FAQ on FMLA

FMLA can be a confusing, complicated law; even more so when you take into account any FMLA regulations that your state might have in addition to the federal law. In this article, we’ll provide the answers to some of the most commonly asked FMLA questions (and even to some of the harder questions) and hopefully, help you gain a better understanding of the Family and Medical Leave Act.

FMLA FAQ: For Employers

FMLA Q1: Can I enact my own workplace policies to manage leave and prevent FMLA abuse?

A: Yes, an employer can, so long as none of your policies trod on the protections provided to employees by FMLA. Many employers require their employees to exhaust their paid leave (like sick days, personal time) before using FMLA leave. And, when an employee approaches you about taking leave, you are permitted to ask him or her questions that pertain to the nature of the reason for their intended absence, and to require appropriate certification. You can even ask for re-certification every 30 days in some cases (or even less; check with your labor law counsel). If you are not sure if one of your policies interferes with an employee’s rights, ask a FMLA trained HR representative or seek legal counsel.

FMLA Q2: One of my employees keeps taking intermittent leave, and it’s really disrupting workflow at the office. Is there anything I can do about it?

A: If work is being disrupted by an employee’s intermittent FMLA leave, you are permitted to switch them to a different position that better accommodates their current schedule. However, the alternate position must be temporary: once an employee’s FMLA leave is over, the law requires that you reinstate them to the same or an equivalent position.

FMLA Q3: I think one of my employees is using their FMLA leave as personal vacation time. Is it legal for me to use surveillance methods to find out?

A: Yes, it is legal for you to use surveillance to check up on an employee’s activities. Hiring a private investigator to conduct lawful surveillance is a recognized tactic in handling cases of employee FMLA abuse.
If you do decide to use this method, then make sure that you hire the most reputable private investigator that you can find. It is recommended that you look for a professional with experience in looking into cases of FMLA abuse. You can expect the investigator to bring in photographs and videotape (sans audio) of the employee in question, as well as records of the times and dates these activities occurred. It’s a good idea to obtain legal counsel to be sure that you don’t accidentally cross any boundaries, like giving the investigator information that should have legally been kept confidential without being aware that you weren’t supposed to mention it to anyone else. (That’s right-just because you’re conducting a legal investigation into an employee does not mean that the rules of confidentiality no longer apply!)
It is important to note that using the services of a private investigator should never be made into a regular workplace policy. You should only use this option when you suspect that an employee is engaging in serious FMLA abuse, and need evidence to take further action to stop it. And, before you make any decisions, show it to any other personnel who could help you decide what to do, such as an HR representative. Take all documentation and evidence into consideration.

FMLA FAQ: For Employees

FMLA Q4: FMLA provides me with job protection. So, can I be fired while I’m taking intermittent FMLA leave?

A: Yes, you can. While an employer cannot fire you for taking FMLA leave, they can fire you for other problems related to your performance at work. Generally, an employer can dismiss you while you are on any kind of FMLA leave, so long as they can prove that you would have been let go anyway, regardless of the leave of absence. Employers have been known to fire employees when they discovered how poorly an employee was performing at work after someone else temporarily took over that person’s job, and courts have been known to uphold this decision.

FMLA Q5: Can I work a second job while I’m on FMLA leave?

A: This is a very delicate situation, and the answer will depend entirely on whether or not your employer has a policy against it. Federal FMLA regulations state that the employer must have strict rules prohibiting you from doing so in order to be able to take disciplinary action against you. Without such a policy, it is technically permitted, but it’s extremely likely that your employer will frown on it if they find out, whether or not they officially allow it.

FMLA Q6: I’m having treatments for a medical condition that require me to take intermittent leave to see my doctor. Can my employer ask me to schedule my treatments at different times?

A: Yes, they can. Employers do have some say in how your intermittent leave is scheduled, particularly if your leave is affecting the daily flow of your workplace. In fact, you’re required by FMLA to give your employer a say in how you schedule doctor’s appointments for which it will be necessary for you to take intermittent leave. This is more meant to help your place of work run smoothly rather than to give your employer a legal right to hassle you, and don’t worry: your healthcare provider will have to give the arrangement the green light. Also, the majority of employers will be willing to work with you, especially when they see you trying to work with them. Be warned, however: if you fail to consult your employer about your intermittent leave schedule, they are legally allowed to require you to discuss an alternative arrangement with your health care provider.

FMLA Q7: When I’m discussing a serious health condition that I need time off for with my employer, what are they allowed to ask me?

A: Generally, your employer can only ask you questions that pertain to the particular health condition that you are requesting the leave for. They are not allowed to ask you about your entire medical history, nor for the details of the medical history of your family. And, all of the information is required to be kept confidential.

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