Situations come up where employees need to take time off work in order to care for their family. Giving birth to a child or caring for an ailing parent are some of the circumstances where you would be required by law to grant an employee unpaid time off without any repercussions. The Family and Medical Leave Act (FMLA) has clear guidelines for how much time workers are allowed off. However, there are times when this law does not apply. Familiarize yourself with the law so that you know what you can and cannot do.
What Does FMLA Cover?
FMLA states that employees are entitled to 12 weeks of unpaid leave for family or medical reasons. FMLA only applies to businesses that have over 50 employees. Additionally, the employee asking for time off must have worked at least 1,250 hours in the past 12 months in order to qualify for unpaid leave. Therefore, an employee who has only worked for you for a month cannot suddenly take 12 weeks off. Once the employee has returned to the workplace, he or she is entitled to go back to the position he or she had before leaving or a position that is equivalent in both responsibilities and pay. You are infringing on an employee’s rights by not abiding by these rules, but there are circumstances where FMLA does not apply.
How Must You Comply With FMLA?
As an employer, there are certain requirements you must fulfill regarding informing employees about their rights under FMLA. For example, you must post FMLA guidelines in an easily accessible area of the workplace. This notice must clearly state what employees’ rights are under the law. When a worker asks for time off, you must make it known that the absence falls under FMLA leave and that all time spent away from the company will go toward the individual’s available amount of leave time. In order for an employee to utilize FMLA leave, he or she must give you at least 30 days’ notice.
Terminating Employment and Laying Off in Relation to FMLA
You are not allowed to retaliate against an employee who chooses to exercise his or her rights under FMLA. For instance, you cannot fire someone for asking for time off because she is about to give birth. However, you can choose to terminate a worker’s employment if it can be definitely proven that he or she would have been fired anyway regardless of FMLA. The Supreme Court case of Richmond v. Oneok found that employers can terminate employment if the employee in question exhibits continued poor performance, and this termination can occur after, during or before FMLA leave.
Additionally, you could fire an employee if he or she was engaged in a corrective behavioral program, and he or she failed to complete it before taking FMLA leave. Termination of employment may also be justified if it is revealed that the worker in question was participating in fraud, insubordination or some other prohibited action while under your employment. It is possible to lay off an employee while he or she is on FMLA leave, but only if it can be shown that the employee would have been laid off anyway. An example of this would be if you have to lay off an entire unit of your company and one person is away due to FMLA. You could still lay off that individual, and this would be viewed as a lawful termination of employment.
Choosing to fire or lay off an employee actively taking FMLA leave is a tricky area, and that employee may file a lawsuit against you. That is why it is so important to have a clear reason for letting the worker go that is unrelated to FMLA leave. Hang onto all documentation that proves you are in the right, and watch your step any time you traverse around FMLA.
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