Event Archive

Staying Current with the Latest ADA and FMLA Rules and Requirements

   

Contact Info

Landegger Baron Law Group

Marie. D. Davis, Esq.

Marie@landeggeresq.com

15760 Ventura Blvd. Suite 1200
Encino, California 91436
(818) 986-7561

NOVATIME TECHNOLOGY, INC.

Scott Rose, Sales Director

Scott.Rose@NOVAtime.com

9680 Haven Ave #200
Rancho Cucamonga, CA 91765
(909) 895-8100 x-7181

Questions & Answers:

Q1

What do we do when our supervisors ARE doctors and become too involved with an employees personal health history?

A1

Employers cannot ever delve into an employee's health history. You need to caution your supervisors to not ask any questions about their diagnosis. The only questions that can be asked are about whether the employee is able to perform the essential finctions of their position.

Q2

Someone has fallen asleep continously - if we say they can not come back to work until they have Return to Work form from Dr. Is that FMLA?

A2

You need to sit down with the employee and engage in the interactive process. Tell the employee that you have noticed that they are falling asleep quite frequently, and let them know that being awake and functioning is an essential function of their position. You can tell them that if they need a leave of absence, you will grant them FMLA leave, and then provide them with the paperwork to get a doctor's certification. If they get a doctor's note, and they are place don leave, then yes, it qualifies as FMLA leave. Otherwise, you could just grant a personal leave of absence. But you should definitely have a conversation with them.

Q3

Are domestic partners qualified for FMLA?

A3

A domestic partner does not qualify under FMLA, but they do under some state laws such as California's CFRA leave.

Q4

Can you get a worker's comp claim for stress related illness?

A4

You can make a claim. Most likely it will be challenged by the WC carrier, but as long as you have a doctor's note that puts them out on work-related stress leave, a WC claim must be made on behalf of the employee. It is up to the carrier, not the employer, to decide whether the claim gets paid.

Q5

My company has an employee who does not qualify for FMLA yet. She is pregnant and did not reach out to HR at all regarding her leave. She started calling out of work so her manager reached out to HR. We reached out to the employee and she informed us that she is unable to work due to her medical condition but has not provided any notice or paperwork from the doctor's office. Do we have to hold her position? Or can we cut ties after so much time?

A5

If you are in California, the answer is no--you must hold her position open. I would suggest that you tell her that she must provide a doctor's note placing her on leave, and let her know that she is inelgible for FMLA due to the lack of hours. However, also let her know that as a "reasonable accommodation" you will grant her a leave of absence, and when she has been fully released to return to work, she should contact you about being place din teh first position for which she is qualified. You do NOT have to hold her job open. In California, you DO have to hold her job open. I would NOT recommend terminating her at all. That will lead to an automatic disability discrimination lawsuit. Just put her on a leave and put the burden on her to come back and see if there are any available positions for her.

Q6

what if the employee only uses 6 weeks of leave and then comes up with another situation, do you continue the current FMLA count.

A6

Yes; employees are entitled to 12 weeks in a 12 month period (calculated from the date the first leave started.)

Q7

How do you determine if an injury/illness resulted from active duty? For example can an employee take military caregiver leave to care for a parent with skin/lung issues from exposure to chemicals from Korean War?

A7

No. A covered military person is someone currently enrolled in the armed forces. But your employee could care for an ailing father who is suffering from injuries sustained in the Kroean War under NORMAL FMLA leave--12 weeks, not 26 weeks.

Q8

If an employee asks for a written guarantee regarding their job being protected when returning from a leave - do they get a letter in addition to all other leave of absence forms (i.e. leave approval, leave designation)?

A8

No. The FMLA leave forms are sufficient written notice. You do not need to guarantee their job back in writing prior to the leave. However, in California, if the leave is related to pregnancy and baby-bonding--you do need to give the mother a written guarantee that she will have a job to return to.

Q9

An employer can choose to continue allowing the employee to accrue pto and pay their benefits while they are on FMLA correct?

A9

yes. Giving employees more than they are legally entitled to is perfectly fine.

Q10

If you have an employee that worked for a temporary agency and later became employed with your agency, does the time they worked as a temporary be counted to qualify them for FMLA?

A10

No. The employee was not your employee while they worked for the staffing agency. They were entitled to FMLA from the staffing agency.

Q11

This really fits with a situation we are having. Learned a number of weeks after an employee was missing work that it was eligible for FMLA. Sent the letter and certification, employee only replied with continuing doctor's notes. Now more leave is stated on new doctor note. FMLA has expired, now employee said it was never requested. We are putting employee on unprotected leave for the continuing time off.

