Q: Can I require an employee to do work while the employee is on FMLA leave?  What if the employee volunteers to work while on leave?

A: Under most circumstances, employees should not be required or permitted to perform work while on leave.  The Family and Medical Leave Act (FMLA) provides eligible employees a maximum of twelve weeks unpaid, job-protected leave for specified family and personal medical reasons in a twelve month period.  During that time, employers are prohibited from interfering with, restraining, or denying the exercise of or the attempt to exercise, any rights provided under the FMLA.
Continue Reading Employees Should Not Be Working While on FMLA Leave

Q: Can my company fire an employee once the person has exhausted his or her FMLA leave entitlement?

A: Many employers are surprised to learn that they may not necessarily terminate an employee if he or she does not return to work at the end of FMLA leave.  Under the Family Medical Leave Act (FMLA), an employee is eligible for up to 12 weeks of unpaid job-protected leave.  Upon returning from FMLA leave, except in a few limited situations, an employee is guaranteed the right to return to the same position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment that the employee held before the leave commenced.  Under FMLA regulations, however, an employee does not have a right to return to work if he or she is unable to perform the essential duties of the position.

But what if the employee asks for more time off after the FMLA leave period has expired?
Continue Reading Interplay of FMLA and ADA Precludes Employers from Automatically Terminating Employees at End of FMLA Leave

Q.  Can I discharge an employee if I believe that he or she is misusing FMLA?

A.  According to a recent Third Circuit opinion, an employer’s honest belief that its employee misused FMLA leave is sufficient to defeat an FMLA retaliation claim, even if the employer was mistaken.

In Capps v. Mondelez Global, LLC, 847 F.3d 144 (3rd Cir. 2017), the company granted the employee intermittent FMLA leave for flare-ups as a result of hip replacement surgery.  On February 14, 2013, Capps took intermittent leave. That evening, he went to a pub and became severely intoxicated. On his way home, Capps was arrested for driving while intoxicated and spent the night in jail. He was scheduled to work the next afternoon, but called out again. Approximately six months later, Capps pled guilty to the DWI charge and served 72 hours in jail immediately following the guilty plea hearing.
Continue Reading Is an ‘Honest Belief’ of FMLA Misuse Enough for Termination?

Employers with more than 50 employees are usually aware that the Family Medical Leave Act (FMLA) may apply to their business and their workers. That law, which provides for protected leave for employees in certain situations and various amounts (most often up to 12 weeks of leave), can sound simple but is very complex in its details.
Continue Reading What is an Overnight Stay for Inpatient Care Under the FMLA?

Managing interpersonal conflict in the workplace is always a delicate and time-consuming duty for managers and Human Resources personnel.  But what happens when an employee claims that he or she suffers from a disability due to stress from working with a specific manager or supervisor?  Must the employer accommodate the alleged disability by transferring the employee (or the supervisor!) to another role within the company?  According to a recent opinion from the California Court of Appeals, Higgins-Williams v. Sutter Medical Foundation, 237 Cal. App. 4th 78 (3d Dist. 2015), the answer is No.
Continue Reading My Boss Drives Me Nuts! But Is That A Disability?

REMINDER:  All employers covered under the Family and Medical Leave Act (”FMLA”) were mandated by the U.S. Department of Labor (DOL) to display the new FMLA poster by March 8, 2013.

Background:  Twenty years ago, President Bill Clinton signed the FMLA into law.  The law, requiring all employers with 50 or more employees to provide job-protected and unpaid leave for qualified medical and family reasons, ranks as one of the most insidious and complicated federal statutes for employers. Instead of using the FMLA’s 20th anniversary as a catalyst to provide FMLA clarifications, the DOL instead, issued additional federal regulations that implement statutory changes ensuring the FMLA will continue to be one of the biggest compliance headaches for covered employers.

Continue Reading 20 Years of FMLA & Regulatory Compliance Remains More of a Challenge Than Ever

Who in HR can say they have not been tempted to “spy” on an employee on Family and Medical Leave Act (“FMLA”) leave to make sure that they are not faking it?  Wouldn’t it be great to catch that employee you are sure is lying as he is playing golf when he should be home recovering from his back surgery? Or catching the employee on leave supposedly recovering from a hysterectomy right after she returned from a week-long vacation in Mexico?

Surely, under these circumstances you could safely terminate the offending employee…couldn’t you? 
Continue Reading Can You Force Your Sick Employees to Stay Home?

When the wars in Iraq and Afghanistan began, employers faced many issues with employees departing for military service.  Now that soldiers are returning in greater numbers and coming back to their jobs, are you keeping in mind all of the requirements under federal law, including USERRA and the FMLA – and even the ADA? 
Continue Reading Are You Ready for Our Heroes to Come Home?