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.
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.
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.
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.
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.
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.
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?
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?
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. 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? ...
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.
Do employees who return from job-protected leave become “untouchable,”
even if they perform poorly? Can holding their feet to
the performance fire look like retaliation? In this new case, an
employer fired a worker just six weeks after her FMLA leave. Six weeks
is like a nano-second on the retaliation stop watch. But the court
still dismissed the case. Why?
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?
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.
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.
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.
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. 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?
Starting Jan. 16, 2009, new regulations will change the way you administer the Family and Medical Leave Act (FMLA) in your organizations. First step: Display the updated FMLA poster. Don’t waste money buying new posters from HR vendors. You can download the official version for free right here ...
Employees request time off for doctors' appointments all the time.
But, do you have to grant them? Could the request trigger FMLA rights,
even if the employee was not previously incapacitated or ill for three
or more calendar days? A new court ruling says that if an employee
simply thinks she has a serious condition, she may be able to take FMLA leave to
have it checked out ...
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 ...
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 ...
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.
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 ...
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 ...
Change. America voted for it, and the HR world will certainly receive its fair share next year. The arrival in Washington of President-elect Obama and a firmly Democratic-controlled Congress will spark an array of legislative and regulatory proposals that could rewrite the employment law rule book.
Change. America voted for it, and the HR world will certainly receive its fair share next year. The arrival in Washington of President-elect Obama and a firmly
Democratic-controlled Congress will spark an array of legislative and
regulatory proposals that could rewrite the employment law rule book.
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.
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.
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.
Say you’re just about to terminate an employee but he throws down
an EEO trump card, like a request for FMLA leave. Ugg! If only you
could have beat him by a few seconds. Then the firing wouldn’t look
like retaliation for his FMLA leave. But a new court ruling says not
to worry. If you have a very legitimate reason for firing an employee,
even after he requests FMLA leave, you can safely crumble up his trump
card and toss it in the shredder …
Your FMLA
policy tells employees they can take up to 12 weeks of unpaid FMLA
leave each year. But does your policy define “year”? If not, a court
may do it for you—in the employee’s favor, of course …
Eligible employees are entitled to up to 12 weeks of FMLA leave per year and are guaranteed their jobs back (or equivalent ones) if they return at the end of that leave. That means you can terminate at the end of 12 weeks, right? Maybe not ...
Migraine headaches can be serious business—sometimes requiring FMLA
leave. But what if you discover that your migraine-suffering employee
used her FMLA time to cut lawns at her side job? An Indiana employer
facing that situation recently handled that situation aggressively—and
legally …
Some employees who are having performance problems think taking FMLA leave will stop any pending disciplinary action. But an employer doesn’t need to hesitate to discipline if it can show that the employee really does deserve the discipline. But don't jump the gun ...
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 ...
Employers can insist that employees submit medical certification of their need for FMLA leave within 15 days. But what happens if a union member is denied FMLA leave because the employer didn’t get the certification within the 15-day limit? ...
Employers don’t have to stop disciplining employees just because they’ve asked for FMLA leave. But make sure to keep careful records explaining any disciplinary actions. Those documents will persuade a court that management acted reasonably and fairly, and not because the employee claimed her FMLA rights ...
Have you ever approved FMLA leave for an employee but had a sneaking
suspicion that the time off would be used for much more than bed rest?
In this new ruling, the company actually videotaped a supposedly
injured FMLA-leave taker building a porch on his house. But 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 suit....
Ann Weichman, an account underwriter at Chubb, was a pain to supervise because she was so frequently late for work. Then, a few days after Weichman took FMLA leave, she was late for nonmedical reasons. The company had had enough and fired her. She sued for retaliation and interference with her FMLA rights ...
Balancing business needs against employees’ legitimate FMLA rights is one of the hardest parts of managing absenteeism. Now there’s one less thing to worry about. A new case makes it clear that you don’t have to request an FMLA certification every time an employee calls in sick ...
Q. Our company has an employee who has taken FMLA leave to care for his sick child. His attendance record has been poor, but we have not documented our warnings as well as we should have. Our company has a rule that an employee has 15 days to have the treating doctor sign and return a form certifying the medical condition of the family member who is sick. We never received the signed form. The employee says that his doctor sent it. Can we terminate the employee? ...
Are you trying to find ways to get employees to listen during your annual harassment and discrimination training session? Here’s something that should get their attention ...
What should employers do if an employee’s work performance suffers
while he or she is taking FMLA intermittent leave? Can you terminate
employees when their work falters because of those absences? One court
last month sent a clear message: “Don’t go there!”...
For better or worse, intermittent FMLA leave sometimes has the effect of turning a full-time job into a de facto part-time one. That means an employee taking intermittent leave probably won’t get everything done. it’s up to the employer to figure out how to fill the gap ...
Some lawsuits are based on just a few careless comments from a supervisor. That’s especially true in cases involving employees who take time off under the FMLA. Managers who refer to these problems as “distractions” and comment on their impact on the workplace are inviting employees to sue ...
The recently enacted Ohio Veterans Package amends the Ohio Civil Rights Act to bar discrimination based on “military status.” As a result, Ohio employers now face new legal requirements on both the state and federal fronts for how they treat military employees and their families ...
The U.S. Labor Department has announced it plans to update FMLA regulations. The proposed regulations make it clear that employees will be able to settle past FMLA violation claims. Now a recent case spells out under what circumstances a release will be contractually and legally binding ...
When it comes to discrimination claims, timing can be everything. An employer that discharges or demotes a pregnant employee (or one who has just given birth) is asking for a discrimination or retaliation lawsuit. If you have a poorly performing employee who is pregnant or just gave birth, don’t do anything adverse until she has returned to work for some time ...