A11

That should be ok. If you sent noties and the employee never specifically requested that it NOT be counted. Because techinically, then she could have been fired for the previous 12 weeks. These are complicated situations however. You need to be sure you told her that she was on FMLA leave; if she had not notice, there is a problem. And ultimately, DO NOT terminate her. Simply tell her that when she is fully released to return to work, she needs to contact you so you can place her in the first position for which she is qualified.

Q12

If a position isn't available upon return from accommodated LOA under ADA, would you terminate the employee at that point?

A12

You can terminate, but you must go through a detailed interactive process. Be 100% sure that she is not qualified for something. I always recommedn offering SOMETHING, so she can refuse and voluntarily quit. If you terminate, it can lead to a claim. a defensible claim, but a claim nonetheless.

Q13

Can you still offer benefits to someone on FMLA and have them send a check for premiums?

A13

You must pay for benefits when an employee is on FMLA--the employee does not have to pay any more than their regular portion. AND, if the emplyee fials to pay their regular portion, you still should continue their benefits. Allowing an employee's benefits to lapse while out on a medical leave could lead to a ERISA claim.

Q14

Can you call physician to verify they sent and also because you can't read the handwriting?

A14

You can verify that the employee was there and you can verify the work restrictions and dates--that is all.

Q15

Can a private employer choose a rolling year vs a calendar year basis to determine eligibility?

A15

The Family and Medical Leave Act (FMLA) regulations define four different methods that an employer may use when determining the amount of FMLA leave an employee has used within a 12-month period under the act. The most commonly used (and often the most confusing) method that employers use is what 29 C.F.R. §825.200(b)(4) calls the "rolling" method.

The rolling method is also commonly known as the "look-back" method by HR professionals. Using this method, the employer will look back over the last 12 months from the date of the request, add all FMLA time the employee has used during the previous 12 months and subtract that total from the employee's 12-week leave allotment. Yes, the employer can choose any of the 4 methods.

Q16

If we are not able to ask more about a persons condition, how do we know if they are incapacitated due to a condition not covered under FMLA, such as cosmetic procedures?

A16

You get the doctor's certification. If the doctor's certification is signed by a plastic surgeon, you can tell the employee that thye are inelgible for FMLA leave.

Q17

A couple questions. 1 - Can we get a digital copy of the slides? 2 - I work for a school corp and we have a lot of teachers that want to take "FMLA" for their daughter who had a baby. Not because the daughter had a disability, but to just help out basically. They are upset when we tell them that does not qualify and they must use Personal Business (or unpaid) time and not Sick time. We tell them a doc would have to sign off on Adult Child FMLA paperwork along with the health certification. Any suggestions on those situations?

A17

If the child/mother had a baby in the last 6 to 8 weeks, the mother IS disabled automatically by virtue of having just had a baby. Once that 6 to 8 week period is over, then yes, you can tell grandma that they must use unpaid time. But if grandma is helping her daughter imemdiately after birth, then it would technically qualify because the mother of the baby is disabled.

Q18

The 12 months of non-consecutive time with the company is limited to how far of a look back? 7 years?

A18

employers may select one of four ways to establish the 12-month period—so long as it is uniformly applied to all employees taking FMLA leave:

The calendar year. Any fixed 12-month period (such as a fiscal year or the period starting on an employee's anniversary date). The 12-month period measured forward from the date an employee's FMLA leave begins. A rolling 12-month period measured backward from the date an employee uses any FMLA leave. Employers need to make sure that the method they use is clearly identified in a written policy, said Craig O'Loughlin, an attorney with Snell & Wilmer in Phoenix and Orange County, Calif. "Employers that fail to identify the method in play will be stuck with whichever method is the most beneficial to the employee." There is no 7 year period. IF you are asking about determiing the initial eligibility--there is no stop period. If I worked for the company for at least 12 months, I am eligible; but I also must have worked a minimum of 1250 hours prior to taking the leave.

Q19

An employee received medical treatment in a foreign country. We have not been able to obtain a certification. What can we do?

A19

It is in your best interest to allow them to qualify the leave as FMLA; because they get to run it out. Yes, you have to hold heir position open, but I would recommend allowing them to use the leave so they no longer have it available.

Q20

How do you determine the first day FMLA leave begins?

A20

The first day the employee no longer comes to work for the company.