Employee-Leasing New York - Thepspgroup.com

Q1. What is Payroll?
Payroll is one of a series of accounting transactions dealing with the process of paying employees for services rendered, after processing of the various requirements for withholding of money from the employee for payment of payroll taxes insurance premiums, employee benefits, garnishments and other deductions.

Q2. What is Payroll Tax?
Payroll tax generally refers to a tax which employers are required to withhold from employees paychecks. In the United States , employers are required to withhold federal income tax, social security tax and Medicare tax. Together, the social security and Medicare are known as the Fica tax. In some places employers may be required to withhold state income tax, or even city income tax.

Q3. What is a Payroll Check?
A check issued in payment of wages or salary.

Q4. What is a Payroll Register?
This accounting document provides a summary of the payroll information for a pay period. The payroll register will list all employees who were paid during the pay period, along with their various deductions and net pay.

Q5. What is Net Pay?
Net pay is what the employee takes home.

Q6. What are Disposable Earnings?
Disposable earnings are gross wages less deductions require by federal, state or local law.

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Q7. What is Fica?
Fica is an acronym for the federal insurance contributions act, which is the name of the legislation that requires employees to withheld taxes from your paycheck to cover certain government programs.

Q8. What is Suta?
Suta is state unemployment tax, is a required tax paid by employers and employees for some states.

Q9. What is SDI?
SDI is, State Disability Insurance.

Q10. What is 401(K) Plan?
The 401(K) plan is a type of retirement plan available in the United States . 401(K) is an employer-sponsored qualified retirement savings plan. It allows you to save for your retirement while deferring any immediate income taxes on the money you save or their respective earnings until withdrawn.

Q11. How does a 401(K) plan work?
You are given the option of selecting the funds you chose to invest in from lists of funds provided in the 401(k) plan. The company will provide you with a list of the funds they use for their plan and give you the opportunity to decide which funds you want to invest in and the percentage to invest. The employee contribution will automatically be deducted from your pay check before taxes. Each employee can contribute up to a certain percentage of their pay into a 401(k) plan and some employers will match a percentage of your contributions. Your contributions along with any matched contributions are then invested into your selected funds. These funds will grow without being taxed and can be withdrawn after you reach 59½. At this time you must pay income tax on the withdrawn funds. There are also ways you can withdraw your funds before reaching the age 59½ but these withdrawals usually require a penalty along with payment of taxes.

Q12. What is Pretax?
Existing before tax deductions.

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Q13. What is After tax?
Relating to or being that which remains after payment, especially of income taxes, after tax profit.

Q14. Are tips taxed?
If an employee receives and declares $20.00 or more in tips in a calendar month, employers must withhold federal income, social security, and Medicare taxes on tips.

Q15. What needs to be filled out for a new hire?
A completed W-4 and I-9 must be filled out with copies of documents attached. For example: a copy of a driver’s license and social security card.

Q16. How can the exemptions be changed?
A new W-4 must be filled out.

Q17. What is required to set up an employee for direct deposit?
Four pieces of information are needed to set up a direct deposit for an employee.

The employees bank routing number

The account number

The type of account into which the payroll will be deposited (checking/savings, IRA, etc.)

A copy of a void check.

Q18. Does our company process direct deposit for IRA accounts?
As long as the employee has an account number and routing number it can be done. The employee needs to be aware of the reprecautions, there is a limit amount which they cannot go over. If they go over the amount they can be penalized. The employee needs to speak to his or her accountant, financial institution or broker. We will need a letter stating that they are aware of the reprecautions.

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Q19. What if my funds are not available to me on pay date?
Employee should first call their bank to verify if it’s pending and has not been posted. If it’s not pending then the employee should give us a call and we will handle the situation A.S.A.P.

Q20. What if an employee lost or never received his or her check?
We will need to be notified and we will verify if the check has been cashed. Once it’s verified that the check has not been cashed, we will place a stop payment and reissue a new check.

Q21. How can an employee change his or her exemptions?
A new W-4 must be filled out.

Q22. If an employee has a change of status or address what actions need to be taken?
You must contact payroll provider and send a new W-4.

Q23. When must overtime be paid?
It varies for some states and unions. For NY employees overtime should be paid for any hours physically worked over 40 hours per workweek.

Q24. Does overtime need to be paid for exempt employees?
The law does not require any overtime pay for exempt employees, it is up to the company if they want to pay the employee extra for working extra hours.

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Q25. Is a company vehicle taxable?
It depends. If it is used for personal use, then it should be taxable. However, if it is used only for business, it should not be taxable.

Q26. Why does my paycheck not match the calculations?
We recommend you go to your payroll dept and obtain the numbers they are using. Most times the system has not been update at the time of the payroll. And will calculate on your following paycheck.

Q27. Where do you get the percentages for the withholdings?
We obtain the formulas directly from the IRS.

Q28. What is minimum wage?
Right now minimum wage is $6.75. Come Jan 1st 2007 it will be going up to $7.15 an hour.

Q29. Do I get paid for time off?
The Fair Labor Standard Act does not require employers to give employees paid time off for holidays (like Christmas and Independence Day) or vacation, nor are employers required to pay workers for time off for illness or personal reasons. But most companies do have such polices that you can obtain.

Q30. What do I do if my paycheck is lost, stolen or damaged?
Please contact us immediately and we will investigate and let you know the resolution. We will first check with the bank and make sure the check has not been cashed. And once that is done, we will proceed to issue a new check.

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Q31. What do I do if my paycheck is incorrect?
Please contact us immediately. We will investigate the problem and let you know the resolution.

Q32. Can I set up a direct deposit to more than one bank.
Yes, you can split your paycheck between multiple accounts.

Q33. What do I do to cancel or change my direct deposit?
Please submit a direct deposit cancellation form and a copy of a voided check with a signed direct deposit form in order to change or cancel your direct deposit.

Q34. When are my funds available to me?
Your money is available by 8 am on payday.

Q35. What do I need to bring to my 1st day of work?
You need proof of your Identity and verify you employment eligibility. Check the I-9 form for valid documents.

Q36. What do I need to fill out to get myself on payroll?
Your Human Resource Dept will give you a new hire packet. Please make sure you fill everything out and it is signed. Once you return this packet, then the Payroll Department will be able to activate you.

