Excerpted from West Virginia Employment Law Letter, written by attorneys at the law firm Steptoe & Johnson PLLC.

Signed into law by President Bill Clinton in 1993, the Family and Medical Leave Act (FMLA) was designed to promote a balance between work and family.

On the surface, the FMLA provides employees with the power to achieve that balance. Lurking just beneath the surface, however, are a myriad of practical pitfalls that employers are likely to face with regard to the Act. This article focuses on a few of those potential pitfalls.

Q: One of our police officers plans to take FMLA leave for the birth of his child. Can he work a part-time job for a different employer while he's on FMLA leave from this job? He'll be paid his full salary because he'll use sick/vacation time.

A: Unless you have a uniformly applied policy prohibiting supplemental employment, you can't use the police officer's part-time job with a different employer as a legal basis for denying him FMLA leave. In other words, unless you prohibited it before his situation arose, you can't prohibit it now.

Q: When, if ever, does taking time off under the FMLA legally affect promotions? If an employer always takes length of experience into account when deciding which employees to promote, what if two people end up with the "exact" same length of experience, with the exception of one having been on FMLA leave for 12 weeks?

In that situation, the person who wasn't on FMLA leave would have more experience and generally would be the one to promote. Is that illegal under the FMLA, and if so, what do you do about it?

A: Under the present circumstances, focus on breadth of experience, not length. Not surprisingly, you're prohibited from discriminating against employees who take FMLA leave. As a result, you can't consider an employee's use of FMLA leave as a negative factor in determining whether to promote him.

Under the present circumstances, you should avoid the pitfall that runs hand in hand with justifying the promotion based on length of experience. To consider length of experience as the deciding factor would be the equivalent of holding the employee's FMLA leave against him.

As a result, avoid isolating a sole cause for the decision. In addition, remove from the equation the difference in length of experience. By doing so, you'll have removed FMLA leave from consideration. If litigation arises regarding your decision, that will make it easier for you to show that sufficient business reasons, irrespective of the employee's FMLA leave, induced you to make the decision regarding promotion.

At the end of the day, you need to be able to justify your employment decision on grounds independent of the employee's FMLA leave. Otherwise, you're setting yourself up for the allegation that the decision not to promote the employee was causally related to his FMLA leave. If that's the case, be prepared for the FMLA retaliation lawsuit that will accompany that allegation.

Q: This is a first-time FMLA deal for me. One of our employees is on FMLA leave because of an accident that occurred during his personal time. Can he claim unemployment compensation during his leave?

A: While an employee is on FMLA leave, his relationship with your company isn't severed. It's simply on ice. Once the employee's FMLA leave expires, if he can demonstrate that he's fit to return to work, then you must restore him to his former position. Therefore, unless the employment relationship has ended, which would result in no further FMLA benefits, the employee isn't entitled to unemployment compensation.

Q: We have an employee who was diagnosed with chronic depression. I received FMLA paperwork from his doctor stating that he'll need to attend weekly therapy sessions, which isn't a problem for us. It also states, however, that he may need to take intermittent time off.

If he calls in the morning saying he can't come in or will be very late because of his condition, are we required to consider it FMLA leave? He has no sick leave, and it poses a hardship on the department if we can't plan for his absences or tardiness.

A: Qualified employees are entitled to take intermittent leave under the FMLA when such leave is medically necessary for recovery from treatment or from a serious health condition.

Intermittent leave may be taken for absences when the employee is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if he doesn't receive treatment by a health care provider.

There's no limit on the size of an increment of leave when an employee takes intermittent leave. So long as the employee doesn't exceed his 12 weeks of FMLA leave for the 12-month period during which his serious health condition exists, you can't deny him intermittent FMLA leave regarding his condition, of which you're on notice.

Because the employee's intermittent leave will place a hardship on the department, however, you may require him to temporarily transfer to an available alternative position for which he's qualified. If you decide to place him in an alternative position that's more suitable to recurring periods of leave, then the position must have equivalent pay and benefits, although it doesn't have to include equivalent duties.

In temporarily transferring the employee, you may increase the pay and benefits of an existing alternative position to make them equivalent to the pay and benefits of his regular job. You also may transfer him to a part-time job with the same hourly rate of pay and benefits, provided he isn't required to take more leave than is medically necessary.

Though you may not eliminate benefits that wouldn't otherwise be provided to part-time employees, you may proportionately reduce benefits if your normal practice is to base such benefits on the number of hours worked. Once the employee no longer needs to continue on FMLA leave and is able to return to full-time work, you must return him to either the same job from which he was transferred or an equivalent job.

Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from WEST VIRGINIA EMPLOYMENT LAW LETTER. West Virginia Employment Law Letter should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area.