This morning I read a recent post from Suzanne Lucas the “Evil HR Lady”, an HR blogger that provides similar common sense observations about employment issues.  The post was an answer to a supervisor question about an employee who drinks so much water and has to pee so often that she can’t get her work done.

The Evil HR Lady recommended focusing on the performance issue out of concern that the employee – who happened to become pregnant after the water break issue arose – would make a pregnancy discrimination claim.  I can’t argue too much with this practical approach, but I think she is leaving a little bit on the table.

Without all of the facts, there appear to be two primary legal concerns to consider here: (1) pregnancy discrimination; and (2) a disibility act claim.  As you should all know, you cannot discriminate against someone because they are pregnant.  Likewise you should all realize you can’t discriminate against someone because they have a disability.

Practically speaking, this can’t be pregnancy discrimination because the pee break issue started before pregnancy.  It also can’t be a disability issue yet because the employee has not claimed it as one.  Employers are not obligated (unless they have inquired) to accommodate a disability or health issue until the employee raises it as one and can back it up with a medical opinion.

Before the employee stumbles into the protection of one of these laws, the employer should address it.  That doesn’t mean be unreasonable.  The performance appraisal that the Evil HR Lady suggests is a good suggestion for part of the plan, but I think the employer should also set reasonable limitations on the water use and bathroom breaks.  If the employee wants water, great, she can keep a jug by her desk.  That will eliminate the back and forth to the water cooler.  If the employee still has to use the restroom, she can go once an hour or so, but no more.  She needs to set her drinking habits with that in mind.

People have to make those adjustments all the time at work.  Do you think I am going to ask a judge for a restroom break during the middle of a trial?  Not unless the world is coming to an end.  The same is true of the jurors.  They adjust their water intake.  This employee can do the same.

I learned this morning from the Dallas Business Journal that Facebook has launched a rival site to Linkedin which is called BeKnown.com.  Seriously?  Is there any chance that we could shrink our online persona instead of increasing it?  How many places do I truly need to be found?  How many places do we want to be found?  Social media sites are fighting for our souls so that they can gather data about us and then advertise us to death with targeted information that we happily provided in the name of staying in contact.

OK – rant aside – what does BeKnown mean for employers?  One more place to potentially get valuable information about your employees to make sure they are living the type of life an employer would be proud of?  Maybe, but, from my perspective, it is one more place for employees to screw up.

Steven D. Levitt, co-author of Freakonomics, cites studies that show more than 50% of people lie on their resumes.  Why then, should people be expected to tell the truth on their on-line professional profiles?  With so many profiles, people are bound to get their lies mixed up and having one more profile just gives employers a chance to catch a potential employees in the act.

Of course, employers also have a vested interest in making sure existing employees don’t misquote their qualifications on the internet.  If a potential customer reviews more than one profile of a sales representative and discovers an inconsistency – how embarassing will it be for the company when he calls to point it out?

Employers . . . take heed, take advantage, and take responsibility.

Sheryl Jean recently reported in the Dallas Morning News on a letter of apology from a Southwest Airlines pilot to company employees for a rant he made with his microphone stuck in the on position that was heard by air traffic controllers and other pilots about how there were not any good dating prospects among the company’s flight attendants.  Whether you think Southwest’s attendants are cute, you certainly recognize the problem created by the pilot’s actions.  Management at the airline was squarly confronted with the question of whether to fire the pilot.  They chose to have the pilot apologize.  Perhaps it’s the fact that Southwest has a pilot union factored into the decisionmaking, but a lot of employers would have let the employee go out of fear that female employees would complain of sexual harassment or discrimination.

This situation provides a great opportunity to remind employers that they don’t have to react so harshly to potential discrimination issues.  In most circumstances, an employer can counsel the offending employee, correct their behavior, and move on without the need of termination.  It is the second instance that carries employers to the brink of termination.  Giving a second or third chance to an employee raises substantially the chance that other employees can bring a viable claim for discrimination.

Who, What, Why . . .

Who does it apply to: Overtime is governed by the Fair Labor Standards Act. Without a long discussion about the .1% of employers who might not be covered, the simple answer is – virtually everybody.

What do I have to do: Employers must pay overtime, unless the employee is exempt. There are a myriad of complete and partial exemptions. The five discussed here are the most common.

How does the “Administrative” exemption work: Administrators may qualify for this exemption if they:

• Receive a salary greater than $684 per week;

• Have a primary duty performing office or non-manual work related to general business operations or management of customers or the business; and

• Exercise discretion and independent judgment with respect to matters of significance.