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Q37. I do my payroll on my own computer, is that better than having a payroll service?
Many of our clients have found that we can handle their payroll needs far less expensively than they can do it themselves, especially when you consider the cost of buying checks, employing knowledgeable payroll staff, and obtaining annual software updates needed to keep current on changing tax laws and rates.

Q38. One or more of my employees have no federal withholdings taken from their checks, is this permitted?
Federal income tax withholdings are determined by a specific formula including the amount of the federal income tax withheld from any employee's total income. This is based on income amount, salary, marital status, payroll period, and withholding allowance.

Q39. Can my expenses be run through the system?
The employee expenses can be dealt with through the normal payroll.

Q40. Do you offer online payroll?
Yes, we will set you up with a password and walk you through it step by step.

Q41. How can I submit my payroll information?
You can submit employee information by phone, email, fax in a time sheet or by using our web payroll.

Q42. What support does PSP provide to its clients?
We have a strong commitment of superior level of service and support that continually meets your needs and addresses your issues. The pay techs at PSP will be happy to assist you with any payroll information or questions you may have.

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Q43. Will I have one person or multiple people doing my payroll?
We will assign one person to be your payroll tech. She/he will be the one taking care of your payroll needs. In case your tech is not available there is always some one to assist you.

Q44. How are union payrolls done?
Every union is done differently, we will set up a program and apply the appropriate union deductions accordingly.

Q45. How should I decide how much to pay my employees?
When deciding how much to pay employees it is a good idea to use the salaries of comparable positions at your competitors. Another helpful salary determinant is to consider the value of the position.

Q46. What is a PEO and how does it affect my payroll?
A professional employer organization provides administrative services as they relate to employer responsibilities regarding its employees. The PEO, like the ASO model, does not affect the way your payroll is processed. PEO, in terms of payroll, simply means that your payroll taxes are remitted under the PEO’s federal ID #. PEO’s handle payroll taxes, workers comp ins., employee benefits, and all aspects of Human Resources.

Q47. What is a co-employment?
Co-employment is a relationship between PSP and the client in which PSP is responsible for handling the requirements of the IRS, Social Security, and unemployment and more.

PSP becomes the employer of record. as it relates to W2s, issuing payroll checks and working with compliance and regulatory matters.

Q48. In co-employment, who controls my employees?
Each client company maintains control of the employees. It is still the responsibility of the client to hire, direct and guide employees on a daily basis.

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Q49. What is ASO and how does it affect my payroll?
Administrative Services Organization. ASOs handle: payroll, taxes, workers comp insurance, employee benefits management, and all aspects of Human Resources. The ASO model for payroll simply means that payroll taxes are paid using the client’s federal ID #. It doesn’t effect your payroll.

Q50. Does ASO mean co-employment?
Unlike PEO, in ASO you are under our tax ID number. There is no co-employment when using our ASO service.

Human Resources Q&A

Q1. What is an employee handbook?
The handbook summarizes company behavior requirements, outlines benefits offered and also gives tools that can be used to enforce disciplinary action if needed. An employee handbook is a written summary of company policies, which that company gives to its employees. Employers design handbooks to answer employees’ questions before employees ask them and to advise them on company policies that an employee might have never considered.

Q2. What are my options if I discover an employee is under the influence of drugs or alcohol?
Depending on what your policy states for your company, law enforcement should be contacted immediately and a termination request should be in full effect.

Q3. Can I issue a mandatory drug test on any one of my employees?
Unless otherwise stated before hire, drug testing can only be permitted with the consent of the employee to insure privacy.

Q4. What is the procedure to terminate an employee?
Before you approach the employee, prepare what you will say to the employee. How you plan on telling your employee of their termination is important. Be sure the reasons for their termination are clear, direct and honest. Always bring the employee into a private area to have the conversation. Privacy and respect are vital with this situation.

Q5. What is the difference between an “excused” and “unexcused” absence?
An “excused” absence is where the employer is notified ahead of time that the day will be taken off. An “unexcused” absence is where the employee did not have any accrued time to leave. In these cases, disciplinary action is required.

Q6. What are the steps to take if it is discovered that there is discrimination and harassment taking place in the workplace?
First and foremost, everything must be documented in writing. This ensures if any investigation must take place, every piece of information has been taken down and documented correctly at the time it took place. This also protects the company if any further questioning is needed. When it is brought to your attention, please take a formal statement from your employee. All documents should be signed by you and the employee. All the information must be made strictly confidential and the harassment should then be put under investigation.

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Q7. What are the steps to be taken in employee discipline?
In most cases, a verbal warning is first given. This warning should then be documented and signed by the employee showing that he/she has been made aware of the first attempt in solving the issue. After a verbal warning, a written warning is to be issued. This too must be signed by the employee and employer. The final step is a formal notice of termination.

Q8. What do I do if I discover one of my employees has been or is being sexually harassed?
When it is brought to your attention, please take a formal statement from your employee. All documents should be signed by you and the employee. All the information must be made strictly confidential and the harassment should then be put under investigation.

Q9. Is a "serious health condition" the same thing as a "disability"?
No. The FMLA and its implementing regulations define "serious health condition" broadly to include any illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care (i.e., an overnight stay), including any period of incapacity or any subsequent treatment in connection with the inpatient care; or (2) "continuing treatment" by a health care provider. Thus, the FMLA may cover temporary conditions such as a broken leg, as well as a chronic condition like diabetes.

The ADA, in contrast, generally is not intended to cover temporary medical conditions. Accordingly, a person is disabled under the ADA only if (1) he has a physical or mental impairment; and (2) that impairment substantially limits a major life activity, such as walking, seeing, hearing, speaking, and breathing. Generally, most disabilities will qualify as serious health conditions under the FMLA. For example, cancer can be both a serious health condition under the FMLA and a disability under the ADA. However, not all serious health conditions will also be disabilities.

Q10. What is the ADA act?
ADA stands for “Americans with Disabilities Act.” This act guarantees equal opportunity for individuals with disabilities in the workplace.

Q11. How can having a broader diversity in the workplace benefit the company?
Diversity can help create an awareness of everyone’s different backgrounds and personalities. This is also helpful in teaching and learning from others.

Q12. Is there a law that enforces antidiscrimination for any type of company?
Title VII of the Civil Rights Act of 1964 prohibits discrimination because of race, color, religion, sex and national origin.

