One criterion for employees to be eligible for FMLA leave is that they must have worked at least 1,250 hours in the 12 months preceding the FMLA leave. That’s why it’s important to track employees’ hours, even hours worked by exempt employees, too.

New FMLA regulations went into effect in January. Now is an excellent time to offer everyone in management a refresher course in what the FMLA requires. If managers remain ignorant of the new rules—or the old ones still in place—you increase the risk that an employee will charge them with willful violations.

Q. We employ the unwed parents of a newborn child. They have requested FMLA leave to care for their child after birth. Both parents are eligible for leave, but we would like to limit their leave to a combined total of 12 weeks during the 12-month leave period. Can two parents of the same newborn be limited to a combined total of 12 weeks of leave under the FMLA?

What if you discover during an employee's FMLA leave that the employee wasn’t as stellar as you always believed? What if you couldn’t have known that until you hired a temporary replacement. Must you bring the employee back? No, according to a recent 7th Circuit Court of Appeals decision.

Q. How do we handle an employee who is on an indefinite leave of absence and does not know when he will be able to return to work?

Sometimes, a union contract clashes with employment laws. It’s then up to an arbitrator to reconcile the two—and an arbitrator’s decision is rarely overturned on appeal.

Q. When one of our employees requested FMLA leave, we asked for medical certification of a substantial health condition from her health care provider. We received the form, but cannot read some of the physician’s handwriting and do not understand some of the responses. We also need additional information not requested in the medical certification form. Can we seek clarification from the health care provider?

Don’t jump to the conclusion that, just because a sudden illness or condition requires emergency medical care or even surgery, the employee who falls ill is disabled. The standard ADA test still applies.

Q. When an employee requested a reduced schedule as an accommodation of his medical condition, we agreed. He has now told us that he is able to work full time. However, because of business conditions, we’d prefer to keep him at a reduced schedule. Do we have to reinstate him to his full-time job?

An Illinois court has ruled that employees who request FMLA leave before they’ve met the eligibility thresholds are protected from retaliation. An employer can’t, for example, fire such an employee because he says he will soon be taking FMLA leave and perhaps undergo expensive medical treatment.

Employees who take FMLA leave are entitled to return to their former jobs, or at least equivalent ones in terms of pay, responsibilities and the like. Ignoring that requirement and making job changes is the quickest way to an FMLA lawsuit.

The FMLA grants eligible employees the right to take time off to deal with their own or a covered relative’s serious health condition. What has been unclear until now is what happens when an employee rushes to the emergency room believing a true medical emergency exists, only to find out that the condition was less serious than originally believed.

Q. An employee left work on a Monday due to an illness. She called in sick Tuesday and Wednesday, but we heard nothing on Thursday or Friday. Our policy calls for termination if the employee doesn’t contact us within three days. We posted her job on Friday and decided to terminate her. On Monday, her fiancé called to tell us she was pregnant and had complications that led to a hospital visit. We got a note from her obstetrician saying she’d been examined, but not indicating when she could return. What should we do to avoid any legal fallout?

Employers aren’t allowed to count absences covered by the FMLA when they discipline employees. That’s why it’s important to segregate any such absences from performance reviews and any discussions about attendance.

Here’s a lesson to pass on to managers and supervisors: Employees who win FMLA lawsuits after being denied the right to take leave can end up with a large pot of gold at the end of the litigation—a pot that has to be filled by the company.

Employees who are promised they can take “FMLA leave” may have a claim against an employer even if it turns out the company isn’t required to comply with the FMLA because it has fewer than 50 employees. Employees can argue that the employer misled them, and that the company should therefore be required to comply with the FMLA.

Employees who return from FMLA-covered maternity leave are supposed to come back to the same or a substantially equivalent position. Don’t make the mistake of offering a position that has the same title and pay, but which involves very different duties. That’s especially true if those duties are more onerous for a new mother.

Don’t be so quick to pull out the “request denied” stamp when employees want to use FMLA leave to determine whether they have a qualifying “serious condition.” As a new court ruling shows, if an employee simply thinks she has a serious condition, she may take FMLA leave to have it checked out.

Each year, new employment laws go on the books and courts write thousands upon thousands of decisions interpreting old laws. Yet, year after year, many HR professionals reach up onto a dusty shelf to hand new employees the same old employee handbook someone wrote years ago—too often without a second of consideration whether the contents still pass legal muster.

The 4th Circuit Court of Appeals has upheld a verdict of more than $1 million in an FMLA intermittent leave case involving a foreign adoption. The sad fact is that the employer could have avoided the entire problem by studying up on intermittent leave and adoption.

Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

Q. Our company offers a health insurance opt-out incentive, paying employees $400 a month if they use their spouses’ insurance plans. We now have an employee going out on FMLA maternity leave. Do we have to keep paying her $400 per month?

Sometimes, employees suggest telecommuting as an accommodation if they have temporary disabilities. Telecommuting may be possible for some kinds of jobs. But in other cases, the job itself may make telecommuting impossible.

Q. Our company allowed an employee’s health insurance to lapse because he failed to pay his share of the premium while on FMLA leave. The employee is scheduled to return to work in two weeks. What is the company required to do about the employee’s health insurance coverage when he returns?

Employees who have worked for their organizations for more than one year total and have worked at least 1,250 hours in the 12 months preceding their need for FMLA leave are eligible for unpaid FMLA leave for their own serious health condition or that of a relative. If employees haven’t reached 1,250 hours, they’re not eligible. That’s why it’s important to track every hour worked.

While just calling in sick without further explanation may not trigger an employer’s obligation to see whether an employee needs FMLA leave, the more details she provides, the better the chances that the information constituted FMLA notice, which would require the employer to follow up.

Q. We have an employee out on FMLA leave and have just learned that she will not be able to return to work when her FMLA entitlement expires. Should we go ahead and send her a termination notice now?

Employers may be in for a nasty shock if they assume that an employee who can’t return to work full time after taking FMLA leave doesn’t have the right to reinstatement. If they can perform the essential functions of their jobs on a part-time basis, then employers may have to agree to a reduced schedule.

These days, employees are incredibly well-informed when it comes to their rights. In the following case, an employee found an FMLA certification form online and used it.

Good news from the 8th Circuit Court of Appeals: If you have a system for employees to call in sick, you can require everyone to use it—even employees on approved intermittent FMLA leave. The trick is to make sure that the employee taking FMLA leave understands she still must call in.

Regular attendance is a key job function for most of your employees. But while you are free to set and enforce attendance rules, you must also comply with key federal laws, including the FMLA and the ADA ...

Is your employee handbook clear on exactly what constitutes maternity leave and how long it lasts? If you plan to permit just the 12 weeks allowed for pregnancy and childbirth under the FMLA, spell that out. Don’t refer to maternity leave separately and then provide a different week or month count ...

Don’t make the mistake of assuming that someone who isn’t disabled under the ADA also isn’t disabled under the New Jersey Law Against Discrimination. The fact is, the NJLAD is far more generous in its definition.

Employee absences are costing your business more than twice as much as health care, two recent surveys reveal. Cutting even a fraction of absences can have a potent impact on your organization’s bottom line—an attractive possibility in a tight economy when employers need workers to be as productive as possible.

Q. One of our employees has been out on FMLA leave for seven weeks taking care of his sick mother in another state. We approved a full 12 weeks of leave. I received a voice mail from him saying that his mother died. He also said that he had to clear up a lot of things with his mother’s estate, but that he would be back by the end of his scheduled leave. Can he do that, or can I tell him he needs to come back sooner?

You don’t need to give employees FMLA leave just because they have a discharge sheet from a hospital emergency room. The real question is whether the medical condition that prompted them to visit the ER was a serious health condition.

Routine doctors’ appointments such as checkups or annual physicals aren’t considered eligible for FMLA leave, but appointments aimed at diagnosing a condition may be. Employers that know the employee is seeing a specialist as part of the followup to an auto accident, for example, are on notice that the employee may need to take FMLA leave ...

Employers can’t punish or otherwise hold it against employees for taking FMLA leave—that’s interfering with FMLA rights, and it’s illegal. That’s why it’s important to exclude FMLA leave when making any disciplinary decisions based on employee absences.

Q. Our company’s attendance policy calls for issuing a warning when an employee has three absences. Five absences result in a suspension, and seven absences result in termination. Can we continue this policy?

What happens if an employer discourages an employee from taking FMLA leave and instead offers more than 12 weeks off with full pay? Can the employee still sue for interference with his right to FMLA leave if he isn't reinstated to his prior position or an equivalent? The apparent answer is "yes."

It’s a good idea to keep careful track of the reasons why employees take FMLA leave—especially if an employee takes leave on different occasions for different reasons.

Q. We have an employee returning from a leave taken under the FMLA. His physician has issued a fitness-for-duty certificate. However, we question the worker’s ability to perform his old job because the length of his absence was too short for him to recover completely. Also, the fitness-for-duty certificate simply states that he is “able” to work, without addressing his specific job duties. Can we send him to another physician for a second fitness-for-duty examination?

Here’s a risk you’ll run into if you refuse to let an employee take time off to care for a child she says has a serious health condition that requires her care: If you guess wrong and the case goes to trial, it’s up to the jury to decide whether the child’s condition rose to the serious level.

New FMLA regulations go into effect on Jan. 16. Employers must become familiar with these changes and adjust their policies accordingly. Here’s a summary of some of the most important changes to the FMLA.

HR Law 101: Since 1993, the Family and Medical Leave Act has provided eligible employees up to 12 weeks of unpaid, job-protected leave per year for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition ...

If you know an employee is suffering from depression, don’t be so quick to accept his or her hasty resignation, a new court ruling shows. Instead, you may need to identify this person as “disabled” under the ADA and, therefore, engage in an interactive process to find a work accommodation.

HR Law 101: The U.S. Department of Labor’s revised FMLA regulations took effect Jan. 16, 2009. Here's a summary of the most important changes:

Q. Our company offers a health insurance opt-out incentive, paying employees $400 a month if they use their spouses’ insurance plans. We now have an employee going out on FMLA maternity leave. Do we have to keep paying her $400 per month?

HR Law 101: The National Defense Authorization Act of 2008 granted new leave rights to family members of men and women who serve in the military. Because the NDAA amended the FMLA, the changes apply only to employers with 50 or more employees.

HR Law 101: Employees who want to take FMLA leave must give their employer 30-day advance notice when the need for leave is foreseeable. Employers should respond in writing within five business days to their leave requests ...

Q. I told an employee who takes lots of FMLA intermittent leave that all his time out of the office (no matter what it was for) would count against his FMLA time. My VP told me I was wrong and that was absolutely not the law. Who is right?