What are the two “Professional” exemptions: Professionals can be exempt under two different paths. Both have the requirement that the employee receive a salary of at least than $684 per week.

The “Creative Professional” exemption then requires:

• The employee’s primary duty is the performance of work requiring a talent recognized in a field of creative or artistic endeavor which involves invention, imagination, and/or originality.

The “Learned Professional” alternatively requires:

• The employee have a primary duty requiring advanced knowledge that is primarily intellectual and that the employee’s work involve consistent exercise of discretion and judgment.

What is the “Executive” exemption: To be eligible for this exemption, an employee must:

• Receive a salary of at least $684 per week;

• Have a primary duty to manage the business or a customarily recognized department;

• Direct the work of two or more full time employees (or their equivalent); and

• Have authority to hire and fire or at least recommend hiring, firing, advancement, or promotion with the employee’s opinion given particular weight.

Are “Highly-Compensated” employees exempt:

Employees who make over $100,000 per year from salary (employees over the limit because of discretionary bonuses do not qualify) are exempt but they have requirements too:

• Receive a salary of at least $684 per week (the rest could be bonus);

• Have a primary duty involving office work or non-manual labor;

• Customarily and regularly perform the duties of someone qualified under the Executive, Professional, or Administrative exemption.

What about sales people: Retail commission and “outside” sales people can be exempt. Outside sales employees must customarily work outside of the office and their primary duty must be making sales or taking orders for services or goods for which a customer will pay. Retail commission employees must work for a retail or service business, earn at least ½ of their wages from commission sales, and their regular rate of pay must exceed 1.5x the minimum wage for each hour worked in  a week in which they worked overtime.

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What does “primary duty” mean: In case you missed it, the term comes up in almost every exemption, so it is important. Generally, an employee spending more than 50 percent of their time engaged in the primary duty will meet the exception, but other factors count too: (1) the importance of the exempt responsibility compared with others; and (2) the employee’s freedom to direct or supervise.

What other areas offer exemptions: Amusement and recreation; fish processing and canning; agriculture; motor, rail, and air carriage; household services; forestry and logging; and the newspaper industry have exemptions not covered here.

Common Situations:

Radiology Tech: Acme Imaging hires a radiology technician with specialized training from an accredited trade school. Acme characterizes the tech as exempt under the professional exemption. Unfortunately, this is one of the biggest pitfalls with overtime exemptions. The Department of Labor is very strict about this exemption. Many types of technicians, including nurses, bookkeepers, cooks, paralegals, and engineering techs, are not exempt.

Salary Deduction from Exempt Employee: The Dewy, Cheatum, & Howe law firm, closes its office due to ice on the roads and deducts a day of pay from its employees. It’s office manager complains to the Department of Labor. An investigator takes away the office manager’s professional exemption and charges the company for back overtime. Be careful, Exemptions are fragile. Exempt employees must usually be paid their full salary each week – rain or shine. Employers must be very careful to clear deductions from exempt employees’ wages with their lawyers.

The Case of the Traveling Salesman: Mark is treated as an exempt “outside” salesman by Joe’s Basket Co. He works in the office about one week a month making calls and delivering product to customers. He travels the remainder of the time to call on customers and present at trade shows where he manages the company’s booth. A Department of Labor investigator pulls the exemption and charges for back overtime. What was the cause of the charge back? Was it delivering product, working from the office, or working a company booth at trade shows? The office time did it, though each of those issues have been considered to challenge the exemption. Office time is a killer for outside salesmen.

What Should I Do:

Good: Evaluate every position in your company and implement appropriate exemptions. Be careful not to make improper deductions from an exempt employee’s wages because you could lose the exemption and have to pay back overtime.

Better: Make job descriptions for all exempt positions tailored to the exception. They will be helpful if audited. Also, verify with the employees affected that they believe their job meets the requirements.

Best: Sometimes the Department of Labor disallows a claimed exemption when conducting an audit. If that happens, the employees you thought were exempt suddenly are not, and you may have to pay back overtime. To protect against wild overtime back-charges, have even exempt employees keep a time sheet.

Who, What, Why . . .

Who does it apply to: Overtime is governed by the Fair Labor Standards Act. Without a long discussion about the .1% of employers who might not be covered, the simple answer is – virtually everybody. That said, it does not apply to independent contractors or volunteers.

