Julie Athey
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Nae, There is no DOL form for notifying employees they are at the end of their FMLA leave. In fact, there is not really a specific requirement that you send any notice about that fact. The DOL's only forms are the Eligibility/Rights and Responsibi…
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People who are deformed or disfigured would be protected from discrimination under the "regarded as disabled" provision of the ADA. I could also see a situation in which a person could be "ugly" due to a genetic condition, and that might also be cov…
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With regard to your first question, I do not think you can argue undue hardship in this situation. That is just a gut reaction on my part. I think the real question is whether the requested accommodation will enable the employee to return to work an…
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It's hard to say for sure without more specific information, but in general it sounds like she will not be entitled to additional leave under the FMLA once she has exhausted her 12 weeks this leave year. However, if her new medical condition is one …
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This is difficult. First, you are not required to accept vague certifications. You could have required more information from the doctor before approving the leave. But now that you have approved it, your best option is probably to seek recertificati…
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I am unaware of anything in the FMLA that would require you to move the employee to a different shift. You are allowed to transfer an employee to a job/shift that "better accommodates recurring periods of leave" (see 29 C.F.R. 825.204), but there is…
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I believe this would fall under the category of "multiple treatments" of a condition that "would likely result in a period of incapacity of more than three days in the absence of medical intervention or treatment." See 29 C.F.R. 825.115(e). I would …
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I think you are generally on the right track. The regs allow employees to take bonding leave up to 12 months after the child is born (the fact that you use a calendar year method of tracking leave is not really relevant). Employers may require emplo…
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Migraines would fall under the category of chronic health condition. There is no minimum number of absences, but there is a requirement of two annual visits to her health care provider for the condition. See 29 C.F.R. 825.115(c). Also, you can desi…
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First off, the O'Connor case is no longer good law. It was decided under the old FMLA regs, which were revised by the DOL in 2008. I agree with Joannie except for the "spanning eternity" part. Under the 2008 regulations, you don't have to count em…
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For some reason, this thread was inaccessible back when it was first posted. Now that it is accessible, HR Hero has asked me to post the reply I sent to Carol by private message in December. Here it is: Carol, The short answer to your question is …
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As you have discovered, the FMLA regulations provide little to no information on the documentation that may be required for absences related to adoption or foster care. However, there are a few things that can be deduced from what the regs do say. …
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This is a very gray area of the law because it depends in part on whether the employee's son is considered disabled under the ADA. The FMLA regulations say that employees may take leave to care for an adult child who is both disabled under the ADA a…
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You need to look at 29 C.F.R. 825.301(d). Employers may designate leave retroactively with the employee's mutual agreement. I would argue, however, that you are not required to do so because the employee did not provide adequate notice at the time s…
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I don't think I have enough information to draw a firm conclusion, but the regulation that addresses this issue is 29 C.F.R. 825.111(a)(2). The issue you need to consider is what is the "worksite" for these employees. The answer may be different dep…
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This is one of those situations where I am afraid there is no clear answer, at least none that I am aware of. I have never seen a distinction made between office visits for the purpose of treatment and visits for the purpose of consultation. The reg…
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When you say that the employee has no leave time available, I assume that you mean he has no leave time under your company's paid leave policies. So the question is purely whether he is entitled to take FMLA leave for his wife's surgery. First, a s…
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There may be an issue if the employee had to drive himself (or herself) to and from the airport. The rule you are referring to applies only to employees who are [B]passengers[/B]. If they drive themselves, then they must be compensated. For exampl…
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I believe you need to look at 20 C.F.R. § 1002.150, which states (in general) that employees who are on military leave must be given the same non-seniority benefits as employees on other comparable types of leave. That section states in part that if…
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I'm bumping this for possible input from FMLA Compliance Bulletin subscribers. Julie Athey Editor - FMLA Compliance Bulletin
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It sounds like you will need to pay for at least part of her travel time. Exactly which hours are included depends on whether it was an overnight trip. For one-day travel, you have to pay for ALL travel time, regardless of whether it occurred during…
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I think this is a deceptively difficult question that really depends on the specific facts. In general, I would advise that the terms and conditions of the job should remain the same if that is what is desired by the employee. If you are genuinely …
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In general, USERRA applies to nearly all employees, including part-time employees. Some of the law's provisions do not apply, however, to employees who hold temporary jobs for which there is "no reasonable expectation that they will continue indefin…
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Mel, You are correct that USERRA applies only when it is the [I]employee [/I]who is in the military - not when it is the employee's spouse. In addition, in order to be eligible for leave under the federal FMLA, an employee must have: 1) worked fo…
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I do like your approach, Sharon. It seems to be the least risky solution to what seems like a Catch-22 situation. I also appreciate the additional comments from Nae and Frank. I am trying to figure out how to use this discussion in the monthly FMLA …
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I have tried to think of other possible scenarios as well, Sharon, and tried to come up with one that would make a difference in my mind. As a lawyer, I would say that your situation would not be protected as FMLA leave either. There is a very big d…
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Nae, Admittedly, I am interpreting the issue narrowly. However, the FMLA specifically says that leave may be taken [B]to care for[/B] a child with a serious health condition. I don't see how that can be interpreted to include looking for a child wh…
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You are correct that, technically, the time she takes off to look for the child would not be protected as FMLA leave. If you have an attendance policy, you could count those absences against her. Here is the potential problem I see with counting t…
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Here is what I wrote about this issue in "HR Q&A: Family and Medical Leave Act," published by M. Lee Smith Publishers: “The regulations provide no instructions on how to handle a situation in which an employee’s leave is exhausted. For example,…
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You are correct about the cost of recertification. 29 C.F.R. § 825.308(f) provides that: "Any recertification requested by the employer shall be at the employee's expense unless the employer provides otherwise." I will make sure that the error is…