Employers can terminate an employee on FMLA leave if it becomes clear she will not return. But get this one wrong and you may end up in court. A better approach: Wait to do the firing.

Do all your supervisors and HR staff understand how Minnesota’s Drug and Alcohol Testing in the Workplace Act works? If not, train everyone now or face the possibility of punitive damages.

On Jan. 16, the U.S. Department of Labor’s new FMLA regulations became effective. The most significant changes were to the regulatory scheme for handling employee leave certifications and medical documentation.

Q. An employee has asked for paid FMLA leave for an increment of time that is less than the increment allowed under our company’s paid leave policy. Can the employee be required to take the larger paid leave increment to substitute any accrued paid leave for unpaid FMLA leave?

Sometimes, employees whose vacation requests are turned down try to get time off by producing a doctor’s note. Some even up the ante by trying to claim FMLA leave. If you really believe an employee is trying to pull a fast one, you have two options if you want to avoid possible FMLA interference charges.

Change. America voted for it, and small businesses will certainly receive their fair share in 2009. Here are the five most important workplace issues on President Barack Obama’s agenda.

Employees sometimes don’t want to give their employers personal details about an illness or a condition that may be covered by the FMLA. But if you find out they lied about the nature of their health problems, you can fire them for violating your honesty policy.

Q. We have an employee on FMLA leave. Can we replace her and find a different job for her when she returns?

Just when you thought you had mastered the intricacies of the FMLA, employees and their lawyers have come up with a new trick that could trip you. This one involves how employers calculate attendance under no-fault absenteeism programs.

Q. Does an employee have to say that she wants to “take FMLA leave” in order to satisfy the requirement that she notify her employer of her “intent to take leave”? What must an employee tell an employer to preserve her right to take FMLA leave?

Q. In our severance agreements, we typically require a terminated employee to waive all claims, including FMLA claims that could have arisen while the employee worked for us. I’ve now heard that it is improper for employers to get waivers of FMLA rights from existing employees. What should we do?

Employees who take intermittent leave can wreak havoc with work schedules. Because their conditions can flare up at any time, their absences are by nature unpredictable. But there are ways you can legally curtail intermittent leave. One way is to use the calendar-year method to set FMLA leave eligibility.

Q. One of our employees is taking intermittent FMLA leave for planned medical treatment. However, the employee’s appointments occur during work hours, and that has started to have a serious adverse impact on our customer service function. Can we require the employee to schedule medical visits better to address these problems?

The year that the Society for Human Resource Management (SHRM) predicts will carry “the most sweeping HR-related changes in 30 years” starts with a bang this month as HR pros must adapt to important changes to two key employment laws: the FMLA and the ADA.

Have you ever approved FMLA leave for an employee’s medical ailment but had a sneaking suspicion the time would be spent on more than bed rest? If you discover “creative” uses of FMLA leave, be careful not to pull out the “You’re Fired!” finger too quickly or you may find yourself in the center of an FMLA retaliation lawsuit ...

Q. Our employees earn paid sick and vacation leave. Can we require them to use their paid leave at the same time they take unpaid FMLA leave? Otherwise, it seems as if they could use up paid leave and still take 12 unpaid weeks off.

Q. We have an employee who failed to return from an FMLA leave of absence. During the leave, we had been paying our customary share of her medical insurance premiums. Is there anything we can do to recoup the expenses we paid for this employee?

If, like many employers, you include an arbitration clause in your employment applications, take note of a recent California Court of Appeal case.

Generally, someone whose condition qualifies as a disability under the ADA is probably also entitled to FMLA leave when that disability flares up. But the reverse is not always true.

Act fast if you require employees to furnish medical certification for requested time off. Delaying sending the forms may in itself constitute interference with an employee’s right to take FMLA leave.

Here’s a problem you might never see coming: A supervisor who harbors resentment against a subordinate because of her protected classification decides to hold her to the letter of the law when it comes to a benefit such as FMLA leave. Meanwhile, other employees get preferential treatment, such as additional unpaid leave after their FMLA leave expires ...

The year that the Society for Human Resource Management (SHRM) predicts will carry “the most sweeping HR-related changes in 30 years” starts with a bang this month as HR professionals must adapt to important changes to two key employment laws—the FMLA and the ADA—and replace their I-9 forms.

Q. One of our employees will be out for medical treatments for four to six weeks. He doesn’t want to use FMLA leave, just his accumulated sick and vacation days. We’re afraid he’ll use them up and then demand 12 weeks’ FMLA leave. Can we make him use FMLA leave first? ...

Employees who need FMLA leave to deal with serious health conditions are supposed to let their employers know. Employees don’t have to use the words “FMLA leave” when they request it, but they must give their employers enough information to reach the reasonable conclusion that the employee has a serious health condition. Simply calling in sick isn’t enough ...

Here’s another reason to train everyone on the intricacies of the FMLA: Employees who win even a small amount of damages in FMLA interference cases automatically get their attorneys’ fees paid by their employer. And that can add up to
big bucks ...

When it comes to getting paid, every minute matters in wage-and-hour cases. Does that same rigid rule apply to the FMLA?
The U.S. 7th Circuit Court of Appeals in Chicago has now said you had better use your stopwatch when it comes to counting work time that applies to FMLA eligibility. Every minute counts toward the 1,250-hour minimum employees have to work in a year ...

For the past 15 years, complying with the FMLA has been complex, but at least the law stayed the same. On Jan. 16, that all changed. That’s the day the first major overhaul of the FMLA took effect. Here are the details.

Q. One of our employees was injured on the job. She went to the hospital the same night, had surgery and was out of work for eight days. Can we apply FMLA leave or sick leave to that time, even if she ends up being paid through workers’ comp?

Employers that can show they had decided to terminate an employee before they knew he needed FMLA leave aren’t liable for interfering with that leave. But don’t think you won’t be challenged on your timing. That’s why you must make sure you can prove exactly when you made the decision ...

Q. We are a large company and are dealing with a situation with a sick store manager. He has used up all his FMLA leave and is still not able to return to work. Can we safely terminate his employment now?

Anxiety about the economy and job prospects may adversely affect some employees, especially those prone to stress-related illnesses or whose physical problems flare up when working long hours. As a result, you may see an increase in requests for FMLA leave. Be careful not to criticize employees for trying to exercise their FMLA rights ...

When an employee has a baby or adopts a child, it’s easy to determine that he or she is eligible for FMLA leave. But it gets murkier when the baby who needs care isn’t the employee’s own child. The FMLA regulations list eligible dependent children as those to whom the employee has “day-to-day responsibility to care for and financially support.”

Video surveillance can help catch employees who are abusing the system. For example, video of an employee cleaning the gutters while on FMLA leave may show he’s not sick. But before you conduct your own surveillance or hire someone to do so, here’s a simple tip ...

Employers sometimes forget that just because a condition has a name and can be serious, it doesn’t always mean it’s a disability. In one recent case, an admitted alcoholic who had undergone inpatient treatment was deemed not to be disabled under the ADA and therefore not entitled to reasonable accommodations ...

It’s a myth that being off on FMLA leave means an employee can’t be terminated. The employee can be—as long as the employer has good reasons for the termination. Being on FMLA leave doesn’t give someone immunity from being fired for incompetence ...

Both the ADA and the FMLA have strict requirements for how employers must handle employees’ confidential medical information. HR professionals need to know these rules to comply with both acts—and to avoid expensive legal liability for failing to do so.

The long-awaited revised and updated final rules of the U.S. Department of Labor interpreting the FMLA will go into effect on Jan.16. HR specialists should read the new regulations and then review them with an employment attorney. Also, they should promptly develop special training on new rules and procedures for supervisors and employees alike.

Alcoholism can be a disabling medical condition that qualifies an employee to go on FMLA leave to undergo substance abuse treatment. But the same isn’t necessarily true for a drinking binge that lands an employee in the hospital ...

The FMLA gives employers the right to ask for proper medical documentation showing that an employee actually needs and is entitled to medical leave. The law also makes it clear that employers don’t have to accept vague notes or leave requests. But that doesn’t mean you can ignore a doctor’s note that is unclear or ambiguous about the employee’s condition ...

Q. We have an employee who has a degree in accounting and is treated as a salaried, exempt professional employee under the FLSA. He became ill and has used his 12 weeks of FMLA leave. He chose to use the PTO leave concurrent with his FMLA leave. Since he returned, he has missed seven additional days of work. Can the company deduct these missed days from his pay without losing the salaried, exempt status?

Both the ADA and the FMLA have strict requirements for how employers must handle employee’s confidential medical information. HR professionals must know these rules to comply with both laws—and to avoid expensive legal liability for failing to do so. Here are the details you need.

Good news if you work for a public employer in Florida. If you make an FMLA mistake, you can’t be sued individually, unlike your peers in the private sector ...

To qualify for FMLA leave, employees must have worked 1,250 hours in the preceding year. It sounds like a pretty simple calculation, but it’s not. The fact is, you could be allowing leave for employees who aren’t actually eligible for it. Here’s one way to tighten up eligibility ...

An ill-worded e-mail, unlike a phone conversation, can come back to haunt you. Deleting e-mail doesn’t mean it’s gone forever, or that a recipient hasn’t saved, printed or forwarded it. Plus, there are plenty of computer experts out there who can recreate or retrieve deleted e-mail messages. The best policy is to assume that whatever is in an e-mail can be used against you in a court of law ...

Q. Two of our employees (they aren’t married) are having a child together. I know that spouses who work for the same company have to share the 12 weeks of FMLA leave following the birth of a child. Is that also true for unmarried parents in the same workplace?

Employers must reinstate employees following FMLA leave if a doctor says they are ready to return to work without restrictions. That’s true even if the serious health condition was a serious psychiatric problem. Fortunately, if the employee goes on to injure another employee, the medical release will protect the employer from negligent supervision claims ...

On Nov. 17, the U.S. Department of Labor finalized the first major overhaul of the FMLA regulations in 15 years. Some changes favor employers, but others will make FMLA compliance trickier than ever. Here's what's in store. BONUS! HR Specialist will hold an audio conference briefing to help you comply with the new regs.

The FMLA limits leave eligibility to those employees who have worked at least 1,250 hours in the previous 12 months. Employers are perfectly within their rights to stick scrupulously to that 1,250-hour benchmark. They don’t have to round the hours up if the employee comes up short ...

Q. One of our employees hurt her back lifting boxes. She has been off work for several weeks. We have been counting her absence against her FMLA entitlement. She was scheduled to return to work recently, but she now tells us the healing will take longer than expected. December is our busiest time of the year! Must we continue giving her leave?       

When Barack Obama takes office in January, get ready for the most sweeping employment-law changes the HR world has seen in years. Attorney Mike Fox walks you through the legislation likely to reshape HR, possibly even in the first 100 days of the Obama administration. Here’s how to prepare.

