FMLA or LOA
Industry: IT
State: MI EE Count: 3
Scenario: Client advised that they had an ee getting surgery and requests to work from home for 2 weeks to recover, client wanted ee to still come to her home to work and wanted to know how to approach an ADA/Disability claim?
1. What resources were used to address the client question?
ada.gov, askjan.gov, employee leave, MI.gov
Industry: Marijuana Industry
State: NV EE Count: 63
Scenario: The employer suspects that several employees are stealing product and coming to work under the influence. The employer wants to deduct the losses in product from the employees pay and pursue theft and larceny charges against the employees as the total amount in theft is over $50,000. What options does the employer have?
1. What resources were used to address the client question?
1. Federal and state resources are limited due to the industry. That being said:
eeoc.gov and 911
Industry: Sales
State: OK EE Count: 80
Scenario: EE has a Traveling Salesman that continues to contract COVID-19. The employer is questioning if they should continue to pay FFCRA COVID sick leave pay since this seems to be work related?
1. What .gov resources were used to find the answer to address the client question?
ada.gov, askjan.com, covid-19,OK.dol.gov
Industry: Adult Entertainment
State: CA, EE Count:21
Scenario: An employee is accused of sexual harassment; this is the second accusation.
Teaser: EE has lapsed state mandated Non-harassment training.
1. What are the resources used to find this information?
Industry: Medical
State: CA, EE Count: 15
Scenario: ER wondering if they have to still continue paying their employees Covid Pay since Covid is over? Or can they stop paying it?
1. What resources would you use to find the answer?
Industry: Retail
State: NYC, EE Count: 11
Scenario: Client stated " I have a part-time employee has not reported for her three, 6 hour weekly shifts in the past 4 weeks due to not being able to find in-home childcare; which is her preferred means of childcare.
They would like to terminate.
1. What resources would you use to address the client concern?
Industry: Home Healthcare
State: NY EE Count: 15
Scenario: EE has exhausted all sick leave benefits and has requested additional COVID Leave. Do I have to provide it?
What resources were used to address the client question?
sick leave, NYS.dol.gov
sick leave, nyc1.dol.gov
Industry: Food Service Transport
State: CA EE Count: 17
Scenario: Client advised that a ex ee is suing them and asked how to proceed.
1. What resources were used to advise the client?
Seek counsel!!!
Industry: Treatment Facility
State: CT, EE Count: 44
Scenario: Employer is inquiring about FMLA paperwork on an employees behalf. Is there a state leave available?
1. What is the Federal/State .gov resources to used find the information.
2. What are the qualifications for FMLA?
Industry: Winery
State: CT EE Count: 18
Scenario: Employer has been made aware of an EE who habitually displays aggressive, disruptive, and insubordinate behavior. ER has just learned the EE allegedly has a gun in his car.
1. What Fed/State resources were used to find the answer?
2. What steps should the employer take to address and manage this concern?
Industry: Mercantile
State PA, EE Count: 50
Scenario: Client forgot to pay a terminated employee their final check for over 2 weeks. Wondering what are the consequences and do they have to pay additional money to employee.
1. What .gov resources were used to find the answer?
2. What is the liability to the employer?
Industry: Hospitality
State: CA EE Count: 15
Scenario: The client is inquiring if they can send an employee home sick if the employee is visibly ill and request a doctors note in order for the employee to return back to work?
1. What are the Federal/State resources to find the answer?
2. Can the employer request a doctors note?
It is a best practice to allow the employee to request to go home sick, but yes the employer can send the employee home. Since the choice to remain on shift has been removed from the employee, it would be best practice, conservatively speaking, to pay the employee for the day verses deducting time from the employees PTO/Vacation, or Sick leave accruals.
1. dol.gov, dir.ca.gov, edd.ca.gov
2. California limits an employers ability to request documentation to validate an absence for sick reasons given sick leave is mandated in this state. Employers can request a Return to Work Notice; which outlines the employee can return to work with or without accommodation.
