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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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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.
When it comes to litigation, employers that keep meticulous performance records and can pinpoint exactly when they made important employment decisions typically fare better than those who keep sloppy records.

Under the FMLA, employers with 50 or more employees within 75 miles of the company’s work site are required to provide FMLA leave to their employees. But even if you're a small employer, innocent mistakes could make the “50/75 rule” meaningless to you — and force you to provide FMLA leave. Learn how to avoid that trap.

It’s time to answer some of the trickier questions about the interaction of the FMLA, the New York Paid Family Leave Law and the state’s Disability Benefits Law.
Be sure to document the reason why you treat some employees differently than others. For example, if employees can’t take leave until they have completed a probationary period, clearly explain that in your handbook.
In an important case that could carve out new rights for new mothers, the 11th Circuit Court of Appeals has ruled that employees returning to work after giving birth may be entitled to light-duty work to accommodate the need to express breast milk for their babies.
Even if you think you have a rock-solid reason to fire someone, don’t count on it as an airtight defense against every lawsuit. Your rationale might, for example, be an excellent defense against an age discrimination claim, but not against an FMLA claim.
If an employee says she is going to need FMLA leave as soon as she becomes eligible, terminating her may amount to interference with the right to take FMLA leave. That’s true even though she wasn’t eligible for leave when she was fired.
An employee who believes she has been fired for discriminatory reasons has the right to sue her employer as soon as she receives a termination notice. That’s true even if the termination isn’t yet effective.
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