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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 require our employees to give us notice of when they need FMLA leave? Can we require that notice in writing?
Sometimes, ­­employers must grant more time off to disabled em­­ployees if their FMLA and other leave has expired. But they don’t have to if doctors can’t estimate a return-to-work date.
The Pennsylvania State University Medical Center is being sued by a cancer surgeon who alleges he was fired in retaliation for defending the FMLA rights of his secretary—who was fighting cancer.
Don’t try to “create” artificial overtime for a disabled em­­ployee so she’ll be forced to use up her FMLA entitlement. That’s especially true if no one else is required to actually work overtime. Such a tactic will backfire.
Responding to the U.S. Supreme Court’s June decision overturning a key part of the federal Defense of Marriage Act, the DOL has affirmed that employees with same-sex spouses have the same FMLA rights as other married employees—as long as they live in a state that has legalized same-sex marriage or recognizes such marriages performed in other states.
Employees who take protected FMLA leave are supposed to return to the same or an equivalent position in terms of pay, duties and benefits. But what if the employee doesn’t want the same job for some reason? Must you create a new job for her? No.
Not every condition that’s labeled a “disease” is considered a disability under the ADA. Recently a federal court in New York concluded that periodontal disease, even if painful, isn’t disabling and absent extenuating circumstances won’t need to be accommodated.

By now, you no doubt know that instantly firing someone who isn’t ready to return from FMLA leave may land you in legal trouble. Some employers have addressed this situation by crafting a policy that provides some additional leave. If you decide to do that, make sure you get legal help creating the actual policy.

Q. One of our employees just took emergency custody of her grandchild after her son and daughter-in-law were arrested for child abuse. She now wants to take FMLA leave to get the child settled in and have family counseling. What kind of proof must we accept that she really has legal custody?
A frequent tactic for employees who have used FMLA leave and who are fired around the same time is to allege that they were terminated for taking FMLA leave. But those claims fall apart if the person making the termination decision didn’t know about the leave. That’s reason enough to limit access to FMLA leave information to those who need to know.
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