Industry: Hospitality (Hotel), 3 locations
State: IL EE count: 175
Scenario: During an internal audit it was discovered that a few employees failed to complete the Non-harassment training within 30 days of hire. What should the employer do?
1. What are the Federal/State training requirements?
2. How would you advise the client?
1. training requirements, IL.gov
2. Investigate why the employees failed to complete the training by the required deadline, discipline accordingly if applicable, and work with the client to identify methods to prevent reoccurrence.
Industry: Treatment Facility
State: CT EE Count:44
Scenario: Employer called in on an employees behalf requesting FMLA paper and inquired if they had to provide FMLA or were there any state leave options.
1. What is the Federal or State Resource?
2. What are the eligibility requirements for FMLA
Scenario Answer: The employer is not required to provide FMLA due to them not meeting the employee threshold. Therefore, the employer should not be provided FMLA paperwork and state resources, or other options should be discussed with the employer.
1. FMLA, US.gov, FMLA, dol.gov, or FMLA, CT,dol.gov
2. the employee has to have performed work for the employer for 12 months or 1250 hours within a 12 month period.
The employer also has to employ 50 employees within a 75 mile radius.
Industry: Logging
State: AK, EE Count: 15
Scenario: Can I allow an employee to make up hours this pay period for time missed last pay period without paying overtime in this pay period?
1. What is the Federal/State Resource used to find the information
2. What is the liability in permitting this practice.
Solution: No, this practice should not be permitted because it would be a violation of Fed/State wage payment laws. If the time was to be made up, it must be in the same pay period.
Industry: Factory
State MN, EE Count: 175
Scenario: Client stated financial losses since COVID, and they haven’t recovered. They are looking to terminate or layoff one employee.
What Fed/State resources were used to address the client question?
What additional probing questions would you ask this client?
warn act notice, MN, dol.gov
2. Are you eliminating a department?
What criteria was used to choose this employee?
What are the demographics of this employee?
How are this employees job duties being re-assigned/re-distributed?
Can you demonstrate the business reason for the reduction in force?
Is there a past precedent?
Would the employee be eligible for rehire or recall?
Did this employee have any performance or behavioral issues in the past 12 months.
Industry: Shipping and Packaging
State: TX EE Count: 70
Scenario: The client has an employee that is currently on sick leave, but, it was discovered that he has been ordering ammunition using his shipping email address. He is a former VET and a good employee otherwise. No previous disciplinary issues. "Can we termination in light of this discovery?"
1. What resources were used to find the answer to address the client question?
2. What probing questions would you ask to determine how to further advise them?
1. eeoc.gov, weapons in the workplace, TX.gov
2. Do you have a Weapons in the Workplace Policy in place with a signed Letter of Acknowledgement?
Is there a past precedent where employees use company emails for personal use? If so, how did you handle it?
How long has the employee been on leave and when is he expected to return?
Has there been any previous behavioral or performance concerns with this employee in the past 12 months.
Industry: Food Service
State: NY EE Count: 39
Scenario: Client has several questions about an employee who is potentially coming to work intoxicated and also drinking on breaks/lunches. She would like more info on what she can do to remain compliant with NY and federal law.
1. What Fed/State resources were used to find the answer?
2. How would you advise the client?
1. ada.gov (Interactive Process)
2. The employer should monitor the employees behavior and actions and make a comparison of how the employee has performed in the past.
Have a meeting with the employee, with another member of management or HR HR present if possible, and question the employee; has there been and recent changes that we need to be made aware of because we have a concern that..... Can you give us any information.
Should the employers concern be valid, a third party should conduct the drug and alcohol testing. At no point and time should the employer complete the test themselves or allow the employee to drive to the testing site. The employee should be escorted by a member of management.
Pending the outcome of the testing the employer will have a business decision to make, which may establish a precedent.
Industry: Human Services
State: NY, EE Count: 10
Scenario: client has multiple EEs out on Maternity leave, asking what are the employees leave options and how can the employees setup their wage replacement?
1. What are the Fed/State resources to address the question?
2. What additional probing questions would you ask?
3. How would you advise the client?
NYS,dol.gov
nyc1,dol.gov (NY City)
2. Are you operating in NYS or NYC?
Would providing this ee the LOA, would this constitute an Undue Hardship?
Is there a past precedent?
Are you able to or have you engaged temps in the past?
Have you engaged your other employees in the interactive process to determine if they can return to work?
How have you distributed work thus far to ensure production continues?
3. Unless the LOA creates an undue hardship, it is advisable to permit the employee to take the PFL LOA. Continue to engage all employees on LOA in interactive process in an effort to have them return to the workplace (with or without accommodation,) and engage resources to ensure productivity to be maintained, i.e. temps. redistribute work duties and assignments, etc.
wIndustry: Retail
State: MA, EE Count: 50
Scenario: : Do I have to pay Holiday/Holiday overtime pay if the holiday falls on a weekend?
1. Is Holiday Pay communicated in policy?
2. Based on your industry, are you authorized to operate during holidays and weekends?
3. Is the employee exempt or non-exempt
1. Check policy in HBK
2. dol.gov
3. Solution: If the employee is exempt; no. If the employee is non-exempt and the employee performs work on the holiday or weekend day that puts them over 40 hours worked, then they are entitled to over time pay. Check state laws for state holiday premium pay exceptions should an employee have to work on a holiday.
Industry: Hospitality (Restaurant)
State: CT EE Count: 16
Scenario: Employer wanted to terminate an EE following their medical leave taken after burning themselves on the job. There was an open WC claim and the EE has retained a lawyer.
1. What .gov resources (FED/STATE) were used to find the information to advise the client?
2. Can the employer terminate the employee? What is the liability associated?
3. How would you advise the client?
1. OSHA.gov, ct.gov, eeoc.gov, ada.gov
2. Yes, but the employer will be sued (Wrongful, term. discrimination, retaliation, etc.) This is a matter and should be escalated to the assigned HRBP.
3. Conservatively speaking, it is not advisable to move forward with termination of this employee due to the risk associated. Should you choose to move forward with termination, I would advise you seek counsel.
Industry: Hospitality, (Restaurant/Hotel)
State: CA, EE Count: 12
Scenario: Employee is visibly showing signs of being sick; coughing, sneezing, sweating, etc.
1. Can the employer send the employee home, and if so what is the liability associated?
2. Can the employer require the employee to take a COVID-19 test?
3. Can the employer request a doctors note in order for the employee to return to work?
4. If the COVID-19 test positive, what is the employers obligations to notify other employees?
1. Yes, but the employer should pay the employee for any missed hours without impacting sick leave, PTO/vacation accruals.
2. Yes, but the employer must pay for the test. This practice is best communicated in policy to ensure consistent enforcement of practice.
3. No, but the employer can request a release to work note from a medical provider stating the employee is fit to return to the workplace; with or without accommodation.
4. Yes, the employer does have notification obligations, but they need to ensure that they are not providing any personal identifying information of the ill employee.
Industry: Adult Entertainment
State: CA EE Count: 21
An ee was accused of sexual harassment. This is the ee's second accusation of sexual harassment within 2 weeks. The employer is looking for guidance.
1. What Federal/State resources were used to advise the client?
2. What is the Non-harassment training requirements?
3. How would you advise the client?
1. Training requirements, dir.ca.gov, or edd.ca.gov, HRCal
2.New hires must take the training within 30 days of hire. All employees are required to take the training annually. Management must take the training every 2 years.
3. Conservatively speaking, best practice would require the employer to place the accused on a temporary LOA while a third party (state requirement,) investigates the claim. All victims and potential witnesses should be made aware that they will be required to participate in the investigation and confidentiality is requested to maintain the integrity of the investigation. The employer should also work with the victims and provide accommodations as requested, i.e. take the day/week off, work a different shift/assignment, etc.