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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Now is the time to review your return-to-work policies and practices for employees on leave. They need to be integrated without regard to the reason that prompted leave. Treating workers differently depending on the reason for their absence opens the possibility of a disability discrimination claim.

Employees who take FMLA leave are usually eligible for reinstatement, but not always. If you were going to eliminate the position anyway, the employee may be out of luck. Before you deny reinstatement, be sure you can clearly show that the position was cut for reasons completely unrelated to the employee’s FMLA leave.

If there’s no use-it-or-lose-it policy in place, employees can easily stockpile weeks of vacation or personal leave. Should they become ill, they may try to use that time as a substitute for FMLA leave. If an employee asks you to approve an especially long vacation, and you suspect the underlying reason may be a covered condition under the FMLA, beware automatically rejecting the request.

Q. We recently learned that an employee on FMLA leave is working for another company. Can we fire him?
The FMLA grants time off for em­­ployees with serious health conditions, but they must let employers know they need leave. Simply requesting light-duty work isn’t enough.
According to the EEOC, leave may be a reasonable accommodation. If you fire disabled employees without at least considering time off as an accommodation, you might be sued.

Think you can split your business into separate entities to avoid being covered by some laws like the FMLA—and maybe limit the amount employees can collect if they sue under Title VII? Think again. That won’t work if the entities retain a centralized management structure.

Courts are suspicious when em­ployees who have recently returned from FMLA leave are suddenly fired. Yet, chances are you will at some point have to terminate an employee following FMLA leave. Just make sure you can explain why, backed up by solid and contemporaneous documentation.
Employees who take FMLA leave don’t get greater protection from layoffs than employees who don’t take leave. As long as you can show that you would have eliminated a job even if the employee had not taken FMLA leave, the termination is fine.

Employees have to give 30 days’ notice before taking FMLA leave. That means some employees may ask for FMLA leave before they are actually eligible. For example, an employee may request time off for a serious health condition when he still has a few hours more to work before hitting the one-year or 1,250-hour milestone. Employers can’t deny the request merely because it was made before the employee became eligible.

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