What do I have to do: Everyone knows they are supposed to pay overtime at 1½ times the employee’s “regular rate” for “work” over 40 hours in a “workweek” (unless the employee is exempt). Where it gets tricky is trying to make the calculation without a clear understanding of what the law means by “work”, “regular rate”, and “workweek”.

What is a “workweek”: Let’s start simple. A workweek is any consecutive 168 hour period (7 days for those of you pulling out your calculator). Most businesses use the traditional Monday to Sunday model, but you can define it anyway you want as long as you are consistent.

What is the “regular rate”: The regular rate is usually equal to the hours worked divided by the total pay received for that week. For many this calculation is relatively simple. The employee works 40 hours and is paid $400. Dividing $400 by 40, you get a “regular rate” of $10.00, which happens to be the hourly wage of the employee. In other instances, it is more complicated but still is dependent on the number of hours worked:

• Salary: The regular rate is salary earned in a week divided by 40.

• Commission Paid Weekly: Add any non-commission earnings to the total commissions earned and divide by the hours worked (including hours over 40).

• Commissions Paid Over Another period: The regular rate is calculated by the non-commission earnings in that week divided by the hours worked until the commissions are paid, at which time they must be calculated and added back in to the workweek earned so that overtime can be retabulated and any difference compensated.

• Piece Work (workers paid by the completed piece): Tabulate the hours worked during the week (including hours over 40) and divide by the total earned from piece work.

• Multiple Hourly Rates (some people get paid different rates for travel time): Tabulate the total earned at the combined rates during that week (including hours over 40) and divide by the hours worked.

What is “work”: What counts as work seems deceptively simple. It includes the minutes employees spend on the clock, but employers often miss time that counts:

• Fringe Time: Time employees spend working that is not part of their regular work time, including, for example, the time it takes to log into a computer to clock in electronically.

• Waiting: Time spent waiting counts as work unless the employee is completely free to use the time for their own purposes (including leaving the workplace) and the interval is long enough. A 30 minute break while a machine is repaired probably would be considered work, while a two hour break where the employee may leave probably would not be considered work time.

• On-Call: Wearing a pager or have a cell phone away from work is not usually considered work as long as the employee can use the time for their own purposes. Being stuck at your place of business or prevented from using the time for yourself, however, does count.

• Training: Involuntary training counts as work.

• Sleep: On a shift lasting less than 24 hours, sleep time usually counts as work (think fireman or ER doctor).

• Travel: Everyday travel to the workplace is generally not work, but travel during the work day counts. Also, travel for a unique purpose counts.

Aren’t some employees exempt from overtime: Some employees are exempt, but less often than many employers think. Look for next month’s issue.

Common Situations:

Vacation and Overtime: An employee takes two vacation days during the week, but upon return has so much to do that the employee manages to log 40 hours of true work in the remaining 3 days. You do not have to treat the vacation as 16 hours worked and pay overtime, the law only considers hours truly worked.

Breaks: Employees at Acme Brick are required to take a 10 minute break twice a day and that time is deducted from their pay. Interestingly enough, any break less than 20 minutes is considered beneficial to both the employer and employee and is counted as “work” time. Note, however, that employers are not required to give any breaks for smoking, lunch, or any other purpose (except nursing mothers and possibly by local ordinance, e.g. Austin, Texas requires a 10 minute break per 4 hours for construction workers).

Holiday Pay: Employees at Bah Humbug, Inc. are required to work on holidays and paid straight time. No problem. Employers are not required to give days off or pay even standard overtime for holidays.

Salary and Fluctuating Hours: Joe works 43 hours one week and 37 for the next two week before going over 40 again. Joe receives his standard salary even though he does not work 40 hours in some weeks, plus, his employer must pay overtime for the weeks over 40. If Joes schedule has enough regular fluctuation, he and his employer can make an agreement (preferably in writing) for “Chinese Overtime”, by which Joe earns just the ½ overtime premium for overtime hours.

Semi-Secret Overtime: Beth’s shift ends each day at 5:00, but she routinely leaves the office at 5:25. You don’t pay close attention to what she does during that time but you have reason to believe she works. If you know or have reason to believe an employee is working overtime – even if they don’t report it – you must investigate and pay any overtime due.

What Should I do:

Good: Be careful to calculate overtime correctly. Keep employee time records three years. Make employees clock in and out for lunch. And, don’t forget the most common mistake: salary employees aren’t necessarily exempt from overtime!