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Q13. What is the equal pay act?
This act prohibits discrimination between men and women based on how their range of pay will be determined.

Q14. If one of my employees accuses me or the company of discrimination, should I immediately terminate the person in order to avoid the situation?
Employers can not fire, demote or penalize an employee for making such a claim. This is against the law.

Q15. What is sexual harassment?
Sexual harassment is unwelcome behavior from either a coworker or advisor that interferes with a daily work routine. It can cause a hostile and uncomfortable work environment for any person involved.

Q16. Does a company have the right to control an employee’s drinking or behavior when he or she is not working?
While you cannot control your employee’s off duty behavior, you can take disciplinary action for off –duty employees if it affects an employee’s ability to do his or her job properly during working hours. You must have documentation and proof to proceed.

Q17. What is the first thing I should do if one of my employees is ill or injured due to the job?
It must be immediately reported to the supervisor and the workers compensation forms be submitted as soon as possible. If necessary, you, the employer, must provide medical help and the employee must seek any medical attention right away.

Q18. One of my workers has been injured on the job; what is the first thing to do in this situation?
First thing that must be done is to make sure the person/persons seek any necessary medical attention as soon as possible. Proper documentation needs to be filled out specifying exactly what had occurred at the time of the injury. This documentation is then submitted to your workers compensation carrier.

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Q19. Is there a discipline step by step process?
Depending on how your company operates, these are the guidelines you should follow: 1) Oral warning or counseling 2) First written warning 3) Second written warning 4) Suspension (optional) 5) Termination

Q20. What exactly is a background check?
Background checks are investigations into a person’s, vocational, and/or educational past. Companies use background checks to verify that employees are who they say they are and do not have anything in their background that would hinder the company . There are actually two types of background checks. One is where you contact former employers of that person and another one is a criminal background check.

Q21. Do background checks have to be done for all employees?
Some state laws require that background checks are done for certain types of jobs such as healthcare and childcare. If this is the case, make sure the background check is conducted in compliance with your state law.

Q22. What is necessary to perform a background check?
You will need to have the applicant sign a General Release and Authorization to start the process. We need the applicant’s full name, social security number, date of birth and educational and employment history. Usually most of this information can be found on the employment application.

Q23. Why do we need to provide PSP with all this paperwork?
Here at PSP we keep on file an Employee Information Report and a Workers Compensation Insurance Information and Employee Waiver. We also keep a file on IRS W-4 Forms, a completed and signed U.S. Department of Justice Employment Eligibility Verification (I-9) as well as photocopies of supporting documentation for the I-9 form to be IRS and Department of Homeland Security compliant.

Q24. What is “USERRA”?
Recent regulations created by the United States Department of Labor (the “DOL”) implementing the Uniformed Services Employment Rights and Reemployment Act (“USERRA”). USERRA provides extensive rights to employees who are forced to leave their employment position for service in the uniformed services. Due to the recent expansion in military activity around the world, employers of every size and type should become familiar with USERRA and its specific requirements.

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Q25. Does a separation agreement also release our company from FMLA claims?
Employers frequently ask departing employees to sign separation agreements releasing the employer from any and all claims that the departing employee may have, in return for severance pay or some other form of consideration. However, the Fourth Circuit Court of Appeals now cautions that even if a separation agreement provides for a release of all claims, this does not prevent a former employee from asserting a claim under the Family and Medical Leave Act (“FMLA”).

Q26. Is there a mandatory limit on how long an employee can be hired in a temporary position?
A current employee cannot be assigned temporary duties for more than six months in a 12-month period; however, there is no set limit on how long an employee can be hired for a temporary position. However, as the name implies, a temporary position should be for a defined, limited period of time.

Q27. Because of FMLA employees can take up to 12 weeks of leave after the birth of a child. Do the employees have to take all the leave at once or can it be spread out?
According to the Family and Medical Leave Act of 1993, FMLA leave may be taken “intermittently or on a reduced leave schedule” under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason (e.g. the birth of a child). A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek or workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time. The employee may take leave any time during the 12-month period following the birth of a child. There are, however, some restrictions: When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. If the employee plans to take intermittent leave or to switch to a reduced leave schedule, they must arrange this before the child is born.

Q28. Employees are entitled to paid time off to vote, but what about run-off elections? Are employees entitled to paid time off to vote in run-off elections?
There is no distinction or limitation made in State statutes regarding the type of election.

Q29. If family medical leave is taken for the birth of a child, or for placement of a child for adoption or foster care, when must the leave be exhausted?
An employee's entitlement to family medical leave for a birth or placement for adoption or foster care must be exhausted at the end of the 12-month period beginning on the date of the birth or placement.

Q30. If an employee has exhausted his sick leave allowance, may the employee use accrued annual leave for sickness?
It is reasonable that if an employee is off work due to sickness that sick leave would be used first. Upon exhausting sick leave, however, the employee may use annual leave or any other type of available accrued leave for sickness.

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Q31. What is Family and Medical Leave Act and how does it differ from sick leave?
The Family and Medical Leave Act (FMLA) of 1993 provides eligible employees up to 12 work weeks (480 hours) of paid or unpaid job-protected leave during any 12-month period for one or more of the following qualifying events:

A serious personal health condition that prevents an employee from performing his or her job
Care for a child during the first year following birth, adoption or foster care placement
Care for a family member who has a serious health condition

While on FMLA leave, employees are entitled to benefits; however, their benefits are subject to changes that occur within the group plan while the individual is on leave. Employees may take FMLA as paid or unpaid leave. Employees on paid leave may use earned sick, vacation or personal leave and they will continue to have benefit contributions deducted from their pay. In all cases, FMLA must be approved and requests for paid and unpaid leave must meet the appropriate policy conditions. Sick leave is accrued paid leave that employees earn and can use. Sick leave may be used in the event of personal illness or injury, to care for an immediate family member, or in the case of the death of an immediate family member.

Q32. Why is it necessary to perform background checks?
Most professionals know that reference checking and work history verification are fundamental steps in applicant screening. What many may not realize is that these simple steps not only weed out bad candidates but also may help protect the employer from negligent hiring exposure if there is an incident of workplace misconduct or violence later. Unfortunately, you may be tempted to skip these checks in order to make a quick hiring decision. However, the consequences of omitting them can be devastating and range from huge monetary settlements and bad publicity to, in the worst case scenarios, loss of life. You can help prevent these problems and limit your organization’s exposure by taking a few basic precautions in checking candidate backgrounds. It also helps to limit Negligent Hiring Claims.