The U.S. Labor Department is set to implement the first major revision of the FMLA since the law was passed in 1993. If approved, the proposed changes could help employers administer the complex 15-year-old law and avoid lawsuits. But the proposal carries a few extra burdens for employers, too.

Q. We have an employee who is currently on short-term disability (STD) and is approaching long-term disability (LTD). Our company pays 95% of medical insurance premiums and 100% of STD and LTD premiums. The employee is no longer receiving a salary. Does our company have to continue to provide and pay for medical insurance? — K.M., Arizona ...

FMLA certification forms are pretty simple—until complications arise. What kind of complications? How about an invoice from an employee's doctor demanding that you pay the bill for filling out the form? Do employers have to pay? It depends.

Employment terminations fall into several categories. Whether the situation involves new hires who didn’t work out, firings for cause or performance issues, or voluntary resignations, terminations often lead to litigation. For each type of termination, there are some common ways employers can make sure they can defend themselves if challenged ...

When an employee announces she’s pregnant, her employer had better be aware of the federal pregnancy discrimination law, state maternity leave laws and the employee’s right to FMLA and pregnancy disability leave.

It seems pretty obvious you can’t legally fire an employee because she took FMLA leave. Every employer knows that, right? Perhaps not. Recently, the 6th Circuit Court of Appeals had to rule on the question when an employer hoped to get a definitive ruling that employees are entitled to leave, but can be fired for using that leave ...

Employers that let supervisors add to or alter the way they conduct performance appraisals are playing with fire. For example, supervisors should never be allowed to assess things like tardiness and attendance using anything but official HR records ...

Public employers aren’t required to abide by all sections of the FMLA because they have limited immunity from federal lawsuits. For example, state employees taking leave under the FMLA’s self-care provisions can’t sue for money damages. But recently the 5th Circuit Court of Appeals has ruled that immunity does not extend to a claim for reinstatement after an employee takes FMLA leave ...

Sometimes, you just know that the reason a supervisor offers in a memo or e-mail for wanting to fire someone is going to look suspicious if the employee ever sues. If you can’t persuade the supervisor to reconsider, resist the temptation to help sugarcoat the situation with a neutral-sounding reason. It will only make matters worse when the employee’s lawyer inevitably discovers the memo or e-mail ...

No federal law mandates that employees who are in state-sanctioned same-sex unions must receive the same employee benefits that heterosexual married couples receive. But the writing is on the wall. And even employers in states that ban same-sex unions may find themselves targeted by advocates for greater benefits ... 

When the Society for Human Resource Management (SHRM) surveyed employers about their biggest FMLA administrative challenges, dealing with leave for employees’ own chronic conditions ranked number one. But, surprisingly, not far behind was FMLA leave taken for “caring for a sick parent." With more “sandwich generation” employees taking care of children and parents at the same time, it’s wise to be consistent about requesting certification for all types of FMLA leave, including care for elderly parents.

Q. One of our employees recently immigrated to the United States. She is pregnant and told us she plans to take eight weeks’ FMLA leave immediately after the child is born. A few months later, she’d like to return to her home country to visit family for a month. In other words, she wants to split her FMLA leave into an eight-week period and a four-week period. Can FMLA leave for a new child be split up in this fashion?

Poor communications with employees isn’t just bad for business. It also creates a work environment that’s ripe for legal trouble. Stay out of the courtroom by taking time to explain your actions and make the workplace seem rational to employees. Here's how.

The alphabet soup of federal HR laws—ADA, ADEA, FMLA and so forth—comes with a side order of compliance headaches. But some of those laws apply only to some organizations. Don't waste your time worrying about compliance if you don't have to. Here's the skinny on which laws you might be able to ignore—and which you absolutely must not ...

The U.S. Labor Department has published proposed FMLA regulations, which may change the way employers handle FMLA leave. The dual-purpose proposal includes changes to certain existing FMLA regulations and new military family leave entitlements ...

For the first time, the FMLA has been amended—a brand new law grants family members of military  men and women special FMLA leave rights.

HR Law 101: One of the toughest problems for employers is figuring out which law applies to a particular condition: the FMLA, workers' comp or the ADA. The relationship between the FMLA and other federal and state statutes is clear: The law that provides the greatest benefits to the employee applies ...

For the first time since it became law in 1993, the FMLA has been amended. President Bush signed H.R. 4986 in January, granting FMLA-protected leave to family members of injured military personnel and to families of military reservists called to active duty ...

The U.S. Labor Department yesterday took a big step toward clarifying some of the most confusing aspects of the Family and Medical Leave Act (FMLA). The agency issued a series of proposed changes to the law that, if finalized, could help employers administer the complex 15-year-old law and avoid lawsuits. But the proposal carries a few extra burdens for employers, too.

General Motors won summary judgment in a disability discrimination lawsuit after the company caught Christopher Peterson loading lumber into his car while he was on leave for back problems. Peterson had a long career with GM and had risen into the executive ranks ...

The 6th Circuit Court of Appeals, which covers Michigan, recently handed employers some ammunition to fight FMLA claims. In its decision in Novak v. MetroHealth Medical Center, the court reaffirmed that an employer is not obligated to get a second opinion when it rejects an employee’s certification paperwork ...

Balancing time off with reasonable accommodations can be tough if one of your employees is covered by both the FMLA and the ADA. You must be especially careful if a disability means an employee needs to take her 12 weeks of unpaid FMLA leave, but can’t quite return to work without an accommodation ...

As a practical matter, the FMLA requires employers to carefully keep track of all hours each employee works. If the employer’s time records don’t include all time worked, it is up to the employer to prove to the court that the employee didn’t work enough hours to qualify for FMLA leave. With poor records, that may be hard to do ...

Q. Our receptionist has been certified as eligible for intermittent FMLA leave for migraines. When she calls in sick without notice, it really disrupts our workplace; we have to pull someone from another position to cover her duties. Can I transfer her to another position where we can better accommodate her absences? ...

For the first time since it became law in 1993, the FMLA has been amended. President Bush signed H.R. 4986 in January. The law grants FMLA-protected leave to workers who care for injured soldiers and families of reservists called to duty ...

The FMLA has a built-in penalty for intentionally interfering with the law. Courts can double the damages when they believe an employer acted to circumvent the FMLA. Acting in good faith is the key. Even if a court finds in favor of an employee’s FMLA complaint, you may be able to avoid paying double if you can show you carefully considered whether the employee was eligible for FMLA leave ...

Employers are free to set reasonable no-call/no-show rules for all absences, including those that qualify for FMLA time off.  On the other hand, if you discharge someone for failing to follow a rule that doesn’t spell out exactly how you expect employees to call in, don’t be surprised if you end up embroiled in a long, time-consuming and expensive legal battle ...

Once an employer knows an employee will need FMLA leave, it cannot use that knowledge to the employee’s disadvantage. That’s true even if it’s only possible that the employee may need leave. It raises serious suspicions about your motives if you fire an employee shortly after he delivers notice he may need FMLA leave—and practically guarantees a lawsuit ...

Employees who take their 12 weeks of FMLA and California Family Rights Act leave don’t lose the right to reinstatement once their time off expires. In fact, additional time off may be a reasonable accommodation under both the ADA and the California Fair Employment and Housing Act. What’s more, that additional medical leave would have to be accompanied by the right to reinstatement ...

When an employee needs time off due to a mental or physical impairment, he or she potentially could have rights under both the ADA and the FMLA. You must first determine whether one or both laws cover the employee. From there, you’ll know which rights the employee has. And any decision you make must take these rights into account ... 

Q. An employee takes intermittent leave to care for his parent. Do situations like helping his mother move to a new location qualify as FMLA leave? — B.D., Nevada ...

Q. An employee who is seeking FMLA leave has submitted the required paperwork from his doctor’s office, but the doctor’s staff assistant signed it. We asked our employee about the paperwork, and he told us that he went to his physician’s office and asked an assistant to fill out the certification. The doctor was not there when our employee took in the paperwork, and he admits that he had never seen the assistant before. Nonetheless, our employee is telling us that we have to accept the certification because someone at his doctor’s office signed it. Please tell me that at a minimum the physician has to know and approve of this certification ...

Q. We are an Illinois-based company and have an employee whose mother is very sick with cancer and in need of medical care at home. The employee is entitled to FMLA leave. The issue is that the mother lives in Hawaii and he has asked for leave starting next month. I don’t mean to be “cold,” but it sounds like a vacation from our bitter winter. Must we grant the leave for him to go to Hawaii? ...

When an employee takes leave to deal with a serious health condition, be sure to inform her that you plan to charge the time against her allotment of unpaid FMLA leave. If you fail to do so and the employee later runs out of leave and loses a benefit, it will be relatively easy for her to sue and show she was somehow harmed by the lack of notice ...

If you don’t have one, consider adding a general honesty or misrepresentation clause to your employee handbook. Such a clause can come in handy when you are looking for a solid reason to discharge someone who just isn’t being upfront and honest with the company, but technically may not have violated a specific work rule ...

After passing the first-ever amendments to the FMLA, Congress left Washington in late December confident that President Bush would sign off on the provision. But he didn't. Now Congress vows to address the issue again later this month.

After using up their available 12 weeks’ unpaid FMLA leave, many new mothers request additional time off. If you agree to additional time off to be covered by a short-term disability policy, check to see if that policy includes job protection. If it doesn’t, you don’t have to hold her job or even reinstate her. Don’t, however, start the search for her replacement while the employee is still on FMLA leave ...

Businesses must stay abreast of an alphabet soup of federal laws—ADA, ADEA, FMLA and so forth—each with its own requirements. Further complicating matters, most states have their own laws that override the federal requirements. To comply, you first must know which laws apply to your business, based on the number of people you employ ...

Employers are entitled to information about the FMLA intermittent leave employees take and can request certification from the employee’s health care providers. Employers then have to abide by the certification—unless the employer receives information that casts doubt on the certification ...

Q. My employee, who is a union member, has a nonwork-related injury that requires a six-week absence from work. In the meantime, she is receiving $300 per week through a union trust fund that provides her and other covered union members with short-term disability benefits. She also has requested and was placed on FMLA leave. We’d like her to substitute any unpaid FMLA leave with paid leave, which is our usual company policy when someone is out on FMLA leave. Is there a problem with doing this in this situation?

Once an employer knows an employee will need FMLA leave, it cannot use that knowledge to the employee’s disadvantage. That’s true even if it’s only possible that the employee may need leave. It raises serious suspicions about your motives if you fire an employee shortly after he delivers notice he may need FMLA leave—and practically guarantees a lawsuit ...

