Q & A: For Employees . . .


Question Corner

For Employees . . .

By Jason R. Mau

Q: We have a long-term employee who has recently been diagnosed with shingles. Is shingles covered under the Family and Medical Leave Act (FMLA)? It isn’t a chronic illness, but it is painful, and the side effects could extend for a month or longer.

A: Under the FMLA, an eligible employee shall be granted leave for one of four basic reasons: (1) the birth of a child, and care for the newborn child; (2) placement of a child for adoption or foster care, and to care for the newly place child; (3) care of an immediate family member with a serious health condition; and (4) when the employee is unable to work because of a serious health condition.  Thus, the standard here is a serious health condition, and is not limited to chronic illnesses.  A serious health condition is defined as an illness, injury, impairment, or physical or mental condition involving some period of incapacity, which under the Act includes incapacity that requires absence of more than three calendar days that involve the continuing treatment by, or supervision of, a health care provider; or that requires absence for multiple treatments for a condition that would likely result in incapacity of more than three days if left untreated.  Thus, the employee’s diagnosis of shingles might apply under one of these circumstances.  If there is any question, you are entitled to ask for a certification issued by a health care provider to confirm that such medical treatment is required. 

Q: If we hire a part-time exempt employee (20 hours per week) but he voluntarily works 25 hours a week, are we required to pay him for the five extra hours? In other words, are we required to pay him an hourly wage even though he is exempt?

A: As long as the exempt employee is being paid on a salary basis of at least $455 per week, there is no requirement that you must pay him anything besides the predetermined amount of compensation for any week he performs any work.

Q: We want to start sending our new-hire packets to employees’ homes before their start date and asking them to complete the I-9, W-4, and other local paperwork. Do we have to pay them for the time they spend completing the paperwork before their first day on the job?

A: Although the time spent is not during normal working hours, this activity still qualifies as hours worked that need to be compensated under the Fair Labor Standards Act (FLSA).  Since filling out the paperwork is job-related and mandatory, the new-hires will need to be paid for their time completing the paperwork.     

Q: We have two employees who live near each other and ran into each other over the weekend. One accused the other of talking about her behind her back and made threatening remarks such as, “I know where you live.” We have a no-tolerance policy for violence in the workplace, but do we have a right to investigate this incident since it happened on non-work time in a non-work setting?  

A: If the threatened employee reasonably believes that the threatening behavior may enter the workplace, you have a right to investigate the incident.  It is recommended that your violence in the workplace policy be updated to let employees know that they should notify the employer of such an incident.    

 Jason R. Mau is an attorney in the office of Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.