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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 two offices in two different states. In one office, we have a sick leave policy in place because we have exempt employees, and the FLSA requires us to have the policy if we want to dock exempt employees for sick time after they exhaust their sick days. All employees at the second office are hourly, and they rarely call in sick. Can we have a policy at one location and not at another?

Regular attendance is a key job function for most of your employees. But while you are free to set and enforce attendance rules, you must also comply with key federal laws, including the FMLA and the ADA ...

Q. The Department of Labor’s form for the Employer’s Response to Employee Request for Family or Medical Leave (WH-381) inquires whether the worker is a “key employee.” How should I mark those boxes? I consider most of our workers to be key employees, and I do not want to offend anyone by suggesting that they are not.

Is your employee handbook clear on exactly what constitutes maternity leave and how long it lasts? If you plan to permit just the 12 weeks allowed for pregnancy and childbirth under the FMLA, spell that out. Don’t refer to maternity leave separately and then provide a different week or month count ...

Don’t make the mistake of assuming that someone who isn’t disabled under the ADA also isn’t disabled under the New Jersey Law Against Discrimination. The fact is, the NJLAD is far more generous in its definition.

By now, you have started withholding 0.09% of your employees’ pay, up to a total of $26.01 for the year, for New Jersey’s new Paid Family Leave Insurance program.

Q. Some of our supervisors make their exempt employees take personal or sick leave for every minute they miss from work, even if they work a regular schedule the rest of the week. Can we safely do that?

Employee absences are costing your business more than twice as much as health care, two recent surveys reveal. Cutting even a fraction of absences can have a potent impact on your organization’s bottom line—an attractive possibility in a tight economy when employers need workers to be as productive as possible.

Q. Flu season is coming and we are concerned. If employees have the flu or show flu symptoms, can we require them to stay home long enough to make sure they are no longer contagious? Would we have to pay them for time away?

Employers can’t punish or otherwise hold it against employees for taking FMLA leave—that’s interfering with FMLA rights, and it’s illegal. That’s why it’s important to exclude FMLA leave when making any disciplinary decisions based on employee absences.

Here’s a risk you’ll run into if you refuse to let an employee take time off to care for a child she says has a serious health condition that requires her care: If you guess wrong and the case goes to trial, it’s up to the jury to decide whether the child’s condition rose to the serious level.

New FMLA regulations go into effect on Jan. 16. Employers must become familiar with these changes and adjust their policies accordingly. Here’s a summary of some of the most important changes to the FMLA.

Q. We have an employee returning from a leave taken under the FMLA. His physician has issued a fitness-for-duty certificate. However, we question the worker’s ability to perform his old job because the length of his absence was too short for him to recover completely. Also, the fitness-for-duty certificate simply states that he is “able” to work, without addressing his specific job duties. Can we send him to another physician for a second fitness-for-duty examination?

Q. I have an employee who is taking leave under the FMLA. The company is continuing to pay the same portion of her health insurance premiums that we paid while she was working. If the worker fails to return to work when her protected leave expires, may the company recover the premium payments made during her leave period?

Q. Our company’s attendance policy calls for issuing a warning when an employee has three absences. Five absences result in a suspension, and seven absences result in termination. Can we continue this policy?

Q. One of our employees has been out on FMLA leave for seven weeks taking care of his sick mother in another state. We approved a full 12 weeks of leave. I received a voice mail from him saying that his mother died. He also said that he had to clear up a lot of things with his mother’s estate, but that he would be back by the end of his scheduled leave. Can he do that, or can I tell him he needs to come back sooner?

What happens if an employer discourages an employee from taking FMLA leave and instead offers more than 12 weeks off with full pay? Can the employee still sue for interference with his right to FMLA leave if he isn't reinstated to his prior position or an equivalent? The apparent answer is "yes."

Q. How long do I have to keep employees’ personnel files after their terminations?

It’s a good idea to keep careful track of the reasons why employees take FMLA leave—especially if an employee takes leave on different occasions for different reasons.

You don’t need to give employees FMLA leave just because they have a discharge sheet from a hospital emergency room. The real question is whether the medical condition that prompted them to visit the ER was a serious health condition.

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