Better: If you have salaried employees that earn overtime, but have regular fluctuation between weeks over and under 40, make an agreement to pay “Chinese Overtime”.

Best: In addition to the above, have employees acknowledge to any travel policies you may have. Require all employees to report any other employee they observe working but not reporting overtime. Finally, have employees sign off each week that their hours are correct.

Who, What, Why . . .

Who does it apply to: Any business with more than 15 employees.

What is it: Everyone has a broad sense of what sexual harassment is, but most do not understand what it is from a legal stand point. Under the law, Sexual harassment falls into two categories: “quid pro quo” and “hostile work environment.” Quid pro quo translates loosely to “this for that” and in this context it usually means trading sexual favors for advantages in the work place. Hostile work environment does not usually involve sexual advances, but rather unwanted sexual comments that make the work environment untenable.

Who can be affected: Though sexual harassment is primarily thought to affect females, anyone can be a victim – including males, homosexuals, and possibly transsexuals.

Who is liable: Harassing acts may be carried out by individuals, but the business will be liable for harassment when a claim is made.

What is required for quid pro quo harassment:

• Unwelcome advances or requests for favors by an employee in a position to control some aspect of the victim’s employment; and

• Submission to the request is an express or implied condition of receiving an employment benefit OR that employee refusal results in significant change in employment status such as hiring, firing, failing to promote, significant reassignment, or other significant change in benefits.

What is required for hostile work environment harassment:

• Unwelcome harassment of any kind whether in a single incident or accumulating over time;

• The harassment affects a term, condition, or privilege of employment; and

• The harassment is severe or pervasive so as to alter the conditions of the victim’s employment and create an abusive working environment. To be severe or pervasive, the harassment must be offensive such that both the victim and a reasonable person would perceive the harassment as hostile and abusive.

Common Situations:

Vendor Harassing Receptionist: A vendor who regularly sells to your company sexually propositions your receptionist each time he comes to your facility and your receptionist complains of the harassment. An employer can be liable for the harassment of non-employees toward employees if the employer is aware of the harassment and takes no action to prevent it.

Unintentional Hostile Work Environment: In every office there are individuals who are not easily offended and those who are more sensitive. If a group of employees, who are not offended by sexual jokes or comments, make those jokes or comments in ear-shot of an easily offended employee, the employer can be liable for a hostile work environment claim even though the comments were not in any way directed toward the easily offended employee.

Indirect Quid Pro Quo Harassment: A supervisor over the shipping department requests that a lower level employee in the purchasing department engage in a sexual relationship. When the employee refuses the advances, the supervisor uses his influence with the purchasing supervisor to have the employee demoted. Even though the harasser did not have direct control over the lower level employee, the supervisor’s use of influence results in quid pro quo sexual harassment.

Homosexual Hostile Work Environment Harassment: A group of straight employees jokingly place pictures of naked women in the locker of a known homosexual employee on a regular basis and make jokes about homosexuals toward the homosexual employee. If the homosexual employee perceives the attacks as hostile and abusive and a reasonable person would agree, the conduct can be sexual harassment actionable by the homosexual employee.

What should I do:

Good: Have a sexual harassment policy which: (1) precludes supervisors propositioning direct subordinates for sexual relationships or sexual acts of any kind to protect against quid pro quo sexual harassment; and (2) does not allow employees to make sexual jokes or harass others on the basis of sex.

Better: Have a more stringent sexual harassment policy which continues to preclude harassment, but does not allow employees in any type of supervisory position, whether specifically titled as a supervisor or not, to proposition anyone within the company who might be considered a subordinate to that employee. Implement a reporting system as part of your policy by which employees report alleged sexual harassment to a single person who understands the significance of such a claim and can take steps to stop the harassment immediately.

Best: Add a more stringent policy which precludes dating or sexual relationships of any kind between any employees. This guarantees no quid pro quo sexual harassment. Implement a more aggressive reporting system where employees may report harassment to either an assigned male or female employee so that they do not feel obligated to report to a person of the opposite sex. Maintain back up for reporting in the event the harasser is a person to whom harassment is reported.

Breastfeeding breaks for nursing mother employees are requiredBreastfeeding is very common in today’s society, having increased by 10% over the last 15 years. Giving working – nursing – mothers a break was one of the immediate effects of Obamacare when it passed last year. The federal Fair Labor Standards Act was modified to require employers to offer breaks to nursing mothers for up to one year after the birth of a child.

