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. One of our employees got the flu while she was out on vacation leave. Now she wants her vacation time back and wants to call those “sick days” instead. Do we have to let her change the status of this leave time?

To be eligible for FMLA leave, an employee “must have been employed for at least 1,250 hours of service” with his or her employer during the 12 months prior to the commencement of the FMLA leave. That seems simple enough. But in the world of FMLA administration, nothing is as simple as it seems.

In each monthly issue, our HR Specialist: Compensation & Benefits newsletter reports on creative employee benefit and compensation programs being offered by U.S. employers. Those are published in the What’s Working column of each issue. Here’s a sampling of recent articles:

A good sick leave policy includes rules governing how employees are supposed to let their employers know that they’re ill. Employees generally have to follow those rules or face discipline. But there are circumstances under which employees may be excused from following the rules. One of those exceptions: when the employer has direct notice that the employee is ill and may need FMLA leave.

Q. Can we refuse to hire a qualified applicant who has told us her National Guard duty conflicts with some of the weekends she would be required to work? Employees in this job bid for rotating scheduled weekends under a union contract seniority system. The applicant’s schedule for Guard duty is not flexible.
Q. A staffing agency has informed my company that a temporary worker who was previously assigned to us is returning from a leave under the FMLA. What are our obligations to this individual?

It comes as a bolt out of the blue: The Florida Commission on Human Relations notifies you that there’s “reasonable cause” to believe retaliation was the reason a female employee lost out on a promotion to a male co-worker. But it was a clean promotion process! How did this happen? As it turns out, this is the “cat’s paw” doctrine at work.

Employers can use no-fault attendance policies as a way to control absenteeism. There’s no doubt about the effectiveness of no-fault programs, which allow a certain number of unexcused absences without any documentation, and then punish employees who go beyond allowable limits. But before you fire an employee for breaking your absenteeism rules, carefully consider whether he is eligible for FMLA leave.

Is your workforce less diverse than the local labor market? You can head off discrimination lawsuits by citing legitimate business needs that justify hiring rules that seem to cause disparities. The best approach: Have a clear business justification for any screening or job criteria you use, even if you don’t expect they will cause a disparate impact on any protected group.

Some employees may want to save up their FMLA leave for an anticipated event like a birth or upcoming surgery. Even if they’re eligible for intermittent FMLA leave, they may request that they not be docked for the time off. If you agree not to charge the time off against FMLA leave, make sure you document the request. Then feel free to treat the absences as you would any other absence under your attendance policy.

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