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FMLA Eligibility

Is a crushed toe considered a serious health condition under the FMLA?

The federal Family & Medical Leave Act (FMLA)entitles eligible employees of covered employers up to 12 weeks of unpaid, job protected leave for certain family and medical reasons. FMLA leave can be taken in one continuous block or intermittently or on a reduced leave schedule under certain circumstances.

A “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.

According to the DOL, the “continuing treatment” test for a serious health condition under the regulations may be met through

  • a period of incapacity of more than three consecutive, full calendar days plus treatment by a health care provider twice, or once with a continuing regimen of treatment,
  • any period of incapacity related to pregnancy or for prenatal care,
  • any period of incapacity or treatment for a chronic serious health condition,
  • a period of incapacity for permanent or long-term conditions for which treatment may not be effective, or
  • any period of incapacity to receive multiple treatments (including recovery from those treatments) for restorative surgery, or for a condition which would likely result in an incapacity of more than three consecutive, full calendar days absent medical treatment.

If there is any uncertainty whether the employee’s condition meets the criteria for a serious health condition, it’s best to initiate the notification process. Send the notification and certification forms to the employee and let the health care provider determine whether a serious health condition exists.


July 2nd, 2018, 8:14 AM |  Posted in: Labor Laws |
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Safety Concern

We have employees clocking in early. As a concrete company, our concern is an employee getting hurt when they shouldn’t have been there. How should we handle this?

Employers are permitted to adopt policies restricting employees from working prior to their actual start time. Many employers do this in an effort to manage payroll costs. In your case, there is a concern that additional employees in the workplace may jeopardize safety.

Inform employees that they are no longer permitted to start working prior to their scheduled start time without prior approval. Explain that due to the nature of work performed, it’s imperative that the only employees in the workplace be the ones who are scheduled to be there. You can even add a statement attesting your commitment to a safe workplace and the new policy helps you achieve this.

Send a memo to all employees in same manner you would normally communicate new policies, i.e. email, mail, staff meetings etc… It’s also good practice to post the memo at each time clock and in common areas frequented by employees like a break room and. Discussing the new policy during a staff meeting will also ensure employees are aware of it and any questions can be answered.

Remember to address any issues with employees who violate the new policy. At first, verbal warnings to remind employees about the new policy is sufficient. However, repeat offenders should be disciplined in accordance with established disciplinary procedures.



Falsifying Time Sheets

What is the penalty for falsifying time sheet for caregivers?

Determining the appropriate disciplinary action when an employee violates company policies or practices is up to the employer. Many employers consider falsification of company documents, like time sheets, to warrant immediate termination; while other companies may issue warnings to first time offenders.

It’s up to employers to adopt a disciplinary action policy that best works for the company. If no such policy or past practice exists, consider the current situation. As a caregiver, the employee is probably responsible for the day to day care of individuals which may include documenting food intake, medications taken, appointments, and other pertinent information. So, if trusting the employee to accurately document important information is a primary part of the employee’s job then his falsifying any company record may warrant immediate termination or at least a clear written warning.

Also, consider the circumstances surrounding the falsification. Did the employee claim he worked a few hours when he clearly didn’t? Did he have a coworker clock him in/out? Or, is it possible the employee made an honest mistake about what time he arrived or left work? Of course, blatant deceptions warrant disciplinary action.

Remember that how the current situation is managed sets a precedent for how similar situations should be handled in the future. At the very least, the employee should receive a warning about his actions. He should be made aware what is expected of him and informed what will happen if he does it again (i.e. termination).

Lastly, review any applicable employment contracts, collective bargaining agreements, and third party contracts that may dictate how an employee must be disciplined for falsification of company documents.


July 2nd, 2018, 7:39 AM |  Posted in: Human Resources Management |
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Prorating Vacation at Termination

What is best practice or law in calculating prorated vacation at termination? What I have used throughout my payroll career is the following example: 0-3.99 yrs service = 5 hr earned vacation per pay period. Per semimonthly payroll the calculation would be: 5 hr/# days in period = daily rate x # days worked in period. daily rate would vary per # of days in period (10,11 or 12 days). Is there written law that I can refer to?

Federal wage and hour laws don’t regulate the administration of vacation policies. Though some states have adopted legislation regarding vacation pay, most, if not all, don’t provide details on how time must be calculated. Thus, employers are generally free to adopt calculation practices at their discretion as long as such practices are used fairly and uniformly as necessary.

The calculation you use is acceptable. Some companies break in down further and use accruals based on hours worked not days. Again, it’s generally up to the employer to adopt an accrual/calculation policy. Just make sure it’s being uniformly applied.


June 25th, 2018, 8:13 PM |  Posted in: Benefits |
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CEO’s Access to Personnel Files

My CEO promoted me to an HR Administrator (the only HR position). Before I officially took over the position, he stated he needed personnel files from the HR office that I did not yet have access to, nor did he. He instructed me to contact maintenance to use the master key to get in the office, remove the two files and bring them to him in the parking lot of a restaurant about 20 minutes away from the office. He was in the process of terminating their employment (one of which held the HR position at that time) and was suspicious she would alter files to her file and another co-worker. This seems very unethical to me but is it legal for him to request files to be removed from lock and key in the HR office and bring them to him off-site?

When an HR professional is under investigation, especially a high ranking one or like in your case the only HR employee, it’s common for an executive team member such as a CEO to request the employee’s file. If there is suspicion that the employee may alter her file or any other employee’s file, then it’s best practice to restrict her access to the them.

Bringing the files to the CEO offsite is unusual but not necessarily unethical or illegal. A more common approach would’ve been to change the locks on the files so the HR Administrator at the time no longer had access to them. Or, for the CEO to keep only the files in question in his office under lock and key. Either of these options would’ve ensured the integrity of the information in the files.

Access to employee files should be restricted to only those with a legitimate need to know. A President or CEO doesn’t typically fall under this category on a day-to-day basis but in extenuating circumstances he/she may need access to a file and, as in your case, the file may be safer in their care. Still, as the new HR Administrator it’s your responsibility to keep all employee files in a secure location. If the CEO still has the files and the employees in question are no longer employed at the company, then you should request the files be returned and new locks installed.


June 25th, 2018, 8:02 PM |  Posted in: Human Resources Management |
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