FMLA Issues How to Manage and Prevent Leave

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1 FMLA Issues How to Manage and Prevent Leave w Abuse Presented by: Robert J. Simandl Attorney von Briesen & Roper, S.C Swenson Drive, Suite 400 Waukesha, WI rsimandl@vonbriesen.com (262)

2 Today s Agenda FMLA Administration and Communication Integrating the FMLA with the ADA and other labor and employment laws Returning Employees Back to Work Department of Labor Investigations

3 FMLA ADMINISTRATION AND COMMUNICATION

4 FMLA Administration Year The more beneficial provisions of federal and state law will control in the rights available to the employee Administrative Year Federal Employer choice of year including calendar, anniversary, fix year, rolling 12 month Wisconsin Interpreted to be calendar year based Minnesota follow federal administrative year selection process Regulations have been misunderstood as to ability to use dual administrative years check State laws for multi state employers Change of year obligations to employees advance notice required

5 Definitions Parent Parent Traditional Step parents Grandparents Non relatives Theme: Must have acted as a parent when employee was a child Under and over if disabled within the meaning of the ADA hmmm?

6 Definitions (cont.) Child and Spouse Child Expansive interpretation of Disability creates a much broader explosive group In Loco parentis expansive reading who do you stand in the position of a parent with Watch for State distinctions for Wisconsin less of an issue because a child is a child, regardless Spouse for federal purposes domestic partner is not within the definition Creates a federal/state difference in entitlements Discussions at State level to make it the same Questionable State of celebration

7 Notice to Employer Notice need not be formal request using specific words noticing the need for FMLA Obligation: Provide employer with information sufficient to indicate the existence of a serious health condition ( SHC ): Absence lasting more than 3 calendar days Description of reason for leave/absence indicates a SHC What is the manifestation? Prior SHC and possibility of linkage Labels are meaningless

8 Notice to Employer (cont.) Practical Issues: Do not wait for specific words Make clear all call in procedures who, what, when Enforce call in expectations Watch out for the sneaky ADA and State Disability Laws Minnesota Wisconsin Illinois

9 Notice to Employer (cont.) Concern: Employees may request not to use FMLA, even if you maintain a policy requiring employees to use paid substitutes. Employer left in the middleclassify as FMLA absent specific request. Escriba v. Foster Poultry Farms (9 th Cir., 2014) Employee requested vacation to care for ill father but denied FMLA leave in order to preserve it for future use. The Ninth Circuit concluded an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection. But what about STD/sick leave different answer?

10 Notice to Employee Trends of decisions is that employee must have actual notice of FMLA rights and entitlements not presumption of notice given E mail read receipt Hand delivery Certified Mail? Policy clarity Annual republication

11 Notice to Employee (cont.) Key Notices Requirements for taking leave request Policy Posting Acknowledgments HCP Certification Notice of Rights Notice of Eligibility Notice of Designation

12 Return to Work Define Notice Expectations when are you to receive return to work information (2 days, week before return?) Fitness for Duty exceptions to requirements 100% healed policies/no light duty if not work related WATCH OUT! ADA/State Disability Law

13 INTEGRATING FMLA WITH THE ADA

14 FMLA/Clemency and Forbearance ADA/State disability analysis of accommodation obligation: Granting leave (in addition to FMLA), modifying workplace expectations or other forbearance to allow medical treatment to be completed that could reduce the difficulty in performing the job Viewed as a limited term waiver of regular work during treatment term with a foreseeable end date Remember the interactive process The Health Care Provider Certification provides the information on duration If indefinite but greater than 12 workweeks, leave entitlement may not require health insurance continuation and job guarantee

15 Attiogbe Tay v. Southeast Rolling Hills, LLC (D. Minn. 2013) An overnight LPN had elective reconstruction knee surgery, out 12 weeks Upon return to work, she had restrictions prohibiting her from kneeling, squatting or lifting more than 50 lbs. for six weeks Physical Job Demands documentation said LPN s must be able to kneel, squat or lift more than 100 lbs. (to assist fallen patients) Company fired the employee upon return from leave

