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Your Questions (July 2019)
July 31, 2019
Parsons Behle & Latimer Legal Briefings

We have an employee who is more than 60 years old who stated she is retiring this year, but she has not submitted a letter of resignation. We want to determine her plans. What is the best way to ask her about this?

A. Directly asking an employee about retirement plans may open the company to potential liability for an age discrimination claim. However, if you are specifically responding to statements she previously made, those risks are immediately reduced, provided the actions of the company following the inquiry continue to be lawful. Simply let her know you are confirming her previous statements and that you have not noticed a letter of resignation having been submitted yet.

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 received several complaints from employees about two coworkers who are having a hard time keeping their personal lives out of the workplace. The employees claim it is affecting their ability to concentrate and feel comfortable at work. One is going through a divorce and supposedly cries to his coworkers. The other is a recovering alcoholic who has frequent angry outbursts. How can we help the team but also help the two offenders?

A. These life events can certainly be very traumatic and their effects, when inflicted on other employees, are not conducive to a functional workplace. If not dealt with properly, you run the risk of allowing a hostile work environment to develop. If you truly seek a solution for both sides, begin by adopting a workplace conduct policy that clarifies professional conduct expected during work hours for all employees. For employees experiencing personal difficulties, provide professional counseling resources and ensure all employees are aware of resource availability.

Q. During a recent job interview, the candidate told us he is on probation. Are we allowed to ask why he is on probation since he voluntarily disclosed that status?

A. Federal law does not prohibit further inquiry, provided the information does not lead to the disparate treatment of a protected class, like race or national origin. If grounded in business necessity, an employer may justify an employment decision based solely on a conviction record if it reviews, on a case-by-case basis, the nature of the offense, the time that has passed since the conviction, the nature of the job sought and concludes that the conviction or arrest record indicates the candidate cannot be trusted to perform the duties of a position.

Q. For exempt staff who aren’t working a full 40-hour week — for example, they come in late every day and work only 35 hours — can we deduct that time from their salary or vacation leave?

A. The Fair Labor Standard Act (FLSA) requires an employer to compensate an exempt employee the predetermined weekly salary for every week in which any work is performed, so any deductions from salary here would result in the loss of FLSA exemptions for the exempt staff. Regarding a deduction from accrued vacation, as long as your vacation policy is considered a bona-fide benefits plan under the FLSA, the deduction would not be prohibited by law.

Q. We have an employee who is on military leave at least once per year. She has submitted a request for three years of military leave. Under current law, how long are we required to continue her benefits while on military leave?

A. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers of qualified individuals to continue an existing health plan for 24 months, or two years.

Q:  A newly-hired employee is not yet eligible for coverage under our group health plan. May we pay her COBRA coverage premium while she is in the waiting period?

A:  Paying a new hire’s COBRA coverage during an enrollment waiting period is not prohibited by law. To treat this as a non-taxable health expenditure, I would recommend either providing the employee with a check made directly to the COBRA administrator or reimburse the employee upon receipt of proof of payment. 

Q. One of our employees is pregnant. Her doctor has cleared her for work, but we want her to stop working two weeks before her due date. Can we make her go on maternity leave early?

A. No. The Pregnancy Discrimination Act of 1978 prohibits an employer from forcing a pregnant woman, who is able to do her job, into taking early maternity leave.

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

To contact a Parsons Behle & Latimer employment and labor attorney in Utah, send an email to Department Chair Christina Jepson at or call 801-532-1234.


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