In contemplating the trends I observed as a management-side employment lawyer over the last twelve months, I can identify the top three reasons clients call me:
Incomplete or Deficient Family and Medical Leave Documentation: I do not think there will be any argument from health care providers that they feel burdened by the process of completing FMLA paperwork (maybe more so than employees). I frequently receive calls about forms that are not complete (e.g., boxes are not checked and lines are blank) or deficient (e.g., boxes are checked but lines are blank; the form says the person is not incapacitated but requires a leave; or both a block leave and an intermittent leave box is checked but without time lines). Most commonly the information that is missing is about duration of absence for a block leave or how often someone needs to be gone and for how long while on intermittent leave (e.g., intermittent leave for 12 weeks three times a week for two hours). Some employers just blindly accept what an employee and their health care provider give them. Bad idea for two reasons: how can you plan operationally as a manager when you do not know when to expect a person to be gone and for how long? And how do you manage an employee who is turning an intermittent leave into a block leave for all practical purposes? If the form is deficient or incomplete, you will not have a leg to stand on. So, instead, address it immediately by providing a WRITTEN communication (letter/email or fax) to the EMPLOYEE (not their health care provider) and require the EMPLOYEE to work with their health care provider to submit a complete form within 15 calendar days. When I draft a letter for an employer, I cite the page number and paragraph number and identify precisely what is missing so we get it right the second time. Remember, copy of the letter to the confidential FMLA file. If the employee does not respond, the leave does not qualify. Or, if they respond late, the leave qualification/certification may be delayed.
Returning an Employee to Work Post-Injury or Illness: These calls are usually about a person coming back to work after a surgery or a severe illness who is displaying signs that they cannot perform the essential functions of their position. These can be FMLA cases, work comp cases or disability leaves of absence/good cause absences. In these cases, employers should require (as set forth in their written policies) employees supply a release for return to work from the health care provider who was caring for them (or their primary health care provider) which states that they may return to work and states any restrictions (e.g., physical, mental or time/scope) as said restrictions relate to the person’s essential job functions. This means the employer must have an up-to-date and accurate job description which includes the essential physical, mental and time/scope demands of the position. The release should be in writing, and be dated and signed by the health care provider. It goes in the employee’s confidential medical file (not their personnel file!). And, finally, if the release indicates there are restrictions, then the employer’s representative who manages confidential medical information, work comp or FMLA has the duty to sit down with the employee and the employee’s manager to discuss any possible reasonable accommodations. If none are needed, great! If some are needed and you can jointly identify the ways to reasonably accommodate the person so they can perform their essential job functions, great! If you cannot identify any way or any reasonable way to accommodate the person, time to call your attorney!
Classifying an Employee as Exempt or Non-Exempt from Federal Overtime Laws: Some employers (who are subject to the Federal Fair Labor Standards Act or FLSA) seem to get one part of the exempt equation right—either the salary basis test or the duties test, but not both. This is a costly mistake because both prongs of this analysis must be met in order to avoid paying an employee overtime. Currently, the salary basis test is that the employee must earn not less than $455 per week. (Remember that President Obama’s administration proposed a rule change to almost double this amount, but this stalled out in the court system and President Trump’s administration is now looking at revamping this threshold. Expect to hear more sometime in the final quarter of 2018, when some experts predict the new proposed salary level could increase by over $150 a week.) Additionally, an exempt employee must meet the “Executive, Administrative, Professional, Computer Employee or Outside Sales Exemptions.” The job description alone will not control whether the employee is exempt, rather the actual duties in which the employee is engaged will determine whether the employer does not have to pay overtime. For the details on the specifics of each exemption, including the “Highly Compensated Employees” exemption, go to: