Federal FMLA does give employees a technical right to 12 weeks of unpaid leave, but it does not give them special treatment or a shield against termination. While firing/disciplining someone for taking FMLA leave is prohibited, the employer does have the right to fire someone for any other legitimate reason. There are often cases where the two reasons are intertwined, such as employees having serious issues worth disciplining, but the discipline doesn’t happen until FMLA is taken. The proximity in time does create a factual issue with the employer’s intention because an employee may argue that the misconduct is being used as an excuse for retaliation for taking FMLA leave.

It sounds like there is a legitimate business reason for changing the job description. Remember that the reinstatement requirement of the FMLA is returning the employee to the identical job or nearly identical job with the same pay, benefits, status, duties, etc. If the returning employee is placed in a new job with a new job description, you’ll obviously have to meet the pay and benefits requirement. The issue will be whether or not the employee has the same duties. In this circumstance, you have a good argument that the job is the same or nearly identical. You’d have to look into how significantly the responsibilities were changed and if multiple positions were affected by this change. The new job probably meets FMLA reinstatement requirements.

The best practice is to notify the employee that the absence qualifies as FMLA. If the employee declines, then enter a written agreement with them laying out the fact that you have designated FMLA leave under state/federal law but the employee refuses to create a track of documentation, so you can defend yourself against potential lawsuits.

The best way to deal with this is by having a strict FMLA procedural policy in the employee handbook and strict administration guidelines. A good policy may require an employee to provide notice and call in. You can require certifications and periodically check in with the employee to ask about status, how they are feeling, how much more leave they estimate they will need, etc. You also have the right to require the employee to cooperate with you to reduce the amount of disruption to work as much as possible, including requiring advance notice and prearranging the work schedule.

A good policy will also allow opportunities for recertification. If you receive information about an employee using FMLA to take vacation or have fun, there are court cases or legal investigations that support a company’s rights to use surveillance to find out what is going on and discipline employees accordingly. If you have a specific reason to believe that the employee is abusing FMLA, you may require proof beyond frequency restrictions.

The employer’s obligations are triggered right away. You have 5 business days to notify the employee of their rights and responsibilities, and send out designation forms. The employee has 15 calendar days to get those back to you. They will probably request time off for appointments that are required during the different trimesters. Those will be covered under FMLA leave because they pertain to the health condition of the mother. Consider using intermittent leave in that case because it applies to medical leave over a block of leave. FMLA will continue during pregnancy, birth and after if there are any medical complications or serious health conditions that are related to the pregnancy or the care or birth of the child. This begins as soon as you are notified and continues up until 12 work weeks are exhausted in any 12-month period.

After the 12 work weeks, the analysis won’t stop there if the child or employee has a health condition. You will have to do an ADA analysis and determine whether or not one of the major life activities has been impacted and if some sort of intermittent or reduced time leave constitutes a reasonable accommodation under the ADA, and also the intersection with the Pregnancy Discrimination Act. As soon as the employee notifies you of the pregnancy, that triggers the employer’s obligation to give them the paperwork, and the employee can request leave as soon as the employer is notified.

First determine if the employee has a regular/set schedule or if it’s a variable schedule. If they have a variable schedule then you’ll want to do a 12-month look-back, aggregate all hours, divide by the number of weeks worked, and come up with an average of the amount they work per week. If they take X number of hours a week, you divide that by the 12-month look-back and you’ll generate a fraction. If the aggregate is that they work 36 hours per week and they are taking 12 hours off per week, 12/36 is 1/3, so if they take 12 hours in one week, they have used a third of their FMLA work-week bank. If they work 40 hours a week and they take off 8 hours one week, then they have used 1/5 of their allotment.

When an employee receives a certification, they may seek clarity from a doctor, but they can only seek clarity on points that are unclear, such as frequency and duration. They may not ask about treatment or diagnosis if those are clear. Be careful getting additional information from the doctor because you don’t want to obtain genetic information that would lead to violation of the Genetic Information Nondisclosure Act. In addition, you can also seek second and third medical opinions from different doctors when you’re in the certification context. You can’t do that when a recertification is provided. You can also seek those in an annual certification process.

Because it is a legal requirement that you must give 30 days’ notice if the leave is foreseeable, the employer may deny the leave. That being said, you must have good documentation to prove that the condition is indeed foreseeable and the employee failed to follow procedure. It would be even more helpful if you can prove the employee had knowledge of your FMLA policy.

It depends. An employer is required to maintain the employee’s benefits during the FMLA period. However, during the FMLA period they don’t accrue certain benefits or seniority, especially benefits that are normally tied to something like hours. Example: PTO is tied to a certain amount of hours worked. Benefits will still be maintained under employer obligation but the employer will have not to give the employee accrued time while they are on FMLA leave.