Tag: medical leave

September 4, 2018

New FMLA Forms (Technically)

If your organization has 50 or more employees, then it may have to deal with the federal Family and Medical Leave Act (FMLA). FMLA compliance involves paperwork. Employers must provide eligible employees prescribed notices and can require their workers to complete leave-request forms. The U.S. Department of Labor maintains sample forms that most covered employers use. The DOL recently updated its model FMLA forms, though in a minor way.

The FMLA grants eligible employees up to 12 weeks (26 in limited cases) of leave per year to use in several situations. These include personal or family member serious health conditions, birth/adoption of a new child, and certain military-related matters. What documents should you be using when these situations arise in your workplace?

What Changed on the FMLA Forms?

Ready for this? The date. That’s it. The expiration date to be precise.

In 2015 the DOL made several substantive revisions to the FMLA forms related to the Genetic Information Nondiscrimination Act (GINA). Those forms showed a May 31, 2018 expiration date. Since then, the DOL has been extending the expiration date on a month-to-month basis up to August 31, 2018.

Over Labor Day Weekend (ironically) the DOL finally issued new forms that don’t expire until August 31, 2021. But there are no substantive changes. Just a new expiration date.

Get the New FMLA Forms

Even though nothing meaningful has changed, you might as well use the new forms. If nothing else, it will avoid questions from employees about why you’re giving them “expired” paperwork.

Here are links to the new FMLA forms:

Notices

WH-381 Notice of Eligibility and Rights & Responsibilities
WH-382 Designation Notice

Certification forms

WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
WH-384 Certification of Qualifying Exigency For Military Family Leave
WH-385 Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave
WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Review FMLA Compliance

Since you’re already thinking about the FMLA now, it would be a good time to double check your organization’s compliance.

Here’s are some basics.

First, are you still covered? Have you dropped below the 50-employee threshold? Do you have any eligible employees? Among other criteria, an employee must work within a 75-mile radius of 50+ employees to personally qualify even if the company has 50 employees overall.

Second, are you providing the right documents to employees at the right times? Once an employee puts the company on notice of a possible FMLA situation, you must give them the notice of FMLA rights within 5 business days. You can either also provide the designation form or seek certification and then make a determination once the employee provides more information. Make sure you get the timing right either way.

Third, are you applying additional legal requirements correctly? Some states, like New York and California, have their own paid leave laws. These are not exactly the same as the FMLA and don’t necessarily apply under all of the same circumstances. Plus, the Americans with Disabilities Act and state disability discrimination laws might also extend leave entitlements as reasonable accommodations.

There’s much more to the FMLA. If you have questions or need more guidance, consult an experienced employment attorney.

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June 20, 2018

Quick Employment Law Checkup

If you have employees, you’re subject to an array of laws governing the workplace. Going from zero to even just one employee is a huge step. After that, the more employees you have, the more laws apply. And more employees and laws bring along increased risks of noncompliance. To tackle these issues, companies would ideally hire robust human resources departments and employment lawyers. But, that’s not practical for every business in every situation. So, in case you need somewhere to start, you can use this to conduct your own basic employment law checkup.

1. Are you paying workers enough?

I mean legally. Presumably, you’re paying them enough to work for you. And whether you pay enough to retain employees is another subject altogether. But I’m talking about minimum wage and overtime here.

With just one employee in the U.S., virtually all employers become subject to minimum wage and overtime laws. What laws apply to you and your employees? Are employees exempt from overtime? The exemptions are trickier than many understand, so double check this.

2. Are you paying payroll taxes?

For most employers, this is a no-brainer. Taxes are a way of life. But some employers try to avoid these obligations by either paying employees “under the table” or treating them as independent contractors. The first practice is simply illegal. The latter is more complicated.

Genuine independent contractors are responsible for their own taxes (and don’t have to receive minimum wage or overtime). But you can’t just avoid dealing with legal requirements by calling someone an independent contractor. The exact requirements vary, but generally, if a person is working only or primarily for you, they are probably your employee. Especially if they are performing tasks in line with your primary business. For example, a graphic designer “hired” for a one-off project creating a new company logo may be an independent contractor. But a graphic design company hiring the same person to create designs periodically for its customers looks more like an employment relationship.

3. Do you have an anti-harassment policy?

Various state and federal laws prohibit employment discrimination for all but the smallest employers. Even if you’re not subject to these laws, you can’t afford to tolerate workplace harassment. As a starting point, you should have a written anti-harassment policy that advises employees of prohibited behavior and provides a mechanism to report violations. Again, this is a bare minimum. So, after you institute or update your policy, consider providing training to employees. And, of course, take all complaints seriously and investigate promptly.

