1. If a state has its own family and medical leave act, it is only necessary that an employer apply the provisions of that state law to all employees working throughout the state, as the federal law is preempted.
FALSE. An employer is required to apply more favorable state or local law, and nothing in the federal law "preempts" the requirement to follow more favorable state law. Wisconsin, of course, has a law that is , in many ways more favorable to employees that the federal FMLA.
2. If an employee has used all of the FMLA leave she is entitled to in a given period of time, she can be terminated if the employer has a consistent policy of terminating employees after they take 12 weeks of leave.
FALSE. This is probably the biggest mistake that an employer can make in administering their leave policies. Employees who have used up, or are ineligible for FMLA leave other reasons, MUST be considered for leave under ADA or state disability laws if they are a qualified individual with a disability as defined in ADA or a comparable state law.
3. If an employee is not yet eligible for FMLA because they have not worked enough hours, they can be denied leave under ADA as well.
FALSE. For the same reason as 2.
4. If two employees who are working for the same employer either have a baby through childbirth or adopt a child, they can be required to split the 12 weeks of Federal FMLA afforded for such an event.
TRUE. There is a provision of the Federal FMLA that allows this. It may not be the case under state law which should be checked before requiring a split.
5. While an employee is on FMLA leave an employer must cover the cost of health insurance for the employee if they cannot afford it because FMLA leave is otherwise unpaid.
FALSE. The leave is unpaid and that includes the cost of health insurance and other paid benefits during the leave. Again state law, should be examined.
6. Dermatitis is considered a "serious health condition" under the federal FMLA.
TRUE and FALSE. It may or may not be. It depends on whether the specific condition involved meets the definition of a "serious health condition" which is set forth in the FMLA: 1) any period of incapacity from a condition requiring inpatient care, including recovery from the condition, 2) incapacity for more than three consecutive work and non-work days....., 3) absences to treat chronic or permanent conditions. Of course, a serious skin rash might meet this definition, while it might not if it is just a short term reaction to, say poison ivy that remedies itself in hours.
7. An employee who falsifies his required certification form for FMLA can not be terminated because this would still be considered retaliation for the exercise of FMLA rights.
FALSE. The employee may be terminated for such a falsification if you can prove by a preponderance of the evidence that this was your motive in making the termination decision. Having a policy and applying it on a consistent basis banning all material falsification in the workplace is helpful in proving such your motive on this point.
8. An employer is prohibited from retroactively marking leave as FMLA.
FALSE. You can, and you should, retroactively designate leave as FMLA where appropriate. A DOL regulation barring this practice was struck in the Supreme Court's Ragsdale decision.
9. It is improper to count time off on workers compensation leave as FMLA leave.
FALSE. It is entirely proper to do so, and it is a "best practice" to do so.
10. It is entirely proper to assess points under a No Fault Attendance Policy for days that an employee is absent, if the employees are put on notice that this will occur.
FALSE. This is a big mistake. The early case under the FMLA and the earlier enacted Wisconsin FMLA exposed this practice and declared it to be interference with protected FMLA rights.
