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is your employee abusing the Family Medical Leave Act and can you fire him - free webinar in 2 days - register today
October 23, 2017
Sign up today for free employment law webinar scheduled for Oct 25, 2017.  See details below.

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is your employee abusing the Family Medical Leave Act and can you fire him
      My employee claims he is protected under the Family Medical Leave Act. I know he is entitled to take days off of work to tend to a “serious medical condition,”  but he isn’t sick, and he doesn’t have a serious medical condition, I’m sure of it.  I can't be sure that someone in his family isn't serious ill.
    He “conveniently” schedules his leave/days off on Fridays and Mondays to extend his weekends and holidays.  He forces us to scramble to cover his shift and is really putting my company in a bind.
    Can I fire him?
name withheld
This is why we are having our webinar on October 25th – Tune in by registering here:
Since Jonathan Rogoff, Esq is one of our attorneys presenting the webinar I asked him to respond to the question.  Here is his response: 
    Employers and their respective human resources departments have had several issues differentiating when an employee is taking intermittent FMLA leave to tend to their serious medical condition or whether they are abusing the privilege and taking extended vacations from their office responsibilities. 
    Under the Family Medical Leave Act, eligible employees are entitled to take, and employers must grant, intermittent FMLA leave or leave on a reduced schedule when their own “serious health condition” renders him unable to do his job.
    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.
Intermittent leave is FMLA leave taken in separate blocks of time for a single illness or injury. Generally, employees must show the medical necessity, in the form of a primary care physician’s certification, for intermittent leave or a reduced leave schedule.
    If an employer honestly believes that their employee is abusing the protections afforded to them under intermittent FMLA leave and they wish to terminate the individual, there are ways to get this accomplished without facing future liability. An employer may terminate an employee regardless of FMLA leave status provided that there is a legitimate, nondiscriminatory reason for termination.
    Employers may terminate employees who are on FMLA leave due to infractions or poor performance that come to the employer's attention during the leave and, insubordination, fraud, or other prohibited conduct while out on leave. Courts have regularly held that employees on FMLA leave can be terminated for violating company rules, poor performance, or because of a reduction in force.   
    If you or any of your HR employees are facing issues like this with your staff, be sure to tune in to our webinar on October 25, 2017 at 1:00 PM, where we will take a few minutes to run through rules and employer rights related to FMLA and employee abuses. You can register for the webinar here:
Jonathan Rogoff, Esq.
Kirschenbaum & Kirschenbaum PC
200 Garden City Plaza, Suite 500
Garden City, NY  11530
Office: (516) 747-6700, ext. 307
Fax: (516) 747-6781
Webinar Notice: 
NOTICE:  Free Employment law webinar - sign up today.  Scheduled for Oct 25, 2017
REGISTER for a Free Employment Webinar
Description:   Once an employee finds herself covered by FMLA, a common complaint from an employer is poor job performance. But the FMLA employee is now untouchable, because protected, right? Not necessarily. Join Kieran Bastible, Esq. and Jonathan Rogoff, Esq. of K&K's Employment Department for a discussion about Employer's rights against non-performing and abusive employees covered by FMLA.
Who should attend:  HR, management and owners 
Presented by: Kieran Bastible, Esq and Jonathan Rogoff, Esq. of K&K's Employment Department
Date and Time: Wed, Oct 25, 2017 1:00 PM - 1:45 PM EST
Register Here


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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
516 747 6700