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1 This Webcast Will Begin Shortly If you have any technical problems with the Webcast or the streaming audio, please contact us via at: Thank You! Managing Family and Medical Leaves of Absence: Statutory Entitlements, Employer Commitments, and Reasonable Accommodations July 25, 2007 Presented by ACC s Employment & Labor Law Committee and Jackson Lewis LLP Association of Corporate Counsel 1

2 Page 3 Panel Francis P. Alvarez, Partner, Jackson Lewis, White Plains, NY Eric A. Tilles, Assistant General Counsel, Arkema Inc., Philadelphia, PA Moderator: Chris Williams, Senior Counsel, Northrop Grumman Inc., Los Angeles, CA Page 4 Introduction The Leave Management Puzzle Leave management involves a complex interaction of federal and state laws, agency regulations, and employer policies and practices, all subject to interpretation by individuals, employers, juries, judges, and legal counsel. The Importance of Absence Management Risk for employers of mishandling employee absences by inadvertently violating statutory rights, breaching employee commitments, overlooking requests for accommodations, and bogging down legal and human resources staff is great. Institutional Challenges to Effective Leave Management Many companies lack the technology and training to allow managers and supervisors to record, track and communicate medical information to others responsible for ensuring compliance with the FMLA, ADA and other obligations. 2

3 Page 5 Introduction The Solution Developing Peripheral Vision for Leave Obligations The key to simplifying leave analysis is to assess leave obligations in the following three steps: 1) Provide all leave entitlements, such as the FMLA and state family, medical, and pregnancy leave laws, under which employers essentially are strictly liable for providing leave; 2) Fulfill any absence commitments made through employer promises in such forms as short and long term disability leave policies or employment contracts or collective bargaining agreements; and 3) Grant any reasonable accommodations required under the ADA and various state equal employment opportunity laws. Page 6 FMLA Basics Who are Eligible Employees? Eligible Employees FMLA Rights Unpaid leave for up to 12 work weeks in a 12- month period: for the birth, adoption, or foster care of a child; to care for a child, spouse, or parent with a serious health condition; or for the employee s own serious health condition that renders the employee unable to perform the functions of his or her job. 3

4 Page 7 FMLA Basics 12 work weeks of intermittent or reduced schedule leave within a 12- month period when: medically necessary for planned and/or unanticipated medical treatment of a related serious health condition by or under the supervision of a health care provider, or for recovery from treatment or recovery from a serious health condition; or a serious health condition requires treatment by a health care provider periodically, rather than for one continuous period of time. Continuation of health insurance coverage (but employee is potentially liable for health insurance premiums paid by the employer during leave if the employee fails to return to work following leave); Page 8 FMLA Basics Substitution of accrued paid leave for unpaid FMLA leave--paid disability and workers compensation leave may run concurrently with FMLA leave; and Right to job restoration to same or equivalent position-- an "equivalent position" is one which has "the same pay, benefits, and working conditions, including privileges, prerequisites and status" and involves "the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority." 4

5 Page 9 FMLA Basics Eligible Employees FMLA Obligations Employees must generally provide at least 30 days notice and give the reason for the absence before taking FMLA leave if the leave is foreseeable. If the leave is not foreseeable, employees must give notice as soon as practicable; Employees must make reasonable efforts to schedule intermittent leave in such a was as to avoid undue interruption in employer s work; Employees must report periodically during FMLA leave; and Employees must give notice of intent to return. Page 10 FMLA Basics Employer Obligations Under the FMLA General notice and posting requirement; Employee handbooks and other written employment policies; Specific notice obligations; Designation of leave as FMLA leave including written notice that absences are counting toward annual 12-week FMLA entitlement; and Recordkeeping Records must be kept for a minimum of three years. 5

6 Page 11 Prohibited Acts under the FMLA Prohibition Against Interference Employers may not interfere with employee rights to take FMLA leave. Protects employees from being penalized due to a lack of productivity caused by absences covered by the FMLA. Intent is generally irrelevant. Prohibition Against Retaliation Generally requires intent to punish employees for taking FMLA leave or otherwise exercising rights under the FMLA. Consider the risks of retaliation claims whenever adverse employment actions follow an employee s use of FMLA leave. Page 12 Remedies for FMLA Violations Remedies include monetary damages caused by the violation (e.g., backpay); interest on the monetary damages; equitable relief (e.g., reinstatement); liquidated damages; attorneys' fees; expert witness fees; and costs. Corporate officers, managers, and supervisors acting in the interest of the employer may be held individually liable under the FMLA. The definition of "employer" under the FMLA is the same as under the Fair Labor Standards Act. [29 U.S.C. 203(d).] 6

