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ICYMI: Our Social Media Posts This Week -- Nov. 8 - 14, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

The post on Sunday 11/8/15 talked about 2 good reasons to keep job descriptions current and accurate. The first reason is to ensure that the position is classified correctly for wage and hour purposes. This means not letting the title be the deciding factor – but rather looking to the duties (to be) performed by the person holding the position. The other reason is in the post.

TAKEAWAY: Job descriptions are not just busy work – they can be extremely important to an employer in case of charge or suit, so make sure they are current and accurate.

On Monday 11/9/15 the post asked if you can terminate an employee on FMLA leave. The answer, as it is so many times, is "it depends". If the FMLA leave is being considered in the decision to terminate, then no. Likewise, if the person was out on approved FMLA leave and is released to return to work at the end of the leave, then (usually) no. If the employee’s position is being eliminated (and that has nothing to do with the FMLA leave), then the employee may be terminated. Similarly, if the employee’s performance was sub-par, and s/he would be terminated even if not on FMLA leave, then termination is possible. The file should also contain support for why the decision to terminate was not made prior to the FMLA leave (or wait until the employee returns from leave and then terminate, assuming a valid basis). More details are in the post.

TAKEAWAY: Before terminating an employee on FMLA leave, make sure to have support for a valid basis for the termination in case it is challenged in any way.

In the post on Tuesday 11/10/15 we reminded you that when an employee has FMLA history, beware punishing him/her for suddenly going home. This might be part and parcel of an approved intermittent leave (even though the employee is unable to give advance notice).

TAKEAWAY: FMLA leave can take many forms and advance notice form the employee may not always be possible – err on the side of caution and the sudden departure being covered (unless and until you find out to the contrary).

The post on Wednesday 11/11/15 asked if an employee can be fired for threatening to file a discrimination complaint. Well, the answer is again “it depends”. For a retaliation claim to lie, there is practically no difference between threatening to file a complaint or charge and actually doing it. However, that is not the end of the road. The employee would still need to prove that it was the threat or actual filing of the charge/complaint that resulted in whatever adverse action occurred (and not some other reasons or basis). More details are in the post. If there is a valid reason for discharge (i.e., one that has nothing to do with the threat or filing), then it may well be appropriate.

TAKEAWAY: Employers should always ensure they have valid legal support before taking any adverse action against an employee, and doing do after the employee either threatens to file a charge or complaint or actually does so is no exception.

The post on Thursday 11/12/15 was about when the ADA and FMLA overlap – things to know. There is a different threshold for when the laws might apply, but usually they both apply when dealing with leave for an employee’s medical condition. The FMLA provides a specific limit on allowed unpaid leave – 12 weeks (taken in lump(s) or as intermittent leave). The ADA, in contrast, has no limit other than what is a reasonable accommodation. The employee might be taking leave under either the ADA or FMLA and then, when that is over, need leave under the other. The most common order is FMLA leave (since there is a time limit) and then ADA leave (as a reasonable accommodation with no time limit). The post works through a fact pattern as an example of how the 2 laws might work together.

TAKEAWAY:  If dealing with medical leave under either the ADA or FMLA, keep in mind the other law too as it may well come into play. Consult an employment law attorney to be sure of your obligations.

Continuing with the ADA/FMLA theme, the post on Friday 11/13/15 posed a question: can a fragrance allergy lead to an ADA or FMLA claim? The short answer is “maybe”. Part of the explanation is that the allergy may well qualify the employee for ADA protection; it might also be such as to allow FMLA leave (even intermittent if it only periodically flares up). The post tells us of one situation where these laws were implicated in a suit filed alleging that they were violated by the employer.

TAKEAWAY: Employers must be careful when discharging employees who have made an FMLA leave request or are out on FMLA leave – make sure there is valid legal support for the discharge, including explanation for any timing hiccups.

Finally, the post yesterday 11/14/15 suggested that we should come to work and … get some sleep, noting that if it is a reasonable accommodation, it just might happen. What? Yes you read it correctly. This might happen under the ADA, especially if the employee suffers from sleep apnea or has side effects from medication. When, where and how the sleep might be permitted would be part of the interactive accommodation process – assuming it is the agreed-upon accommodation and poses no undue hardship to the employer.

TAKEAWAY: Often the reasonable accommodation process under the ADA takes strange twists – like here and possibly allowing an employee to sleep while at work. To be sure all obligations are met, consult an employment law attorney.

References (3)

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