Q33. What is Negligent Hiring?
The legal theory of Negligent Hiring is based on the premise that an employer can be liable for the violent acts or wrongdoings of its employees if it did not investigate adequately their backgrounds or qualifications. Negligent hiring claims often involve employees both who are in a position to pose a threat of injury to the public (such as a driver or delivery person) or who subsequently attack another employee or an outside third party (such as a client or customer). The employer’s legal liability typically depends on the circumstances leading up to the employee’s misconduct and on whether the employee was acting within the scope of his employment duties.

Q34. Why do we need an employee handbook?
An employee handbook puts everyone on the same page—it gives all employees access to company policies and thus serves as a written standard to which you can return. If the company has to deal with discipline issues or vacation time questions, it can refer to the official company policy rather than dealing with each situation on a case-by-case basis. In addition, an employee handbook serves as an easy answer source for employee questions. Managers will spend less time dealing with employee questions when the employees learn that the answers are in their handbook. Employees are also unable to make the “I didn’t know” excuse—by putting answers in the employee handbook, the company is placing responsibility in the hands of the employee. An employee handbook also protects a company from lawsuits and other legal headaches. For example, a company that outlines a sexual harassment policy in its handbook cannot be charged later with permitting sexual harassment. The courts can review the employee handbook to discern the company’s written policy on sexual harassment or any other issue. Even if your company is a small business, an employee handbook both protects you and streamlines your company’s operations. It outlines your expectations of your employees and details what they can expect from you.

Q35. Does ADA protect insubordinate employees?
An employer may not terminate a disabled employee for requesting an accommodation under the ADA. However, if that employee also is rude and insulting, the employer can discharge the employee for his insubordinate behavior. The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to accommodate disabled employees. Typical accommodations include providing assistive devices or making other accommodations in the workplace to allow the employee to perform his job. This duty to accommodate, however, does not extend to allowing disabled employees to be abusive or rude. An employer may discipline and even terminate a disabled employee as long as the discipline is not related to the disability.

Q36. Is a disabled employee always eligible for FMLA leave?
No. The employee must meet the FMLA’s eligibility requirements. An employee is eligible for FMLA leave if: (1) he has been employed for at least 12 months (not necessarily consecutively); (2) he has worked at least 1,250 hours in the previous consecutive 12-month period; and (3) he works at a work site that is within 75 miles of 50 or more employees. Thus, for instance, an employee who becomes disabled and has worked for only four months will not be eligible for FMLA leave. However, he may be entitled to take leave as an accommodation under the ADA.

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Q37. When will both the FMLA and ADA affect a leave?
The ADA applies to employers with 15 or more employees, and the FMLA applies to private employers with 50 or more employees and to all public agencies and schools. Therefore, if it is covered by the FMLA, the employer generally also will be covered by the ADA and must comply with both laws. These laws have different purposes, but both can affect an employee’s need for leave. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of job-protected leave every year for various family and medical reasons. In particular, an eligible employee can take a leave if he is unable to work because of a serious health condition. On the other hand, the ADA prohibits discrimination against qualified disabled individuals and requires employers to provide accommodations that allow these individuals to perform the essential functions of their jobs. According to the EEOC and several courts, a leave of absence may be a reasonable accommodation if taking the leave would allow the disabled employee to return to work and perform the essential functions of the job. As a practical matter, these laws will overlap when an employee takes a leave of absence for a FMLA serious health condition that also qualifies as a disability under the ADA. For example, if an employee who has been on FMLA leave for 12 weeks cannot return to work because of a continuing serious health condition, the condition also may be a disability. Therefore, the employer may have to accommodate him by granting additional leave beyond the 12 weeks of FMLA entitlement. Alternatively, if an employee requests a 6-week leave as an accommodation to seek treatment for a disability, that time off also could be counted as FMLA leave for a serious health condition if the employee meets the FMLA eligibility requirements.

Q38. Is a "serious health condition" the same thing as a "disability"?
No. The FMLA and its implementing regulations define "serious health condition" broadly to include any illness, injury, impairment, or physical or mental condition that involves: (1) inpatient care (i.e., an overnight stay), including any period of incapacity or any subsequent treatment in connection with the inpatient care; or (2) "continuing treatment" by a health care provider. Thus, the FMLA may cover temporary conditions such as a broken leg, as well as a chronic condition like diabetes.

The ADA, in contrast, generally is not intended to cover temporary medical conditions. Accordingly, a person is disabled under the ADA only if (1) he has a physical or mental impairment; and (2) that impairment substantially limits a major life activity, such as walking, seeing, hearing, speaking, and breathing. Generally, most disabilities will qualify as serious health conditions under the FMLA. For example, cancer can be both a serious health condition under the FMLA and a disability under the ADA. However, not all serious health conditions will also be disabilities.

Q39. Can you require medical certification to determine coverage under the ADA and FMLA?
Yes. Both the ADA and the FMLA allow employers to make limited medical inquiries. Under the ADA, you may make medical inquiries or require medical examinations only if the inquiry or examination is job-related and consistent with business necessity. Thus, if the employee requests leave as an accommodation, you may ask for medical documentation of the existence of the disability and the need for the leave.

The FMLA also limits the medical information an employer may require. It allows you to require medical certification of the serious health condition and the need for leave. However, the certification may relate only to the serious health condition that is causing the need for leave. Therefore, you may not require the employee to answer questions about conditions unrelated to the stated reason for the leave.

Thus, if you comply with the FMLA medical certification requirements, you also generally will comply with the ADA’s limits on medical information.

Q40. How much total leave do you have to give?
The FMLA requires employers to give up to a total of 12 weeks of leave in any 12-month period. However, you may have a continuing obligation under the ADA to provide further leave if the employee also is disabled and the leave is considered a reasonable accommodation. The ADA does not place any specific time limit on the amount of leave a disabled employee may take as a reasonable accommodation. As a general rule, however, these leaves cannot be indefinite.

