Understanding & Navigating FMLA: Intermittent Leave MRA March 16, 2018

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1 Understanding & Navigating FMLA: Intermittent Leave MRA March 16, 2018 Presented by: Krista A.P. Hatcher, Esq. Teresa M. Thompson, Esq. Fredrikson & Byron, P.A. (612) The Friday/Monday Leave Act? 24% of FMLA leave is taken on an intermittent basis 3.2% of employees reported taking intermittent leave Employers report that these relatively small numbers cause big headaches Complicated administration Can disrupt productivity Potential for abuse 1

2 A Brief FMLA Refresher: Eligibility Employed by covered employer 12 months of employment Need not be continuous 1,250 hours worked In the 12 months prior to leave Employed at a worksite with 50+ employees within 75 miles Reasons for Leave Birth of child, or placement of child for adoption or foster care Serious health condition leave Employee s own serious health condition To care for spouse, child, or parent with a serious health condition Family member s military service Qualifying exigency Military caregiver 2

3 Types of Leave Continuous Leave Leave that is taken in a continuous block of time, e.g., 6 weeks beginning on February 1st Reduced Leave Schedule A leave schedule that reduces the employee s usual number of hours per workweek or workday Intermittent Leave Leave taken in separate blocks of time due to a single qualifying reason Amount of Leave 12 workweeks in each applicable 12 month period For birth/adoption leave, serious health condition leave, and qualifying exigency leave Employer must designate how 12 month period measured (e.g., calendar, rolling) 26 workweeks in a single 12 month period for military caregiver leave 3

4 Intermittent Leave Eligible employees are entitled to take intermittent or reduced schedule leave for: Serious health condition leave when medically necessary Military caregiver leave when medically necessary Qualifying exigency leave Intermittent leave available for bonding after birth/placement of a child only if the employer agrees Intermittent Leave: Employee Responsibilities Request leave, provide appropriate certification Make a reasonable effort to schedule planned medical treatment so as not to unduly disrupt the employer s operations E.g., attempt to schedule appointments outside of work hours or during less busy periods Employees may not know this, so tell them! 4

5 Intermittent FMLA Compliance and Management Strategies Require sufficient and timely notification Require complete medical certifications Transfer when appropriate/allowed Implement and enforce policies Carefully track leave Investigate suspected abuse Seek recertification when appropriate Employee Notice General rule: the first time the employee requests leave, the employee is not required to specifically mention the FMLA Must provide enough information for the employer to know that the leave may be covered by the FMLA Once approved for a particular FMLA leave reason, the employee must reference that reason or the need for FMLA leave for subsequent requests for the same reason 5

6 Employee Notice Timing: Foreseeable leave: 30 days, or as soon as practicable Remember employees must make a reasonable effort to scheduled planned medical treatment so as not to unduly disrupt operations Unforeseeable: as soon as practicable Establish and Enforce Call in Policies May require employees on FMLA to comply with the company s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances If employee does not follow, may delay/deny FMLA May specify when employees need to call, who to call, and information employees must provide when reporting a leave of absence 6

7 Call in Policies Ensure that notice requirements are communicated to employees Enforce in a consistent, nondiscriminatory manner Evaluate whether unusual circumstances exist Make sure whoever is responsible for receiving callins is trained to obtain sufficient information to determine whether an absence is covered by FMLA Require Certification Employee is responsible for providing certification within 15 days of the employer s request Promptly review to determine whether certification is sufficient and complete Must identify deficiencies in writing and provide employee 7 days to cure Insufficient=information provided is vague, unclear, or nonresponsive Incomplete=one or more applicable entries not completed 7

8 Certification COMPLAINT: Did that doctor even look at the form?! May contact the healthcare provider to authenticate or clarify the certification Seeking Authentication or Clarification Can be done by HR, leave administrator, management official Not by the employee s direct supervisor E.g., to verify that the information on the form was completed or authorized by the provider E.g., to ask questions clarifying handwriting or on the meaning of a response No additional information may be requested beyond what is required on the certification form 8

