I was recently asked if an employer may require an employee who was taking leave under the Family and Medical Leave Act (“FMLA”) to return to work after the employee was seen working his second job—refereeing school basketball games—while on leave. In this particular case, the employee was taking FMLA leave to care for his daughter, who had a serious health condition.
Between the U.S. Department of Labor (DOL) and the National Labor Relations Board, joint employment is quite the hot topic. Of course, we’re all over it here on our blog, which is why you need the details on the new Fact Sheet the DOL recently issued discussing joint employment in the context of the Family and Medical Leave Act (FMLA).
When dealing with their employees’ needs for accommodations due to religious, disability, or family leave reasons, it’s necessary for employers to know some personal information about their employees. But, simply asking for information can be considered a violation of certain employment laws. What’s an employer to do?
Recently, the Third Circuit Court of Appeals – which covers Pennsylvania and New Jersey — ruled in Hansler v. Lehigh Valley Hosp. Network that if an employer does not permit an employee seven days to cure an insufficient medical certification, the employer may have interfered with the employee’s rights under the Family Medical Leave Act (“FMLA”). Medical certifications are one of the trickiest areas for employers when it comes to FMLA compliance, so let’s take a deeper look at this case.
One of the ways an employee can prove a serious health condition entitling him/her to the protections of the FMLA is to have an illness, injury, impairment, or physical condition which involves inpatient care in a hospital, hospice, or residential medical care facility. Inpatient care is defined in FMLA regulations as an overnight stay. While the meaning of “overnight stay” would appear to be straightforward, that is not necessarily the case. Recently, the Third Circuit Court of Appeals – which has jurisdiction over cases in Pennsylvania and New Jersey – was called upon to interpret this term in a case of first impression in that Court.
A few weeks ago, we told you that the U.S. Department of Labor (“DOL”) issued a Final Rule that was to be effective on March 27, and would have allowed an employee to take FMLA leave to care for a same-sex spouse regardless of whether the employee lived in a state that legally recognizes their marital status. Well, hold the phone.
Currently, there are no federal laws that require paid sick leave. If an employer is subject to the FMLA (Family and Medical Leave Act), it is required to provide up to twelve weeks of unpaid leave to an employee under certain medical conditions when that employee is eligible. In many cases, an employer will require an employee to substitute paid leave for the unpaid FMLA leave. Similarly, the Fair Labor Standards Act requires that an employee only be paid for hours worked.
Allowing employees to take FMLA leave is good for employees, it’s good for families, and, of course, it’s required by law. But what if you have an employee who takes FMLA leave when nothing seems to be wrong? For example, you could have an employee who reports that he is taking FMLA leave every time his request for a specific vacation day is turned down. Certainly, you don’t have to allow an employee to take the day off just because the employee has suddenly decided to say that it is FMLA leave, right?
Imagine this scenario: One of your employees is taking leave under the FMLA. You suspect the employee has misrepresented the state of his or her condition to fraudulently obtain protection under the FMLA and is really using the time off for personal reasons unrelated to any illness or injury. In fact, several of the employee’s co-workers have reported to you that they have observed the employee out shopping on days when he or she had supposedly used FMLA-protected leave. They’ve also told you that some of the employee’s Facebook posts and photos portray activity which seems inconsistent with their alleged illness or injury. Since the FMLA prohibits employers from interfering with an employee’s FMLA rights and from retaliating against employees who exercise their rights to leave, there’s nothing you can do unless you care to find yourself in court, right?