There are certain criteria that an employee must meet in order to be eligible for leave under the FMLA. For instance, if an employee or the employee’s spouse gives birth to a child, has complications associated with a pregnancy, or adopts or fosters a child, the employee qualifies for unpaid leave. In addition, if an employee or a family member experiences serious health problems, the employee can also take an unpaid leave of absence. An employee is also eligible for the leave if she needs to care for a spouse, child or parent who has a serious health condition.

Although employees are entitled to various protections under the FMLA, employers also enjoy certain rights, such as:

• An employer may request documentation from an employee’s physician that substantiates his or her request for leave due to a serious health condition
• An employer must receive adequate notice (usually 30 days) of an employee’s intention to take an unpaid leave of absence
• An employer can request additional information from an employee regarding his or her medical condition, including a second and third medical opinion and periodic updates regarding the employee’s medical status
• An employee must demonstrate that they will be able to perform their job duties upon return to work. If the employee is unable to do so, an employer may have the right to terminate his or her position

Failure to comply with the FMLA can subject employers to serious repercussions, such as penalties, fines and expensive lawsuits. The best way to avoid these issues – and to ensure compliance with the FMLA – is to contact our business employment law firm.

Federal Amendments

• Recently, the National Labor Relations Board, or NLRB, issued a new rule requiring all employers that are subject to its jurisdiction to provide written and electronic notice to employees of their rights under the National Labor Relations Act. However, a federal circuit court has temporarily suspended the new requirements until all outstanding issues have been resolved. There has been no deadline posted for when the new NLRB’s notice requirements will go into effect. For more information, go to https://www.nlrb.gov/poster.

• As of March 2011, the Equal Employment Opportunity Commission, or EEOC, issued regulations that expands employee rights and protections under the federal Americans with Disabilities Act (ADA). The new regulations also reduce the ability for employers to assert that certain conditions are unprotected under the ADA. For further information, go to https://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm.
• Employers in Florida can now find it easier to deny unemployment benefits to employees who were terminated due to misconduct. In June of 2011, the Florida Legislature amended the State’s unemployment laws (Fla. Stat. 443.036 et seq.) by broadening the definition of misconduct to include unacceptable behavior that occurs outside of the workplace and during regular business hours. All employers need to show is that the employee was terminated because he or she consciously disregarded an employer’s interest.
• For employers in Florida that have contracts with the State, they must now use a federal E-Verify program to check the eligibility of current and prospective employees. The E-Verify program is offered online by the Department of Homeland Security and is specifically designed to allow employers to check whether an employee or job application is legally authorized to work in the United States.

If you have any questions about how the recent federal and state employment laws will affect your business, you should contact our qualified employment litigation attorney.

Ever since 2009, the Obama administration has issued hundreds of millions of dollars in penalties and criminal fines to corporations that were caught hiring illegal aliens. For example, the ICE sentenced a Miami subcontractor to almost two years in federal prison for employing and concealing undocumented workers. Another business owner in Virginia received a 30-month sentence in federal prison for conspiring to harbor illegal aliens. Lastly, a furniture storeowner in California received hefty fines and criminal penalties for employing illegal workers and then rehiring them after the ICE completed its audit.

Despite the more recent crack-down on hiring undocumented workers, the Illegal Reform and Control Act (ICRA) has since 1986 made it illegal for an employer in the United States to knowingly employ and/or conceal illegal aliens or who fail to properly complete I-9 forms for employees. Under the ICRA, employers must act in good faith when hiring workers, but will not be subject to fines or criminal punishment if an employee provides convincing, but false documentation as to his or her citizenship status.