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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Employees are protected against retaliation for taking FMLA leave. Disciplining an employee who has just returned from such leave is risky, especially if you can’t point to anything truly objective as the reason. Attributing a “poor attitude” to returning employees is a bad idea unless you can provide specific examples of actual work deficiencies.

Federal courts often use the well-known McDonnell Douglas burden-shifting test to determine whether an employer has unlawfully discriminated against an employee. Now the 7th Circuit Court of Appeals has ruled that when it considers an Illinois workers’ compensation retaliation claim, it must apply an Illinois state law rule that is more demanding for employees than the McDonnell Douglas test.

Q. We have an employee returning from FMLA leave. His physician has issued a fitness-for-duty certificate. However, we have doubts about the worker’s ability to perform his job because he wasn’t off work very long ... Can we send him to another physician for a second fitness-for-duty examination?
Q. How does the recent amendment to the Illinois Family Military Leave Act affect employers?
Some workers decide to provide notice that they’ll need FMLA leave long before they’re even eligible for coverage. When you get such a request, don’t reject it out-of-hand.

Especially in a lousy economy, fired employees will look for a reason to sue. You must be able to defend every discharge against possible discrimination and retaliation claims. The only safe approach is to document that you treated every employee equally. You simply can’t cut slack for one employee and not another.

You no doubt know you should act fast to investigate when employees complain about discrimination. But that doesn’t mean you need to rush to complete your inquiry in just one day.
Some employers cut more slack than the FMLA requires when employees fail to give timely notice that they want to take FMLA leave. The company typically might send an employee a letter informing her that, since she didn’t show up for her last scheduled shift or offered an explanation, she has five days to return or explain why she can’t work. If the reason is one covered by the FMLA, she may already have lost the right to claim FMLA leave.

When employees are fired for absenteeism, they may be quick to point to unequal treatment, saying other workers kept their jobs but were absent more often. One way to avoid such claims is to install a point system to punish absenteeism, terminating employees who accumulate too many points.

The March of Dimes devotes itself to promoting healthy babies—in the community and among its own employees. To that end, working moms can take 26 weeks off—six with full pay—with a guarantee that their jobs will be waiting for them when they return. They also get another week of paid sick leave. The organization also doubled its paternity benefit last year.

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