16 Attiogbe Tay v. Southeast Rolling Hills, LLC Employee brought suit for disability discrimination, failure to accommodate, FMLA interference and FMLA retaliation Employee argued that the Company could have accommodated her by allowing her six weeks of leave Court ruled that six weeks of leave would be an undue hardship because: Employee was the only overnight LPN Employee s FMLA was covered by staff working overtime and hiring of temporary LPNs The Company had already paid $8,000 for additional staff

17 Target Stores v. LIRC and Crivello (Wis. App. 1998) Employee with sleep apnea was written up several times for dozing off at work Target recommended she see a doctor, which she did The Employee was diagnosed with sleep apnea and was provided antihistamines and a nasal inhaler The Employee provided a doctor s note to Target that described her diagnosis and explained that the inhaler might not work, in which case she would have to use a CPAP machine The Employee was again caught dozing off and was subsequently terminated

18 Target Stores v. LIRC and Crivello The Employee brought a suit under the Wisconsin Fair Employment Act for disability discrimination On appeal, the Court found that Target refused to reasonably accommodate the employee because: Target knew of the disability (and even recommended she see a doctor) Target was aware of how it affected her job performance Target knew sleeping on the job was beyond her control Target knew the employee was undergoing treatment The Court found that the specific accommodation that the employee needed was clemency and forbearance from termination for dozing off at work

19 Considerations Is request for short term exception from employer rules? What is impact on business? Quantify impact Does an undue hardship arise?

20 Proving an Undue Hardship An undue hardship is an action requiring difficulty or expense which is more than nominal Factors: The nature and cost of the accommodation; The overall financial resources of the facility involved in the provision of the reasonable accommodation number of persons employed, the effect on expenses and resources, etc.; The overall financial resources of the covered entity; The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; and Duration of the requested accommodation. Impact on the integrity of the job.

21 Reduced Leave Schedule and Work Related Injuries Working less than regular hours of work Intermittent Leave Defining Reduced Leave Schedule Term of Request Duration/Permanency Work related v. Non work related Difference?

22 Wink v. Miller Compressing Company (7 th Cir., 2017) Employee requested FMLA leave to enable her to work from home two days a week to care for her sick child HR told her that she had to report to work on its premises full time or face discipline HR also told her that FMLA covers leave from work only for doctors appointments and therapy Employee was terminated for not showing up to work Court granted liquidated damages double the amount of her actual damages for lost wages

23 RETURNING EMPLOYEES BACK TO WORK

24 Returning to Work If no job description is provided in the HCP Certification process, return to work note If job description given with HCP Certification, return to work with Fitness for Duty Questions on ability to perform: FMLA Rules ADA Rules

25 Fighting FMLA Abuse Define the notification process once the need for FMLA leave is identified Know employer rights with respect to medical certification, recertification and second/third opinions to combat FMLA abuse Communicate with employees during FMLA leave and document all communications Engage in the ADA s interactive process as necessary when FMLA is exhausted and employee is yet unable to return to work Document, Document, Document Review leave policies regularly and include specific information on which paperwork needs to be completed to file a leave notice

26 DEPARTMENT OF LABOR INVESTIGATIONS

27 DOL Enforcement Past practice of a call by DOL followed by a statement on compliance may be over Process: Complaint filed Call as to compliance issue On site investigation of FMLA compliance Findings and threat of referral to litigation for noncompliance Negotiation of monetary resolve

28 Best Practices Going Forward Revise job descriptions to ensure they accurately reflect the job duties and responsibilities of each position. Comply with FMLA and state equivalent laws for: recordkeeping, notice, and posting requirements Establish return to work procedures that include access to light duty work (if necessary) for ADA/Disability compliance NOT FMLA. You do not need to create work! Require documentation confirming employees are able to perform the essential functions of their jobs.

29 QUESTIONS? Robert J. Simandl, Esq. von Briesen & Roper, S.C Swenson Drive, Suite 400 Waukesha, WI (262)

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