Employers must offer a “reasonable break time” for nursing mothers to express milk as often as necessary. The employer must offer a private space for the employee to take the break, but a restroom (even if private) will not suffice. Employers do not have to pay the employee during the breaks, but if the employee already receives a paid break time, that time may be used.

Employers with less than 50 employees can skip out on this requirement, but only if they can show an undue hardship. Be careful though, the Department of Labor is unlikely to side with employers in a close call. If you think you should be exempt, check with your lawyer for some advice.

Who, What, Why . . .

Who does it apply to: Drug testing is only required in certain industries, but any employer may choose to institute a policy to protect themselves against unauthorized employee use.

Why would I want a policy: You never know when you might begin to suspect that one of your valued employees has begun smoking marijuana to relax or taking methamphetamines to gain a little extra pep. If the employee is taking drugs, it will eventually impact their work product, and perhaps even your customer relationships. A written and instituted drug testing policy gives you the freedom to quell your fears and will help keep your employees honest – even if you never use it.

When can I start testing: After instituting a policy — but there are several steps involved in preparing an appropriate policy and protecting against violating employee privacy rights. You cannot simply walk into the office one day and say we now have a drug testing policy and Joe Salesman will be the first person tested. You will need to work with your lawyer to prepare a legally valid policy, employee consent form, and notice to applicants.

What types of testing policies are allowed:

• Random Testing – just what it sounds like, but it is enforceable because the employees have been warned;

• “For Cause” Testing – if you suspect someone is under the influence of alcohol or drugs or has an addiction you can send them to the lab; and

• Post-Accident Testing – After a wreck or other accident you can test offending employee and any employee who is a victim.

What if I fire an employee who tests positive and they seek unemployment: The Texas Workforce Commission will accept verified test results from an accredited drug testing company to deny an unemployment compensation claim.

How can I handle an employee who refuses to be tested or won’t sign the consent: Call in a witness. If the employee refuses again, you may be left with no alternative except termination. Do not ever physically force an employee to take a test.

What if I want to keep an employee who tests positive: You must be careful. If the employee returns to drugs or alcohol and causes an accident, you were on notice. Give them one chance – in writing – with zero tolerance and weekly testing that the employee agrees to pay for as a condition of avoiding termination.

Common Situations:

Employee Car Wreck: An employee sent out on a work errand is involved in an accident. The police suspect that the employee was high on cocaine at the time of the accident and test his blood. He comes back positive for cocaine use. This will be exhibit number one at the trial of the personal injury case against your business. If you had an employee drug testing policy, the offender might have been too afraid to use or caught before the accident.

Signs of Use Before or While At Work: One morning, an employee arrives with a smell you recognize but have not encountered since college. With a drug testing policy you can ask the employee to visit the lab and learn of a potential issue before more serious problems arise. Without one, you will be hard pressed to justify sending the employee for testing. By the time you put a policy in place, it might be too late.

Workplace Accident Victim: A warehouse employee rams a forklift into a pallet of expensive electronics without any rational explanation injuring himself in the process. With a drug testing policy you are in a position to find out whether drugs were a portion of the cause of the incident.

Signs of an Addiction: A normally even-keeled employee becomes increasingly belligerent with other employees. You question the employee about problems in their personal life, but nothing comes of the discussion. Perhaps drugs are involved. With a drug testing policy you can find out for certain.

What should I do:

Good: Implement a drug testing policy for existing employees and obtain their signature on a written consent at any time before testing.

Better: Implement a drug testing policy, have all employees sign off on a notice that they have been made aware of the policy, use a consent form any time the policy will be utilized, and place a disclaimer in your employment applications indicating that you utilize employee drug testing.

Best: Follow the advice above and make sure to locate a lab in advance that confirms initial results using the GC/MS method. Initiate random testing of at least one person each year to reinforce the policy is used and followed.

I get a call at least once a month from a panicked client who just heard a rumor that they have to give breaks to employees every day. Unfortunately, there is no snopes.com for employment myths, so this almost total fallacy gets perpetuated over and over. In the vast majority of circumstances the answer is: NO.

Of course, no legal answer would be complete without exceptions. As of May 2010, nursing mothers are now guaranteed a break under Obamacare. Employers have to provide a private space (other than a bathroom) and give mothers time to express milk. On a separate note, the City of Austin, Texas recently passed a city ordinance requiring a 10 minute break every 3.5 hours for construction workers after three men died in 2009.

Who, What, Why . . .

