Friday, March 25, 2011

FMLA Atop the Top Ten Things that Trouble Human Resources - The Tricky Part of FMLA Leave Made Simple

Retaliation for Taking Family Leave is Illegal

John Hollon of recently published an Article setting forth the Top Ten areas of concern for HR Professionals.  Here is the list:

"1.  FMLA (the Family and Medical Leave Act) is the single most asked-about topic. Questions center on: who is covered; what is deemed a serious health condition: and how to control intermittent leave.


2.  Advice and counsel for taking such adverse actions as termination, suspension and discipline is a close second to FMLA. Commonly requested information includes: what documentation is needed to fire someone; does a recent Workers Compensation claim or FMLA request affect the decision being made; can the employee sue for termination?

3.  Performance management strategies. Strategies for dealing with a problem employee such as: is it safe to ramp up the heat on a new hire that may not be working out or on a protected-class employee that isn’t responding to counseling? Also, group performance issues concurrent with culture changes or business cycle needs.

To Punch or Not To Punch?
4.  Fair Labor Standards Act (FLSA) issues. Concerns center on correctly classifying a position as exempt, calculating overtime for multiple rates, what travel hours must be paid for an hourly employee, what are federal and state child labor rules. In addition, how much time can we ignore at clock-in or out? Can we round?  Click Here for our analysis regarding misclassification of employees for purposes of avoiding payment of overtime. 

5.  Immigration. Many questions arise regarding I-9 documentation and procedural questions. Such as, what do we do when the SSN comes back a no-match? An applicant has a matching SSN and ID, but we know it is not his. What can we do? And, we’re considering employing an H1-B employee. How complicated is that?
Do We Get Paid for This?
6.  Lunch hour and breaks. Questions about giving breaks and how many per day. Is a lunch period required? What has to be paid versus non-paid time? Can an employee work through break and leave early?

7.  Employee access to personnel files. Does the law require us to allow an employee to see or copy his file? What are the pros & cons of allowing it versus not? We just got a letter from an attorney requesting files. Do we have to send them? We have employees in a few other states. Are the rules different there?

IC or Eee?
8.   Independent contractor versus employee. What’s the difference between an independent contractor and an employee? Why can’t I just pay this person as a contractor and issue a 1099? What constitutes a legal independent contractor status? Who makes the rules?  Click Here for our analysis of the rules relating to Independent Contractors.

9.  Employee privacy. Can we read employee e-mail or monitor Internet usage? What about the use of surveillance cameras? Is it legal? Can we search employees, or their workplace, belongings or cars?

10.  Drug and alcohol issues. Under what conditions can employees be tested? If the employee tests positive, can we discharge? How can a drug test procedure be set-up, what should be in the policy?"

Here is my simple response to the FMLA issue:

What are the Rules for Family and Medical leave Act ("FMLA")

In general - Not at all surprised that Family and Medical Leave Act issues are number 1.

STD Available When You Are Out on FMLA
In general, one is entitled to FMLA if they have worked an average of 25 hours per week or more for at least one year, provided that the company has more than 50 employees. FMLA leave is unpaid, but one cannot be punished for taking FMLA leave. However, you may while you are out on FMLA Leave take sick pay, PTO or vacation pay.  You may also apply for any obtain Short-Term Disability benefits while out on FMLA leave.

FMLA leave is available if you or your spouse has a baby, or you or a loved one that has a serious condition. A serious condition is either 1) a prolonged or permanent condition suffered by you or a close family member that flares up once in a while and causes you to miss a few hours, or more, of work on an intermittent basis (either to care for yourself or the close family member with the condition); 2) a one-time illness or condition (i.e. broken leg, back surgery, etc.) suffered by you or a loved one that causes you to miss work for 3 days or more (either to care for yourself or a loved one), provided you (or your loved one) seek medical treatment for said illness/condition. If you are the one experiencing the injury or illness, the condition must be serious enough that you cannot complete your regular job duties.

Do I Qualify for FMLA Leave?

NOTE: A serious health condition may arise from a malady that constitutes a disability under the American’s With Disabilities Act, such as diabetes, retardation, heart problems, cancer, etc., but it does not have to be of such serious import. If your child has chicken pox, and you take he/she to the doctor, and she/he misses 3 days of school, you are protected under FMLA. 

Tricky part - you or a loved one have a longstanding condition (irritable bowel syndrome, cancer, any one of a myriad of childhood behavioral disorders, epilepsy, diverticulitis, diabetes, debilitating migraines, etc.) that from time to time leave you or your loved one incapacitated, during which time you must care for yourself or your loved one. For privacy reasons, you never tell the company about this situation. Occasionally, you miss work when the effects of these conditions dictate. The company then writes you up for being absent too much. You are eventually fired for poor attendance.

Do you have a claim for violation of FMLA? No, because the company was unaware that your need for intermittent FMLA leave, because you never told them about the medical condition.  You do not need to waive all of your privacy rights in order to obtain FMLA leave by, for example, providing a copy of all of your (or your family member's) medical records to the company.  Rather, you need only have your physician complete an FMLA Certification form generally identifying the condition and certifying that it makes you unable to complete your job duties either because of your own physical limitations, or because you are needed to care for a loved one.

Solution - if you or a loved one has such a condition, explain it to the company, and make sure it knows that you may need intermittent FMLA leave when it kicks up. As far as HR concerns about “controlling” intermittent leave, very little in the way of such control is permitted. Employees simply may not be penalized if they need to leave or miss work due to a health condition beyond their control.  Click Here for a more thorough discussion of intermittent FMLA leave.

For some additional insight on FMLA issues, check out this Article from

I will discuss some of the other "Top Ten" in the coming days.

Feel free to watch John's video on FMLA: 

Philadelphia Family Leave and Disability Attorney
John A. Gallagher, Esquire -
Helping Workers and Employees Since 1991
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

Click Here to e-mail John directly.

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