Q. One of our employees announced that she has agreed to become a surrogate mother. What, if any, kind of leave are we required to provide to her? ...

If you’ve never had any formal psychiatric training, maybe it’s time you put your business plan aside and register for Psych 101. Why? A recent court ruling shows how the FMLA can require you and your supervisors to play psychiatrist, too ...

Q. Does all prenatal care qualify for FMLA leave, or does the female employee need to have complications to qualify? Also, can a husband take leave for his wife’s prenatal care, such as accompanying her to an ultrasound? ...

Q. Can we change an employee’s status from full time to part time if he takes intermittent leave and his hours fall below what we consider full-time work? ...

Q. We have nine office locations spread around the state. All of them have far fewer than 50 employees. Do we have to offer FMLA leave? ...

Q. Can FMLA leave be extended beyond the 12 weeks specified in the law? What if the employee is disabled and can’t return to work right away or can come back only part time? ...

Q. If we weren’t immediately aware that the employee’s leave qualified for FMLA leave, can we make his leave retroactive to the first day he took off for the condition? ...

For the first time since it became law in 1993, the FMLA is on the verge of being amended. The House and Senate approved broad leave protections for the family members of miltary men and women, and the president is expected to sign the legislation into law. Will the amendments open the floodgates to further changes? How will that affect employers?

The FMLA and the ADA may seem as though they overlap, but that’s not always the case. A disability under the ADA is almost always a serious health condition under the FMLA, but not every serious health condition is an ADA disability. Here’s why ...

When a supervisor recommends discharging an employee, resist the temptation to simply agree with her assessment. Here’s why: If the employee is being targeted because she took FMLA leave or engaged in some other form of protected activity, blind adherence to the supervisor’s recommendation to fire opens up the company to a retaliation claim.

Alcoholism may be a disability under the ADA and a serious health condition under the FMLA, but that doesn’t mean employers have to tolerate employees who come to work drunk. In fact, being under the influence at work can be misconduct, disqualifying the employee from getting unemployment payments ...

For the purpose of determining FMLA eligibility, all time spent working for an organization counts toward the minimum one year of service the law requires. That’s true even if there was a gap in employment ...

Employers don’t have to allow employees to take sick or FMLA time just because they claim minor health problems. If you are certain that an illness or injury doesn’t amount to a serious health condition as defined by the FMLA, then there is no reason to run the time against FMLA or sick time ...

Employees who ask for FMLA leave often act as if they are immune from any sort of discipline. But that’s simply not the case. Even if an employee has applied for or is actually on FMLA leave, you can and should punish rule breaking. Just make sure you aren’t treating an employee who takes FMLA leave more harshly than any other employee. Equitable discipline is the rule ...

It’s not always easy to calculate exactly how much FMLA leave an employee has coming. Rest assured, though: If you make a mistake, you can fix it. Just be sure to fix it as soon as you discover the error so your mistake doesn’t harm the employee ...

Q. Can we require our employees to specifically request “Family and Medical Leave” or “FMLA leave” in order to trigger our duty to provide them certification forms? ...

Q. As the law requires, my company provides FMLA leave to employees, provided they submit medical certification forms completed by their health care providers, within 15 days. A late submission is grounds for discharge under the company’s employee absence policy. Health care providers being what they are, we frequently receive forms after the deadline. I have a problem employee out on FMLA leave again, who has not submitted a medical certification form within the 15-day deadline. What options are available to me as the employer? Will the employee be protected by the FMLA if I choose to discharge her for not providing the certification form in a timely manner? ...

A court has ruled that so-called “last-chance agreements”—which put off discharge in favor of treatment for an active drug or alcohol problem—are valid as reasonable accommodations. If last-chance agreements were banned, employees with substance abuse problems would lose an important avenue toward keeping their jobs ...

The U.S. Labor Department, the agency that administers the Family and Medical Leave Act, recently collected 15,000 public comments on the law’s effectiveness. A top employer complaint: productivity problems caused by employee use (and abuse) of intermittent leave. Managing intermittent leave can be vexing, but the law does give employers some tools to combat FMLA leave abuse ...

Employees who can’t tell their employers they have serious health conditions may still put their employers on notice—and trigger their FMLA rights. “Unusual” behavior alone can be enough to notify a reasonable employer that an employee may have a serious health condition. That unusual behavior can include shouting at a supervisor, a panic reaction or other sudden emotional outbursts ...

Your organization’s employee handbook exists for a reason. It serves as a simple and effective way to let employees know what the rules are and what you expect in the way of behavior. If you can show that employees received copies of the handbook and were expected to be familiar with its contents, you have a good shot at defeating any discriminatory discharge claims if you disciplined according to the rules set out in the handbook ...

If you don’t track hours worked (for example, if you have exempt employees who come and go as they please), you may find yourself in hot water if you claim an employee hasn’t worked enough hours to be eligible for FMLA leave. The FMLA regulations make it clear that if “an employer does not maintain accurate records of hours worked by an employee … the employer has the burden of showing that the employee has not worked the requisite hours” ...

If you want to avoid airing your organization’s dirty laundry in public, take note: Before you turn over a copy of an employee’s personnel record, go through the file carefully. Remove any correspondence between the HR office and your attorney. It is technically privileged communication ...

Employers sometimes find themselves in tricky situations: An employee who has exhausted FMLA leave cannot return to work yet, but might be able to after more time off as an ADA accommodation. In effect, the ADA may extend leave if the employee is disabled. But a new case shows that an employer’s quick action may stop the clock ...

Q. I have an employee who is scheduled for surgery and will be going on FMLA leave. What forms will I need? There is a possibility that he will not return after the 12 weeks. How long will we be required to hold his position for him? ...

The FMLA allows employers to designate time off as FMLA leave even if employees want to use other time off (such as vacation and personal days) to deal with serious health issues. But be careful—if the time off turns out to be for a health condition that wasn’t serious and you later deny FMLA leave because the employee has none in the bank, she can charge you with interference with her FMLA rights ...

Many employers try to simplify medical leave policies by adopting the same eligibility requirements set by the FMLA. But those same employers sometimes make exceptions for select employees, especially if they are seen as too valuable to lose to a short medical leave. Watch out if that’s your informal practice. Denying that flexibility to pregnant employees probably violates the federal Pregnancy Discrimination Act ...

Ohio state law may provide limited protection for employees fired in violation of “public policy.” But as the following case shows, those cases are limited to at-will employees, not those who have the protection of union representation or a union contract. Such employees don’t need the same protection that at-will employees may need ...

Employees eligible for FMLA leave cannot stack their 12 weeks of unpaid FMLA leave on top of other paid leaves if your organization chooses to run FMLA leave concurrently with paid leave (as it should). But here’s the key point: You must tell employees that you intend to run FMLA leave concurrently with paid leave. If you don’t, they can take the FMLA leave later and extend their time off and other FMLA job protections ...

The FMLA gives eligible employees up to 12 weeks of unpaid leave per year. Employers are free to discharge employees who cannot return to work after that time is up—that’s legal under the FMLA. But before you fill out that pink slip, consider whether the employee may be disabled under the ADA. If so, he may be entitled to more time off as an accommodation ...

You expect employees to follow your attendance and time-reporting rules and probably discipline those who don’t. But you need to know that FMLA leave can be an attendance minefield where disciplinary actions can cause great damage. Employees who allege that employers “willfully” interfered with their FMLA rights or retaliated against them for taking FMLA leave have up to three years to sue. One way to prevent the willful violation charge is to take the employee’s supervisor out of the disciplinary process ...

Q. While my employees are out on FMLA leave, we pay our share of health plan premiums on behalf of them. If an employee does not return to work following his FMLA leave, can I recover those premiums directly from the employee? ...

Employees who need to take time off for serious health conditions can use both federal FMLA leave and California Family Rights Act (CFRA) leave, plus other paid leave for the absences. But employers can require employees to use their available FMLA and CFRA leaves for any eligible condition, even if the employees are off on other paid leave. That way, employees aren’t eligible for more time off after they have exhausted other leave entitlements ...

Q. Must an employer using the services of a temporary agency comply with the FMLA for its temporary or leased employees? ...

The Family and Medical Leave Act entitles eligible employees to take up to 12 weeks of unpaid leave per year for their own “serious health condition,” care of a spouse, child or parent with a serious health condition, or for childbirth or adoption.The U.S. Labor Department recently collected 15,000 public comments about the pros and cons of the law. The department may use those comments to help develop regulations that clarify the confusing parts of the law, but no regulations are imminent ...

Q. We’re having tardiness and absenteeism issues with our employees. If we place an employee on probation for an excessive number of times tardy and days absent, can we require no absences at all during the probation period? —C.V., New Jersey ...

When employees take intermittent FMLA leave, it’s your responsibility as the employer to insist employees regularly update their medical information through their physicians. That means you must be prepared to prove employees not only knew they needed to get their conditions recertified, but also received the forms ...

Family and military leave laws require Indiana employers to accommodate employees dealing with certain family problems. But the law doesn’t stick employers with an unemployment compensation bill when employees quit after their protected leave expires. Thanks to a recent Indiana Court of Appeals decision, it is now clear that voluntarily quitting to care for an ill family member does not mean the employee is eligible for unemployment compensation payments ...

Indiana has joined a growing number of states that require midsize and larger employers to provide job-protected leave to eligible employees who have family members on active duty in the U.S. armed forces and the Indiana National Guard. The law is expected to have a significant impact on Indiana employers since more than 37,000 Indiana residents serve in the military or in National Guard units. Note, though, that the deployed family member doesn’t have to be an Indiana resident ...

The unemployment rate is down again, and employees are saying they want more money to stay put. Maybe it’s time to brush off some of the low- or no-cost benefits we used back in the late 1990s to attract and keep good employees.

In today’s litigious environment, it doesn’t take much for a disgruntled employee to launch a class-action overtime lawsuit. In fact, such litigation is sweeping the country—and costing employers millions of dollars. That’s why conscientious employers act fast to stamp out a dangerous and illegal practice: managers altering pay records to avoid paying overtime. If you catch managers cooking the payroll books, punish them promptly ...

The FMLA is a complicated law, ready to trip up even the savviest HR specialist. Often, a case turns on the employer’s subjective motivation rather than its objective action. What do you do once you realize your organization may be on the hook for an FMLA violation? The answer: Immediately, unconditionally offer to reinstate the employee. You will cut back-pay and failure-to-reinstate liability ...

The FMLA provides employees with up to 12 weeks off to care for a child suffering from a serious health condition. But when the child is an adult, the rules change, making it much harder for employees to qualify for leave. Here’s why: FMLA regulations say that FMLA leave for children older than 18 is available only if the child is disabled under the definition in the ADA ...

he Michigan Whistleblowers’ Protection Act protects employees who report suspected wrongdoing to public authorities from retaliation. An employer that knows an employee has reported alleged wrongdoing must take special care when disciplining or discharging that employee. Unless you have an absolutely legitimate business reason for your action, the timing makes the decision suspect and will most likely lead to a jury trial ...

