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Can I backdate FMLA paperwork?

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Question:

Can I backdate FMLA paperwork to the date at which the employee went on Workers’ Compensation?

Answer:

In a word, “no” – FMLA cannot be backdated. That’s why it is so critical that HR is on top of any types of absences that may qualify for FMLA. If an injury that falls under Workers’ Compensation also qualifies as a “serious medical condition” under the Family and Medical Leave Act, any time missed can be counted against the 12 week leave allotment an FMLA qualified employee is entitled to receive. When such an event occurs, send the appropriate notifications (found on www.dol.gov), and make sure you document that you have done so.  Then follow up appropriately for the certifications. The clock does not start ticking on FMLA until the notifications have been sent – whether it is immediately after the incident, or two months later. Keep in mind, if an employee returns to work on light duty, from a Workers’ Comp injury, that is no longer time counted against Family Medical Leave.

The world of employee leave is a complex one, often involving Family Medical Leave, Workers’ Compensation and the Americans with Disabilities Act. Many times, the different types of leaves overlap. Make sure you consider all appropriate legislation when an employee is absent from work before taking any type of adverse employment action.

FMLA, the ADAAA and other labor laws can be difficult to interpret, let alone enforce. That’s where Strategic HR has you covered. We bring years of experience and know-how to the table. We can assist you with your tough compliance issues and help you sleep more soundly at night. Visit our Compliance page to learn more.

Work Related Injuries from a Home Office

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Question:

I have “virtual” employees who don’t spend all their work time in the office. How do I know if an employee’s injury is work related if they work out of their home?

Answer:

This is one of the big challenges that employers face when they allow their employees the opportunity to work from home. Overall, injuries and illness that occur while an employee is working at home is considered work related (and thus compensable) if the illness or injury occurs while the employee is performing work for pay in the home and the injury or illness is directly related to the performance of work. These type of injuries cannot be related to the general home environment (i.e faulty wiring, tripping on the carpet) but rather must be related to the performance of work.

What is a compensable injury? One might be an injury to a finger that was slammed in a filing cabinet drawer while filing papers for work. Another could be an injury to the foot due to a dropped heavy box (assuming the box was for work purposes and contained work materials). Proving how some of these injuries occurred in the home is a challenge because there is a lack of witnesses, and there is the inability to control the work environment to ensure adequate safety and housekeeping to prevent injuries. Creating policies for your employees to ensure they keep a professional, well-kept and safe work environment at home, as well as requiring them to report any work related injuries or illness immediately, is essential.

Strategic HR understands your concerns with the well-being of your employees. We offer expertise in health, safety and security to cover any need you may have from creating a communicable disease policy to developing a business resumption plan for handling unexpected emergencies. Please visit our Health, Safety & Security page for more information.

How to Handle Bed Bugs at Work

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HR Question:

An employee has indicated that she has bed bugs in her apartment building. How should we handle bed bugs at work? What responsibility do we have as an employer towards our other employees?

HR Answer:

The first step is to communicate with your employees measures that they can take to prevent exposure, or if exposure has occurred, minimize the risk that the bed bugs will be transported to work. Under the OSHA general duty standard, an employer has an obligation to provide a safe work environment free of hazards that may cause physical harm. If it is determined that there are bed bugs in your workplace, you should take immediate action to eradicate the infestation (typically by calling an exterminator). There may also be obligations of notification and recordkeeping if hazardous chemicals are used to rectify the situation. If an employee has indicated that he or she has been exposed, you can request that the employee stay home until the problem has been taken care of on their end. Keep in mind, an exempt employee may be required to be paid for time away from work that is less than a full day.

Every situation should be taken on its own merit. In addition to OSHA, there are a number of different issues that should be considered: Family and Medical Leave (if the employee has been exposed and needs to deal with the exposure), Workers’ Compensation (if the employee is exposed at work), and the Fair Labor Standards Act (determining if you have to pay for time missed from work). We do recommend consulting with an attorney before any adverse action is taken resulting from bed bug exposure.

You may find additional information on the Centers for Disease Control and Prevention website.

Strategic HR understands your concerns with the well-being of your employees. We offer expertise in health, safety, and security to cover any need you may have from analyzing your safety programs to making sure you are OSHA compliant to proactively ensuring employee wellness. Please visit our Health, Safety & Security page for more information on any of these services.