WHITEPAPER. Presagia s FMLA Intermittent Leave Guide

Transcription

1 WHITEPAPER Presagia s FMLA Intermittent Leave Guide

2 Table of Contents Introduction... 3 Why Is It So Complicated?... 4 Different faces of intermittent leave... 4 By Certification Types... 5 By Medical Condition Type... 5 By Absence Duration Type... 6 The Basics: What Is It? Who Gets It?... 6 Rights and Obligations... 7 Accurately Administering Leave and Discouraging Abuse... 9 A Compliant Leave Program NOTICE Copyright Presagia All rights reserved. Presagia is a registered trademark. The Presagia logo is a trademark of Presagia Corp. Other trademarks identified in this document are the property of their respective owners. Information provided within this guide is not intended to be used as legal guidance. Presagia maintains that legal counsel should always be consulted when considering or implementing changes to the leave processes and policies. Page 2 of 13

3 Introduction Long time employee, Sophia has requested intermittent leave under the Family and Medical Leave Act (FMLA) for her anxiety. Matthew is going to need some intermittent leave for his allergies which become disabling in the spring. Dave has also applied for intermittent leave due to of his asthma attacks and Chloe is looking for intermittent leave time to bond with her newborn. With so many variations of what intermittent leave can look like and mean, it s not surprising that properly tracking and managing intermittent leave has become one of the biggest pain points for FMLA eligible employers. While the FMLA was enacted 20 years ago, employers still struggle today to properly administer it. An already complex piece of legislation, the FMLA has further challenged employers with the option of intermittent leave. Unlike most other leaves that are taken in a continuous block of time, intermittent leave can take on many forms and is largely open ended, sometimes extending for years. In order for an employee to qualify for intermittent leave, they must show that the need for leave is medically necessary, but how do you accurately evaluate medical certifications? If a submission comes back incomplete or with insufficient information how do you handle it? Which is the best method to ensure the right information is included when recording absences to quickly and correctly designate them? In which increment of time should you be tracking your intermittent leaves? The purpose of this whitepaper is to: Overview intermittent leave and its different faces Highlight some key employer rights and obligations Outline how to take control and discourage employee abuse Examine what a compliant leave program should look like Page 3 of 13

4 Why Is It So Complicated? Intermittent leave by its very nature is unpredictable and complications come from many sources. The fact that employees can have multiple FMLA cases open at the same time is one of the greatest causes for the Act s complexity. For example, someone who has been approved for intermittent leave for diabetes can then also be approved for depression, providing them time off once a week for appointments with their psychologist. Another employee, approved for intermittent leave for severe migraines might become injured and eligible for continuous leave. As long as the employee has not exhausted their FMLA entitlement, a single employee can have one, two, three or more cases open at any given time. A common mistake that employers make is expecting that the collection of absence data alone will suffice for leave management. Absence data is useful for calculating leave entitlement but not for the broader issues of leave program participation, eligibility or applicability of leave laws to the absence reason. Absence data is reactive and collected after your employee is already on leave. Compliance elements such as who the leave is for, a detailed absence reason, whether it represents a new or existing leave and more are missing from this model and can seriously impact your ability to meet compliance targets. If your absence code only says FMLA, how do you know which leave case to designate the absence to? So while you re collecting enough information for pay, major compliance targets are being overlooked. Employers also often lack the proper communication channels to ensure the leave team receives the information they need in time to respond accurately to leave events, meaning that the right information is often not reaching the leave team on time or even at all. Compliance driven programs are most successful when a properly trained leave team manages and monitors participation in leave programs and has visibility into absence reporting to match these events to leave programs. We will discuss these and other issues further in this whitepaper. Different faces of intermittent leave To be deemed medically necessary, an absence reason must meet the requirements of what is considered a serious health condition, which under the FMLA is defined as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment. Due to the breadth of what constitutes a serious health condition for intermittent leaves, it is often difficult to determine if an intermittent absence is FMLA qualifying. Often this is exacerbated by employers trying to use their time and attendance data to identify FMLA intermittent leaves when in fact this data often lacks the necessary depth. However, the first step to solving any problem is knowing what you re dealing with. Intermittent leave can be categorized by certification type, by medical condition type, and by absence duration. Page 4 of 13

