Even legitimate discipline against a lousy employee can spell FMLA trouble if somehow that discipline happens more quickly than it did for other employees with similar disciplinary problems. Advice: Take your time when disciplining workers who have taken FMLA leave. It’s better to be right than fast.
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.
You may have read that employers aren’t permitted to force employees to take medical exams because they could reveal a disability. While pre-employment, pre-job-offer medical exams are barred, there are times when medical exams are fine. The key is whether the exams are job-related and consistent with business necessity.
Q. Several of our employees are in the Army Reserve or are on long-term leave due to military deployment. What rules apply?
These days, much of the evidence used in employment litigation is electronic—such as attendance records. Courts require employers to preserve such evidence when employers reasonably know that a lawsuit could arise. If evidence is destroyed, courts can impose heavy financial sanctions and even hand a win to the other side without a trial.
If an employee gets a certification showing he has a serious health condition under the FMLA, you can request a second, independent assessment. But if the second opinion says the condition isn’t serious, that’s not the final word. FMLA regulations require a third opinion as the tie-breaker.
The 4th Circuit Court of Appeals has finally settled a key question: Can employers and employees settle FMLA disputes without having to get either court or Department of Labor approval? The court said yes, such cases can be settled between the parties without outside interference. That’s good news.
When it comes to deciding whether to grant reasonable accommodations, the first step is to determine whether the employee is really disabled. A diagnosis isn’t the last word. Does the condition actually limit the employee in some substantial way?
Q. One of our employees is adopting a 5-year-old Ethiopian child and has asked for leave to travel to complete the adoption and bond with the child when they return to Minnesota. Does this count as FMLA leave, since it is not leave within the first year of the child’s life? If it does, is the travel time eligible for FMLA leave?
Some employers believe that pregnant women aren’t entitled to time off for pregnancy-related matters because pregnant women aren’t disabled or unable to perform their jobs. That’s wrong and can land employers in big trouble. The fact is that prenatal visits and even bouts of nausea are the sorts of things that Congress considered when covering pregnancy under the FMLA.
Sometimes employees will suddenly request FMLA leave when they know they face termination because they’re not meeting their performance goals. They think no one can be fired while on FMLA leave. Wrong! You can fire such a worker—as long as you first make performance goal adjustments that take their FMLA leave into account.