Q41. Do you have to continue to pay for health insurance during a disability leave?
If the disabled employee’s leave qualifies as an FMLA leave, the employer must comply with the FMLA’s requirements. Under the FMLA, employers must provide the same health benefits during an FMLA leave that they would have provided if the employee worked throughout the leave. Thus, if the employer pays for health insurance normally, he or she must continue doing so during the FMLA leave. If the employee is not covered by the FMLA, the employer does not have to continue to pay for the health insurance. The ADA only requires the employer to give a disabled employee on leave the same benefits it gives any nondisabled employee on leave.

Q42. Are the reinstatement requirements different for the ADA and FMLA?
Yes. The ADA gives employees greater reinstatement rights. Under the ADA, the employee ordinarily is entitled to reinstatement to the same job since the duty of reasonable accommodation is intended to allow the employee to perform the essential functions of that job. Further, if reinstatement to the same position is an undue hardship for the employer, he or she may have to reinstate the employee to any available vacant position the employee is qualified to perform. In contrast, the FMLA only requires reinstatement to an equivalent job.

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Q43. What precautions should you take to monitor leaves?
HR professionals can take control of compliance by implementing a system to identify employees who may be covered by both the ADA and the FMLA. To this end, you should: (1) require medical certification for all health-related leaves to determine whether the ADA, FMLA, or both should apply; (2) at the end of a FMLA leave, determine if the employee is disabled under the ADA and entitled to further leave as an accommodation; and (3) evaluate your reinstatement policy to be sure it allows for return to the same job, not just an equivalent job, for employees who have been covered simultaneously by both the ADA and FMLA.

Q44. Are we also required to pay employees for time spent on jury duty?
Federal and most state laws require employers to give employees time-off to serve on a jury, and some state laws also require that employees be given time-off to serve as a witness. However, federal law and most state laws do not require employees to be paid for time spent away from work because of jury or witness obligations. Only a few states, including Connecticut, Massachusetts, and New York, require compensation for a limited time for employees who serve on jury or witness duty. In addition, employers may not discipline employees who properly take time off for jury or witness duty and should assume that they may be on jury leave for an indefinite time.

Q45. What laws govern the employment of pregnant workers?
Federal and state laws governing pregnancy generally fall into two categories – prohibitions against adverse employment actions and rules covering pregnancy-related leave. The primary law prohibiting adverse employment actions against pregnant employees is the federal Pregnancy Discrimination Act (PDA), which amended Title VII of the Civil Rights Act to recognize discrimination based on pregnancy as a form of sex discrimination. The PDA applies to employers with 15 or more employees and requires covered employers to treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other applicants or employees with temporary disabilities.

Q46. How is pregnancy-related leave covered?
Pregnancy-related leave is covered by the PDA, the Family and Medical Leave Act (FMLA) and, in limited circumstances, the Americans with Disabilities Act (ADA). These laws govern how pregnant employees should be treated when they are not able to work as a result of their pregnancy. The ADA covers employers with 15 or more employees, while the FMLA applies to employers with 50 or more employees and to all public agencies and schools, without regard to the number of employees. A pregnant employee is eligible for FMLA leave if she (1) has worked for the employer for at least 12 months (not necessarily consecutively), (2) has worked for the employer for at least 1,250 hours in the previous 12 months, and (3) works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees. In addition, several states also have leave laws similar to the FMLA or that apply only to pregnancy. These state laws should be consulted.

Q47. Is pregnancy covered by the ADA?
Generally, a normal pregnancy resulting in temporary disability is not covered under the Americans with Disabilities Act (ADA). However, in certain limited circumstances, a pregnant employee who is experiencing substantial complications that limit a major life activity may be considered disabled under the ADA and entitled to accommodation.

Q48. Do we have to hire a pregnant applicant? What if we are concerned about her ability to do the job because of the pregnancy?
The PDA does not require that you hire pregnant women, but rather that you treat them the same way as other applicants with temporary disabilities. This means you cannot refuse to hire a woman because of her pregnancy if she is qualified and is able to perform the job. To avoid potential liability, you should not discuss an applicant’s pregnancy during an interview, even if her condition is obvious. Instead, you should focus on the requirements of the job and the candidate’s ability to meet them. If, for example, it is vital that the applicant start work immediately and take no leave for the first six months of employment, ask the applicant if she can meet those requirements. If she says she cannot, you are under no obligation to hire her. Just make sure you are imposing the same requirements on all applicants.

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Q49. Can we require employees to tell us as soon as they know they are pregnant?
When it comes to reporting requirements, employers may not burden pregnant workers with more stringent reporting rules than it requires of others who will need disability leave. Thus, if you only require 30 days notice of the need for foreseeable leave (as the FMLA allows), you cannot require pregnant employees to give more notice.

Q50. Can we discipline a pregnant employee for performance and attendance problems?
Generally, yes. Although a pregnant employee is protected from discrimination, you do not have to tolerate poor performance or attendance simply because she is pregnant. You may hold her to the same work standards as other employees, as long as you apply them consistently. If her performance or attendance problems are related to her pregnancy (for example, she is late to work because of morning sickness or cannot lift boxes as required to perform her job), the PDA requires only that you treat her the same as you would any other employee with a temporary medical condition. Thus, if you allow employees with temporary medical conditions to be late because of their conditions or accommodate their lifting restrictions, you should apply the same standards to a pregnant employee. Note, however, if she is covered under the FMLA, you may have to take her pregnancy into consideration if her attendance problems are caused by pregnancy-related medical conditions. Absences that qualify as FMLA leave should not be counted when determining whether an employee’s attendance problems warrant discipline or discharge.

Q51. Do we have to provide light duty or part-time work for pregnant employees?
The answer depends on your policies and the employee’s FMLA eligibility.Your first step should be to treat pregnant applicants and employees the same as you treat other candidates and employees with temporary medical conditions. In other words, be fair and consistent. And, when in doubt, consult your legal counsel for help in protecting against discrimination and FMLA claims. The PDA does not specifically require an employer to transfer a pregnant employee to a light duty position or part-time work to accommodate her pregnancy. However, if you have a policy or practice that normally allows an employee with a temporary medical condition to transfer to a position that better accommodates his or her condition or to work part-time, then you should do the same for a pregnant employee. However, the FMLA allows employees with serious health conditions, including conditions related to pregnancy, to take leave on a reduced work schedule if it is “medically necessary.” A reduced work schedule refers to a schedule that reduces an employee’s usual number of hours for a period of time, such as switching from full-time to part-time work for several weeks. According to the FMLA regulations, a reduced work schedule is “medically necessary” if an employee has a serious health condition that requires a treatment regimen which is best accommodated by this type of leave. Thus, if a health care provider certifies a pregnant employee’s need for part-time work, you may have to provide that schedule. The FMLA does not specifically require light duty, however.

