Q & A: What Would Happen if Our Employee Were To . . . ?


Question Corner

What Would Happen if Our Employee Were to . . . ?

By Jason R. Mau

Q: An employee made a comment to a supervisor about possibly needing leave, and it sounds like the leave might be covered by the Family and Medical Leave Act (FMLA). Does the employee have to officially request FMLA leave, or is the supervisor required to offer it if the employee presents a situation that is potentially FMLA-eligible?

A: Unless you have already provided this employee with FMLA leave for a similar qualifying reason, the notice regulations related to foreseeable FMLA leave only require the employee give some verbal notice “sufficient to make the employer aware that the employee needs FMLA-qualifying leave.”  Otherwise, if you have provided leave for this reason previously, the employee would be required to specifically reference the qualifying reason and need for FMLA leave. 

Q: We currently require employees to simply enter the total number of hours they work each day, not their specific start and stop times. Is this method of timekeeping OK?

A: Under the Fair Labor Standards Act (FLSA) any method of timekeeping is acceptable, as long as the method produces complete and accurate records.

Q: We have an employee who used more than she contributed to her flexible spending account (FSA) while she was on FMLA an  personal leave. The plan year is over, and she is now back from leave. Can we ask her to contribute the balance at this point?

A: Unless your company’s specific policies relating to all forms of leave direct otherwise, and as long as the contributions are not related to coverage under a group health plan that is required to be maintained during leave under FMLA, you are allowed to recover the employee’s rightful share of costs advanced by the plan.

Q: Is it legal to have a policy requiring employees to speak in English when talking with other employees and around customers unless there is a customer who doesn't speak English?

A: Typically, the Equal Employment Opportunity Commission views such policies as a violation of employment nondiscrimination laws.  However, the EEOC does recognize circumstances where a narrowly-tailored English-only policy would be considered reasonably necessary in the workplace if adopted for nondiscriminatory reasons—namely for:

  • communications with customers or coworkers who only speak English;
  • purposes related to monitoring performance by a supervisor who only speaks English;
  • emergencies or situations which require employees to speak a common language to promote safety; and
  • promotion of efficiency in cooperative work assignments.

To implement such a policy, the employer is required to inform all affected employees of the general circumstances where speaking English is required and consequences related to the rule. 

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.