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. 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.

As the name clearly implies, the federal Pregnancy Discrimination Act (PDA) makes it illegal to discriminate against women who are pregnant. But it doesn’t mean pregnant employees are entitled to special privileges. In fact, the PDA merely makes clear that employers must treat pregnant employees the same way they treat every other employee.
Q. We have a new administrative employee in our medical office who missed 22 days of work in her first nine weeks. She has doctor excuses for illnesses for most of the days, but my front office is a shambles. Can I put her on written warning for excessive absences? Can I terminate her?

You can terminate employees who are unable to return to their jobs after their FMLA leave has expired. Just make sure you’re consistent. If you apply the same termination rule to all employees—regardless of race, age, sex or membership in any other protected category—you won’t have to worry about lawsuits.

Q. Can we terminate an employee who has exhausted his FMLA leave but needs additional time off to care for his serious health condition? Or must we provide additional leave?
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