4. What do your personnel files look like?

If legal issues arise, the employee’s personnel file will come under scrutiny, so don’t be careless. Whether physical or electronic, you should have separate files for each employee. These should contain the “new hire” paperwork such as offer letters, I-9s, and tax withholding forms. They also include employee benefit documents, such as for insurance and retirement plans, if applicable. They would also include any formal disciplinary records. And if you receive medical information about an employee, that must go in a separate file.

5. How do you handle employee medical issues?

If you do have medical information, you’ve probably had to deal with employee medical issues. These can touch on a surprising number of employment laws. I regularly advise clients about single employee medical situations that potentially implicate 6-7 laws. For example, you may have to make reasonable accommodations to an employee with a disability. This might include time off, even if you don’t have a sick leave policy.

6. Will your employees go union?

Most employees have the right to join unions. As an employer, it’s not your choice. But that doesn’t mean your fate is sealed. Getting the above issues right, treating employees well, and listening to them will often keep unions out. But if your employees do unionize, then you’ll be playing by a new set of rules. You’ll have to negotiate with the union over many issues. You will enter the world of potential grievances and arbitrations. And employees will likely receive “just cause” job protection. Make sure you understand how this world works before you find yourself in it. (There are geographic and industry-based factors affecting the likelihood that your workforce will unionize, but it’s at least a possibility in nearly every company.)

Beyond this Employment Law Checkup

I’m only providing this quick employment law checkup as a starting point. I want employers to get these issues right. But that’s not always an easy task. Plus, there are many more employment laws beyond the subjects addressed here. The laws are complex. Often there are extensive regulations. Minor nuances can entirely change an employer’s responsibilities.

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April 11, 2018

Firing Employees on Medical Leave

Can you legally do this? Yes . . . maybe. Firing an employee on medical leave is a tricky proposition. But sometimes it is appropriate. Even then, it might not go over well.

Let’s review some of the legal issues and practical considerations that come up in this area.

Legal Protections

The full range of legal protections for employees on medical leave depends on where the employee works. But the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) apply throughout the United States. We’ll focus on those laws here, but you should also consider any similar state or local laws that may apply.

ADA

The ADA covers all employers with at least 15 employees. It prohibits discrimination against qualified individuals with a disability. It also requires employers to provide reasonable accommodations to employees with disabilities. Reasonable accommodations may include unpaid medical leave. (Read more: Is Time Off a Reasonable Accommodation?)

Just as refusing time off to an employee with a disability might violate the ADA, so might ending their employment while they’re out of work.

FMLA

Employers with 50 or more employees must allow eligible employees to take up to 12 weeks of unpaid leave per year for specific reasons. These reasons include the employee’s own serious health condition.

Most employees on FMLA leave have the right to return to work at the end of their leave. It is also unlawful to retaliate against an employee for taking FMLA leave. These protections may come into play if an employer seeks to end the employment of someone on FMLA leave.

What You Can’t Do

Employers can’t fire a qualified employee because of their disability . . . . Unless the disability prevents them from performing the essential functions of their job despite any reasonable accommodations.

There are many reasons why managers may get frustrated with employees who seem to never be at work. But there has to be more than just not wanting to deal with someone with a medical condition.

Employers covered by the FMLA also shouldn’t automatically fire an employee who doesn’t return at the end of 12 weeks of FMLA leave. An employee with a medical condition might still be eligible for additional time off as a reasonable accommodation under the ADA.

When Could You Fire an Employee on Medical Leave?

There aren’t many absolutes here. Each situation is different and may raise unique concerns, but here are some times when an employer might be able to separate the employment of someone on medical leave:

The business is closing, so everyone is losing their job.
You are eliminating the person’s position–especially if others not on leave will also lose their jobs without being replaced.
The employee has falsified the medical basis for leave.
You’ve discovered misconduct that warrants termination regardless of leave status.
The employee won’t be able to return for an extended period of time, such that continuing employment is not a reasonable accommodation or would impose an undue hardship.

The above list roughly moves from straightforward to more complicated analyses regarding employees on medical leave. In particular, the last situation involves the complex evaluation of when an accommodation is no longer reasonable–which seldom has an easy answer.

Putting It All Together

Employers should understand that employees are not automatically untouchable just because they’re on medical leave. But, it adds a factor to consider before making the termination decision. The situations posed above are only some of the more common that could occur. As each case raises its own nuances, employers should consult with experienced employment counsel when faced with these decisions.