Q52. Can we require a pregnant employee to take leave if we think her job will endanger her pregnancy?
As a general rule, you cannot require a pregnant employee to take a leave if she can perform her job duties. According to an Equal Employment Opportunity Commission (EEOC) policy guide, an employee who can perform the essential functions of a job must be considered eligible for employment, regardless of the presence of workplace hazards to fetuses. According to the EEOC, it does not matter that the employer may be able to prove that the worker will be exposed to materials that are harmful to fetuses or that an employer will incur greater costs in hiring women. Accordingly, if the employee is able to perform the job functions, your only course of action may be to notify her of potential hazards and encourage her to discuss them with her doctor to determine if she should continue working. If, however, the employee is unable to perform the job functions, such as if she is restricted in standing or lifting, you can offer her a leave, or a transfer if a position is available, as allowed by your normal policies or the FMLA (if that law applies.)

Q53. How much leave do we have to offer pregnant employees?
The two major federal laws regulating pregnancy and childbirth leaves are the PDA and the FMLA. Because the PDA is an antidiscrimination law rather than a leave law, it does not require covered employers to give pregnancy leaves of any specific duration. Instead, it requires employers to provide pregnant employees the same leave and benefits granted to non-pregnant employees with temporary disabilities. According to guidelines issued by the EEOC, policies relating to the commencement and duration of leave, availability of leave extensions, accrual during leave of seniority and other benefits and privileges, insurance coverage, and reinstatement after leave all must apply equally to both pregnancy and other temporary medical disabilities. In contrast, the FMLA is a leave law, and it requires covered employers to give eligible pregnant employees unpaid leaves of up to 12 workweeks during any 12-month period. The FMLA provides leave for pregnant employees in two circumstances. First, an employee can take FMLA leave if she is unable to work because she has a serious health condition related to her pregnancy. The FMLA regulations state that any period of incapacity due to pregnancy, as well as prenatal care visits, is a serious health condition. Alternatively, once the employee is able to return to work after giving birth, she can take any remaining FMLA leave to care for her newborn child (up to a total of 12 weeks of leave in a 12-month period). In addition, state law should be consulted since a few states (such as California and Tennessee) have enacted laws that require pregnancy leaves. These state laws typically require longer pregnancy leaves than the leave mandated by the federal laws.

Q54. Can we offer pregnant employees more leave than we offer employees with other temporary disabilities?
Although employers may not treat pregnant employees worse than other temporarily disabled employees, some preferential treatment of pregnant employees may be lawful. The Supreme Court held that a state can require employers to provide a benefit to pregnant employees, such as additional leave, which is not granted to other temporarily disabled employees. This decision appears to allow employers to give pregnant employees more leave than is given to other employees. One caveat should be noted. This preferential treatment may apply only during the period when the employee is actually disabled as a result of the pregnancy. Employers generally must give the same leave benefits to both male and female employees who take parental leave to care for a newborn. Therefore, if you offer female employees leave for childcare when no disability exists, you also should offer male employees equivalent leave.

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Q55. Do I have to reinstate employees who take pregnancy-related leave?
The FMLA specifically requires reinstatement, while the PDA requires consistent treatment of pregnant employees. As a general rule, the FMLA requires that an employee be restored to her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. The FMLA does not require reinstatement once the FMLA’s 12-week entitlement has been exhausted. The PDA requires employers to permit an employee on pregnancy leave to return to her job on the same basis as other employees returning to work from sick or disability leave. For example, the reinstatement of an employee returning from pregnancy leave cannot be conditioned on the availability of an appropriate vacancy if the same restriction does not apply to employees returning from other disability leaves. Similarly, you may not require an employee returning from pregnancy disability leave to certify her ability to return to work unless all employees returning from medical leaves to the same type of job are required to do so.

Q56. Most organizations request that employees give two weeks’ notice of resignation. If an employee resigns with two weeks’ notice and we tell him/her to leave prior to the end of the two-week period, are we obligated to pay him/her for the full two weeks?
You may not be required to pay for the two weeks notice period, but should consider doing so for employee morale reasons. Most employers request or require that employees give advance written notice of their intention to resign so that an orderly transition may be made. The amount of advance notification usually depends on the importance of the position. However, requiring employees to give notice of their resignations may, in some states, create an implied contract obligating the employer to give an equal amount of notice before terminating an employee. For this reason, we suggest requesting, but not requiring, notice from terminating employees. In the scenario described above, since notice is only requested, a contract requiring the payment for the two weeks notice period probably has not been created. Most employers pay for the notice period, however, even if they do not have a contract requiring the payment. Employers may choose to do this when they want an employee to stop working immediately because the employee is in a sensitive position, such as one having access to highly confidential information or essential production equipment, and the employer is concerned about reduced loyalty. If the employer simply tells the employee to leave after giving notice, it may turn a voluntary termination into an involuntary termination, making the employee eligible for state unemployment compensation for that period of time. More importantly, the employer may send a negative message to the rest of its workforce, i.e., if you give notice as requested, you may be terminated immediately. As a result, the employer will not receive notice of terminations in the future. Accordingly, the editors suggest compensating the employee for the notice period in order to ensure that there is no question about eligibility for unemployment benefits and to encourage other employees to give notice in the future.

Q57. What do I do if an employee is always coming to work late?
The correct procedure would be to immediately bring it to the employee’s attention after it becomes more than a “once in a while occurrence”. If you are among the majority of employers who already have a disciplinary action policy in place your first step would be to issue a verbal warning. Even though they are verbal you should document it as the first course of disciplinary action taken towards this employee. The second course of action is usually a written warning that will lay out the incidents when previous warning (s) occurred and what you expect from the employee in the future. Warnings of this nature are usually signed by both parties. The general idea is to create a paper trail that will prove you did everything you could to warn this employee that this behavior is unacceptable as well as serve as proof to the state unemployment agencies that this employee was let go for cause.

