January 07, 2014
Employer questions on FMLA, jury duty and employment contracts

by Karen G. Clay 

In this Question and Answer column, employers inquire about whether a root canal is a serious health condition under the FMLA, pay requirements for employees on jury duty, mandating flu shots, and employment contracts. Some answers coverMississippi law.

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Q: One of our employees left work early one day because of a toothache and went to the dentist. It turns out he has to have a root canal, which will require several appointments. Would his time off qualify for protection under the Family and Medical Leave Act (FMLA)?

A: The FMLA provides protected leave for an employee who suffers a serious health condition that makes him unable to perform the essential functions of his job. To qualify the employee for FMLA leave, the root canal must incapacitate him for more than three days, and he must receive ongoing treatment from a healthcare provider. Bed rest and over-the-counter medications generally aren’t considered ongoing treatment, but antibiotics are.

Bottom line: Take it from someone who has had one too many root canals: It’s possible that a root canal gone wrong could turn into a serious health condition. For example, the employee might suffer an infection at the root canal site. If there’s any question about whether your employee qualifies for FMLA leave, provide him with a medical certification form and seek clarification from his healthcare provider.

Q: We recently hired two associates who now have jury duty. We don’t pay benefits for the first 90 days of employment. Are we required to pay them for their time on jury duty if they haven’t been here for 90 days?

A: Mississippi doesn’t have a law that requires employers to pay employees for jury service, so you don’t have to pay your employees for the time they’re on jury duty unless you have a policy that provides otherwise. The only legal requirement is that you may not persuade or attempt to persuade any juror to avoid jury service or intimidate or threaten any juror in that respect.

Bottom line: If you have a policy (preferably clearly written and consistently applied) that states you won’t provide regular compensation to employees on jury duty during the first 90 days of their employment, you’re covered. If you don’t have a policy, it’s advisable to implement one.

Q: Our company operates two assisted living facilities. For the health of our residents, we would like to require all employees to get a flu shot. Is that legal?

A: Yes, it’s legal to require all employees to get a flu shot. Most flu-shot related firings involve healthcare workers who are required to get the shot as a condition of employment. A caveat, though: An employee whose religious beliefs and practices prevent her from having vaccinations and taking medications cannot be forced to get a flu shot or fired for refusing the shot. 

Bottom line: All Mississippi employers can technically require at-will employees to get flu shots regardless of their industry. Such a requirement could be hard to monitor, though, so alternatives include encouraging frequent hand washing, mandating that sick employees stay home, and allowing employees suffering from the flu to work from home if feasible.

Q: If an employment contract is for a fixed term (e.g., it expires after one year) and it’s silent about what occurs at the end of that term, is there an implied renewal of the contract, or does the employee become “at will” once again?

A: It really could go either way. A lot will depend on how the employee is treated after the contract expires and whether there’s a “rollover” clause in the contract. Even without a rollover clause, it’s possible that a court would presume an implied renewal of the initial contract for another one-year term if the terms and conditions of employment remain the same. What that means for an unwitting employer is, if the employee is terminated during the next one-year period, he could file a breach of contract claim against the company.

Bottom line: Say what you mean, and mean what you say. If you don’t intend for an employment contract to be automatically renewed, state in the document, “After the one-year period expires, the employee becomes employed at will.” It’s as simple as that. Otherwise, you leave it up to chance how a court will interpret your agreement.

Karen Gwinn Clay is an associate with The Kullman Firm in Jackson, Mississippi. She can be reached at 601-366-2990 or kgc@kullmanlaw.com.

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