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Aug27

STD – employer notification

Does an employee on STD (no FMLA)the company is smaller than 50 employees)have to keep in touch with the employer? If an employee has been out since June (disability payments began in July) are they expected to keep in touch so the employer can plan accordingly?

Unless you are in one of the few states that have state-mandated disability insurance requirements (California, Hawaii, New Jersey, New York, & Rhode Island), employers are not required to provide this benefit at all. Those employers who do choose to offer short-term disability are free to establish policies as they see fit, including how and when an employee on leave must update the employer. How often this should occur may depend on the length of the anticipated absence, and it is recommended that these requirements be addressed in your leave policy.

Aug27

Questions about ADA law and how it relates to maternity leave

Hi. I am employed in a small business of 15 people. I have taken it upon myself to make an employee handbook. I have no training in HR but am learning as fast as I can. I want to have a maternity leave policy. Based on employees with previous maternity leaves, I think up to 8 weeks unpaid leave is what my boss and I will go with. My questions are 1.) If we give an employee 12 weeks unpaid leave for maternity do we have to offer that to all employees to be fair? 2.) If we have an employee who, say, had to go through chemo for cancer and they went on disability leave during that time and came back after 10 weeks, then do we have to offer 10 weeks as standard unpaid maternity leave as well? I am trying to understand the relevant connection between ADA requirements to the small business and maternity leave policy. My boss thinks if we simply do not have a written policy on maternity leave but more verbal policy on a case by case basis that we will avoid any issues with the law. Ha ha ha. He is funny. I’m pretty sure it is better to have a written policy that is enforced fairly is the best way to go on this matter.

Kudos to you for taking on the task of developing an employee handbook! You are 100% correct that it is always better to have established policies in place, rather than deciding things on a case by case base. In HR matters, consistency and following your own policies is the name of the game.

There are several issues to address here. First, the Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide reasonable accommodations for qualified individuals with a disability. Pregnancy, in and of itself, is not considered a disability and thus does not meet the standard for protection under the ADA unless there are complications that result in disability. This would include such impairments as gestational diabetes, preeclampsia, high blood pressure, etc.  Under ADA, a leave is a possible accommodation, but this would be determined after going through the required interactive process with the employee to determine the type of accommodation that is needed.

Secondly, the Pregnancy Discrimination Act (PDA) also applies to employers with 15 or more employees, and prohibits discrimination based on pregnancy or childbirth. PDA requires that employers treat pregnant women the same as they would treat any other employee who is temporarily unable to perform his or her job due to a medical condition.  If an employer provides a sick or short-term disability leave for other ailments, then they must do the same for pregnancy-related medical conditions.

Finally, you do not mention the state you are in, but be aware that in addition to the federal statutes, there are state-specific leave laws that mandate various amounts of family/medical leave; in some cases the leave time must be paid.

You are wise to look at how leave requests have been handled in the past when establishing your policies. However, if in reviewing the past you find some inconsistencies that you now wish to correct, you may certainly do so. Be sure to notify all employees of the new policies so they know how leave requests will be handled going forward.

Aug27

fmla

Does an employee qualify for intermittent fmla for a child that they are a De Facto Parent

FMLA statutes allow eligible employees to take continuous or intermittent FMLA leave to care for a child for whom they stand in loco parentis. In loco parentis refers to an individual who has assumed the parental responsibilities for the child and who has provided either financial support or care for the child. Employers may request reasonable documentation of the family relationship and the specific facts of each case will determine whether or not the employee stood in loco parentis and thus whether or not he/she qualified to take FMLA to care for the child.

August 27th, 2014, 11:27 AM |  Posted in: Human Resources Management, Labor Laws |
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Aug27

Medical Supply Storage Area

Can medical supplies be stored in the same room as an employee break room?

The majority of employers are not required to provide a break room at all, and those that do can set them up at they see fit. California does require that employers provide “suitable resting facilities in an area separate from the toilet”, but this would not necessarily preclude some supplies from being stored in the same room.

However, it is recommended that you review your facility policies as well as seek guidance from regulatory bodies in the medical field to ensure compliance with any applicable regulations.

Aug27

Positive Drug Screen/Short Term Disability

Can an employee that has tested positive on a random drug screen and has been suspended from work request to file a short term disability claim while on suspension?

The question is probably not so much if the employee can request short-term disability but rather do you have to grant this request. You do not indicate what state you are in, so I am going to assume that this is a benefit offered by the company that is not state-mandated. In this case, the company is free to establish their own policies regarding eligibility, such as when an employee is or is not eligible, any waiting periods, etc.  Your first step will be to review your short-term disability policy and see exactly what the qualifications are. Some policies require that an employee be actively at work at the time of the disability notice. If the suspension does not meet your company’s definition of being actively at work, this employee would not be eligible for the benefit.

If after reviewing your short-term disability policy it is determined that the employee is eligible, you will then want to review your drug policy, especially if the employee is requesting the short- term disability to seek treatment for her drug addiction.  Some drug policies state that if an employee comes forward on his own & requests time off for drug treatment, then the company will assist him, while those employees who test positive during random or other drug screens will be subject to disciplinary action, up to and including termination. Other policies do allow employees to request drug treatment if they test positive during a screen.

As a side note, be aware that individuals who are current users of illegal drugs, as evidenced by a positive random drug screen, are not considered disabled under ADA guidelines.

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