Answers to tricky HR questions: Getting FMLA notification, and figuring out who’s exempt
March 25, 2008 by Sam NarisiPosted in: FMLA, Latest News & Views, Overtime
Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation.
Are we breaking FMLA by asking for upfront notification?
Question:
We’ve got a bunch of employees who take intermittent FMLA leave. When they need to use their leave, weve asking them to let us know ahead of time that theyre taking FMLA. Are we allowed to do this?
Answer:
Not according to the Department of Labor. They’ve been cracking down on those kinds of policies, says Linda Hollinshead, an attorney with WolfBlock who specializes in FMLA cases.
You are allowed to make them call in before they miss a shift, if that’s your policy for all employees when they take time off. The fact that those employees have been approved for intermittent leave doesnt make them immune from your usual absence notice requirements. But asking whether or not its FMLA-related at that time could get you in trouble.
The law says you have to give employees two days afterward to let you know if the absence was FMLA-certified.
Is this manager still exempt?
Question:
Were a small company, so most of our managers still spend a lot of time doing physical labor. One employee in particular is in charge of several people, but about half his job involves loading trucks and making delivers. Does that mean he’s not exempt from overtime?
Answer:
The most important question isnt the amount of time people spend on exempt and non-exempt duties, says attorney Michael Lorenger of the firm Lorenger & Carnell.
What the Department of Labor looks at is the job’s “primary duty” - in other words, the reason that particular job exists. You might have a case where there are so few employees, and hence, not that much management that needs to be done, that a manager spends more than half his or her time working in other aspects. That employee would likely still be exempt.
What the Department of Labor looks at is the job’s “primary duty” - in other words, the reason that particular job exists. You might have a case where there are so few employees, and hence, not that much management that needs to be done, that a manager spends more than half his or her time working in other aspects. That employee would likely still be exempt.
April 23rd, 2008 at 1:48 pm
“You are allowed to make them call in before they miss a shift, if thats your policy for all employees when they take time off. The fact that those employees have been approved for intermittent leave doesnt make them immune from your usual absence notice requirements. ”
You may want to check this as it does not appear consistent with DOL regs. In a 2/15/99 Opinion Letter on this specific topic the DOl says in part “This section of the regulations governs notification procedures under FMLA and is and is contingent upon an employee providing timely notice pursuant to FMLA’s requirements, i.e., within two business days of learning of the need for leave. The company’s attendance policy imposes more stringent notification requirements than those of FMLA and assigns points to an employee who fails to provide such “timely” notice of the need for FMLA intermittent leave. Clearly, this policy is contrary to FMLA’s notification procedures which provide than an employer may not impose stricter notification procedures than those required under the Act …”
April 23rd, 2008 at 4:06 pm
Thanks, Tom. You are correct.
Seems like employers can ask for a call-in when it’s possible. But if for some reason it wasn’t possible to call ahead of time, disciplining the employee would violate FMLA.
Thanks again for pointing this out.
Sam Narisi
Editor
HRLegalNews.com
May 5th, 2008 at 1:14 pm
Who is exempt from FMLA?
I have an employee whom only worked for the company for one month. This happens to be on a Government contract that we won. She was promoted to the top Management position on that contract when she stared with us. We have no records of her previous work history. Wouldn’t she fall under exempt under her job duties/ title?
May 5th, 2008 at 2:53 pm
Sy,
The question about exemption status refers to overtime pay, not FMLA.
Someone in a “top Management position” is most likely exempt from overtime. FMLA, on the other hand, doesn’t give exemptions to employees based on their job duties.
Hope that clears things up. Let me know if you have any other questions.
Sam Narisi
Editor
HRLegalNews.com
May 14th, 2008 at 12:03 pm
I have a employee that was a team leader. Our company was re-orgaining and we did away with 2nd shift. This eliminated his postion he knew that he would have to re apply for another team leader postion to keep his pay. The affected employee was a 2nd shift employee. He was introviewing for another team lead poistiion when he went out on FMLA. The postion was filled with someone that had been currently in that department for 2 years with more experince in the department. There is no team lead position for him to come back to or equivalent in pay. The closest position we have open is $2.00 less in pay. The reg say same pay? If we bring back at same pay he will be making $4.00 more an hour than the other employees in the department with more experince than him. How long do you have to keep them at same pay?
May 14th, 2008 at 4:28 pm
Hi Tracy,
The Department of Labor says: “Employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.”
It sounds like that may apply to you in this case. Generally, the law requires employees to be in the same position they would have been in had they not taken leave. Decisions that would have been made even if no leave was taken are usually found to be OK.
Sam Narisi
Editor
HRLegalNews.com
May 30th, 2008 at 10:07 am
The company I work for wants to deduct 4 hours from exempt employees personal time allotment when they take 1/2 days off for personal reasons. According to the DOL, an exempt employee can only have whole days deducted. What is appropriate?
