Margaret Edwards gave a web seminar on
When an employee needs to go out on leave, the employer should look at its own policies and handbooks to make sure that it does not provide more than the laws.
For workers’ compensation, the injury needs to be proximately caused by a situation in the workplace.
FMLA does not extend to domestic partners.
An employer cannot force an employee to use up paid leave benefits for workers’ compensation or pregnancy disability. Under the
When the employee returns from leave, he/she has right to be reinstated to the same working conditions as before he/she left. For example, if he/she had an office he/she cannot be put in a cubicle. The duty to accommodate does not come from leave laws, but from disability laws. The person is not entitled to reinstatement if the job is eliminated for legitimate business reasons. In analyzing a layoff decision, look at the person making the decision. Is it the manager? Has the manager been accused for harassment of the employee on leave? Did the leaves, accommodations play any role in the selection for the person’s layoff? If the leaves or accommodations play a role in the layoff, there may be a claim for retaliation or discrimination.
The employee who needs to go on leave should give the employer notice as soon as practicable. The employer needs to provide notice to employees of leave laws by postings.
The employer may ask the employee for a healthcare provider certification, but the employer who does, must request the same of all employees. There is the right to demand the certification, but it is not mandatory. Serious health condition is defined by regulations to be illness, injury, impairment that includes results from overnight hospital stay.
Whether a person is qualified for a job requires a review of the essential functions of the job. Getting along with a boss and taking criticism may be argued as an essential job function. The review asks whether the employer waived essential functions for others. A litigated subject is whether the employer is able to tolerate an action such as a person who has unpredictable attendance. Changing manner of communication may be a reasonable accommodation such as not giving criticism.
Evidence of anger of the supervisor may lead to a retaliation claim by employee when the manager says something negative out of frustration when discussing leave laws. Managers should be trained on leave laws in order to show that the employer cares about compliance.
FMLA has been amended in January 2008 to provide two new forms of family leave. There is up to 12 weeks for a qualified exigency. Qualifying exigency includes financial arrangements, finding child care, attending ceremonies, being with a service member on leave, funeral arrangements. There is 26 weeks of leave to care for service member who has injury in line of duty. It does not need to be a combat injury. It can be a traffic accident on a military base or the person getting sick. There is a
Under
Protected leaves in
Leave obligations stay with a company when it is sold.
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