Employment Law Q & A


Q: We had an employee travel to Mexico for business. She ended up getting the flu and had a doctor come see her at the hotel. Unfortunately, the employee’s health insurance doesn’t cover treatment in Mexico. Since the illness occurred during business travel, do we need to cover the cost of the doctor?

A: Under the Workers’ Compensation rule known as the “going and coming rule,” Workers’ Compensation generally does not cover employees while they commute to or from work. However, there are exceptions including, without limitation, when an employee is driving a company vehicle, doing special a special errand for the employer, and traveling on a business trip. Medical expenses for any illness incurred while traveling for an employer on a business trip will undoubtedly be covered under the employer’s Workers’ Compensation coverage requirements.

Q: An employee resigned about six months ago. Almost as soon as he started his new job, he changed his mind and wanted us to rehire him. We have no plans to rehire him, but he continues to send long, personal e-mails directly to HR and other managers asking to be rehired. How can we get him to stop sending these disruptive and persistent e-mails?

A: If the employee’s former supervisor, department head, or other person of authority, up to the president and/or owner of the company cannot pursued the employee to stop making contact, the employer should have its corporate counsel send a cease and desist letter instructing the former employee to terminate his contact with the company and/or its employees or risk litigation, including an action seeking a restraining order.

Q: One of our employees was approved for Family and Medical Leave Act (FMLA) leave for the birth of his child. The mother is suffering from postpartum depression, and he has requested FMLA leave to care for her. Is this leave covered under the certification for the child’s birth, or should we request a new certification?

A: Other than for military related FMLA leave, employees may seek FMLA protected leave for their own serious health condition, the birth or placement of a child, and/or the serious health condition of the employee’s parent, spouse, son or daughter. If an employee who has utilized leave for the birth of a child still has remaining annual FMLA leave available and wants to use it for a reason other than for leave to bond with a newborn child, i.e., his wife’s serious medical condition, the employer would be entitled to a new medical certification confirming that the employee’s wife was suffering from a condition qualifying the employee to additional protected leave.

Q: One of our employees has been on short-term disability for the past few months. During that time, we have decided to lay off multiple employees with her same job title because of lack of work. Are we OK with proceeding, or do we need to find a way to return this employee to work?

A: As long as the employee would have been laid off whether or not s/he was on short-term disability, the employee can be laid off while on disability. Employers are encouraged to develop strong criterion for identifying employees that will be laid off, whether it be on seniority, e.g., last in, first out, or on a performance based analysis, and then conduct the layoff pursuant thereto, irrespective of the status of the employee subject to the layoff. Doing so is the most effective way to avoid a charge of disparate treatment and/or discrimination.



LW Liberty Watch publishes this column to convey general information, and not for the purpose of providing legal advice. You should not consider any information in this column to be legal advice, and you should not act upon any such information. Readers should obtain specific legal advice directly from members of Clark Hill (or their own legal counsel) in relation to any decision or course of action contemplated. Clark Hill and its members provide legal advice only upon the execution of a formal attorneyclient retention agreement establishing an attorney-client relationship. This column and its contents do not create an attorney-client or any other relationship between Clark Hill, any of its attorneys, and/or any reader or other person or entity.

Leave A Reply

Your email address will not be published.