FMLA Guidelines — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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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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Employees who are out on FMLA leave don’t enjoy any special protection against being fired for unrelated reasons. If you can show you would have terminated the worker even if she had not taken FMLA leave, chances are the termination won’t be seen as FMLA interference or retaliation for taking FMLA leave. However, such a move will probably trigger a lawsuit anyway.

If someone didn’t foresee the need for leave (for example, because a medical condition flared up suddenly), don’t turn them down just because they waited overnight to ask for time off.

Here are four common issues involving communications with employees during their FMLA leave.

Businesses must stay abreast of an alphabet soup of federal laws—ADA, ADEA, FMLA and so forth—each with its own requirements. Further complicating matters, most states have their own laws that override the federal requirements. To comply, you first must know which laws apply to your business.

When a disabled employee wants to return to work, limitations may make it impossible for him to do his old job. If so, it may be reasonable to either grant more leave or reassign the employee—or both.

Employers may perceive flex schedules as a key retention tool, but they’re no longer shy about insisting that day-to-day productivity can’t suffer because of an employee’s altered schedule.

Sometimes, an employee with a blemished disciplinary history may think he will be protected from termination if he takes FMLA leave. But the FMLA right to return isn’t absolute.

Under the FMLA, employees have two years to sue for alleged violations—extended to three years if the violation is “willful.” But not every FMLA mistake is a willful violation.

If you generously provide extra leave for employees who run out of FMLA leave, be sure to document it. Should the employee later accuse your organization of FMLA retaliation, the fact that you approved subsequent leave can demonstrate your good faith.

Employees who find themselves criticized for lower productivity or missed deadlines because they were out may have a legitimate FMLA interference or retaliation claim.

Where an employer is located makes a difference when it comes to defeating an employee’s FMLA retaliation lawsuit. That’s because different federal courts use different standards for what an employee needs to prove to win a retaliation case under the FMLA.

While the legal requirements to retain records are complex, you're probably safe in dumping those 1984 vacation-day requests. Still, knowing which records to save or toss can be critical to your business, particularly in defending against a lawsuit.

Q. Can we ask an employee who is on FMLA leave to come in to discuss the possibility of applying for a promotion? Might it be better to discuss this by phone?
The 3rd Circuit Court of Appeals recently handed a victory to employers that struggle with employees who misuse FMLA leave—particularly intermittent FMLA leave. The court held that an employer’s honest belief that its employee misused FMLA leave was sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.
Q. Is it OK to contact an employee during FMLA leave or ask him or her to come in to the office?
Do you have a companywide policy that requires all workers who are out on leave to get a doctor’s certification that they are completely healed before they can return to work? Such a rule may run afoul of the ADA.
When preparing a performance review, remind supervisors that they should never mention FMLA leave or appear to use it as a factor in the evaluation. That can lead to a big jury award later if the review is used to justify termination—even during a reduction in force.
Employees out on FMLA leave don’t enjoy more job protection than employees who don’t take leave. As long as an employer doesn’t terminate because an employee took FMLA leave, it’s perfectly lawful to fire someone during leave.

Employers expect employees to get to work on time. Occasional problems with traffic or family issues sometimes make employees late. But chronic tardiness is another thing altogether. While most employers track tardiness occurrences, they should do more. How?

Punishing a worker for using FMLA leave is illegal retaliation—and the punishment doesn’t have to be something big like termination. Even seemingly minor acts can qualify as retaliation if they would dissuade a reasonable worker from using FMLA leave in the first place.
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