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FMLA Leave

If an employee is out on FMLA leave is he allowed to return to work part time while still being out on FMLA leave?

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. Intermittent leave is leave taken in separate blocks of time while a reduced schedule leave is a temporary change in the employee’s schedule.

If an employee was approved for a continuous block of leave time but is able to return to work on part time basis, then his leave may be changed to reduced schedule leave. The employee’s leave time would only be deducted for the amount of time he actually takes leave. For example, if his regular schedule is 40 hours per week and he works 30 hours then only 10 hours would be counted against his FMLA leave entitlement.

Depending upon the qualifying event for the leave, an employer may request a certification from a physician confirming the employee’s ability to return to work in a part time capacity.

It’s important not to intimidate an employee in any way to work while on FMLA leave or to return to work early. Doing so may be considered interference with the employee’s FMLA rights.

June 18th, 2018, 7:47 PM |  Posted in: Labor Laws |
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Copies of Documents for Form I-9

Is there a new law that states an employer can no longer make copies of documents to back up an I-9 Form?

No, there is no federal law that prohibits an employer from making copies of documents presented by employees for the purpose of completing Form I-9. Unless an employer participates in E-Verify, retaining copies of supporting documentation is entirely at the company’s discretion.

It’s arguably good practice to make copies of the supporting documents because if the provided documents prove to be fraudulent, the employer will have proof that the documents appeared to be genuine.

If an employer chooses to retain copies of the supporting documents, then it must do so for all employees uniformly. Also, such copies should be retained with the Form I-9.

June 18th, 2018, 7:31 PM |  Posted in: Hiring and Staffing |
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Providing Cost of Healthcare Coverage

I recently hired a new staff member. During the interview process, I went over the types of benefits our company offer. In the Offer Letter, I designated when she would be eligible for benefits. After a week of employment, she asked to see how much would be deducted from her check should she take our healthcare benefit package. I provided her with that information. Now, she is threatening to leave because the cost of her portion of coverage. Unless asked, I have never discussed the cost of benefits until it was time to enroll. When should that conversation take place?

There are differing opinions on when the cost of healthcare coverage should be provided. Most companies provide such information after hire at the time of enrollment. This method is generally well received if the cost of benefits is on the low end of your industries’ standard. But, as you’re realizing waiting to provide the information can cause frustration if the cost is higher than what a newly hired employee expects.

In my experience, it’s proven beneficial to ask an individual if he/she would like to review the SPDs including costs at the time the job offer is made. Some companies provide this during the interview process. Doing so completely avoids the situation you find yourself in now. Unfortunately, this may lead to the applicant declining the job offer. But, it’s better the individual declines the offer then wasting your time onboarding the employee.

Consider if you can increase the employee’s salary enough to ease her concern. If not, focus on all the other benefits you offer that may make up for the additional cost.


June 15th, 2018, 12:56 PM |  Posted in: Benefits |
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Pay for Stand-By Employee

If we have to put an employee on standby because of weather etc…, they are not at the office, can go about their day and we just ask that they be available by the company cell phone, do we have to pay them?

The federal Fair Labor Standards Act (FLSA) establishes compensation guidelines for employees.

Generally, a stand-by or on-call employee must be compensated if he is required to remain on the employer’s premises or is performing work duties while on-call. An employee who can use the on-call time freely to tend to personal matters without frequent interruption need not be compensated. However, if the employee receives so many calls that he cannot use the time freely then the time must be compensated. For example, if the employee is receiving so many calls that he cannot sit through dinner, the time must be paid.

Many employers opt to pay employees a stipend for being on-call to proactively ensure employees are appropriately compensated for any work time.


June 15th, 2018, 12:42 PM |  Posted in: Compensation |
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Terminating an Employee with Epilepsy

We hired an employee a month ago. He works in the warehouse with heavy equipment and machinery and forklifts. He claimed he hadn’t had an epileptic attack in 2 years. He had one last week. He is still in the 90 days probation period. Can we fire him?

Regardless of the employee’s tenure with the company, the federal Americans with Disabilities Act (ADA) and any similar state law must be considered.

The ADA covers employers with 15 or more employees. Any employee with a covered disability is protected under the ADA.

Under the ADA, an employee with a covered disability is entitled to reasonable accommodations, absent undue hardship to the employer, that will allow the employee to complete his job duties. Reasonable accommodations may include a short term leave of absence, job restructuring/modification, or reassignment.

Although there isn’t an all-inclusive list of covered disabilities, individuals with epilepsy will almost always be covered under the ADA considering it’s a chronic neurological condition.

So, the first step is to engage in an interactive communication process that involves a good faith effort by both parties to determine limitations imposed by the disability and discuss possible reasonable accommodations. It also must be determined if the employee can safely perform the essential functions of his current job. Basically, you must talk to the employee and see how, if at all, he can continue employment with you. You must be open to ideas and not quick to terminate or in any other way take adverse action against the employee.

Consider the employee’s primary job responsibilities. You say he works in a warehouse. Do his primary responsibilities include operating heavy machinery, meaning operating heavy machinery takes up a significant part of the employee’s work day? If so, then you’re not required to completely change the employee’s job to accommodate him but you must consider if there are other available positions that the employee may safely perform.

If operating heavy machinery is only a small part of his responsibilities, then a reasonable accommodation may be to alter his responsibilities to those that he can safely perform. For example, the employee would no longer operate heavy machinery and will assume additional responsibilities as a flagger, runner, or similar low risk duties.

Also, consider if the employee may benefit from a short term leave of absence.

Whether the employee is reassigned, has his duties changes, or returns from a leave of absence, it’s best to obtain medical certification from the employee’s physician clearing him to perform his job duties. In fact, it’s best practice to provide the physician with the employee’s job description or at least of list of the duties he will be responsible to perform and have the physician sign off on them. This way the physician can make a well informed decision regarding the employee’s ability to safely perform his duties.

Termination may be warranted if you truly believe the individual poses a direct threat, meaning a significant risk of substantial harm to himself or others, that cannot be eliminated or reduced through reasonable accommodation. So, if the employee’s responsibility to operate heavy machinery can’t be temporarily limited, there are no opportunities for reassignment, and a leave of absence is not an option, then termination may be considered. But, before doing so make sure you’ve completed your obligation to have an interactive dialogue with the employee to consider all options.

Remember to document your conversations with the employee.


June 15th, 2018, 12:19 PM |  Posted in: Labor Laws, Termination |
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