FMLA Guidelines — Page 20
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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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Track every employee’s use of FMLA leave and what happens when he returns to work. Why? If you happen to terminate the employee shortly after he returns from approved FMLA leave, he may claim retaliation.

Twenty years ago today, President Bill Clinton signed the FMLA into law. Since 1993, the law has provided eligible employees up to 12 weeks of unpaid, job-protected leave per year for the birth, adoption or foster care of a child; caring for a child, spouse or parent with a serious health condition; or convalescence after an employee’s own serious health condition. Here's a primer on one of the nation's most critical employment laws

Making comments about someone’s illness is both rude and unprofessional. It may also be the basis for a lawsuit. That’s reason enough to warn supervisors and managers against discussing medical problems related to FMLA leave

Q. Our office received medical information from an employee’s physician in conjunction with his FMLA leave request. What’s the best way for us to maintain this kind of documentation?
Q. One of our employees has asked to go on medical leave due to “stress.” Does stress qualify as a condition that requires leave?
Employees who run out of FMLA leave may still be eligible for additional time off under the ADA if their condition qualifies as a disability.
Here’s a recipe for a lawsuit: Terminate a good employee who just told you she needs FMLA leave and has scheduled surgery. The timing alone will be enough to let the lawsuit proceed.

Q. We have a salaried employee who needs to take FMLA leave. Some days off will be full days, so they would be unpaid (unless she has vacation or personal time). But how do we pay for the intermittent days on which she only takes a half day off?  

Surprise! If you reasonably believe an employee who’s out on FMLA leave broke a workplace rule, you can fire him—even if it turns out you were wrong.
Employees who take FMLA leave can’t be disciplined for work that goes undone while they are out. To avoid confusion, always adjust schedules or find backup to meet inflexible deadlines while the employee who is usually responsible for the work is away.
Some employees and their treating doctors seem to believe that as long as a medical professional says an employee can’t work, that’s enough to justify FMLA leave. That’s not true.

The FMLA allows employers that don’t want to accept an employee’s medical certification to ask for (and pay for) a second opinion. If the two opinions contradict one another, the employer may pay for a third, tie-breaking assessment. But that can be expensive. If you prefer to simply deny the employee’s leave request, that’s fine.

Q. Do we have to take a nurse’s signature on an FMLA certification? I’d like to have an actual doctor sign the forms so I am sure someone actually saw the employee.

There are some words that should never come from a supervisor’s mouth—including any statement that would seem to encourage an employee to drop an EEOC complaint. That just about guarantees that a retaliation or interference lawsuit will go to trial should anything adverse (like a discharge or demotion) happen to the employee to whom the supervisor was speaking.

Employees who are so sick they need FMLA leave certainly can’t perform essential job functions while on leave. Employers must alter their workload expectations accordingly. If they don’t, and then later punish the employee for poor performance, an FMLA interference lawsuit is almost sure to follow.

Good news on the FMLA front: A court has ruled that employees have to do more than merely mention that a family member is sick to trigger an employer’s FMLA obligations.
Employees with serious medical conditions that require occasional time off are entitled to intermittent FMLA leave. If you grant leave and the employee makes a new request that wasn’t specified in the original medical certification, you can insist on a new certification.
The FMLA allows double damages for willful violations. Recently, the 8th Circuit Court of Appeals ruled that the extra damages can be levied against an employer that essentially rubber-stamps a supervisor’s wrongful termination decision.
Some managers still don’t understand why dads need—or are legally entitled to—bonding time with their newborns. Make sure your supervisors understand that it’s unlawful to retaliate against men who take such FMLA leave to care for their children or parents.
Employees who have taken FMLA leave and then been fired often sue. However, all is not lost for ­employers faced with such a case—if they can show they would have fired the em­­ployee anyway. In fact, chances are, they’ll win.
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