5 By Certification Types 1. Certified Predictable Leave An employee requests intermittent leave in advance and it is approved and thus scheduled for a foreseeable event. This is a best case scenario for employers as it is straightforward and can be planned around. An example of this would be scheduled appointments or follow ups for a known and existing medical condition. 2. Certified Unpredictable Leave Related to an unpredictable but certified health condition where the condition is not always predictable but for which typical frequency and duration are generally known for example, severe morning sickness. 3. Uncertified Unexpected Absence Essentially a no-show kind of situation in which the employee is not expected or certified to miss work, but does so anyway and claims intermittent leave as the reason. Even if this kind of absence is related to a serious health condition that qualifies, the employee is obligated to request and certify the leave before an employer is obligated to extend the protection of the Act to those absences. Events Outside Certification Parameters This is a situation where an employee has an approved intermittent leave, but the frequency, duration, or both, vary widely from the certified frequency and duration. These situations are extremely difficult to monitor without the assistance of a strong process and appropriate technology; under these circumstances it is absolutely acceptable for an employer to request recertification. By Medical Condition Type 1. Serious health conditions of a chronic and ongoing nature Chronic and ongoing conditions may generate absences that are predictable (as in regularly scheduled dialysis treatments) or unpredictable (asthma or diabetes). In this case there is a regularly recurring need for leave for a known and ongoing medical condition that the employee will have to deal with on a continual basis for an indefinite period of time. 2. Serious health conditions requiring periodic treatment Conditions in this category generally include temporary medical conditions for which the treatments are specific and recovery is likely. Both predictable and unpredictable absences may result from these conditions as well. Page 5 of 13

6 3. Serious health conditions of an episodic nature Conditions in this category almost always generate absences of an unpredictable nature. Although the frequency and duration are generally known, the events are often unpredictable. The condition may be either temporary or of a longer term duration. By Absence Duration Type 1. Full day absences Time is designated against the employee s workweek for each full day of absence until exhausted. 2. Partial day absences Only the actual time used for the absence can be booked against the employee, absent unusual circumstances. Reduced Schedule Leave Instead of taking time off for appointments, or as the need arises for different medical conditions, another option is to place an employee on a reduced schedule. This reduces the hours worked by day or per week, for example switching an employee from full to part time for a period of time. An employer may still designate the time an employee is absent for the portion of the workday for which they are not working. The Basics: What Is It? Who Gets It? FMLA leave can be taken intermittently in day, hour and even minute increments and an employee who has been approved for intermittent leave may take leave without notice in certain circumstances. As previously mentioned, intermittent leaves must be medically necessary in order to be approved. Initial medical certifications should support the medical necessity of the leave and employers are also entitled to information on the expected frequency and duration of the periods of incapacity. The basics of intermittent FMLA are the same as FMLA for continuous leave: eligible employees may take up to 12 weeks of unpaid job protected leave in any 12 month period or up to 26 weeks to care for an injured servicemember. For more detailed information regarding eligibility, entitlement and medical certification requirements, download Presagia s FMLA Guide at Page 6 of 13

7 Rights and Obligations Employers who want to properly and compliantly administer intermittent leave must be aware of their rights and obligations during the process. Initial Request and Correspondence When an employee requests any form of leave, it is obligatory that employers fully assess the right to FMLA leave. Employers must then inform the employee of their rights and responsibilities while outlining any applicable company policies. In this preliminary eligibility notice the following must be included: If the employee is required to provide medical certification The 12-month period used employers have the right to choose this and may select the calendar year, a rolling 12-month period, any fixed 12-month leave year such as a fiscal year or the period measured from when the employee s FMLA leave begins The company policy regarding the right or requirement to substitute accrued paid leave If the employee is required to pay health care premiums to maintain benefits If a fitness for duty or medical release form must be obtained to return to work The FMLA s job protection guarantee but also the consequences of not returning to work FMLA Doesn t Live Alone You must also remember that employer obligations may exist under the ADA even if there are no FMLA obligations. Under the ADA, leave and flexible or even part-time work schedules may be required as a reasonable accommodation if they do not pose an undue hardship to the business. The key to ADA reasonable accommodation cases is an effective and interactive process to explore potential accommodations. The ADA Amendments Act (ADAAA) of 2008 dramatically expanded the ADA s definition of disability resulting in even more temporarily disabling conditions now triggering accommodation obligations. Medical Certification An employer can require an employee wishing to take intermittent leave to submit a medical certification from their healthcare provider confirming the medical necessity of the intermittent nature of the leave, as well as the frequency and duration of the leave episodes required. The employer generally has five business days from the time they receive the completed medical certification to determine whether it supports the need for intermittent leave and to advise the employee of the determination. Employers can choose to request a second opinion if the information provided is insufficient or there is a reason to doubt the original evaluation. While you may request a second opinion from the healthcare provider of your choice, it is at the employer s expense, not the employee s. If the first and second evaluations differ, a third opinion may be requested, also at the employer s expense. Page 7 of 13