7 Page 13 FMLA Medical Certifications Initial Medical Certifications Supporting Need for Leave Employers may require medical certification of an employee s need for FMLA leave: (a) where an employee seeks leave for his or her own serious health condition; and (b) where an employee seeks leave to care for an ill family member. Information required by the certification must relate only to the serious health condition for which the current need for leave exists. Employer Challenges to Medical Certifications A health care provider representing the employer (not any representative of the employer), may contact the employee's health care provider, with the employee's permission, to clarify the information and confirm it was provided by the health care provider, but may not seek additional information. If leave is running concurrently with workers' compensation, the employer may have direct contact with the employee's workers' compensation doctor, consistent with the applicable workers' compensation statute. Page 14 FMLA Medical Certifications Second and Third Opinions May Be Required for Initial Medical Certifications An employer with reason to doubt an employee s initial medical certification may require the employee to obtain the second opinion of a health care provider selected by the employer, at the employer s expense. What reason to doubt means is not spelled out by the FMLA regulations, and there are various restrictions on obtaining subsequent opinions. If the second opinion differs from the first, the employer may require a third opinion from a mutually agreeable health care provider, at the employer s expense. Third opinion is binding. 7

8 Page 15 FMLA Medical Certifications Medical Recertification During FMLA Period Employers may require subsequent recertification on a "reasonable basis" as defined by the FMLA. No second or third opinions are permitted. Fitness-for Duty Certification at the End of FMLA Leave An employer may require a return-to-work or fitness-for-duty medical certification if it is a uniformly applied policy or practice that is explained in an employee handbook or other employee policy manual. The fitness-for-duty certification may address only the condition which caused the leave. Any return-to-work physical must be job-related, as required by the ADA. An employer is not entitled to certification of fitness to return to work for an employee taking intermittent leave. No second or third opinions are permitted. Page 16 Beyond FMLA Basics Intermittent and Reduced Leave Schedules Under the FMLA, an eligible employee is entitled to 12 weeks of intermittent or reduced schedule leave within a 12-month period. Employers must be careful to consider both the FMLA and ADA. 8

9 Page 17 Beyond FMLA Basics Case in Point: Spangler v. Federal Home Loan Bank of Des Moines, 7 WH Cases2d 1036 (8th Cir. 2002): Terminated employee brought claims under both the ADA and FMLA, alleging that she was terminated due to repeated absences related to depression. The District Court granted the employer summary judgment on both claims. On appeal, the Eighth Circuit affirmed judgment for the employer on the ADA claim but held that summary judgment was improperly granted on Spangler s FMLA claim. The court found that Spangler s statement that she needed time off for depression again was a potentially valid request for FMLA leave, especially given the employer s knowledge of Spangler s health issues. Page 18 Beyond FMLA Basics No-Fault Attendance Policies Employers cannot enforce a no fault attendance policy which would penalize an employee who has been on leave for a specified period of time, nor can they consider a lack of productivity resulting from absences that are protected by the FMLA. But, it may be difficult to discern whether absences are FMLA protected. Intermittent absences pose a particular challenge because supervisors may not recognize and report them as being FMLA qualifying. Return to Work Under the FMLA, when an employee is unable to perform the essential functions of his or her former position with or without reasonable accommodation, the employer may deny job restoration. Under the ADA, employers also must consider whether accommodations such as part-time work, job restructuring, or use of specialized equipment would permit the employee to return to work. 9

10 Page 19 Looking Ahead: Legislative and Regulatory Proposals Current Legislative Proposals Include the Following Provisions: Seven paid sick days per year to care for employees own or family member's medical condition. Paid sick leave also could be used for doctor's appointments or preventive diagnostic treatment; Pro-rated leave to part-time employees working between 20 and 30 hours a week or 1,000 to 1,500 hours per year; and Creation of federal insurance fund to provide eight weeks of paid family and medical leave to private and federal employees who take time off for reasons permitted by FMLA. Employees would contribute.2 percent of annual earnings to fund. Page 20 Looking Ahead: Legislative and Regulatory Proposals DOL Request for Comments on the FMLA DOL published 161 page Report on FMLA Request for Information on June 27, DOL reports receiving over 15,000 comments. Report describes unscheduled intermittent FMLA leave as the single most serious area of friction between employers and employees seeking to use FMLA leave. No proposed regulatory changes. 10

11 Page 21 Final Thoughts on the Importance of Developing Integrated Absence Management Programs Each medical absence must be analyzed to determine if employees are absolutely entitled to be away from work. Even if no absence entitlement exists, employers must determine whether the condition requires an absence accommodation. Employees may provide supervisors with medical excuses for being late for or absent from work, but rarely do either the employee or supervisor label these absences as FMLA or ADA issues. Employers must take steps to develop the peripheral vision necessary to spot absence entitlements and accommodations. This requires a strategy for spotting absence entitlements and potential absence accommodations, and communicating with those responsible for compliance with laws such as the FMLA and ADA. Thank you for attending another presentation from ACC s Desktop Learning Webcasts Please be sure to complete the evaluation form for this program as your comments and ideas are helpful in planning future programs. You may also contact Sherrese Williams at williams@acc.com This and other ACC webcasts have been recorded and are available, for one year after the presentation date, as archived webcasts at You can also find transcripts of these programs in ACC s Virtual Library at 11