9 Seeking Second or Third Opinions If the employer doubts the validity of initial certification, consider a second opinion Employer chooses the provider, but cannot be one it uses regularly Done at the employer s expense Seeking Second or Third Opinions If the first and second opinions differ, the employer may seek a third opinion Done at the employer s expense Provider must be jointly designated Third opinion is binding Employee is provisionally entitled to FMLA leave while waiting for results 9

10 When the Year s Up If the need for FMLA lasts beyond a year, the employer may require a new medical certification in each new leave year Because it is a new certification not a recertification second and third opinions can be sought Also check employee eligibility each new leave year for each qualifying leave to ensure that the employee has worked enough hours to continue to be eligible Transfer When Appropriate If an employee needs foreseeable intermittent leave based on planned medical treatment, consider a temporary transfer to an alternative position that better accommodates recurring leave Must offer equivalent pay and benefits Position does not have to have equivalent duties May not require the employee to work during the portion of day that they are on FMLA leave 10

11 Transfer When Appropriate May not transfer to a position designed to discourage FMLA When intermittent leave is no longer needed, restore employee to the same or equivalent job as previously held Transfer does not apply to unforeseeable leave (when it is often most helpful to employers!) No undue hardship defense for FMLA like there is under the ADA Carefully Track Leave Why? Can help detect patterns that may suggest misuse Job protected time isn t limitless Enforce call in policies Train supervisors Run FMLA concurrently with workers comp leaves Don t forget to provide proper notices 11

12 Calculating Intermittent Leave Amount of FMLA leave used is determined as a proportion of the employee s actual workweek E.g., eligible employee whose actual workweek is always 32 hours per week is entitled to 384 hours (12 workweeks x 32 hours per week) of FMLA in a 12 month period E.g., eligible employee whose actual workweek is always 48 hours per week is entitled to 576 hours (12 workweeks x 48 hours per week) of FMLA Calculating Intermittent Leave (cont.) When an employee s schedule varies so much that it is not possible to determine how many hours the employee would have worked, an employer may use a weekly average to calculate the employee s FMLA leave entitlement The average is determined by the hours scheduled over the 12 months prior to the beginning of the leave. 12

13 Calculating Intermittent Leave (cont.) Employees may use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave May not be more than 1 hour If different increments used for different times of day, then may use increment applicable to that period Consider aligning minimum time periods allowed for use of paid time off to ease the burden of tracking Hernandez v. Bridgestone Americas Tire Op. (8 th Cir. 2016) Hernandez requested and was approved for intermittent FMLA leave to care for his son (asthma) In deciding which employees would receive overtime, Bridgestone selected employees based on interest and seniority Employees failing to report for OT were subject to discipline Bridgestone calculated Hernandez s maximum leave allotment based on a fixed workweek at a scheduled 42 hours a week not considering overtime Hernandez exhausted his FMLA leave and continued to have unexcused absences, resulting in termination 13

14 Hernandez v. BATO (cont.) Hernandez sued Bridgestone The 8th Circuit affirmed the trial court s ruling that Bridgestone interfered with Hernandez s FMLA leave BATO counted six OT absences against FMLA, but did not increase Hernandez s leave allotment to account for the mandatory OT he signed up for, causing him to exhaust his FMLA leave sooner Include mandatory OT shifts in the leave allotment before deducting mandatory OT shifts from leave taken Enforce Paid Leave Policies May require employees to use accrued paid vacation, sick, or PTO for FMLA protected absences Prevents employees from extending a leave beyond FMLA Dis incentivizes employees from misusing FMLA Make sure your FMLA policy includes this requirement Otherwise, employee gets to choose 14