8 Advance Notice As with continuous FMLA leave, employers have the right to enforce that advance notice of the need for leave be given by the employee. If the intermittent leave is foreseeable, the employee must generally comply with your company s notice policies for requesting leave, but employers cannot require more than 30 days advance notice. Absent extenuating circumstances, employers may choose to delay the granting of leave to meet the typical notice requirements or deny the leave. Where the need for leave is unforeseeable, employers can require that employees must provide notice as soon as possible and practical, taking into account the circumstances of the situation. In this case, it is generally accepted that it should be realistic for an employee to provide notice of the need for leave either the same day or the next business day after becoming aware of it. Recertification and Monitoring Employers also have the right to require employees on intermittent leave, for chronic and ongoing conditions, to see their doctor at least twice a year for recertification. If the nature of the absences start to vary before the six month period, an extension is requested, the frequency changes or there is suspected abuse, you may request the recertification sooner, but no more often than every 30 days. Reinstatement If an employee on intermittent leave holds a position where taking intermittent leave disrupts the employer s operations, employers have the right to reassign them. The alternate position however must be equivalent to their initial position in terms of pay and benefits. You cannot demote an employee or reduce their benefits when reassigning them. The only situation in which an employee may lose their right to reinstatement is when that employee is considered a key employee whose absence would cause substantial and grievous economic injury to the employer, according to the Act. Record Keeping Lastly, it is the employer s responsibility to keep FMLA records for at least three years. There is no standardized format or procedure necessary, the records simply need to be readily available if ever requested by the Department of Labor (DOL). Employers must clearly post and display employees FMLA rights and responsibilities. The DOL offers free posters, available in English or Spanish, at Be sure to include FMLA policies in employee handbooks as well. These should be provided upon hiring and redistributed whenever changes are made to the legislation itself or company policies. Page 8 of 13

9 Accurately Administering Leave and Discouraging Abuse While intermittent leave will remain the most problematic and easily abused area of the FMLA, aggressive management of it does not mean discouraging your employees from taking leave when it is legitimately needed. For qualifying employees, FMLA and intermittent leave is a right and all communication and interactions should reinforce your respect for the employee s right to take intermittent time off or extended leave for FMLA qualifying purposes. In fact, these initiatives should ideally help make FMLA become even more valued by management and employees. In the following section we will explain ways in which employers can better manage intermittent leave in order to discourage potential abuse. Maximizing the Medical Certification Process One of the best tools employers can use to discourage abuse is the initial medical certification process. This beginning stage allows employers to justly and lawfully request information regarding the need for leave. If the provided medical certification is not sufficient, employers can send a written deficiency notice to the employee communicating what they must do to obtain FMLA protection. While you may extend the employee s time to return a complete and sufficient medical certification, you must provide at least 15 days for the employee to do so initially. Finally, if the certification is not returned and there are insufficient reasons for the delay, you have the right to deny the FMLA leave request. Independent Medical Evaluations Independent Medical Evaluations (IME), also referred to as peer reviews, are similar to second opinions in that an uninvolved medical professional assesses the employee s case. The intention of an IME is to provide unbiased insight into the FMLA case to evaluate the diagnosis, treatment, work capacity and other factors. They are different from second opinions in that there is not necessarily a face to face interaction between the employee and the medical professional. In fact, it could be simply sending the employee s file to an IME professional for review. Page 9 of 13

10 Establish Call-In Programs Effective call-in programs can ensure that all legitimate requests are respected and can assist in preventing abuse. A successful call-in program will require employees to confirm the reason they are seeking FMLA intermittent leave and clarify, to the best of their ability, the anticipated frequency and duration. The best way to ensure that you get enough information during the initial intake and to show consistency in your administration is to have a standard list of questions to ask employees. Another important component of your call-in program is to ensure that you capture the right information when your employees report their absences because of the fact that they may have multiple intermittent FMLA cases open. Under the FMLA, you are allowed to ask the employee to clarify which FMLA case their absence is for and should be doing so in order to be able to properly designate the absence. You also need to ensure that this information is communicated to the right people in your leave team. Finally, your call-in program should also be verifying that the employee has provided sufficient notice for the need for leave as required by the company call-in policy and FMLA regulations. Review Frequency and Duration In order to ensure employees are taking the leave they have been approved for, it is necessary to periodically review the frequency and duration outlined in the medical certification and compare this to the absences the employee has taken. It should be noted that a one to one comparison does not work, but rather you should be looking for significant deviations from the expected frequency and duration. If deviations are apparent, you may request recertification. Surveillance If there is a concern of suspected abuse, say the employee consistently takes Mondays and Fridays off, employers may choose to enforce a check-in policy that goes beyond the call-in program or even to conduct surveillance. Interfering with an employee s FMLA leave is unlawful and it is advised to consult with an employment counsel in advance about steps of this nature. Consider the circumstance of the leave is there a physical limitation with visible restrictions or something harder to substantiate and the possible outcomes, both positive and negative. Any measures that are taken must not invade the employee s privacy or that of their family. Video surveillance of an employee to prove FMLA intermittent leave abuse (Scruggs v Carrier Corp, 2012) may seem like a more extreme measure than calling an employee on leave (Terwilliger v Howard Memorial Hospital, 2011) but the courts may disagree with you, which is why it s crucial to carefully assess each situation in which surveillance is proposed. Page 10 of 13