Q. Our company has certain employees who we believe abuse our absentee policy. We use a “no fault” system, but we do excuse FMLA absences. Typically, when employees get close to discipline or termination, they begin the paperwork for an FMLA absence. Do you have any suggestions on how we could better police the FMLA process to limit abuse? ...

Even if an employee has been wronged because his employer denied FMLA leave he was entitled to take, he still can’t just sit around and expect the employer to pay him until retirement age. He must make efforts to mitigate his losses by seeking out work that fits his medical restrictions ...

What does your organization do when a manager or supervisor recommends a subordinate should be fired? If you simply approve the recommendation without seeking more information, you may be asking for a lawsuit. Here’s why: If the manager’s reasons are illegal—maybe an attempt to punish an employee for asking for or taking FMLA leave—then courts will conclude that your organization shared the manager’s motives ...

FMLA provides up to 12 weeks’ unpaid leave to eligible employees for their own or a relative’s serious health condition. Employers can run FMLA leave concurrent with other paid leave if they choose, which has the effect of running out the clock. But what if the employee has a serious health condition and doesn’t want to use up her FMLA time just yet? Can you force her to take FMLA leave? You can, as the following case shows ...

Employers can require employees who are off work for an FMLA-qualifying illness (their own serious health condition or that of a child, spouse or parent) to provide updates on their conditions. But watch out if you have a policy that calls for termination if the employee fails to report for work when his doctor said he would be ready to return—especially if more FMLA leave is still available. Make absolutely sure the employee knows about the rule ...

Q. Our employee handbook provides that employees who take FMLA leave must first use any available paid-leave time, including vacation, sick time and personal time, as part of their FMLA leave. I have recently heard that there may be limitations on an employer’s ability to require an employee to substitute his paid-leave time for unpaid FMLA leave. Can you clarify this? ...

Don’t try to put up artificial barriers to discourage employees returning from medical leave. The employee probably won’t go away quietly. In fact, he may file a lawsuit alleging some form of discrimination under federal or New York employment law. What’s more, a court probably will allow a trial ...

The ADA makes it illegal to discriminate against employees because of their “association” with disabled people. But what about disciplining an employee for taking time off to care for the disabled person? According to a recent Pennsylvania case, that’s perfectly OK—as long as FMLA leave is not involved ...

When an employee goes on FMLA leave, someone has to do the work. What if that someone easily assumes the employee’s duties and does a great job? Can you use that fortuitous realization as the basis for firing the leave-taker when he returns? Perhaps, but there’s a risk. The employee may sue, alleging the real reason he was let go was retaliation for taking leave, and not that you figured out the company could get along just fine without him ...

Q. An employee of ours has attendance problems. Before we could counsel her on the attendance problems, she was approved for intermittent FMLA to care for her elderly mother. While she has taken FMLA days for her mother, she also continues to have attendance problems unrelated to her FMLA leave. Can we proceed with counseling and possible disciplinary actions while she is under FMLA? ...

You no doubt know how hard it is to juggle shifts and schedules to accommodate employees who need FMLA time off. You rely on those employees to tell you as far in advance as possible that they need time off, and then rearrange schedules and workloads to be as accommodating as possible. You can and should be a stickler for getting as much notice as possible. Don’t worry: FMLA doesn’t permit an employee to unilaterally demand you immediately assign him or her to a different schedule ...

When it comes to special consideration for parents, the FMLA and the Pregnancy Discrimination Act provide limited protection. Employees expecting a child or with child care responsibilities are entitled to unpaid FMLA leave, and pregnant women can’t be discriminated against because of pregnancy. That doesn’t mean, however, that you can’t require reasonable travel and punish those who refuse if they aren’t taking FMLA leave or don’t have any pregnancy complications that prevent travel ...

Q. When determining the amount of leave an employee has used, do holidays count against the 12-week entitlement under the FMLA or the California Family Rights Act (CFRA)? ...

Q. We provide short-term disability leave to new mothers. Is there any reason we can’t run that leave concurrent with FMLA leave? —S.B., Washington ...

Q. We want to run paid time off concurrent with FMLA leave so employees don’t receive more than 12 weeks off (paid and unpaid combined). What if an employee says she’s taking vacation time, but we know it’s for medical tests? Can we force her to get a medical certification so we can subtract the paid vacation time? —L.L., Georgia ...

Parents vs. nonparents. Gen Y vs. Gen X and the baby boomers. In some workplaces, there’s growing tension over benefits inequality. HR better listen if employees complain that they're getting worse benefits than their co-workers. One solution: Paid time off banks can help calm discontent.

Do your employees ever take time off (whether vacation, personal time or even FMLA leave) to work a second job? You can’t do much about that unless you have a solid policy that prohibits moonlighting. Otherwise, employees on leave are free to spend that time any way they want, even working for someone else or in their own business ...

To combat absenteeism, many organizations use a progressive discipline approach. These plans feature escalating penalties plus a no-excuses approach to the final violation. Some plans call for automatic termination when an employee hits a specific number of days absent or times tardy. That’s fine. Those measures may decrease late arrivals and cut down on unexcused absences. But if a termination is about occur, HR must be sure the last incident is beyond question ...

Some employees qualify for FMLA leave because they have a temporary medical problem that prevents them from performing their usual job. Often, they’ll elect to accept a light-duty position instead of taking 12 weeks’ unpaid leave.
Light-duty jobs often come with a lower paycheck, presumably because so many of those positions are really “make-work” jobs typically used to accommodate on-the-job injuries. What happens if the employee elects light duty and demands his or her regular pay? Does he or she have that right under the FMLA? Not according to the 7th Circuit ...

Illinois employers must comply with numerous state leave laws, in addition to the federal FMLA. To track leave usage, employers must understand which state leave laws overlap with the FMLA ...

Employers must post a copy of the approved federal FMLA poster “conspicuously” in the workplace. Neglecting to do so opens the door for lawsuits if you discipline employees for absences that would have been covered by FMLA. Those employees may claim they didn’t ask for FMLA leave because they weren’t familiar with the law ...

If you don’t train supervisors to immediately forward all FMLA requests to the HR office, you may find your organization on the losing end of an FMLA-interference lawsuit. An important new court ruling shows it doesn’t matter whether the employee’s FMLA leave request eventually is approved ...

Employees are guaranteed only 12 weeks’ unpaid FMLA leave per year and have no right to return to their jobs if they can’t make it back after their time is up. But that doesn’t mean you should prepare the paperwork to terminate the employee on the day their leave expires. Wait until you get medical documentation showing the employee can’t return ...

Q. We have an employee with a chronic health condition who began taking FMLA intermittent leave in February. She had worked more than 1,250 hours in the 12 months before the leave started. By June, she had dropped below 1,250 hours. Does she lose her eligibility now? ...

Q. Our company is in the process of going through a reduction in force. One of the positions that has been selected for elimination belongs to an employee on FMLA leave. Can we still eliminate the position? ...

Do you have employees on intermittent leave? Are they leaving work early for “medical reasons” at predictable times? Then your organization may be the victim of intermittent-leave abuse. It may be tempting to discipline or fire employees whose leave patterns (e.g., falling on Mondays or Fridays) suggest abuse. But you’re better off investigating thoroughly before you act  ...

Employees nearing the end of their 12 weeks of FMLA leave have the right to know when it will expire. You can’t simply calculate when the time will run out and not give a “heads up.” In fact, silence may operate as an unspoken extension. What’s more, expect an FMLA lawsuit if you then refuse to reinstate the employee because she took too much leave ...

A court has ruled that an employee's inability to go to work due to stress and anxiety about a pending termination or other performance issues may be considered a “serious health condition” under the FMLA ...

Q. We have an employee who takes a lot of intermittent FMLA leave for medical reasons. We are writing her performance appraisal and need to address topics such as dependability, reliability, etc. Her FMLA leaves are affecting these issues. Does the law regulate whether we can lower her performance review or merit increases based on her FMLA leave? —G.L., Massachusetts ...

Q. Our policy states that sick leave is available to employees who are scheduled to work but unable to do so due to illness or injury. It’s not available to employees who are on (FMLA) leaves of absence because—due to the leave—they’re not scheduled to work. In other words, we don’t allow employees on FMLA leave to take paid sick leave. Do we have to? —S.B., Pennsylvania ...

The decks are stacked against employees who claim retaliation when there is no direct evidence of discrimination—if employers keep complete written records of their disciplinary actions. Those cases often hinge on allegations the employer trumped up disciplinary charges to cover up retaliation. That can be difficult for an employee to prove if there is a solid paper trail documenting the employee’s infractions and the resulting discipline ...

Some employers offer more than the 12 weeks’ unpaid leave annually that the FMLA grants to eligible employees who need to care for themselves or close family members who have a serious health condition. But that doesn’t mean they have to keep doing so. It’s OK to change your leave policy to the legal minimum and then start disciplining employees who exceed the FMLA allotment ...

Q. I have been told the company cannot require an employee to sign a valid release of a potential FMLA claim. We recently have gone through a downsizing. We have a severance policy that provides a nice benefit, but to qualify, the employee must sign a general release promising not to sue the company over any employment-related matter. The release includes any claim under the FMLA. Is that OK? ...

Does your organization offer a bonus plan that rewards workers for their productivity? If so, be sure to avoid a surprisingly common mistake that’s tripped up many Indiana employers: incorrectly structuring the bonus plan—or making deductions from bonuses—in a way that violates the FMLA. A new Indiana court ruling shows how an organization can legally pro-rate an employee’s bonus ...

Q. I suspect one of the employees in our office is abusing his FMLA leave because he always seems to call off work at the end of the week or around holidays. What options are available to us to deny his suspicious leave requests? —E.L. ...

Chances are your employees are happier with the 14-year-old FMLA than you are.  A new U.S. Labor Department report says employees would like to expand the law to create longer leaves and paid leaves. But employers argue that the law’s vague wording (and employees’ ability to play games with FMLA) create legal and productivity nightmares. Here are the main problems employers have with the FMLA, according to Labor’s report ...

While employees are off work on FMLA leave, things may change at the office. Work space may be realigned and reassigned, for example. But employers are obligated to return FMLA leave-takers to the same or an equivalent position after the leave expires. Does that mean the employee must get the same desk, office or location? Not necessarily ...

Q. An employee recently has contracted a serious health condition for which she requests FMLA leave. The medical certification form, completed by her physician, does not indicate the probable duration of her condition. Can we suspend the employee for the physician’s failure to submit a sufficiently complete medical certification form? ...

