COVID-19 AND THE CONSTRUCTION INDUSTRY

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The Employer’s Guide to Assessing Medical Leave Requests

If you own a construction business that has 50 or more employees, your business may be required to provide eligible employees with unpaid, job-protected leave. The Family and Medical Leave Act (FMLA) was put in place to protect workers experiencing a serious health condition, caretaking for a family member, or taking time with their son or daughter after their birth. Typically, this law covers employees of mid-sized to large private companies and employees of public sector positions. 

Construction firms must put their best foot forward to ensure that they are complying with FMLA regulations. Failure to do so can result in steep citations, an employee filing a claim through the Department of Labor’s (DOL) Wage and Hour Division, and litigation. As most construction employers have limited knowledge of the law, a Nashville construction lawyer can advise you on your requirements in fulfilling medical or family leave for your employees. 

In this editorial, a construction law firm will discuss many of the “Do’s” and “Don’ts” of providing medical leave to employees. Although medical leave rights have been recently expanded with the creation of the Families First Coronavirus Response Act (FFCRA or Act), this article can act as a guideline for employers seeking answers to medical leave questions that aren’t related to COVID-19. For more information on the appropriate steps to take when an employee requests leave, including employee rights under FFCRA, speak with a Nashville construction attorney.      

Understanding the Employer’s Rights for Granting Leave

Employees are required to provide their employer with notice for FMLA leave. There are many steps related to determining if an employee is eligible for leave. Here is some advice on how to effectively navigate the system and remain FMLA-compliant when an employee requests medical leave:

Do: Consider Granting Leave to Eligible Candidates

FMLA leave is required for specific types of businesses within both the public and private sectors. For example, employees in government-related positions qualify for leave. Similarly, any employee who works in public education qualifies for leave. Furthermore, private sector employees of companies with 50 or more employees are eligible. Moreover, employees of these companies that worked over 1,250 hours in the last year (and worked at the company for at least 12 months) qualify for leave. 

Don’t: Ignore Federal Requirements 

Many companies simply don’t perform their due diligence and don’t know that they are required to provide up to 12 weeks of unpaid leave to employees each year. Determining whether or not your company is required to provide FMLA leave is highly complex and requires the attention of a construction attorney. If you are unsure of whether or not your business qualifies for FMLA leave, speak with a Nashville contractor lawyer. 

Do: Let Them Know Their Options

Within FMLA guidelines, it’s the responsibility of the employer to inform their employees of their right to request FMLA leave. For example, if an employee informs their employer that they need to have surgery in a few months, and they don’t know how they will be able to manage their schedule, it’s the responsibility of the employer to inform them of their option to request leave to treat a serious health condition. In other words, employers must be especially proactive in regard to FMLA leave requirements.   

Don’t: Retaliate Against an Employee

Unfortunately, there have been cases where an employer retaliated against an employee that requested leave. Retaliation goes beyond termination of employment and includes a demotion in position or responsibilities, reduced pay, reduced hours, loss of benefits, or transferring an employee to an undesirable shift.

Do: Request a Medical Certification

When an employee requests leave, request that they provide a medical certification from a healthcare provider confirming their need for leave. This certification should be completed by the employee’s healthcare provider within 15 days of the request. 

Don’t: Delay When Requesting Medical Certification

The timeframe to request a medical certification is extremely short. After receiving an FMLA request, an employer has five days to request that an employee provide certification. So when you receive a request, you must act fast. 

Do: Request a Second Opinion

An employer has the right to request an employee to seek a second opinion related to their medical condition. In some cases, an employee may need to seek a second or third opinion of their medical condition to confirm its existence. 

Don’t: Request Medical Records

The employer should never request an employee to provide them with medical records; however, they can request their employee to provide them with “medical facts” from their healthcare provider to confirm their condition.

Do: Formalize the Request

Although a request for leave can be done orally by an employee, it’s best to formalize each stage of this process by instructing employees to put medical leave requests in writing. It’s equally important to document these conversations with a written summary of what was discussed and agreed upon. 

Don’t: Turn Away Employees That Miss “the Deadline” 

Generally, an employee must give at least 30 days notice of their intent to take FMLA leave. In some cases, 30 days notice is not possible, so an employee should inform their employer as soon as possible. Employers should never turn away an employee that requires leave just because it wasn’t requested 30 days prior to the time they needed leave.  

Do: Request That the Employee Complete All Forms

If an employee fails to provide their employer with a completed certification, the employer can make a written request for the employee to complete the certification. An employee has up to one week to correct the incomplete certification.  

Don’t: Contact Their Provider About Medical Information

Employers can contact an employee’s healthcare provider if they are compliant with Health Insurance Portability and Accountability Act (HIPAA) regulations. However, other than verifying that the certificate is authentic, employers should not contact a medical provider, as they are toeing the line of privacy laws. Consult our Nashville contractor attorneys before contacting any medical provider related to leave requests.     

Do: Request a Fitness-for Duty Certification

Employers have a right to request that an employee returning from leave submit a “fitness-for-duty” certification. This is done to clear the employee to return to the jobsite. An employer has a right to delay an employee from re-entering their position until they provide a fitness-for-duty certification.       

Don’t: “Single Out” Employees 

Return-to-work programs need to be consistently applied to all similarly situated employees that are returning from a similar condition. It’s extremely important that any employee returning to work isn’t singled out and required to perform tasks that other employees weren’t required to do. 

Performing the above steps can help your company reduce risk by ensuring that you’re closely following federal requirements. In case your business is accused of failing to comply with FMLA regulations, your business may be subject to costly citations, employee complaints through the Department of Labor, and litigation. For assistance with any legal issue, consult the Nashville construction litigation attorneys at Cotney Construction Law.

If you would like to speak with a Nashville construction litigation attorney, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.