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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. An employee told her supervisor that she needed surgery. We approved time off under the FMLA with the understanding that she would provide certification after the leave began. We later discovered that this “necessary” procedure was liposuction. Can we revoke approval of medical leave under the FMLA and convert sick hours she used to vacation hours instead? Can we fire her based on inappropriate use of the FMLA?

Employees covered by the FMLA are entitled to return to their jobs after taking up to 12 weeks off to deal with a serious health condition. But sometimes employees aren’t fully recovered when their leave runs out. Then they often ask for some form of accommodation that will let them perform the essential functions of their jobs. Employers don’t have to reinstate such employees under the FMLA.

Smart employers make sure that no employee is ever punished for taking FMLA leave. They do that by carefully cataloging when every employee takes FMLA leave. And if they must discipline an employee for attendance problems, they spell out the reason why each absence counted toward punishment.

Some employees assume that they will always get their jobs back after taking FMLA leave. Usually that’s true, but not always. Take, for example, a case in which an employer needs to lay off workers. An employee’s FMLA status doesn’t necessarily protect her job in such a situation.

The FMLA gives eligible em­­ployees an absolute right to take leave and prohibits employers from discouraging employees from taking that leave. Anything that dissuades employees from using FMLA leave is grounds for litigation.
Employers are generally free to set their own rules for when and to whom employees must call to report that they will unexpectedly have to miss work. But thanks to a recent 2nd Circuit Court of Appeals decision, that’s now far less certain.

The FMLA was enacted to let workers briefly put their careers on hold to tend to pressing personal matters like illness, childbirth and adoption, eldercare and other covered events. It was not designed to enable them to avoid discipline. That’s why the law specifically states that employers don’t have to give returning employees benefits they would not have received if they hadn’t taken FMLA leave.

Some employers mistakenly believe that women who want to use FMLA leave when they become pregnant can’t demand intermittent leave. Managers may be confusing FMLA provisions that apply to the time leading up to the birth of a child with those that apply to the time after the child is born (or adopted).

Sometimes HR professionals go to bat for employees when they think the company may be overstepping legal boundaries or generally not doing “the right thing.” But those activities aren’t necessarily protected, meaning HR pros can’t claim retaliation if they are punished afterward.

When you grant an employee FMLA leave to care for a sick relative, do you wonder what type of “care” they must really be giving to qualify for time off under the FMLA? A new court ruling defines care as being in physical proximity to the relative. Cutting a lawn in a different time zone doesn’t cut it …

Eligible employees can take up to 12 weeks of unpaid FMLA leave to care for a seriously ill son or daughter. That’s true for young children, of course, but also for those older than 18 who are “incapable of self-care because of a mental or physical disability.” Don’t split hairs on this.

To avoid needless litigation, make sure someone else sits in on termination meetings.
Some employees assume that they’ll automatically return to their old positions after taking FMLA and other leave. That’s not necessarily true. Employers are required to guarantee return only if the employee comes back before her 12 weeks of FMLA leave expire.

Disabled employees or those who need FMLA leave aren’t immune from following work rules. But think carefully before you punish them. It is possible to terminate an employee who has announced he needs time off or an accommodation. How­ever, you must have a legitimate rea­son—and you must be able to demonstrate that the company acted in good faith.

It’s often quite obvious when an em­­ployee is having personal problems that she needs to resolve. But employers have to treat such an employee carefully to avoid a possible ADA regarded-as-disabled lawsuit. The key is patience and focusing on workplace performance issues rather than any suspected disability.

Some employees need FMLA leave to cope with work stress. But that doesn’t mean that employers can’t punish someone who makes threats.

It’s expensive to cover an absent employee’s health insurance premiums when he is on FMLA leave—especially if he has family coverage. How­­ever, the law requires employers to do so. What happens if the employee doesn’t return? In some cases, em­­ployers can demand reimbursement for the premiums it paid. That’s true except if the employee doesn’t come back because he or she is still sick or has to continue to care for a sick relative.

Employees who want FMLA leave for their own illness need a certification from a health care provider. It should document a serious condition, briefly explaining the diagnosis and treatment. Employers that doubt the certification is accurate or want to challenge whether the condition really can seek a second opinion from another health care provider, paid for by the company.

Terminations are the spark to many employment lawsuits. And for each of the six kinds, there are some common steps employers can take to make sure they defend themselves if the termination is challenged in court ...

With divided government in Congress, gridlock reigns for most employment-law bills. One bill that has a slim chance: the Parental Bereavement Act, which would amend the FMLA to allow employees to take FMLA leave after the death of a child.
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