Frequently Asked Questions

Can I be fired for taking medical leave?

If you work for a company with 50 or more employees, and you have been employed for at least 12 months, you may be eligible to take up to 12 weeks of protected time off under the Family and Medical Leave Act (“FMLA”).  This does not entitle you to paid leave, but it does entitle you to job protection and continuation of benefits while you are on leave.  You have a right to be free of retaliation for using FMLA leave, which means that you cannot be fired for exercising your FMLA rights.  If you are not eligible for FMLA leave, you may still have the right to take medical leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) or the Michigan Persons with Disabilities Civil Rights Act (“PDCRA”), depending on the circumstances of your situation and whether it poses undue hardship for your employer.

What type of accommodations are employers required to provide to employees with disabilities?

If you have a serious health condition that is impacting your job, you may be entitled to reasonable accommodations under the Americans with Disabilities Act (“ADA”) or the Michigan Persons with Disabilities Civil Rights Act (“PDCRA”).  Reasonable accommodations may include part-time or flex-time schedules, modifying office furniture or equipment, relocating the employee’s workspace (including work-from-home arrangements), job reassignment, short-term leave, and many other things.  Employers are not required to provide accommodations that pose an undue hardship.  Accommodations must be considered on a case-by-case basis, and the employer is required to engage in an interactive process with the employee to determine how best to accommodate.

Can I be asked about my health history during a job interview?

No.  According to the Americans with Disabilities Act (“ADA”), employers are not permitted to make pre-employment inquiries about the existence of a disability or the nature or severity of a disability.  This applies even if the disability is obvious or if the applicant volunteers information about the disability.  Furthermore, an employer may not ask a job applicant to take a medical examination before making a job offer.  However, they may ask questions about the prospective employee’s ability to perform specific job functions.  Employers may condition a job offer on the satisfactory result of a post-offer medical examination, but only if this is required of all entering employees.

 

My employer wants me to submit to an independent medical exam. Can I be required to do this?

It depends on the reason for the request.  The Americans with Disabilities Act (“ADA”) requires that all medical examinations or inquiries must be job-related and consistent with business necessity.  For instance, employers are permitted to make medical examinations or inquiries where there is evidence of a job performance or safety problem.  Also, employers are permitted to make medical examinations or inquiries in order to assess whether an employee needs an accommodation.  If the employee provides insufficient documentation from his or her treating physician, the employer may in some instances require that the employee submit to anindependent medical exam.

FROM THE BLOG
  • Should I be Getting Overtime Pay If I am Paid on Commissions? October 4, 2021

    There is an “Commission Sales” overtime exemption under Fair Labor Standards Act, 29 USC Section 207(i)… but are those payments really “commissions”?

    Under Section 207(i) commission sales employees are exempt from overtime requirements, but only if:

    1. the regular rate of pay of such employee is in excess of one and one-half times the federal minimum hourly rate (1.5 x 7.25/hr) , and
    2. more than half their compensation for a representative period (not less than one month) represents commissions on goods or services.  29 U.S.C. 207(i).

    There are plenty of people that work under phony “commission plans” who actually should receive overtime pay at time and a half for their hours over 40.  (more…)

  • Public, Private Employers Roll Out Workplace Vaccination Requirements for In-Person Work August 2, 2021

    As Michigan employers prepare for a return to in-person work, Michigan’s Universities are leading the way on vaccination policies. On July 30, 2021, Both Michigan State University and the University of Michigan rolled out mandatory COVID-19 vaccination policies for all employees (and students) returning to campus this fall.  Many hospitals and health-care settings have already announced similar policies.  With proper exemptions in place, mandatory vaccination policies (more…)

  • Time Magazine: The Fight for Working Mothers March 4, 2021
    SOUTHFIELD, MICHIGAN – Brown lost her job after requesting time away from work to care for her son and niece who had COVID-19. (Brittany Greeson for TIME)

    Read about our client’s struggle in Time Magazine this week.  Tamara Brown was denied the right to work from home during the COVID-19 pandemic and fired for having child care responsibilities. Despite federal law and leave rights, employers who did not keep up with the law have done wrong to so many Michigan workers: fired when they should receive paid leave; forcing working moms to choose between family safety and a right to keep a job. Nobody should be forced to make that choice.

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