Labor: 3 FMLA traps for employers that don’t dig below the surface

Knowing what follow-up questions to ask is essential to ensure compliance

In the human resources arena, attorneys often advise employers not to ask too many questions. For example, if an employer believes an employee’s performance problems are due to a physical or mental condition, but the employee has not raised such condition as an issue, attorneys generally will advise the employer to avoid discussing the employee’s condition and instead simply focus on the performance problems themselves because of the risk of creating a claim under the Americans with Disabilities Act (ADA).

However, there are times when an employer is well served to dig a little deeper. Discussed below are three potential Family and Medical Leave Act (FMLA) traps that could ensnare employers that do not ask the right questions.

Perhaps the human resources director should have continued reading again. 29 C.F.R. § 825.122 provides that a spouse is “a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” Depending upon where the employee and her partner live, and the history of their relationship, it is possible they would be deemed married under the laws of that state.

3. The age of dependents (or dependence)

Contributing Author

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Craig Oliver

Craig Oliver is a partner with Bradley Arant Boult Cummings LLP (Nashville, Tenn.) and serves as vice-chair of the firm’s Labor and Employment Practice. His...

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