Q & A: Is it Just a Break, or Is it Leave?


Question Corner

Is it Just a Break, or Is it Leave?

By Jason R. Mau

Q: One of our employees has a diabetic condition that causes her pain throughout the day.  Her doctor has completed the Family and Medical Leave Act (FMLA) application and says she will need 15-minute breaks every two hours. This gives her two extra 15-minutes breaks in an eight-hour day.  Do these extra breaks count as intermittent FMLA leave?

A: The FMLA does permit intermittent leave for reduced schedules under certain circumstances.  If the extra 15 minute breaks are medically necessary for the treatment of employee’s serious health condition, then yes, they may be counted as intermittent FMLA leave.

Q: Does an employee have the right to have someone present at his termination and/or disciplinary action?

A: As long as there is no collective bargaining agreement or an alternative employment agreement to the contrary in place, presently the employer has no duty to allow an employee to have someone present at such an action.  I say presently because there have been times in the past, most recently, between about 2000 and 2004, that the National Labor Relations Board did extend this common union right to non-union employees as well, so it is entirely possible that this policy could change again in the future (though unlikely during the current administration).

Q: We suspect some of our employees are using their office phones to make excessive personal calls.  Are we allowed to record employees’ conversations over our telephone system?

A: Where the employee has not given prior consent to record or intercept his or her phone calls, federal law prohibits the recording of employees’ personal calls.  Yet, federal law does not prohibit employers from adopting a policy which bans personal calls.  Such a policy, though, is difficult to monitor for compliance (without the prior consent) as you would be required to stop listening/recording/monitoring as soon as the personal conversation begins. 

Q: When an employee is out on leave and is receiving workers’ compensation, may we allow her to use her paid time off (PTO) bank to make up the difference in wages between the percentage that workers’ comp pays and the balance of hours?

A: No law prohibits you from allowing your employee to supplement the wage replacement payments from her personal PTO bank, but be sure that this supplement option is equally available to all employees, regardless of the type of leave, to avoid the possibility of a discrimination claim.

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