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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Have you ever been suspicious about an employee’s request for FMLA leave? Employees have learned to play the FMLA game quite well in the 17 years since the law was passed. In this new case, an "attendance-challenged" employee was denied extra vacation leave for her wedding, so she then submitted an FMLA leave request for those same dates. Hmmmm … smell fishy?

Corporate counsels are preparing for a big year of litigation, with 42% of them anticipating an increase in legal disputes their companies will face in the next 12 months. That’s up from 34% last year, according to the annual litigation survey by Fulbright & Jaworski.

Question: “I am a single mother raising two toddlers by myself. This is held against me at work, because no one else has this problem. My co-workers are all happily married or have grown children.  With no family available to help, I often have to take time off for medical appointments, illnesses and other child care issues. My boss says if this continues, he may have to find someone else for my position. I feel desperate because I love my job. How can I make these people understand?” —  Worried Mother

If your organization uses independent contractors, watch out: Starting in February, the IRS will begin intensive audits of 6,000 randomly selected employers. One of the key targets: Determining whether employers are improperly misclassifying workers as independent contractors to save on taxes and legal risks.

Employees who request FMLA leave can’t be punished for doing so. That would be retaliation and interference with the right to leave. But merely asking about FMLA leave or requesting paperwork isn’t enough to form the basis of an FMLA claim.

It seems logical—employees who can’t come to work won’t be able to perform the essential functions of their jobs. It may be possible to accommodate some disabled employees by letting them work from home, but that’s not true of most jobs.

Employees who take FMLA leave are entitled to be reinstated to their jobs if they return to work when their 12 weeks off expire. But many employers provide additional time off. But if employers grant that additional leave, they don’t have to reinstate the employee to the same or an equivalent position when she returns.

You know that you can run into trouble if you treat someone as disabled when they are not. But you’re not in violation of the “perceiving as disabled” provisions of the New Jersey Law Against Discrimination (NJLAD) every time you notice an employee has a physical problem.

Q. I run a small company with fewer than 50 employees.  I was recently approached by a male employee requesting “paternity leave.”  Must I provide him paid or unpaid leave upon the birth of his newborn child?

Employees returning from FMLA leave are entitled to reinstatement to their former jobs or equivalent positions. However, an employer can terminate an employee while she’s out on FMLA leave if it can show it would have done so anyway even if the employee hadn’t taken FMLA leave. But be careful ...

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