FMLA Guidelines

We’ll assist you in tracking and managing intermittent FMLA leave … fighting FMLA fraud and FMLA abuse … and managing FMLA in general.

Beyond mastering FMLA regulations on intermittent leave, we’ll share FMLA guidelines on how to curb FMLA abuse, and dramatically improve your overall FMLA compliance.

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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?

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.

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.

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:

Congress is considering emergency legislation that would guarantee five paid sick days for workers directed to stay home by their employer for a contagious illness, such as the H1N1 flu virus. Although passage is far from certain, the Emergency Influenza Containment Act is a bill worth monitoring.

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.

Some states offer more — or less — generous leave rights than the federal Family and Medical Leave Act (FMLA).  So if your company is covered by both federal and state law, follow the provisions of whichever law is most generous to employees.  Leave under the FMLA and state law can run concurrently, unless otherwise indicated by state law.

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.

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?

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