Who does it apply to: Employers with 50 or more employees for 20 or more work weeks in the current or past calendar year must provide benefits, but only to employees: (1) with at least 1250 hours (including overtime) in the past 12 months, and (2) who work within 75 miles of a location with 50 or more employees.

What is required: If the above requirements are met, employers must allow the employee to take up to 12 weeks of unpaid leave within a 12 month period for: (1) pregnancy (including adoption or foster care); (2) caring for a spouse, child, or parent (not including in-laws) with a serious health condition; and (3) an employee’s serious health condition.

What is a “serious health condition”: It includes in-patient care (i.e. an overnight stay in a hospital) and/or “on-going treatment by a physician” for the employee or other covered person. On-going treatment by a physician can be for:

• A period of incapacity involving inability to work, attend school, or perform daily activities for more than 3 days;

• Health care related to pregnancy;

• Incapacity for serious health condition;

• Permanent or long-term incapacitation for chronic serious health condition; and

• Absence to receive multiple treatment for condition that would likely result incapacitation for 3 days.

Can I require the employee to prove the need for leave: Yes, you may require the employee to provide a medical certification from a physician. The employee must then deliver certification within 2 days. You can request a second opinion only if you have a reason to doubt the validity of the certification. Once leave begins you may require an additional certification every 30 days.

Are there records I must keep regarding leave: Yes, you must retain records on the dates and times leave is taken, any medical certifications, or notices to or from the employee regarding leave, and all payroll data regarding the leave period.

When can leave be taken: Leave should be taken all at once or in large blocks, except in the case of a serious health condition when leave may be taken intermittently. Where the need for leave is foreseeable, the employee is required to give 30 days’ notice.

Is the leave paid: Employers are not required to pay during the leave, but an employer can require the employee to use sick days during the period. The employer must maintain health insurance benefits for the employee while out, however, the employee is still responsible for their portion of any premium while on leave.

Do I have to keep the position open: No, but as a practical matter, you should. The employee must be given a position that offers the same money, same level of authority, and level of responsibility. The only time changing the employee’s position is viable is in the case of a serious health condition that requires intermittent leave from a position that won’t accommodate it.

What are the consequences of failing to comply: Within two years of the incident, the employee can sue in federal court or report the issue to the Department of Labor which may investigate on its own. Damages to the employee include not just the lost wages or benefits, but also attorneys’ fees, expenses, and an extra amount equal to their economic damages as a penalty.

What do I do if I feel the employee is trying to abuse the system: Don’t take matters into your own hands. Contact your lawyer. The consequences of a violation can be severe and the minute details of the law are beyond the scope of this guide. You may have rights, but you should have input from someone qualified to assist you.

Common Situations:

Adoption: A female employee informs you that she and her husband are adopting a child from a foreign country. The employee gives 15 days notice. Unless the employee can explain that the need to leave within 15 days was unforeseeable, you may delay the leave until the 30 day notice period has passed. That said, employers should give employees the benefit of the doubt as to the foreseeablilty of the need for leave.

Key Employee Leave: Your small company’s CFO plans to take 12 weeks leave when his wife gives birth to their first child. While you wholeheartedly support his family commitment, the company will not be able to survive without a replacement if the CFO is gone that long because you as the owner must travel to China to meet with manufacturers. If the CFO’s absence will cause the company “substantial and grievous economic injury” you may terminate the CFO instead of holding his position open. Before utilizing this option, however, please consult with counsel.

Care of Adult Child: An employee reports that she needs to take leave to care for her college age child who has been in a serious automobile accident. While the FLMA provides for care of a child with a serious health condition, for children over 18, you are only required to allow leave if the child is incapable of caring for himself in three or more daily living activities due to a mental or physical disability.

What should I do:

Good: Maintain all of the notices required by the U.S. Department of Labor. You can find an “all-in-one” poster at most office supply stores. Grant leave where appropriate and consult counsel in any event you plan to deny or delay leave.

Better: Maintain required notices and consult counsel where appropriate. Maintain a posted policy of the person to whom employees should report the need for leave so that requests for leave are not made to supervisors or other employees who are not trained to know the importance of a request.

Best: In addition to the suggestions above, maintain an employee handbook which sets out the company’s plan for leave, including: (1) whether leave is paid in part or in full, (2) whether employees are required to use sick days during FMLA leave; (3) providing a form of request for leave; (4) explaining the requirement of 30 days notice where the need for leave is foreseeable; and (5) designating a particular person within the organization for employees to make requests to.