Q We have an employee whose wife is in a hospital intensive-are unit. The employee has asked for FMLA leave. Is this an FMLA-eligible reason, even though the employee isn't providing "care" as the law requires?

Q. We have an employee who is out on an FMLA leave of absence. Our company provides health insurance for its employees and their families, and employees pay 20% of the premium. Our employee has not paid his share of the premium. Should we cancel his health insurance? We are very nervous about doing so because the employee has a very serious health condition. — J.B.

For the first time, the state of Florida has passed a leave law that affects the private sector. The newly minted Domestic Violence Leave Law provides time off to employees who suffer domestic abuse ...

The ADA says disabled employees are entitled to reasonable accommodations—but the key phrase is “reasonable” ...

The Ohio Supreme Court has ruled that an injured employee may continue to receive temporary total-disability benefits even if he no longer qualifies for his position ...

The FMLA guarantees a qualified employee up to 12 weeks’ unpaid leave and the right to return to the same job (or a substantially similar one) after the leave ends. But employees don’t always return ...

While employees love the Family and Medical Leave Act (FMLA) and want to see it expanded, the law is causing productivity, scheduling and legal headaches for employers, according to a new U.S. Labor Department report that summarizes 15,000 public comments on the FMLA. Here are employers' main complaints, plus a 10-step plan to help you comply with the FMLA.

If you’re having trouble determining when you must grant FMLA leave to employees who suffer recurring health problems, you’re not alone. Nearly two-thirds of HR professionals say they’ve experienced such problems, leading to morale issues and productivity loss ...

An employee who has been performing well and then seems to act out of character may be suffering from a disability or a serious health condition. But suggesting a disability when there isn’t one is NOT a good idea ...

Q. We are a hospital and we give employee “bonus” hours if they agree to work weekends and at other times that are difficult to staff. An employee has requested FMLA leave to care for a family member. Our employee has actually worked less than the FMLA-required 1,250 hours in the year, but because of the bonus hours, she has been paid as if she worked more than 1,250 hours. Does she qualify? ...

Do you have special incentive programs to make weekend work attractive to employees? If your program pays workers “credit hours” for time not actually worked, you don’t have to include those hours toward FMLA eligibility ...

If your organization has a strict attendance policy, you naturally want to make sure you don’t miscount FMLA absences in the tally, or you risk an interference-with-leave lawsuit. But how are you supposed to know whether an absence is for an FMLA reason? If the employee never gives a reason for an absence or simply says he or she is sick, that’s not enough to require further inquiry on your part ...

Employees should notify their employers before taking FMLA leave—30 days ahead if possible. In cases of emergencies or sudden illnesses, employees must let their employers know as soon as is practical. But that doesn’t mean calling in sick or providing a vague doctor’s note is enough ...

If you can justify a decision to terminate an employee — even one with a disability or who is on FMLA leave — don’t wait. Just do it ...

Q. We have an employee with a chronic condition. We granted her intermittent FMLA leave provided she gave us a certification each time she takes time off for the condition. We have to constantly remind her to turn in the form. She also won’t call HR when she is sick, but leaves a message with the front desk. This makes it hard to track her usage. Can we terminate for refusing to follow the instructions laid out on the FMLA approval form?

Q. We have an employee whose wife is in a hospital intensive care unit. The employee asked for FMLA leave. Is this an FMLA-eligible reason, even though the employee isn’t providing “care,” as the law requires?

It certainly shouldn’t be a routine practice, but you can require employees to undergo “fitness for duty” examinations. The trick is knowing exactly when and why such an exam is legal—or not ...

It’s one of the most challenging FMLA problems: An employee with a chronic health condition says she needs intermittent leave and uses it as an excuse to take time off whenever she wants. You suspect she’s taking advantage of your organization, but worry that turning her down may trigger an FMLA lawsuit ...

Problem employees—the kind that see discrimination, harassment and retaliation every time a supervisor so much as issues an oral warning for anything—won’t hesitate to sue and charge retaliation. They may even seek redress for minor slights by requesting FMLA leave and trying to trip you up if your response is not to their liking ...

Although the Workers’ Compensation Reform bill recently signed into law provides just a skeletal outline of what New York’s workers’ comp program will one day look like, both business and labor groups are cautiously optimistic ...

When employees are temporarily laid off with the right to return during a recall, all the regular rules for FMLA time off apply on the day of the recall. That’s because a break in service doesn’t destroy the employee’s eligibility ...

Employees say the darndest things. Take, for example, those who call in sick or are out on disability for conditions you strongly suspect are not quite as serious as they say ...

You’re not alone if you have struggled to decide how much time off to allow a dsabled eimployee. It’s one of HR’s trickiest issues ...

Unless you train supervisors and managers to forward all FMLA requests immediately to the HR office, you may find your organization on the losing end of a lawsuit for interfering with an employee’s right to take medical leave ...

When it comes to a pregnancy, employers may want to follow the safest path: Approve any absences that are even remotely related to the pregnancy as FMLA-covered time off ...

The U.S. Labor Department allows you to run FMLA leave concurrently with other paid time off. That’s your decision to make, not the employee’s. The result: no more than 12 weeks off. The same is true even if the employee never provides you with medical certification of a serious health condition ...

Q. At a recent FMLA seminar I attended, the speaker said that employers have the responsibility to ask employees if they want their absences applied to their 12 weeks of available FMLA leave. I understand that we can run FMLA leave concurrent with paid sick leave, but what if an employee doesn’t want to use up his FMLA leave and has other paid or unpaid leave available under our company leave policy?—J.G., Ohio

Employees who have serious health conditions may be eligible for intermittent leave, and their eligibility is determined once per eligibility year ...

Under the FMLA, employers who don’t ask for a second or third certification of an employee's serious health condition aren’t forever barred from challenging the employee’s condition, as a recent Michigan case shows ...

Michigan has one of the toughest weight discrimination laws in the country—a law that can trip up supervisors who innocently offer diet tips. It’s crucial to train management staff to recognize that discussion concerning an employee’s weight is off-limits ...

Q. The out-of-town daughter of our employee has been confined to bed rest during her pregnancy. The daughter is 24. Our employee has requested FMLA leave to be with her and take care of the grandchildren. Are we required to honor this request?—J.B.

You probably have a policy requiring employees to call in when they need time off to deal with health issues or face termination for abandoning their jobs. But don’t expect your procedure to trump the FMLA ...

Pregnant employees and applicants are protected by two federal employment laws: the Pregnancy Discrimination Act and the FMLA ...

Q. We had a full-time employee take FMLA leave to have her baby. After her 12 weeks off, she demanded a part-time schedule. We need the position to be filled full time. The shift we want her to work is the one she was working before she took FMLA leave. Do we have to let her work the schedule she wants?—E.L., Connecticut

Q. I know employees welcoming a new child into the family can take FMLA leave within 12 months of the child’s birth. But what if the employee takes just eight weeks after birth and returns to work? Can she take another four weeks of FMLA leave about six months later (i.e., still within the child’s first 12 months of life)?—L.O., Texas

Q. An employee already took his 12 weeks of FMLA leave, but his doctors say he needs three to six weeks more. I want to terminate him because he isn’t ready to return. What’s the best way to go about it?—B.H., Florida

Bereavement leave for employees who suffer a death in the family may be part of your benefits package, but it isn’t necessarily covered by the FMLA ...

Q. An employee who’s been employed since May is out on workers’ comp and will be for a while. Do I send her FMLA paperwork even though she hasn’t met the criteria of being employed for at least a year? It’s my understanding that I should send it to everyone that requests leave, and only after they return the paperwork should I determine if the person is, in fact, eligible. —L.P., California

Can you probe into employees' conditions when they're returning from medical leave? If you ask too many questions of such workers (or erect too many roadblocks to their return), you'll risk a lawsuit. Use your right to medical certification appropriately, but don't go overboard ...

Must you allow an employee to return after FMLA leave if you don't think she's physically ready? She could injure herself if she returns. But if you block her return, you could face a failure-to-reinstate FMLA lawsuit. Begin the return-to-work process earlier to see if she still has the ability to perform the job's essential functions ...

Don't assume that an employee's three-day absence and two doctor's visits will automatically equal a "serious health condition" that qualifies the employee for FMLA leave. A new court ruling says it matters when those two doctor's visits occur ...

What happens if an employee tries to return to work after FMLA leave but isn't quite recovered? In that case, you can turn the employee away if he or she can't perform the job's essential functions. That scenario often plays out when the returning employee's job involves operating machinery or driving and the person must take medication ...

Q. Can an employer deduct or count overtime hours from an employee’s FMLA balance? Our employees work overtime only from October through December. During that time, they’re required to work 12-hour days, seven days a week. We have several employees on both continuous FMLA and intermittent leave, and we’d like to deduct the overtime hours they would have worked from their FMLA allotment. What do you think? —J.A., Nebraska

There once was a time when considering an employee's request for disability leave was fairly straightforward. But no more. With passage of the ADA and FMLA, employers must now navigate a virtual maze of federal laws and regulations. And when an employee's disability stems from a work-related accident, workers' compensation issues must be taken into account ...

When an employee shows you a medical certification that says she has a serious condition qualifying her for FMLA leave, you don't have to blindly accept the doctor's word. You can ask for a second opinion. But here's what many employers don't realize: Employees can do the same thing ...

A new court ruling means you'll face less worry about legal liabilities stemming from the psychological impact of firing employees on FMLA leave ...

If you think employees are fudging their FMLA medical leave, how often can you request medical certification? The U.S. Labor Department recently gave employers added latitude to dig into suspicious FMLA claims ...

If an employee has attendance problems due to health issues, those absences may not be covered by the ADA even if they're covered by the FMLA. That's especially true if regular attendance is an essential job function ...

As your baby boomer employees watch their parents enter their 80s and 90s, more of them are taking time off to care for those aging parents. The problem: More than 60 percent of employers believe they've granted FMLA time off that was unfounded, according to a Society for Human Resource Management survey. That spells unwarranted absenteeism, which can disrupt work flow ...

When dealing with difficult employees, supervisors often go the extra mile to document their interactions (and any discipline) in case the employee ever sues. But does this extra effort at documentation provide proof that the supervisor intends to discriminate? ...

Asking employees to perform even a minimal amount of work while they're out on an FMLA absence could spark a lawsuit. And firing someone for refusing to pirtch in while out on leave almost surely will ...

Detroit-based music company, Handleman Co., hosts impromptu concerts in the lobby and gives free CDs to employees. Such perks landed the firm on a list of 60 "Cool Places to Work" in Michigan. But cool wasn't cutting it for the company's working moms, who wanted more flexibility after having babies ...