11 Paid Leave Offering paid company policies is another way to gain more control over intermittent leave. As an employer, you can offer a paid leave policy that employees can take when they are also taking FMLA, either for part or all of the time. You cannot interfere with your employees right to take FMLA, however if they want to be paid for missed time, you can set additional eligibility requirements for advance notice, certification, absence reporting and more. This carrot and stick approach can be used as an incentive for employees to use leave more responsibly. You can also require employees to use their paid time off, for example vacation, when they take FMLA as a way to deter abuse. A Compliant Leave Program The DOL s Wage and Hour Division (WHD), responsible for the enforcement of FMLA and its litigation, has added hundreds of new investigators to their team in recent years to respond to the 25,000 workers who contact them annually for assistance regarding FMLA, minimum wage and overtime violations. With the number of complaints on the rise and a commitment from the DOL to increase targeted efforts, employers need to have a consistent and effective compliance strategy in place. Different leave types may run concurrently and in order to be compliant, all applicable leaves must be designated. Accordingly, when an employee has requested an FMLA leave, a compliant leave program will also identify if the absence is covered by any other leave programs and whether they will run concurrently or not. When properly implemented, a compliant program should be doing the following: Capture detailed reasons for absences Make frequency and duration information readily accessible for approved FMLA leaves Expose any suspicious absence patterns, suggesting misuse of FMLA Identify if an absence is also covered by other leave programs Trigger the need for recertification when absence patterns deviate from those certified Ensure that all leave types are applied consistently and equitably to employees Page 11 of 13

12 Make Technology Work for You The simplest way to accurately administer intermittent leave is to ensure that you exercise your rights consistently. This is one area where a compliance driven software solution can greatly enhance your leave management administration. Tools like auto-generated follow-up tasks Almost compliant means you re always at risk. and leave correspondence ensure that every employee and leave request is treated in the same manner. Not only does this enhance compliance, it streamlines processes and allows both the employer and employee to adhere to deadlines, while also reducing risk under the ADA for discrimination. If your technology is not working for you, it is not working. There are several aspects where technology can be utilized to improve and expedite the leave process. The right software will: Tell you when to complete leave tasks to meet compliance Automatically generate leave correspondence to meet deadlines and protect your organization Track dates, reasons and follow-up actions for leaves that are approved Conduct automatic checks to make sure employees haven t overstepped their entitlement Identify undesignated absences and trigger follow ups Coordinate the use of paid leave with unpaid FMLA leave Provide monthly entitlement updates for the employee Maintain copies of all employee correspondence with a full audit trail Overall, your program should provide the level of detail needed to determine leave compliance. With a compliant leave program in place, the next time Sophia, Matthew, Dave and Chloe all step forward with different intermittent leave requests, it will no longer seem like a labor intensive chore but rather a manageable part of your regular internal operations. Especially combined with the invaluable assistance provided by the high caliber of software offerings on the market today, managing intermittent leave can be simplified while ensuring that employee and employer rights are both respected. For more details about the information provided in this whitepaper or about Presagia s leave management solutions, please visit or call Page 12 of 13

13 BLR understands that complying with the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and various state leave regulations has become a major concern for Human Resources professionals all over the U.S. That s why we ve partnered with Presagia, the leading developer of Software as a Service (SaaS) leave management solutions, to offer a system that automates leave management and provides a high level of decision support to help navigate these laws efficiently and compliantly. About BLR - Business & Legal Resources For over 35 years, BLR has simplified compliance with state and federal legal requirements, helping U.S. businesses succeed. BLR offers authoritative content, training, and practical, easy-to-use tools for the HR & employment law, workplace safety, environmental compliance, compensation & benefits, and politics & legal markets. Through our expert in-house editors and exclusive attorney network, we provide the most comprehensive, reliable state-specific information available and we do it in all 50 states. Our awardwinning information products including training programs, events, web portals, reports and subscription services-give businesses of all sizes and industries the best tools available at affordable prices. About Presagia Presagia provides integrated absence management software solutions to employers and human resources outsourcing providers. These innovative solutions have been designed to account for more than 460 pieces of federal and state leave legislation across 53 jurisdictions, including the myriad of pregnancy legislation. Presagia enables organizations to enhance compliance, increase efficiency, control absence and reduce costs. Page 13 of 13