15 Signs Indicating Possible Leave Abuse 1. Frequent leave requests immediately preceding or following a weekend 2. Leave requests for the same/similar days for which a vacation request was denied 3. Numerous sudden or abrupt leave requests 4. More frequent absences than certified 5. Complaints from other employees that an individual is abusing time off 6. Sightings of employee on leave engaged in activities indicating that employee is capable of performing normal job responsibilities Investigate Possible Leave Abuse COMPLAINT: I thought Sandy called in sick with migraines yesterday and today. Facebook says she s up at the cabin snowmobiling. Don t rush to judgment too quickly Thoroughly investigate tips of suspected fraudulent behavior Interview employee upon his/her return to work to avoid possible FMLA interference claim 15

16 No Moonlighting Policies COMPLAINT: I saw Frank working security at a music festival last night. Wasn t he scheduled to work? Consider policy prohibiting employees from engaging in outside employment while on paid or unpaid leave Must be uniformly applied don t treat an employee on FMLA leave differently than one on an equivalent leave for a non FMLA qualifying reason Eason v. Walgreen Co. (D. Minn. 2015) Eason, a manager for Walgreens, began having problems with his attendance due to anxiety & stress Eason was granted intermittent FMLA to deal with his episodic mental health flare ups July 23 Eason ed his supervisors explaining he took his dog to the vet and that the vet instructed him to keep an eye on her. July 24 Eason took an FMLA absence July 25 Eason met with his supervisors about his absences and was asked for documentation for his visit to the vet on July 23 16

17 Eason v. Walgreen Co. (cont.) Eason did not have documentation and disclosed that he actually didn t visit the vet, he talked to the receptionist who told him to keep an eye on his dog. Walgreens called to verify Eason s story; the vet office confirmed Eason s visit on July 25 to seek doc., but had no record of any call or visit on July 23 Eason was terminated for dishonesty Eason sued Walgreens for alleged FMLA violations The court dismissed Eaton s claims Recertification General Rule: May request recertification no more often than every 30 days If minimum duration of the serious health condition is > 30 days, then generally must wait until that minimum duration expires Only in connection with an absence May request a recertification for absences every six months 17

18 Recertification May request a recertification sooner if: The employee requests a leave extension The circumstances described by the previous certification have changed significantly E.g., the duration or frequency of the absence, the nature or severity of the illness, complications The employer receives information that causes it to doubt the employee s stated reason for the absence or the continuing validity of the existing medical certification Recertification In general, may ask for the same information in a recertification as in the original medical certification Also may provide the health care provider with a record of the employee s absences and ask if the serious health condition and need for leave is consistent with the leave pattern Employee is responsible for the cost of recertification 18

19 Recertification Second and third opinions do not apply to the recertification process For chronic, long term conditions, request recertification 6 months into the applicable leave year and a new certification at the start of each new leave year Fitness for Duty and Intermittent Leave General Rule: may not obtain a fitness for duty certification to return from each instance of FMLA intermittent or reduced schedule leave Exception: may request a FFD if reasonable safety concerns exist regarding the employee's ability to perform his or her duties Reasonable belief of significant risk of harm to the employee or others, considering the nature and severity of the potential harm and the likelihood that harm will occur 19

20 Fitness for Duty and Intermittent Leave Must inform the employee with designation notice that a fitness for duty certification will be required for each subsequent absence unless a FFD has already been submitted within the past 30 days Can set a different interval for requiring FFD as long as it does not exceed once every 30 days and employee is notified of the requirement in advance May not terminate the employee while awaiting a FFD certification for an intermittent/reduced schedule leave absence Taking Control of Intermittent FMLA 1. Require employees to provide timely notice 2. Obtain complete medical certification; seek second/third opinions if appropriate 3. Consider temporary transfers 4. Expect employee cooperation in scheduling planned absences 5. Establish and enforce call in/notice policies 6. Track absences 7. Require employees to use paid time off while on FMLA 8. Obtain recertification 9. Investigate possible abuse of leave 20

21 Questions? Presenters 21