FMLA: Family & Medical Leave Act

The Family & Medical Leave Act (FMLA) allows ”eligible” employees to take off up to 12 work weeks in any 12 month period for the birth or adoption of a child, to care for a family member, or if the employee themselves has serious health condition. Download Your Free Report on FMLA
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Practical Examples: FMLA to Care for Children 18 and Above


"In yesterday’s Advisor, we offered guidelines for the minefield of FMLA leave for children 18 and older. Today, concrete examples from DOL of how to manage this leave, plus an introduction to the all-things-compensation-in-one-place website, Compensation.BLR.com."

My 20-year-old daughter has been put on bed rest because of her high-risk pregnancy. I am the only one available to care for her. Can I take FMLA leave for this reason?

Maybe. In order to take FMLA leave to care for your adult daughter, she must be incapable of self-care due to a disability and you must be needed to care for her because of a serious health condition. While any incapacity due to pregnancy will be a serious health condition for FMLA purposes, pregnancy itself is not a disability. However, pregnancy-related impairments may be considered disabilities if they substantially limit a major life activity.

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The 5 Hoops—FMLA Leave over Children 18 and Older


"Employees who are eligible for FMLA leave who want to take leave to care for a child 18 years of age or older must jump through five hoops to qualify."

  • First, the child must meet the FMLA definition of a “son or daughter.”
  • Second, the child 18 years of age or old must be “incapable of self-care.”
  • Third, the incapability for self care must be because of a mental or physical disability at the time FMLA leave is to commence.
  • Fourth, the child must have a serious health condition for which he or she needs care.
  • Fifth, the employee must be “needed to care for” the adult child.

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Danger Zone—Deductions from Salaried Employees’ Pay


"When it comes to assessing an employee’s exempt status, the duties requirements get the lion’s share of attention. It’s easy to forget that the salary basis rules are nearly as complicated—and just as important."

Generally, payment on a salaried basis means that employees receive a predetermined amount of pay that can’t be reduced due to variations in the quality or quantity of their work. Employees must be paid their full salary for any week in which they:

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  • Perform any work, regardless of the number of hours or days worked; or
  • Are ready, willing, and able to work but unable to do so because no work is available.

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Best Defense Against Leave Fraud? Continuous Performance


"Yesterday’s Advisor featured Attorney Patricia Eyres on dealing with employees’ chronic health conditions. Today, her tips on managing those employees’ performance, plus an introduction to the new leave law resource, FMLA Complete Compliance."

Continuous Performance Management Is Your Best Potential Defense

Always start dealing with the productivity or performance issue, says Eyres. Let the employee bring up the disability. Eyres, who is managing partner of Eyres Law Group, LLP, offered her tips at a recent BLR-sponsored webinar. Consider the following, she says:

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Accommodating Chronic Conditions—Frustrating and Annoying, But You Have No Choice


"There’s nothing quite as annoying and frustrating as dealing with lifelong illnesses or chronic conditions under the FMLA and ADA. But you have no choice, says Attorney Patricia Eyres."

What Is a Chronic Condition?

What is a “Chronic Condition” for purposes of leaves, accommodations, and performance management? Eyres says that it is a disease or disorder:

  • Of slow progression and long duration;
  • That causes continuous or episodic periods of incapacity;
  • Lasting at least one year but usually a lifetime; and
  • That often involves episodic complications from treatments or medications. (Under the ADA and FMLA, these may give rise to a separate limitation of a major life activity.)

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Temp and Other Contingent Workers—Laws Still Apply


"Many managers mistakenly think that they can relax their compliance when dealing with temp workers, but that is not the case; most laws that apply to "regular" workers also apply to temporary, contingent, or leased workers."

Discrimination Laws

The Equal Employment Opportunity Commission (EEOC) Enforcement Guidance 915.002 concerning contingent workers clarifies that staffing firms and employers using contingent workers may not discriminate on the basis of race, color, religion, sex, national origin, age, or disability, nor can they ask the medical questions forbidden by the Americans with Disabilities Act (ADA).

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Yes, It’s Possible to Do Meaningful Appraisals


"Yesterday’s Advisor featured BLR® Legal Editor Holly Jones, JD,’s take on why performance reviews have become so unpopular. Today, her practical advice on making your performance reviews more meaningful, plus we announce a timely webinar on HR’s biggest hassle—FMLA intermittent leave."

No Surprises, Please

One of the most cited problems with performance appraisals is the blow to morale and productivity in the time leading up to—and for months after—when the information is delivered. Why? Because employees don’t know what to expect and managers are reluctant to deliver bad news. But, to every extent possible, the contents of a performance appraisal should never be a surprise.

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Should We Ditch the Dreaded Performance Appraisal?


"The one thing we all know and love—performance appraisals, right? What else gets HR pros, supervisors, and employees alike more excited than the chance to discuss strengths and achievements, areas for improvement, and goals for the future?"

 

In today’s Advisor, BLR® Legal Editor Holly Jones, JD, outlines challenges of appraisal systems and offers tips for making them meaningful.

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Compassionate Impulses—Understandable, But Dangerous


"Yesterday’s Advisor featured attorney Susan Fentin’s tips for managing employees with chronic health conditions. Today, how your managers’ compassionate impulses can lead to “regarded as” claims, plus an introduction to the audit guide that helps you find wage/hour problems before the feds do."

The Two Problems

Fentin, who is a partner in the Springfield, Massachusetts, law firm, Skoler, Abbott & Presser P.C., points out the two sometimes opposing desires of dealing with employees with chronic illnesses:

Supporting the employee with chronic illness, and
Managing the employee with the chronic illness.

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Chronic Illnesses—Tough to Balance Compassion and Business


"It might be HR’s toughest balancing act—how to manage your compassion for a chronically ill employee with your legitimate business concerns."

As an HR person, you care about people, says attorney Susan Fentin. Your impulse is to help; however, if the problem is driving the business down, you may not be able to help. You need to balance these sometimes-competing interests, and that’s not often easy.

What are the issues when an employee is chronically ill? Typically, says Fentin, we see:

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