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Small Business Human Resources Workforce Development Your Questoins Answered Success Stories

February 2004 — Vol. 82, No. 1

YOUR QUESTIONS ANSWERED

Have a personnel-related or business tax question? Members can get free information from CBIA’s experts. The phone number is 860-244-1900.

 

Q: We often have trouble getting employees to give us medical certification when they need time off under the Family and Medical Leave Act (FMLA) for their own serious health condition. What are the guidelines on this?

A: In most cases, an employer should request that an employee furnish certification from a health care provider at the time the employee gives notice of the need to take leave or within two business days of giving notice. In the case of unforeseen leave, an employer should request certification within two business days after the leave begins. An employee must be given at least 15 calendar days to produce the certification; if 15 days is not practicable under the circumstances — for example, because of a medical emergency — then the employee must produce the certification as soon as reasonably possible.

If an employee fails to provide timely certification after being asked to do so, the employer may delay the start of FMLA leave, or if the leave has already begun, the employer may delay continuation of the leave. If the employee never produces the certification, the leave is not FMLA leave and the employee loses all FMLA protections. At the time an employer requests certification, the employer must also inform the employee of the consequences of failing to provide it.

Q: One of my key service employees has just been called up for active military duty. Her absence will cause a severe hardship, since she is the only person covering our customers in that territory. I will either have to train a current employee and reorganize my service areas, or hire a replacement, which will take several weeks at best. Does the law exempt a company from having to grant military leave, or from having to guarantee reinstatement, when a key employee’s absence for several months would result in a severe hardship?

A: The Uniformed Services Employment and Reemployment Rights Act (USERRA) does include an exception, but it’s very limited. An employer does not have to re-employ a veteran if the employer’s circumstances have so changed as to make re-employment “impossible or unreasonable.” This exemption is very narrow. For example, reinstatement would not be mandated if it would require creating a useless job or if there has been a reduction in force that reasonably would have included the veteran. Situations not covered by the exemption would include:

  • an employer’s claim that the project previously assigned to the veteran has been completed, unless it can be clearly shown that the veteran would have been laid off at that time rather than assigned a new project;
  • the fact that another person has been hired to fill the position vacated by the veteran; and
  • the fact that no opening exists when the veteran applies for re-employment.

In the latter cases, a replacement employee might have to be transferred or laid off in favor of the veteran.

While the law’s requirements are admittedly inconvenient, expensive and disruptive, these hardships are not “impossible or unreasonable.”

The Human Resources area at cbia.com has more information about employers’ responsibilities under USERRA.

Note: If your average sales over three years were under $6 million, you may qualify for a Military Reservist Economic Injury Disaster Loan from the SBA. This loan helps small businesses suffering financial hardship due to the military call-up of a key employee.

Q: Does a Connecticut manufacturer still get the exemption from sales and use tax if they purchase used, versus new, production machinery?

A: The full exemption from sales and use tax for manufacturers does not depend on whether new or used production machinery is purchased. The exemption is granted based on the nature of the equipment and how it is to be used. If the equipment fails to qualify for the full exemption, it might qualify for a partial exemption. For more information, see Department of Revenue Services (DRS) publication IP 99(18), Sales and Use Taxes Guide for Manufacturers, Fabricators and Processors. You can also call the DRS at 1-800-382-9463.

 

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