Employers with 50 or more employees that are subject to the requirements of the FMLA, take note: Significant developments are under way: A new law extends leave benefits to military families, and the U.S. Labor Department is revamping regulations interpreting employers’ obligations under the FMLA ...
After remaining untouched for its first 15 years, the FMLA has received a makeover in the past couple of months—first by Congress, and then by regulators at the U.S. Labor Department. Here are the highlights ...
The U.S. Labor Department has announced proposed revisions to the FMLA regulations. Also, the National Defense Authorization Act for FY 2008 amended the FMLA to provide leave for eligible employees to care for injured service members and to deal with any “qualifying exigency” arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty ...
On Feb. 11, 2008, the U.S. Labor Department published proposed regulations interpreting the FMLA of 1993. The department also published new draft forms for use in processing FMLA leave requests. Interested parties have until April 11, 2008, to submit comments on the proposed regulations ...
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 ...
On Jan. 28, 2008, President Bush signed a law that extended FMLA rights to certain family members of U.S. military personnel. Covered employers are encouraged to post notification in their workplaces about these changes. The U.S. Labor Department has created a free supplemental poster that satisfies the notice requirements. Download the poster here ...
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.
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 ...
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 ...
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 ...
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.
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 ...
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?
Employees don’t have to say the
magic words, “I am requesting FMLA leave” to earn protection under the
FMLA. It’s up to employers to recognize qualifying leave, based on the
information provided by employees. But
when employees are out for workers’ compensation injuries, must you
interpret that as automatic notice that they’re suffering a “serious
health condition” that qualifies them for FMLA leave? This new ruling
shows how workers’ comp leave can quickly morph into FMLA notice ...
Intermittent leave is one of the trickiest areas of the FMLA. While employees with chronic health conditions may need short periods of time off when their conditions flare up, employers also know FMLA intermittent leave is prone to abuse. That’s why it’s important to immediately nail down the expected frequency and duration of intermittent leave ...
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 ...
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 ...
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 ...
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 ...
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 ...
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.
The U.S. Labor Department issued a report
yesterday that said all is not well in the land of FMLA. Shocking,
truly shocking! And we in the employer community thought things were so
rosy…
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 ...
Until recently, it was unclear whether Pennsylvania employers could require employees to give up the right to sue for FMLA violations in exchange for severance payments. That was because the FMLA explicitly says employees can't waive their FMLA rights as a condition of employment ...
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 ...
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 ...
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. 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
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 ...
S.P. Richards Co. (SPR), a Smyrna office-supply wholesaler, recently won an FMLA victory when the 1st Circuit Court of Appeals determined it would be considered separately from its parent company, Genuine Parts Co. ...
Issue: Severance packages usually ask departing employees to waive their rights to file various employment lawsuits. Risk: If you include FMLA in that mix, you'll risk having the whole package ...
Issue: Many HR professionals believe they've unwittingly approved FMLA leave for fraudulent reasons. Benefit: A new court ruling makes it easier for you to check up on employees on FMLA ...
In severance agreements, employers typically require employees to sign promises not to file employment-related lawsuits. But don't try to include FMLA rights in that waiver. Why? A new ruling ...
Issue: Courts won't look kindly on employers that OK an employee's FMLA leave but then change their minds. Risk: In such cases, courts could grant FMLA rights even if the ...
Issue: If you uncover an employee's performance problems while she's on FMLA leave, can you fire her? Risk: Firing may be legal in some cases, but it will likely prompt ...
Terminating an employee who's out on FMLA leave isn't impossible. If you can prove that you would have fired the employee if he or she had been at work, you can ...
Issue: Some supervisors think about FMLA only if an employee explicitly says "I need FMLA leave." Risk: In reality, employees don't need to use the term "FMLA." Failing to recognize ...
When employees request leave, especially for unforeseen circumstances, they don't need to assert their FMLA rights explicitly by saying, "I need FMLA leave." In fact, they don't need to mention FMLA ...
Issue: Employees' right to immediate reinstatement when returning from leave covered by the Family and Medical Leave Act (FMLA). Risk: Any delay in returning employees to their jobs after FMLA ...
When employees tell you they're ready to return from leave taken under the Family and Medical Leave Act (FMLA), restore their jobs as soon as possible. Once employees are capable of ...
THE LAW. Eligible employees who want to take leave covered under the Family and Medical Leave Act (Act) must give you 30-days' advance notice when the need is foreseeable, such ...
It's not uncommon to realize that employees on Family Medical Leave Act (FMLA) leave aren't as productive as their temporary replacements. That puts you in the sticky situation of wishing you ...
The Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave annually for the birth or adoption of a child, their own ...
In a shift from its recent trend of holding states immune from federal law, the Supreme Court affirmed the right of state employees to file lawsuits relating to the Family ...
When the company Valerie Dierlam worked for was sold, the acquiring firm offered her a bonus of half her salary if she stayed for one year. She did, but the ...
Linda Collins' attendance record at work was spotty at best. Her employer warned her more than a dozen times, including four formal warnings. But when she again called in sick two ...
After receiving a phone message that her father had suffered a heart attack, Vickie Medley told her boss that she was leaving Denver immediately to drive to Nebraska. Over the next ...
Gladys Navarro asked her employer, Pfizer Corp., for Family and Medical Leave Act (FMLA) leave because she wanted to take care of her adult daughter who was ordered to bed rest ...
Russell Strickland left work early because his diabetes acted up and affected his vision. Strickland claimed he told his manager and another employee why he was leaving. But the manager ...