Pennsylvania employers can look to a recent 3rd Circuit Court decision to keep their bonus plans in compliance with the FMLA. The case is the first of its kind in the country and provides employers with guidance beyond that found in the FMLA's regulations. The decision is now law in Pennsylvania, Delaware, New Jersey and the Virgin Islands ...

Supporting a balance between employees' work lives and personal lives "is in the best interest of national worker productivity." At least that's what Congress declared in 2003 when it decreed that October shall be deemed "National Work & Family Month" ...

Employers who use light-duty programs to cut workers’ compensation costs often make one big legal mistake: They apply their policies haphazardly, allowing some employees to take light-duty jobs, but not others. That inconsistency is the fastest way to trigger discrimination lawsuits ...

When an employee calls in sick with an apparently serious ailment, you can place that employee on FMLA leave, even if he or she never asks. f you reasonably believe she has a serious health condition, you can start the 12-week FMLA-leave clock ticking ...

Q. An employee went on FMLA leave, but we failed to specify the method in which he would pay his share of health insurance premiums. It’s now three months later, the employee has returned to work and he hasn’t paid a dime. We want to collect the premium. What can we do? —D.T., Texas

In August 2006, Gov. George Pataki signed New York’s new Military Spouse Leave Law, which allows spouses of deployed military reservists to take up to 10 days of unpaid leave from work each year ...

Employees are not immune from layoffs simply because they’ve taken FMLA leave in the past (or are currently out on FMLA leave). But when analyzing performance to determine which employees to lay off, keep FMLA leave days out of the decision ...

Q. We have an employee returning from FMLA leave. His physician issued a fitness-for-duty certificate, but we question the worker’s ability to perform his old job because the length of his absence was too short for him to recover completely. Further, the fitness-for-duty certificate simply states that he is “able” to work, without addressing his specific job duties. Can we send him to another physician for a second fitness-for-duty examination? —A.L.

Even though Florida’s workers’ compensation (WC) system includes many safeguards to protect against abuse, you must still stay on top of cases to ensure that you pay only legitimate benefits ...

You have the right to prohibit employees from engaging in other gainful employment while at work. But can you (or should you) ban off-the-clock moonlighting? And when should you discipline employees for moonlighting? ...

The FMLA protects employees from termination for taking leave. But that provision doesn’t kick in until the employee notifies you about the serious health condition (or relative’s health condition) that triggers the leave ...

You can legally keep employees on FMLA leave longer than they requested so long as you provide them pay and benefits during that period.

As if life in HR weren’t hard enough, a federal court has clarified when you may be held individually liable for mistakes in administering anti-discrimination and benefit laws ...

If you’re looking for incentives to get managers and supervisors to pay attention during FMLA training sessions, look no further. Simply point out that they can be held personally liable if they deny FMLA benefits to which an employee is entitled ...

You’ve heard it over and over again: Don’t take FMLA leave into consideration when making employment decisions. But you don’t have to take that caveat to extremes ...

When employees go on workers’ compensation leave, you should tell them about their FMLA rights. That starts the 12-week clock ticking. If you don’t notify them, a lawsuit may follow even if the employee settles the workers’ comp claim ...

Ohio mirrors America’s growing diversity in many ways. Today, mosques occupy old churches; co-workers wear burqas and yarmulkes; and some employees request “prayer breaks.” Religious diversity is a reason for celebration, but it also presents challenges in the workplace ...

Q. We bought a company and agreed to consider hiring the seller’s employees. We interviewed and hired some of them. One of the employees was out on FMLA leave and is telling us that we have to hire him. We looked at his work record and we would never hire him. Do we have a potential problem? —R.L.B.

Employers that don’t have enough employees to be covered by the FMLA (50 employees) won’t necessarily win dismissal of an FMLA lawsuit right away ...

If you terminate an employee soon after he or she has returned from FMLA leave, you open yourself to charges of retaliation ...

When it comes to discharging employees, it’s very important to document your decision-making process. Be prepared to show that you followed company disciplinary rules and applied them even-handedly ...

Employees are becoming well versed in the FMLA game, and you're paying the price. Unscheduled intermittent leaves now account for a huge portion of all FMLA leaves of absence. And while the law does allow employees to take FMLA leave in small bites for a doctor's visit or to care for a sick relative, it doesn't give them unfettered rights to random work breaks or to arrive late without a good excuse ...

There’s a right way and a wrong way to make sure employees have a “serious” condition that qualifies for FMLA leave. ...

HR Law 101: The Pregnancy Discrimination Act (PDA) of 1978 prohibits discrimination on the basis of "pregnancy, childbirth and related medical conditions." Employers can't deny a woman a job or a promotion merely because she's pregnant or has had an abortion ...

HR Law 101: Under the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985, employers are required to continue offering health insurance benefits to employees and their covered dependents for a specified period after they leave the organization ...

HR Law 101: In recent years, employer attempts to regulate what employees may do on their own time have become contentious. Many employers fear that their employees’ off-duty actions, including moonlighting, may reflect badly on them, lower productivity or, even worse, create liability ...

HR Law 101: When weighing the evidence in a lawsuit involving employee handbooks, courts consider many factors.

HR Law 101: Workers' compensation insurance provides compensation to employees who are injured or disabled on the job. It pays for medical treatment, loss of wages during a period of disability and compensation for permanent disability or disfigurement ...

Q. An employee took FMLA leave Sept. 1 due to job stress. In October, she had an operation for carpal tunnel syndrome. Workers' comp ruled that her absence was work-related and it dated her workers' comp claim back to Sept. 3. So, they're now saying that her FMLA leave won't start until she is officially released from workers' comp. Do we need to keep a job open for her indefinitely? —F.W., Nevada

Q. One of our female employees says her ex-boyfriend is stalking her. She hasn't been able to get a restraining order against him. We're worried that he may show up and do her or other workers harm. Can we fire or suspend her? —B.L., Florida

Q. We understand that employees on FMLA leave don't lose investment toward retirement plans. Leave time is counted as work time. But our policy says that if employees are out for more than 30 days, their anniversary dates will change. Accrued paid-time off and vacation time will be based on the new anniversary date. Can we do this? —K.A., Connecticut

Q. Our policy is to run FMLA and short-term disability (STD) concurrently. FMLA is for 12 weeks of job-protected leave. STD is for 26 weeks, with proper medical documentation. At what point can we terminate an employee, at the end of 12 weeks, when FMLA leave is exhausted? And, if so, do we end short-term disability payments, since the employee has been terminated? —E.A., Georgia

Q. We recently learned that an employee on FMLA leave is working for another company. Can we fire her? —D.G., Arizona

Q. We have several employees out on workers' comp claims. Our policy is to pay for the employee but not dependents. How can we terminate the group insurance for employees who are out on workers' comp for more than three months? —M.O., Washington

Q. A long-standing employee recently took leave under the FMLA to give birth, but her twins have many medical complications. She exhausted her eligibility under our disability carrier and isn't eligible for long-term disability because she's not disabled. We want her back, but she can't commit to even 20 hours a week. What are our obligations under the FMLA, and would this individual be entitled to unemployment compensation if we terminate her? —G.B., New York

Q. An employee told her supervisor that she needed surgery. We approved time off under the FMLA with the understanding that she would provide certification after the leave began. We later discovered that this “necessary” procedure was liposuction. Can we revoke approval of medical leave under FMLA and convert sick hours used to vacation hours instead? Can we fire her based on inappropriate use of the FMLA? —T.S., Florida

Q. Do employees paid through a temporary agency count toward the 50-employee eligibility number for the Family and Medical Leave Act? —M.S., New Jersey

Q. Is there a law or reasonable standard regarding how many weeks maternity leave should be? And should we make that a written policy in our employee handbook? Even with FMLA, to which our employees are entitled, we thought maternity leave was either six or eight weeks, depending on type of delivery. —J.F., Pennsylvania

Q. I'm under the impression that our company is obligated to give employees all vacation accrued up to the time of their FMLA leave, but we're not obligated to let employees accrue vacation leave during their FMLA leave. Am I right? —B.K., Wisconsin

Q. Some of our employees routinely ask to use FMLA when they are five, 10 or 15 minutes late. It creates a scheduling nightmare and hurts morale. Does FMLA cover employees who are consistently tardy for work? —M.P., Florida

Q. One of our managers resigned a month ago, but she applied for FMLA leave a day before her resignation. Are we under any obligation to return her to a position she resigned from? Are we obligated to offer her a job when FMLA expires? —T.K., Massachusetts

Q. Our FMLA policy says that if employees take leaves of absence under FMLA for more than seven days, their annual review date is moved back for the amount of time they were out. Is this policy lawful? —S.H., Maryland

Q. An assistant manager has been out on disability leave for four months, and she's requested another two months. I want to eliminate the position. How long do I have to keep the position closed before reactivating the job title and responsibilities? —K.J., Mississippi

Q. An employee's been on FMLA leave for pregnancy for about 17 weeks. Now that the 16 weeks (12 under FMLA, plus four additional in our state) have expired, we plan to terminate her and let her know that she is eligible for rehire when and if she returns to work. Are we legally safe? —C.A., California

Q. A pregnant employee eligible for FMLA wants to take the 12 weeks of leave. Our leave policy says an employee on FMLA must first use his or her sick, vacation and personal leave, in that order, before the leave is unpaid. In this case, the employee has enough sick leave for the 12 weeks. But should she be allowed to use sick leave for the entire 12 weeks? Is this in our best interest? —M.P., Texas

Q. When an employee returns from maternity leave, do we have to give her the very same job she had or can she be put to work in a different type of position? —J.B., North Carolina

Q. We're a 24/7 office. Some employees rotate shifts, but our night employees typically work the same shift. After one of our employees gave birth, she asked to be placed on the night shift. We granted her request, but now she says medical reasons require her to be off for five days in a row. We put her back into the regular shift rotation, but she claims her FMLA rights are being violated and wants all employees to rotate shifts, even the night employees. Do we have to do this? —M.L., Ohio

Q. We have an employee on intermittent FMLA leave who periodically faints at work, is carried away in an ambulance, is off for a few days and then returns. Her position is critical. Do we have to continue with these absences? —R.R., Massachusetts

Q. Would FMLA leave apply to an employee who requests leave time to care for her daughter who is over age 21 and married? The daughter's illness required hospitalization, but her husband is overseas on active duty with the military. —D.S., Georgia

Q. Our office receptionist has a history of being late for work and taking unexcused absences. She's out on FMLA leave to care for her sick mother. Her temporary replacement is doing an outstanding job and always shows up on time. Our CEO has asked if we can keep the new receptionist and tell the other one not to return. Can we? —J.M., New York

Q. Is it legal to require that employees on FMLA leave report to us regularly on their plans to return to work? —P.R., New York

Q. Can the time spent on workers' comp leave be counted against family and medical leave? —D.H., Arizona

Q. We have a point system for absences and lateness. Our no-fault attendance policy states that if employees call off after the start of their shift, they’ll receive two points. What if the reason for the absence is covered by the FMLA? Should the employee still receive the two points? —C.S., Florida

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 ...