May 30th, 2008 at 12:20 pm
We have an employee that just passed his 90 day mark (Dec 2, 07) then went on medical, our company pays for STD which allowed him to do so, he had back surgery in April. I have called several times to see how he is doing and have not gotten back a call. He was to return to work according to the physicians papers on 5/27/08 but have not been notified. Do we still have to hold his position if he fails to call in and keep us updated?
Than
May 30th, 2008 at 1:39 pm
Question - I terminated an employee due to numerous tardies and attendance. She’s filed for unemployment and says I should’ve offered her FMLA due to some family issues she had missed days for. She never requeted FMLA, nor was she disciplined for any of these times she was out for her family. She was allowed time off, but it wasn’t under FMLA. All regs I read say the employee is supposed to notify the employer, but some of my H.R. buddies, tell me I should’ve approached her. I disagree. Who’s right?
Thanks
June 3rd, 2008 at 4:43 pm
Cindy,
Companies are allowed to deduct paid time off banks in whatever increments they want. It’s only the exempt employee’s salary that has to be deducted in whole-day increments.
Sam Narisi
Editor
HRLegalNews.com
June 3rd, 2008 at 5:03 pm
Pam,
When an employer has reason to believe an employee needs FMLA leave, it needs to offer FMLA, even if the employee doesn’t explicitly ask for it. In your case, it sounds like the employee was allowed to take time off for the family issues, but was fired for other absences. So it sounds like you complied with the law by giving her time off, even if it wasn’t tracked as FMLA.
Sam Narisi
Editor
HRLegalNews.com
June 3rd, 2008 at 5:15 pm
Debbie,
If an employee doesn’t come back on the scheduled date and doesn’t get certification to extend the leave, any more missed can generally be considered unexcused absences.
Sam Narisi
Editor
HRLegalNews.com
June 11th, 2008 at 3:43 pm
I have an employee who was off for two weeks on FMLA to care for his mother. At that time, he had not accrued any vacation time, however in the two weeks since he has returned to work from FML, he has reached his hours to be eligible for his vacation. Can we retroactively take his vacation time to run concurrent with his FMLA?
Thanks,
Debra
June 18th, 2008 at 11:09 am
Q>The company I work for wants to deduct 4 hours from exempt employees personal time allotment when they take 1/2 days off for personal reasons. According to the DOL, an exempt employee can only have whole days deducted. What is appropriate?
A.Companies are allowed to deduct paid time off banks in whatever increments they want. It’s only the exempt employee’s salary that has to be deducted in whole-day increments.
Q. But what if the exempt employee does not have any leave available and they reduce the employees pay by 1/2 day ?
June 20th, 2008 at 8:40 am
Deb,
There are some exceptions, but generally you can’t deduct a half day of pay from an exempt employee.
Sam Narisi
Editor
HRLegalNews.com
June 20th, 2008 at 9:00 am
Debra,
I believe that would depend on your practice of letting people take vacation time before they’ve “earned” it. One thing to make of is that you don’t treat this employee differently than people who have taken time off for other reasons - that might look like FMLA “retaliation.”
Sam Narisi
June 20th, 2008 at 9:53 am
I received his extension for medical and has now gone from STD to LTD. How long will we need to keep his position open for?
June 20th, 2008 at 4:58 pm
Have an employee who was granted intermittent FMLA (up to 4 days a month). However, she also has used up most of her PTO and will probably have no time left in a month or so. Two questions; she is in a leadership role and all of her absences are having an effect on the business area she supports. Can she be moved to a lesser role given she is not meeting the minimum requirements? And, can an employee who is on FMLA (intermittent) be terminated for abuses to the attendance policy?
July 31st, 2008 at 11:23 am
I have an employee who was took FMLA for 12 weeks to take care of his wife that was going through treatments. At the time he was not entitled to vacation time. He has since became qualified for vacation time of 2 weeks. Is the company required to honor his vacation time he just qualified for or can we use the vacation time to deduct time loss under FMLA. We stipulate on the FMLA papers that vacation time has to be used toward FMLA.
September 18th, 2008 at 2:01 pm
Janice,
Vacation time only has to be used toward FMLA if an employee is eligible for it at the time of leave. You can force them to use the vacation ONLY if your policy allows employees to use vacation before they are eligible. For example, if your employees are entitled to vacation after working for 6 months, but you allow them to use some time in the 4th month, then you are able to retroactively “take” their vacation for the FML time off. If your company, under no circumstances, allows employees to use vacation time before they are eligible, then you must allow them to keep their vacation in this case. As Sam Narisi says above, it would otherwise be considered FML “retaliation”.
October 29th, 2008 at 3:29 pm
If an employee says that he /or she may need to be “pulled out of work” due to a serious ailment (the employee uses intermittent FMLA), what are the proper steps in order to verify this with the employee’s physician(s) if the employee is not able to perform his or her job duties?