Q58. Do I have to give raises every year?
No. Employer’s are not obligated to give raises every year but it is recommended even if it’s just to stay current with inflation. Generally, employer’s only give raises when they feel an employee’s job performance deserves it. In keeping with this train of thought, it is best to implement performance evaluations for all employees, given at specific times in the year which will be followed by raises. For more information on implementing an effective performance evaluation please contact us at 914-472-4796.

Q59. Am I entitled to family medical leave?
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months and at least 1,250 hours over the previous 12 months. In addition, they must have worked at a location where at least 50 employees are employed by the employer within 75 miles.

Q60. What is the youngest age a person can be employed?
Many states have enacted child labor laws, some of which may have a minimum age for employment which is higher than the FLSA. Where both the FLSA and state child labor laws apply, the higher minimum standard must be obeyed.

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Q61. Do I have to pay an employee for maternity leave?
No, employees that go on maternity leave are covered under the Family Medical Leave Act of 1993 and are entitled under that act to receive a total of 12 workweeks of unpaid leave during any 12-month period. This act also serves to secure the job of the employee on leave. An employer may, however, pay an employee at its own discretion. For more information please contact us at 914-472-4796.

Q62. Can I fire an employee at any time or do I have to adhere to the steps outlined in my handbook regarding disciplinary action?
Depending on what state you are located; employment is either “at will” or not. To get a state specific answer please contact us at 914-472-4796.

Q63. What is Affirmative Action?
Affirmative Action refers to the specific steps employers take to prevent discrimination and to address stereotypical thinking and biases that still impede employment opportunity. Affirmative action is monitored by the EEOC or Equal Employment Opportunity Commission who as a way to monitor this action require the filing of specific reports that log the various races employed by your company.

Q64. Do I have to offer COBRA?
COBRA generally applies to all group health plans maintained by private-sector employees (with at least 20 employees) or by state and local governments.

Q65. Do I have to have Workers Compensation coverage?
If you have one or more employees you have to have workers compensation coverage.

Q66. Do I have to provide health insurance for my employees?
Employers are not required to provide employees with health insurance but most employers make this a common practice in order to retain valuable employees. An employee is likely to stay with a job longer if an attractive benefits package comes with it.

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Q67. Am I required to pay an employee while they are at lunch?
Generally 30 minutes is standard for a 9-5pm work day and employers are not required to include the 2 ½ hours per week as work time.

Q68. How can I motivate my employees to work harder?
This takes trial and error but as we all know, most employees respond well to cash incentives. It is wise, however, to keep these restricted to end of year bonuses and to provide alternate means of motivation. Try considering a raffle every quarter, any kind of contest where the prizes could be movie tickets, a weekend trip or a day at the spa.

Q69. Am I required to give an employee severance pay upon termination? Severance pay is often granted to employees upon termination of employment. It is usually based on length of employment for which an employee is eligible upon termination. There is no requi
Severance pay is often granted to employees upon termination of employment. It is usually based on length of employment for which an employee is eligible upon termination. There is no requirement in the Fair Labor Standards Act (FLSA) for severance pay. Severance pay is a matter of agreement between an employer and an employee.

Q70. Can an employee have a work schedule other than 9am-5pm ?
Anything other than the traditional 9 to 5 work schedule is termed flexible. It allows employees to vary their arrival and/or departure times. Under some policies, employees must work a prescribed number of hours a pay period and be present during a daily "core time." The Fair Labor Standards Act (FLSA) does not address flexible work schedules. Alternative work arrangements such as flexible work schedules are a matter of agreement between the employer and the employee.

Q71. What is new hire reporting?
New hire reporting is a requirement of all states and is used mainly by child support agencies to track employees for wage garnishment purposes.

Q72. Do I have to provide a 401(k) plan to my employees?
No, you don’t have to provide a 401k plan. In order to attract and retain valuable employees, however, having a 401(k) plan available is highly recommended. In an age where social security isn’t a “sure thing” anymore, people are more concerned about retirement and actually being able to have a 401k plan.

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Q73. What is The Copeland
The Copeland “Anti-Kickback” Act generally prohibits federal contractors or subcontractors engaged in building construction or repair from inducing an employee to give up any part of the compensation to which he or she is entitled under his or her employment contract and requires such contractors or subcontractors to submit weekly statements of compliance. Each covered contractor or subcontractor must provide a weekly statement of the wages paid to each of its employees engaged in covered work. The statement shall be executed by the contractor or subcontractor or by an authorized officer or employee of the contractor or subcontractor who supervises the payment of wages and shall be on the “Statement of Compliance” form on the back of WH-347 “Payroll (For Contractors Optional Use”) or on any form with identical wording. Within seven days after the regular pay date for the pay period the statement shall be delivered to a representative of the federal or state agency in charge.

Q74. What are the laws about age discrimination?
The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs and activities receiving federal financial assistance. The Act, which applies to all ages, permits the use of certain age distinctions and factors other than age that meet the Act's requirements. The Age Discrimination Act is enforced by the Civil Rights Center.

Section 188 of the Workforce Investment Act of 1998 (WIA) prohibits discrimination against applicants, employees and participants in WIA Title I-financially assisted programs and activities, and programs that are part of the One-Stop system, on the ground of age. In addition, WIA prohibits discrimination on the grounds of race, color, religion, sex, national origin, disability, political affiliation or belief, and for beneficiaries only, citizenship or participation in a WIA Title I-financially assisted program or activity. Section 188 of WIA is enforced by the Civil Rights Center.

Q75. What is COBRA?
The Consolidated Omnibus Budget Reconciliation Act (COBRA) gives workers and their families who lose their health benefits the right to choose to continue group health benefits provided by their group health plan for limited periods of time under certain circumstances such as voluntary or involuntary job loss, reduction in the hours worked, transition between jobs, death, divorce, and other life events.

COBRA generally requires that group health plans sponsored by employers with 20 or more employees in the prior year offer employees and their families the opportunity for a temporary extension of health coverage (called continuation coverage) in certain instances where coverage under the plan would otherwise end.

Q76. What is the Womens' Health & Cancer Rights Act?
The Women's Health and Cancer Rights Act (WHCRA) includes protections for individuals who elect breast reconstruction in connection with a mastectomy. WHCRA provides that group health plans and health insurance issuers that provide coverage for medical and surgical benefits with respect to mastectomies must also cover certain post-mastectomy benefits, including reconstructive surgery and the treatment of complications (such as lymphedema).

