Can you ask the previous employer if they would hire them again?

Absolutely. That’s actually one of the questions you can ask -- and many companies will answer. I would recommend you always ask that question when checking references.

A couple employees seem to have frequent "issues” and call out often. At what point can we ask for proof?

The key here is consistency. You should have guidelines spelled out in your policy or handbook that clearly state when employees will need to present proof, such as doctor’s note. Some businesses ask for a note, for example, if the absence is three days or longer. But consistency is key to staying out of legal trouble. You need to treat similar employee the same in similar situations.

Is it legal to track salary employees’ hours? We want them to have 40 working hours which doesn’t include lunch.

It is legal to track salary or exempt employee hours. It’s also legal to require them to have a certain number of working hours … whether that’s 40, 45, 50 or more. But a word of caution … I would be concerned with employee morale and employee turnover. Also, although it is acceptable to track exempt employees’ time, it is, in most cases, not acceptable to deduct from their pay for hours not worked.

Where does pregnancy fit in under FMLA/ADA?

Pregnancy is covered under various state and federal laws. And these rights can apply to both employees and applicants. These rights may include pregnancy leave, pregnancy accommodation, and protection from employment discrimination based on being pregnant. The Family and Medical Leave Act requires covered businesses -- typically those with 50 or more employees -- to grant up to 12 weeks of protected leave to employees for the birth or adoption of a child. For businesses with less than 50 employees you typically do not have to give leave though, unless state or local law requires you to do so – so it’s important to check state and local laws.

How do you know what is legal to ask on a job application or in an interview?

My answer here as an HR Professional is that you should be using state-specific job applications that are attorney-written or approved and of course up-to-date and compliant. Both federal, state, and even local laws are frequently changing, so it’s a big task to stay on top of all the laws, and not only that but there is no one-stop resource for you to find the changing laws. If you are using a state-specific attorney-approved job application, then you should be confident you are asking the legal questions on your job application. If you’re not using a state-specific job application, I would suggest you run the application you are using by an attorney to see if it is compliant with your state.

As for interview questions, again, I mentioned in the webinar that you want to ask open-ended questions, so you can learn about the candidate’s experience. And you should stick to questions that are related to the job they are applying for. Minimize small talk, because this could easily put your company into hot water, depending on the conversation that occurs, so it’s best to steer clear of any talk that is not job related. And questions that are absolutely off-limits are any questions that would provide answers from the candidate, providing information that they are part of a protected characteristic. So any questions about race, color, religion, national origin, age, sex and disability should be 100% avoided. Sometimes you just need to look at how you are asking the question. As an example you should never ask: are there any religious holidays you can’t work – but instead ask, if you are hired can you meet the attendance requirements. So you can still gather the information you need about the candidate, you just need to make sure you are gathering it legally.

How many employees do you need to have in your company in order to offer FMLA? And does this same rule apply to non-profit organizations?

FMLA or the Family Medical Leave Act, applies to companies that have 50 or more employees on their payroll – including part-timers, temporary employees and employees that even may be currently on leave, in 20 or more workweeks (not necessarily consecutive) in the current or preceding year. The FMLA also applies to public agencies, including state, local and federal employers, and local education agencies – regardless of the number of employees. And as for the part of the question regarding non-profit organizations, yes, the same rules apply to them.

If an employee only works part-time do they still get the 12 weeks of leave from FMLA if our company offers it and they qualify?

Whether or not your part-time employee will qualify for FMLA leave depends upon how many hours the employee works during the year. You should calculate the number of hours your part-time employee worked within the last year before requesting leave. You are not required to provide your part-time employee with FMLA leave unless they worked at least 1,250 hours within the 52-week period before requesting leave.

What if an employer cannot meet a reasonable accommodation request, can they refuse?

The answer here is yes, but the employer has to be able to prove that the reasonable accommodation would cause undue hardship on the company. Again, as I mentioned in the webinar, when it comes to proving that frequent, regular time off would create an undue hardship for your business, documentation is critical. It’s very important to keep close track of your employees’ workloads to verify they’re incapable of picking up extra tasks. You should also gather your financial records to show that hiring a temporary worker or contractor would be too expensive for your business. And if the job in question requires technical skills, outline the essential functions and job description to validate that none of your current workers can perform the tasks and finding a temporary worker would be difficult.

And another way you can prove that regular absences would cause undue hardship is if reasonable, regular attendance is considered an essential job function. So if the requested time off would prevent an employee from performing the job’s essential functions and there is not another possible accommodation, such as telework, that would allow him or her to perform the job, the employee is not entitled to ADA protection. It’s important to know that under the ADA, a disabled employee still must do the job adequately or be subject to discipline just like anyone else. And the ADA does allow employers to explore different accommodations, and the accommodation an employer chooses doesn’t have to be the employee’s first choice. So working from home or reassigning certain job tasks, for example, may be considered a reasonable accommodation – and if it would work out better for you than an employee frequently missing work entirely, you can offer that accommodation over what the employee may have suggested.

Can HR ask for further information from an employee’s doctor if they are requesting FMLA or a request for an accommodation?

Generally, you should not contact an employee’s doctor unless the medical certification is incomplete or insufficient. A medical certification is "incomplete" if an entry on the certification form is left blank. A certification is “insufficient” if the information provided is vague, ambiguous, or non-responsive. You should notify employees in writing as soon as possible after receiving a certification that you believe it is incomplete or insufficient.

Employees must be given seven (7) calendar days (unless the circumstances require additional time) to cure deficiencies if their certification is incomplete or insufficient. You must advise the employee of the consequences of failing to provide adequate certification, including the denial of FMLA leave until the required certification is provided. If you receive a certification that is incomplete or insufficient, you should not immediately contact an employee’s health care provider. Instead, you must give the employee the opportunity to cure the deficiencies, as discussed above. Once you have received a complete and sufficient certification from an employee, you may request additional information from an employee’s health care provider, but only under two circumstances:

1. Authentication. You may ask a health care provider to “authenticate” the certification by requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document.
2. Clarification. If you can’t read the handwriting on a certification or you don’t understand the meaning of a response, you may request a “clarification” from the health care provider. However, you cannot request information beyond that required by the certification form.

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