The Mailbag.

• Author: Davenport, Anniken

What if FMLA call-offs frequently happen on Mondays and Fridays?

Q How should we manage FMLA intermittent leave when it seems like employees are always calling off on Mondays and Fridays?

A What you are describing is a potential pattern of FMLA abuse--that is, using a certification for intermittent leave to take time off that may not be related to the health condition that underlies the certification.

Your first move should be to check the employee's FMLA certification. If the employee is calling off substantially more frequently than was estimated in the intermittent leave certification, that's grounds for requesting a new certification even if that certification would not normally be due anytime soon.

When you reach out to the employee's health-care provider to confirm the certification, you can include a list of the absences to date, which would show the Monday/Friday pattern. Ask if this seems reasonable given the employee's serious health condition.

If you are considering implementing more draconian measures like surveillance to judge whether the employee is abusing their FMLA entitlement, check with your attorney first.

Is granting time off considered an ADA reasonable accommodation?

Q Can time off, either continuous or intermittent, be used as an ADA accommodation? How much leave is considered to be a reasonable accommodation?

A Yes, time off can be a reasonable accommodation under the ADA. Thus, a newly hired disabled worker who needs to attend medical appointments related to his disability and has no vacation, sick, PTO or other leave accumulated could take unpaid leave as a reasonable accommodation. The same is true for a disabled worker who has used up all other leave and still needs time off to deal with disability-related matters.

The question becomes, what is a reasonable amount of time off before an employer can argue it's unreasonable? Courts have said that if the time needed is "indefinite," that's unreasonable. Requests for leave for a specific period are more likely to be seen as reasonable.

And yes, the time off may be intermittent.

With a fully remote workforce, which state's laws apply?

Q My company is a fully remote organization headquartered in Florida. We have employees all over the United States. Since we are based in Florida, can we follow Florida's at-will-employment law for all employees?

A Probably not. Here's the problem: As remote work has taken off, some states and even cities have sought to regulate...