Preconference Workshop Monday, 8:30-9:30 am

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1 FMLA Administration: Demystifying the Intricacies David Mohl Associate General Counsel The Hershey Company Did You Know Total number of employment-related lawsuits filed in federal court in FY 2017 dropped 2.6% Lawsuits alleging FMLA violations increased 4.2% in FY 2017 Lawsuits alleging ADA violations increased 7.5% in FY 2017 The Administrative Office of the U.S. Courts has tracked FMLA lawsuits since 2012 years and ADA since 2005 The number of ADA & FMLA lawsuits have increased each year it has been tracked

2 Employer Challenges Tracking/administering intermittent leave Coordinating FMLA, ADA and other leaves Approving/denying leave requests Keeping up with new laws Reinstatement Controlling employee abuse Agenda Coverage & Eligibility Notice, Certification & Reinstatement Coordination of Leaves FMLA Abuse

3 COVERAGE & ELIGIBILITY Who s Covered Who is a covered employer Private employers who employ 50 employees Who is a covered employee 12 months of service (not consecutive) 1,250 hours worked in 12 months preceding leave 50 or more employees within 75-mile radius Employee Rights Up to 12 weeks (26 in limited circumstances) of unpaid leave Continuation of health insurance Job protection

4 Leave Entitlement 12 weeks Birth/care of newborn Adoption/foster care Family member s serious health condition Employee s serious health condition Qualifying exigency arising out of parent, child or spouse call to active military duty 26 weeks Care for family member with injury/illness incurred on active military duty Serious Health Condition Injury, illness, impairment, or physical or mental condition that involves: Inpatient care Period of incapacity 3+ days involving treatment Chronic conditions Permanent of long-term conditions Continuing treatment by a health care provider FMLA Year Calendar year Fixed leave year 12 months from start of first FMLA leave Rolling 12 month period

5 Intermittent Leave Must be granted for all FMLA reasons except: Care of newborn Care of newly placed adopted or foster child If foreseeable can transfer employee to alternative position Alternative position can t discourage leave Can require employee to schedule treatment to be least disruptive to business Can t require employee to take more leave than necessary NOTICE, CERTIFICATION & REINSTATEMENT Employer Notice Requirements General notice: FMLA poster Employee handbook policy Eligibility/Rights and Responsibilities Specific expectation/employee obligations Send within 5 business days of leave request Designation Leave determination and leave amount 5 business days after receipt of certification

6 Employee Notice Requirements 30 days notice if foreseeable Active duty as soon as reasonable and practicable Must enable employer to determine whether leave qualifies under FMLA Must specifically reference qualifying reason if for previously approved FMLA leave Can be required to follow employer s call-in procedures Medical Certification Request certification as part of eligibility/notice of rights and responsibilities process Notify employees of incomplete/insufficient certification Provide written notice and 7 days to cure deficiency Interplay of short-term disability, workers comp., ADA Beware of state laws Recertification Change in circumstances Can request every 30 days or minimum duration, whichever is greater Can request annually for leaves greater than one year

7 Reinstatement Return to same or equivalent position Pay, benefits, terms and conditions At conclusion of FMLA leave, FMLA rights disappear Reinstatement rights forfeited if employee does not return to work If employee informs employer they are not returning to work get it in writing No greater right to reinstatement than if leave not taken Waag v. Sotera Def. Solutions, Inc. (4th Cir. 2017) Waag took FMLA for a hand injury Sotera was reinstated to a similar position under a different supervisor as a result of budget cuts made during leave period After reinstatement, Waag s position was eliminated as part of additional budget cuts Waag sued Sotera Court found Waag was reinstated to an equivalent position: salary, T&Cs, title were identical Evidence showed job elimination was not related to leave Andres v. Coll. of the Mainland (S.D. Tex. 2016) Jacqueline Andres, a college employee, took FMLA leave to recover from surgery Given discretionary leave when she was unable to return to work after FMLA While out on discretionary leave, position was eliminated due to budget cuts Andres was allowed to return to work until end of college term at which point job would be eliminated Andres sued claiming violation of FMLA reinstatement rights Court ruled in favor of employer

