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Your Questions (Feb. 2019)
February 27, 2019
Parsons Behle & Latimer Legal Briefings


Q. We have two employees who are married and work at the same facility. They both have medical certifications for intermittent leave under the Family and Medical Leave Act (FMLA) from the same doctor. Our records show they always request intermittent leave at the same time. What can we do to curb this obvious abuse?

A. FMLA regulations require the spouses to comply with your usual and customary notice and procedural requirements for requesting leave, so you can still enforce your applicable policies where practicable.  If there are questions about the validity of the leave, or the doctor’s certification for the leave, you can require the employees to obtain, at your expense, a second certification from a health provider of your choice (with exceptions). If it differs from the original certification, you can seek a third binding opinion from a provider, chosen by you and the employees.  However, be careful in labeling the leave obvious abuse – there are a few circumstances highlighted in FMLA regulations that would allow for valid intermittent leave for both spouses. Anything done to discourage the spouses from taking valid leave could be found to be a prohibited act. 

Q. We have an employee with a contagious disease. What is our legal responsibility to our other employees for a matter like this? 

A. Under OSHA’s General Duty Clause, the employer has a duty to make the place of employment free from hazards that are likely to cause death or serious physical harm.  If the illness can be potentially harmful to the health of one or more employees, this duty extends directly to protecting your employees. Policies that are consistently enforced, that prevent the spread of communicable illnesses and diseases and that require employees to inform their employer of such a threat are encouraged by OSHA and the Centers for Disease Control and Prevention.  In fact, OSHA has employer guidelines for some industries, e.g. food service, to deal with certain communicable diseases and illnesses.  Keep in mind that depending on the specific circumstances, these employees may be eligible for FMLA leave, short term disability, a flexible work arrangement or other benefits under your company’s policies, or under any applicable employment contract or collective bargaining agreement.  Also, be careful not to release any privileged employee medical information.

Jason R. Mau is an attorney in the Boise office of Parsons Behle & Latimer.  He can be reached at 208-562-4898 or jmau@parsonsbehle.com

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