Q. One of my employees has been out on FMLA leave for seven weeks taking care of his sick father in another state. The leave was approved for a full 12 weeks. I received a voice mail from him saying that his father died. He also said that he had to clear up a lot of things with his father's estate, but that he would be back by the end of his scheduled leave. Can he do that or can I tell him he needs to come back sooner? —V.S.

Many employers who have progressive discipline and no-fault attendance programs believe they must stick to progressive discipline for every attendance infraction. But that's not so ...

If your organization's supervisors tend to ignore all that "HR talk" about FMLA leave, here's one way to get their attention: Point out that, in addition to suing your organization, employees can sue their bosses (and HR directors!) personally for FMLA-related mistakes ...

Many employers offer employee assistance programs (EAPs) to help employees with personal problems. But be aware that if you communicate directly with counselors who take employees' calls, you may trigger legal liabilities under both the ADA and the FMLA. That's especially true if an EAP counselor suggests that the employee needs time off or some other accommodation ...

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the rights of soldiers and reservists who are called to active duty or training and want to return to their jobs once their service is over. But these rights aren't without limits ...

A frequently disregarded ADA provision often catches employers by surprise. The ADA, which prohibits discrimination of disabled people at work, also bans discrimination against employees because they "associate with" someone who is disabled ...

When it comes to collecting proof about an employee's FMLA medical leave, one stupid mistake can cost your organization big bucks. That mistake? Not giving employees at least 15 calendar days to obtain the necessary medical certification to prove their need for FMLA leave ...

Q. We have an employee who is going to be out eight weeks for a qualifying serious health condition. The employee isn't requesting to use FMLA leave because she has enough paid sick leave. Can employees choose not to use FMLA leave even though they meet the qualifications? —C.T., Georgia

By law, employees can take up to 12 weeks of FMLA leave each year. Your organization can, if it chooses, grant an extension ...

When employees return from FMLA leave, you're required to restore them to the same position or a comparable one. That requirement might make you hesitant to make any changes to employees' jobs or conditions of employment while they're out on FMLA leave. However, a new court ruling shows that you can make minimal changes to a job description without worrying about FMLA violations ...

Domestic violence isn't always domestic. It comes to the workplace as lost productivity, excessive absenteeism, employee depression, increased health costs and, in the worst-case scenario, as violence at the workplace ...

If you use leased employees, you're not required to manage their FMLA leave. That's the leasing company's responsibility as the person's primary employer ...

The FMLA allows employees to take job-protected leave for the birth or adoption of their child. But can an employee legally take FMLA leave when his or her child is having a baby? In most situations, the answer is "no." But that's not always the case ...

Q. I told an employee who takes lots of intermittent FMLA leave that all of her time out of the office (no matter what it was for) would count against her FMLA time. My VP called me in and told me I was wrong and that was absolutely NOT the law. What is the best way to track her intermittent leave? Do I ask for documentation each time? —J.S., Texas  

Q. Many of my employees request FMLA leave to return to their native countries to care for sick relatives, or they request personal medical leave due to a “sudden illness” that occurs while visiting those countries. In some cases, these countries don’t have regulated physicians. Documents can be easily obtained from any street vendor. Are U.S. employers required to accept these documents? —L.W.

Q. One of our employees had been out sick for two months. We’ve received a doctor’s note that just says he’s unable to work and that a return date is undetermined. We faxed and mailed FMLA paperwork, but it hasn’t been returned. Meanwhile, the employee is receiving disability benefits through our short-term disability plan. How do we calculate the start of FMLA leave? From the date the disability payment began? And if we never get the FMLA paperwork back, can we terminate him? —T.B., Tennessee

The FMLA doesn’t forbid you to fire employees after they return from FMLA leave, or even while they’re on it. You’re simply prohibited from firing them because they took FMLA leave ...

Would your hiring managers react negatively to male employees or applicants just because they took FMLA leave to care for a newborn or a sick family member? ...

If your organization hits a busy time and needs employees to work long hours, don’t hesitate to require everyone to pitch in. Federal rules allow you to require nonexempt employees to work overtime, so long as you pay them time-and-a-half for hours worked above 40 in a week ...

After years of delay and missed deadlines, the U.S. Labor Department appears ready to move ahead with its promised update to FMLA regulations. But before it breaks out the red pen, the agency is seeking input from employers and other interested parties ...

Q. Are holidays that fall within the scheduled FMLA leave counted as leave? —L.F., Washington

To be eligible for FMLA leave, employees must work for your organization for at least 12 months. But take note: Those months don’t need to be consecutive ...

The FMLA’s notice provision requires employees, to be eligible for FMLA leave, to let their employers know that they suffer from a serious health condition. Merely telling a supervisor “I’m sick” doesn’t cross to the threshold of a legitimate FMLA notice. But it's important for supervisors to know that employees, on the other hand, don’t need to say something as explicit as “I need FMLA leave because I have X illness” ...

Employers can cut an employee’s compensation at any time for any nondiscriminatory reason, as long as the person isn’t covered by a union contract or other agreement ...

It’s important to know how your responsibilities differ under the ADA and the FMLA. The ADA requires you to allow part-time work as an accommodation only if doing so is reasonable for your company’s operations. But under the FMLA, employees have the unconditional right to intermittent leave, including working part-time for an extended period ...

The FMLA lets qualified employees take up to 12 weeks of unpaid medical leave each year if suffering from a serious illness. The law also entitles them to reinstatement to the same or an equivalent job when they return. But what if the employee has a lingering work restriction, such as a temporary lifting limit?...

What do you do if you think an employee, especially one whose performance is declining, could benefit from taking FMLA leave? Do you plant the suggestion or wait until the employee approaches you? The fact is, you can suggest FMLA leave for a serious health condition and not run afoul of the ADA ...

Is obesity a disability? Until recently, the answer has been “Fat chance!” But that may be changing. A recent ADA court ruling opens the door to some types of obesity being defined as disabilities ...

There’s a right way and a wrong way to make sure employees have a “serious” condition that qualifies for FMLA leave ...

It’s crucial to keep meticulous FMLA records, from requests to approvals to return-to-work discussions. If you fail to create a solid paper trail, courts will resolve any questions in the employee’s favor ...

If you require employees to use accumulated sick leave, vacation time or other paid leave when they’re out on FMLA leave, be aware of a little-known trap: If that employee also is receiving payments through a disability plan, you can’t force the person to use up his or her accumulated paid leave ...

Q. One of our employees had been out sick for two months. We’ve received a doctor’s note that just says he’s unable to work and that a return date is undetermined. We faxed and mailed FMLA paperwork, but it hasn’t been returned. Meanwhile, the employee is receiving disability benefits through our short-term disability plan. How do we calculate the start of FMLA leave? From the date the disability payment began? And if we never get the FMLA paperwork back, can we terminate him? — T.B., Tennessee

Q. I’ve heard that not all industries are covered by the FMLA. Are trucking companies exempt? If so, we have several employees out on workers’ compensation and FMLA leave. Can we fire them? —T.Z., New York

Warning: If you terminate employees who take more than 12 weeks off in a given period, you may be violating the FMLA even if you allow employees their full FMLA allotment of 12 weeks unpaid leave ...

It pays to keep some records longer than you think you’ll need them. For example, any notes, correspondence, medical certifications and other documents related to an employee’s FMLA leave request should be kept a minimum of three years ...

The federal FMLA and New Jersey’s Family Leave Act (NJFLA) both make it illegal to discipline or terminate employees because they take leave to care for a sick parent or child. But that doesn’t mean employees who take such leave are “untouchable” from discipline ...

HR Law 101: The Uniformed Services Employment and Reemployment Rights Act protects reservists when they’re away from work for extended periods. Reservists on active duty can maintain health insurance coverage by electing COBRA continuation. Employers must also count time spent on active duty toward the calendar and hour requirements for coverage under the FMLA ...

HR Law 101: Generally, the FMLA entitles employees to take intermittent leave for medical treatment or other medical reasons, whether it's for the employee or a family member. But there's the potential for abuse when employees take intermittent leave ... 

HR Law 101: FMLA leave is unpaid time unless the employer voluntarily decides to continue paying the worker during the time off. You may insist that employees first use up all of their paid leave and count that toward their total FMLA time ...

HR Law 101: When employees are on FMLA leave, employers must continue to provide health benefits for them. The same services your group plan provides on-the-job employees must be made available to those on FMLA leave. If you change coverage or adopt another plan that offers new services while employees are on leave, you must make the new benefits available to them as well ...

HR Law 101: When an eligible employee returns from FMLA leave, the employer must restore him or her to the same position or an equivalent one with equivalent benefits, pay and other terms and conditions of employment. The new position must involve the same or substantially similar duties, responsibilities and authority ...

HR Law 101: The FMLA allows employers to refuse to reinstate workers returning from FMLA leave under limited circumstances. For example, if you have experienced a reduction in force due to the economy or a companywide reorganization, you may be able to eliminate a returning worker's job ...

HR Law 101: The FMLA's recordkeeping requirements are less onerous than those of some other federal laws. But you must handle FMLA medical records with the same level of confidentiality as required under the ADA ...

The Pennsylvania Workers’ Compensation Act covers all employers in the state and provides wage replacement for employees hurt on the job. The law provides payments to employees regardless of fault. That is, to earn benefits, injured employees don’t have to prove that their employers were negligent; they need only prove that the injury occurred at work. Sounds simple, right? It’s not ...

The New Jersey Family Leave Act provides up to 12 weeks of unpaid leave every 24 months for employees of any New Jersey company that has 50 or more employees anywhere worldwide. The law covers employees if they’ve worked for their organization for at least one year and clocked at least 1,000 hours during the preceding 12 months ...

In addition to complying with the federal Family and Medical Leave Act, California employers must wade through a maze of the state's leave laws, ranging from paid family leave for a serious health condition to time off for school visitations and emergency rescue duty ...

Question: Does anyone have some sort of simple way/spreadsheet to track FMLA leave using the "rolling" 12-month period measured backward?  -- Cindy

Employees are becoming well versed in the FMLA game, and you're paying the price.
Proof: Unscheduled intermittent FMLA leave now accounts for a sizable portion of all FMLA leave, says ...

In last month's Business Talk column, a subscriber asked about holiday pay for workers taking leave under the Family and Medical Leave Act (FMLA). Several of you asked us to elaborate ...