8 Fitness For Duty Certification Can require FFD before reinstatement Can provide doctor with list of essential job functions No second or third opinions Can only require FFD for intermittent leave if there are reasonable safety concerns ADA interplay COORDINATION OF LEAVES State Laws State laws can provide additional rights Becoming more complex due to more state laws State law does not alter rights under federal FMLA Keeping up with state laws is hard to do State FMLA laws, military leaves, blood donation, school activities, crime victim, paid family leave

9 Coordinate Leaves Don t permit leave stacking Understand limitations Coordinate state laws, ADA, workers comp., short-term disability, etc. Inflexible Leave Policies Policies that fail to consider leave as a reasonable accommodation have been found to be unlawful Automatic termination when FMLA exhausts Requiring return to work with no restrictions Leave can be a reasonable accommodation under the ADA Requires individualized assessment Must coordinate FMLA with ADA

10 ADA and FMLA Don t administer FMLA in a vacuum An FMLA serious health condition can also qualify as a disability under the ADA After an employee exhausts FMLA, they may be entitled to additional leave as an ADA reasonable accommodation Hill v Asian American Drug Abuse Program, Inc. (Cal. Supt. Ct. 2018) Della Hill, a drug counselor, while out on medical leave with an arm injury was diagnosed with depressive disorder Prior to leave exhausting, Hill submitted medical information requesting additional leave relating to the disorder AADAP denied the request and terminated Hill for failing to return from medical leave Evidence showed that AADAP did not attempt to engage in ADA interactive process Jury awarded Hill $4.5M for failing to accommodate Hill FMLA ABUSE

11 Why Employee s Abuse FMLA FMLA has become an excuse for attendance problems Lack of FMLA understanding Lack of training Employers are too generous Lack of flexible workplace policies Employers give incentive not to return to work Retaliation - Honest Belief Defense An employer s honest belief that an employee misused FMLA leave can defeat a retaliation claim Absolute certainty not required Belief should be in good faith Conduct a proper investigation Give employee opportunity to explain Different judicial circuits apply honest belief defense differently FMLA Abuse and Social Media

12 Lineberry v. Detroit Medical Center (E.D. Mich. 2013) Registered Nurse on approved FMLA leave back/leg injuries Employee took a planned trip to Mexico; told employer she needed wheelchair to get though airport Other employees saw pictures Lineberry posted on Facebook and notified management Employer terminated Lineberry Lineberry sued alleging FMLA interference and retaliation Court ruled in favor of employer Lineberry v. Detroit Medical Center (E.D. Mich. 2013) Lineberry v. Detroit Medical Center (E.D. Mich. 2013)

13 Jaszczyszyn v Advantage Health Physicians Network (W.D. Mich. 2012) Jaszczyszyn, a customer service rep with a history of back issues, complained of back pain; an MRI and CT scan showed mild degenerative changes in her lower spine Jaszczyszyn submitted FMLA paperwork stating she was completely incapacitated for three weeks During the period of complete incapacitation co-workers saw pictures of Jaszczyszyn at a festival on Facebook and informed their supervisor Employer terminated Jaszczyszyn Court ruled in favor of employer Preventing FMLA Abuse Use 12 month rolling back leave year Don t approve non-qualifying reasons Require complete healthcare certification Utilize second/third opinions Require recertification where permitted Run leave concurrently Require substitution of paid leave where permissible Have clear, consistent call out procedures Common Employer Mistakes Failing to notify employees of their FMLA rights Granting leave to ineligible employees Failure to understand what qualifies as a serious health condition Failure to track FMLA leave Counting FMLA leave as attendance occurrences Improperly contacting healthcare provider Failure to reinstate employees Including FMLA in performance evaluations Failure to properly administer state laws

14 Thank you David Mohl Associate General Counsel The Hershey Company The information contained herein does not constitute legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.