Occasionally I spot a piece of FMLA "advice" on the Internet that just makes me chuckle - and that makes me confident that the FMLA will remain a terrific source of business for employment lawyers for a long time to come. Much of it isn't outright wrong, but ends up being so superficial that it completely misses the mark. Take a recent post on ehow.com for example.
Suppose a retailer declares bankruptcy. Several of its leases are sold off to another retail chain, which then remodels the stores, stocks them with its own merchandise, and opens them under its own name. If this retailer hires some of the bankrupt company's employees, are those employees new hires under the FMLA, or might they have the right to take FMLA leave immediately, without waiting 12 months or working 1250 hours for the new company?
What can you do when you receive a medical certification from an employee, but you think it might be fraudulent, or you just don't understand what the doctor has written? In these instances, does the FMLA allow you to contact the employee's health care provider directly to inquire? In this podcast, we explain the circumstances under which an employer may authenticate or clarify medical certification - without violating the rules.
Join over 500 people who already have signed up for our complimentary FMLA Webinar, which will take place next Wednesday, September 29 from 12:00 to 1:15 p.m. CDT. The Webinar will address a common issue that has plagued too many HR professionals -- employee abuse of FMLA leave. We will identify the most common forms of FMLA abuse, learn how to document and communicate effectively to fight FMLA abuse, highlight new regulations to use in fighting FMLA abuse and tackle the most common form of FMLA abuse -- intermittent leave.
Throughout our session, we will address hypothetical and real-life situations in an interactive format, and we'll save plenty of time for your questions.
Register for the Webinar by clicking here. See our earlier post for more information about the Webinar.
Have you ever searched Twitter for the term "FMLA"? I have. Some of what you find is insightful and informative information for employers, but you will also run across some interesting commentary from employees. Here are a few of my favorite employee FMLA tweets from the past few months:
Employers frustrated with their employees' lack of communication during FMLA leave have found a friend in the Seventh Circuit Court of Appeals. In what must be described as a solid win for employers, the appellate court (which covers IL, IN and WI) affirmed the dismissal of a former employee's Family and Medical Leave Act claim against the company that fired her after she failed to provide proper notice under the company's policies for an extension of leave. Brown v. Automotive Components Holdings, LLC, and Ford Motor Co.
In a recent post we reviewed the rules relating to posting and publishing the DOL's "General Notice" poster. Among other things, the FMLA rules require employers who have a significant number of employees who do not read English to publish the notice in a language in which the employees are literate. The DOL has a version of the poster available in Spanish, but (as I confirmed with a call to the Department today) not other languages. To make matters more difficult, so far I have not been able to find a vendor who can provide the poster in any other language.
So, I throw the question out to you: do you know of a vendor or other source where employers can obtain the FMLA poster in a language other than Spanish or English? If so, please share in the comments.
In a refreshing decision, a federal district court in Minnesota recently rejected an FMLA lawsuit by an employee who said he needed to be absent because he was "feeling ill ... tired, lethargic, fatigue-ish," and "needed a few days to recuperate," but who then failed to follow his employer's absence reporting policy. To v US Bancorp.pdf
Q: I know we have to post the DOL's "general notice" poster somewhere, but what exactly are we required to do with it?
A: Post it along with your other required employment law posters, and publish it to all employees.
Q: We have an employee returning from FMLA leave due to his own serious health condition. Although the employee has provided a doctor's note stating that he is released to work "full duty," we have serious concerns about his ability to do his job without risk of injury to himself or others. Can we require him to see a doctor selected by the company?
A: Yes, if the medical examination is "job-related and consistent with business necessity."
When an employee remains absent even after her doctor provides a medical certification confirming that she can return to work, it might seem reasonable for an employer to deny the employee any further FMLA leave and, if the employee fails to return, to terminate her employment. However, if the employer has not specifically informed the employee of the need to provide a medical certification in writing, relying on the "negative certification" may violate the FMLA, according to a recent decision of the Sixth Circuit Court of Appeals. Branham v. Gannett Satellite Information Network, Inc.
Q: Can an employee take FMLA leave due to a cold or the flu?
A: Yes, if it otherwise meets the definition of a "serious health condition."
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