FMLA Guidelines — Page 10
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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. We have an employee who has been on workers’ comp for nine months. He’s not planning to have his fractured ankle operated on. HR wants to terminate him on the grounds that (after the operation) he will have been on FMLA for over a year. We realize the employee would still be carried by our insurer. Can we legally terminate an employee on workers’ comp after a year’s medical leave? — Vincent, Louisiana

Employees out on FMLA leave are supposed to be freed of their regular work responsibilities. They are on leave, after all. Some supervisors have taken this to mean that they may never call an employee who is out on FMLA leave to discuss work-related matters. That’s not entirely true.

There’s no doubt that a key em­­ployee’s sudden and unexpected extended absence can disrupt business. Even so, remind supervisors to keep their gripes to themselves if it turns out that the employee is exercising her FMLA rights.
Employees who take protected FMLA leave are entitled to reinstatement to the same or a substantially similar job once cleared for work after their leave is over. Reducing the employee’s hours on return could be seen as interference with FMLA rights.

If, after FMLA leave, an employee asks for more time off or to work from home, handle the request just like you would another disabled employee’s reasonable accommodation request. Verify the disability and discuss possible accommodations before you reject the request. Otherwise, a jury may hold you liable.

Unexpected absences can cause scheduling headaches. However, since FMLA leave is an entitlement, there isn’t much employers can do—at least when the call-offs are legitimate. But not every absence is legit.
Q. An employee who is off on an approved FMLA leave just submitted her resignation, providing two weeks’ notice. Our employee handbook asks employees to provide a two-week notice when possible. May we terminate the employee’s employment immediately rather than wait two weeks?
Q. Do we have to let an employee leave the United States to visit his home country while on family medical leave? Are there restrictions? — Terry, New Jersey
Train all supervisors about the FMLA. Instruct them to refer any perceived problems to HR. Direct supervisors should not, for example, conduct their own “investigations” into whether an employee is abusing intermittent FMLA leave by conducting surveillance or taking other intrusive steps. Doing so may net a lawsuit alleging interference with FMLA rights.
Q. Before we could counsel an employee about ongoing attendance problems, she was approved for intermittent FMLA to care for her mother. However, she continues to have attendance problems unrelated to her FMLA leave. Can we proceed with counseling and possible disciplinary actions while she is under FMLA?
Employees on FMLA don’t earn protection against legitimate discipline for reasons unrelated to FMLA leave.
The FMLA is supposed to protect employees from losing their jobs when they can’t work due to a serious health condition. Minor maladies such as colds, headaches and body aches usually aren’t enough to merit protected leave. That’s true even if the employee goes to a doctor and gets a prescription, unless the health care provider also tells the worker to return within 30 days for a follow up or otherwise actively monitors the illness.
You risk a lawsuit if you don’t advise employees of their FMLA rights. Employees are entitled to individual notice so they can make informed decisions about when to return to work.
A federal district court in Texas has issued an injunction preventing—at least temporarily—the U.S. Department of Labor from implementing a final rule granting FMLA rights to legally married same-sex spouses.
Job interviews present a minefield of legal problems. One wrong question could spark a discrimination lawsuit. That's why you should never "wing it" during interviews. Instead, create a list of interview questions and make sure every question asks for job-related information that will help in the selection process. To avoid the appearance of discrimination during interviews, do not ask the following 25 questions:
Q. When an employee calls off sick for more than one day, is there a minimum amount of days off required before an employer can ask for a doctor’s note? Can we ask the specific reason for the absence?
Before rejecting a disabled employee’s request for additional time off as a reasonable accommodation, consider whether the time would allow the employee to return. If not, you probably won’t have to provide the additional leave.

When slapped with discipline shortly after taking FMLA leave, some employees jump to the conclusion that it’s retaliation for taking time off. That would be illegal, and could prompt a lawsuit. Don’t make their legal case easy.

When one of your employees takes FMLA leave, you may require a fitness-for-duty exam showing she is fully able to perform her job before you allow her to return. As long as you require everyone who takes FMLA leave to undergo such exams, the rules authorize you to discharge workers who can’t or don’t provide certification before their return.
Here’s something to remember when you are ready to dismiss an employee for poor attendance: You can’t use any FMLA leave as a negative factor, and you can’t include any FMLA leave when tallying absences.
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