Q77. What is ERISA?
The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans. There have been a number of amendments to ERISA, expanding the protections available to health benefit plan participants and beneficiaries. One important amendment, the Consolidated Omnibus Budget Reconciliation Act (COBRA), provides some workers and their families with the right to continue their health coverage for a limited time after certain events, such as the loss of a job. Another amendment to ERISA is the Health Insurance Portability and Accountability Act (HIPAA) which provides important new protections for working Americans and their families who have preexisting medical conditions or might otherwise suffer discrimination in health coverage based on factors that relate to an individual's health. Other important amendments include the Newborns' and Mothers' Health Protection Act, the Mental Health Parity Act, and the Women's Health and Cancer Rights Act. In general, ERISA does not cover group health plans established or maintained by governmental entities, churches for their employees, or plans which are maintained solely to comply with applicable workers compensation, unemployment, or disability laws. ERISA also does not cover plans maintained outside the United States primarily for the benefit of nonresident aliens or unfunded excess benefit plans.

Q78. What is the Newborns' and Mothers' Health Protection Act of 1996 (Newborn's Act)?
The Newborns' Act was signed into law on September 26, 1996 and includes important protections for mothers and their newborn children with regard to the length of the hospital stay following childbirth. The Newborns' Act is subject to concurrent jurisdiction by the Departments of Labor, the Treasury, and Health and Human Services

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Q79. Does the Newborns' Act require my plan to offer maternity benefits?
No. The Newborns' Act does not require plans, insurance companies or HMOs to provide coverage for hospital stays in connection with childbirth. However, other legal requirements may require this type of coverage, including Title VII of the Civil Rights Act of 1964. Questions regarding Title VII should be directed to the Equal Employment Opportunity Commission

Q80. What is the Health Insurance Portability and Accountability Act of 1996 (HIPAA)?
HIPAA amended the Employee Retirement Income Security Act (ERISA), to provide new rights and protections for participants and beneficiaries in group health plans. Understanding this amendment is important to your decisions about future health coverage. HIPAA contains protections both for health coverage offered in connection with employment (group health plans) and for individual insurance policies sold by insurance companies (individual policies). If you find a new job that offers health coverage, or if you are eligible for coverage under a family member's employment-based plan, HIPAA includes protections for coverage under group health plans that limit exclusions for preexisting conditions, prohibit discrimination against employees and dependents based on their health status and allow a special opportunity to enroll in a new plan to individuals in certain circumstances

Q81. What is a preexisting condition?
A preexisting condition is a medical condition present before your enrollment date in any new group health plan. Under HIPAA, the only preexisting conditions that may be excluded under a preexisting condition exclusion are those for which medical advise, diagnosis, care or treatment was recommended or received within the 6-month period before your enrollment date. (Your enrollment date is your first day of coverage, or if there is a waiting period to get into the plan, the first day of the waiting period.). If you had a medical condition in the past, but have not received any medical advise, diagnosis, care or treatment within the 6 months prior to your enrollment date in the plan, your old condition is not a preexisting condition to which an exclusion can be applied. Moreover, under HIPAA, preexisting condition exclusions cannot be applied to pregnancy, regardless of whether the woman had previous health coverage.

In addition, a preexisting condition exclusion cannot be applied to a newborn, adopted child under age 18, or a child under age 18 placed for adoption as long as the child became covered under health coverage within 30 days of the birth, adoption or placement for adoption and provided that the child does not incur a subsequent 63-day break in coverage.

Q82. What is the Fair Labor Standards Act (FLSA)?
The Fair Labor Standards Act (FLSA) , which prescribes standards for the basic minimum wage and overtime pay, affects most private and public employment. It requires employers to pay covered employees, who are not otherwise exempt, at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. For nonagricultural operations, it restricts the hours that children under age 16 can work and forbids the employment of children under age 18 in certain jobs deemed too dangerous. For agricultural operations, it prohibits the employment of children under age 16 during school hours and in certain jobs deemed too dangerous. The Act is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor.

Q83. What is the Occupational Safety and Health Administration's mission?
OSHA's mission is to prevent work-related injuries, illnesses, and deaths. Since the agency was created in 1971, occupational deaths have been cut by 62% and injuries have declined by 42%.

Q84. How and when was OSHA created?
Congress created OSHA under the Occupational Safety and Health Act, which was signed by President Richard M. Nixon on December 29, 1970 .

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Q85. How much leave does the FMLA entitle me to?
If you are an "eligible" employee, you are entitled to 12 weeks of leave for certain family and medical reasons during a 12-month period.

Q86. How is the 12-month period calculated under FMLA?
Employers may select one of four options for determining the 12-month period:

the calendar year; any fixed 12-month "leave year" such as a fiscal year, a year required by state law, or a year starting on the employee’s "anniversary" date;

the 12-month period measured forward from the date any employee’s first FMLA leave begins; or a "rolling" 12-month period measured backward from the date an employee uses FMLA leave.

Q87. Does the law guarantee paid time off?
No. The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

Q88. Does workers’ compensation leave count against an employee’s FMLA leave entitlement?
It can. FMLA leave and workers’ compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

Q89. Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

Q90. Can the employer count time on maternity leave or pregnancy disability as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

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Q91. If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?
In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.

Q92. Who is considered an immediate "family member" for purposes of taking FMLA leave?
An employee’s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law". The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

Q93. May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy?
Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis.

Q94. Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Q95. Do the 12 months of service with the employer have to be continuous or consecutive?
No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.

Q96. Do the 1,250 hours include paid leave time or other absences from work?
No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

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Q97. How do I determine if I have worked 1,250 hours in a 12-month period?
Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met; 24 hours worked in each of the 52 weeks of the year; or over 104 hours worked in each of the 12 months of the year; or 40 hours worked per week for more than 31 weeks (over seven months) of the year.

Q98. Do I have to give my employer my medical records for leave due to a serious health condition?
No. You do not have to provide medical records. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists.

Q99. Can my employer require me to return to work before I exhaust my leave?
Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.

Q100. Are there any restrictions on how I spend my time while on leave?
Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

Q101. Can my employer make inquiries about my leave during my absence?
Yes, but only to you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or rectification during a period of FMLA leave. The employer may have a health care provider representing the employer contact your health care provider, with your permission, to clarify information in the medical certification or to confirm that it was pr