BEST PRACTICES Understanding FMLA and Intermittent Leave

Transcription

1 BEST PRACTICES Understanding FMLA and Intermittent Leave

2 TABLE OF CONTENTS: An Overview of FMLA 3 Intermittent/Reduced Schedule Leave 6 How to Calculate Leave 10 How to Manage Intermittent Leave 12 Staffing Plus Solutions 16 The information and materials herein are provided for general information purposes only and are not intended to constitute legal or other advice or opinions on any specific matters and are not intended to replace the advice of a qualified attorney, plan provider or other professional advisor. This information has been taken from sources which we believe to be reliable, but there is no guarantee as to its accuracy.

3 CHAPTER 1: An Overview of FMLA The Family and Medical Leave Act of 1993 (FMLA) is a U.S. federal law requiring covered employers to provide employees jobprotected and unpaid leave for qualified medical and family reasons with continuation of group health insurance coverage under the same terms and conditions as if they employee had not taken leave. FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women. Page 3

4 Who is eligible for FMLA? In order to be eligible for FMLA leave, an individual must have been employed at the organization for at least 12 months, worked at least 1,250 hours during that 12 month period, and worked at a location where the company employs 50 or more employees within a 75 mile radius. FMLA Entitlement Employees are generally entitled to up to 12 weeks of unpaid, job-protected leave during any 12-month period for one or more of the following reasons: For the birth and care of the newborn child of the employee; For placement with the employee of a son or daughter for adoption or foster care; To care for an immediate family member (spouse, child, or parent) with a serious health condition; To take medical leave when the employee is unable to work because of serious health condition; Any qualifying exigency arising out of the fact that the employee s spouse, son, daughter, or parent is covered military member on covered active duty or Up to 26 workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member s spouse, son, daughter, parent, or next of kin (military caregiver leave). Page 4

5 Military Caregiver & Qualifying Exigency Leave The FMLA provides leave for military families when a qualifying exigency (requirements in certain situations) arises as a result of an employee s spouse, child or parents being called to active duty. In addition, an employee may take up to 26 weeks of military caregiver leave to care for a spouse, child, parent, or next of kin who is a covered service member with a serious injury or illness. In 2010, the term covered service member was expanded to include certain veterans. FMLA Clarifications Several states provide employees with similar family and medical leave rights or different grounds for leave from what the FMLA provides. Employers should be mindful that the FMLA generally does not supersede a state or locality s provisions if those provisions provide greater family or medical leave rights than those provided by FMLA. The definition of son or daughter under FMLA applies to an individual 18 years of age or older who is incapable of self-care because of a mental or physical disability. Page 5

6 CHAPTER 2: Intermittent or Reduced Schedule Leave FMLA leave may be taken intermittently or on a reduced leave schedule. While employees may have a right to intermittent leave for serious health conditions under certain circumstances, under the law employers also have a right to expect that employees will respect the conditions of their leave, and obey the rules. Page 6

7 What is Intermittent or Reduced Schedule Leave? Intermittent Leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. Examples of intermittent leave include: Leave taken on an occasional basis for medical appointments; Leave taken several days at a time spread over a period of six months, such as for chemotherapy; or A pregnant employee who takes leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. Reduced Schedule Leave is a leave schedule that reduces an employee s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee s schedule for a period of time, normally from full-time to part-time. For example, an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule may be eligible for a reduced leave schedule. Page 7

8 When Can an Intermittent or Reduced Schedule Leave Be Taken? When medically necessary for unanticipated and/or planned medical treatment due to: The employee s own serious health condition; A serious health condition of a covered family member; or The serious injury or illness of a covered service member. When medical need can be best accommodated through an intermittent or reduced schedule leave due to: For recovery from treatment or recovery from a serious health condition or a covered service member s serious injury or illness that requires treatment by a health care provider periodically, rather than for one continuous period of time (may include leave periods from one hour or more to several weeks). For absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered service member, even if he or she does not receive treatment by a health care provider. To provide care or psychological comfort to a covered family member with a serious health condition or a covered service member with a serious injury or illness. For a qualifying military exigency. Page 8

9 Intermittent or Reduced Schedule Leave For Birth or Placement of a Child When leave is taken after the birth or placement of a child or for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer s agreement, works part-time after the birth of a child, or takes leave in several segments. The employer s agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition. Increments of FMLA Leave for Intermittent or Reduced Schedule Leave Employers may account for FMLA leave in the shortest period of time that their payroll system uses, provided it is one hour or less. Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged as FMLA leave. Employees generally may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. An employer may account for FMLA leave in shorter increments than used for other forms of leave. Page 9

10 CHAPTER 3: How to Calculate Leave When an employee takes FMLA leave on an intermittent or reduced leave basis, only the amount of leave actually taken may be counted toward leave entitlement. Calculation of intermittent FMLA leave is based on an employee s actual workweek. If an employee normally works more than 40 hours per week, an employer needs to take the excess hours into account in determining the pro rata reduction. Page 10

11 Paid Leave Benefits Employees may choose, or the employer may require, the concurrent running of paid time off (PTO) benefits with otherwise unpaid FMLA leave (some restrictions based on category of PTO and circumstance of FMLA leave may apply). Employees may be required to comply with PTO terms and conditions (e.g. only permitting use of accrued PTO days, not advancing days). Interplay of Intermittent/Reduced Schedule FMLA leave with PTO procedural requirements: o Employer must inform employee that they must satisfy any procedural requirements of the PTO program in connection with receipt of such payment only; FMLA availability not impacted. o Even where PTO benefits run concurrently, employer may still require FMLA medical certification to approve FMLA leave. Helpful Hint: Review and update your FMLA policy to require that paid time off be run concurrently with intermittent/ reduced schedule FMLA leave. Page 11

12 CHAPTER 4: How to Manage Intermittent Leave The statistics related to FMLA Abuse are staggering: According to the Employment Policy Foundation, FMLA Compliance cost well over $21 billion last year in terms of lost productivity, continued health benefits and labor replacement. The U.S. Department of Labor reported misuse resulted in nearly 25% of all FMLA leaves. Studies indicate one in five individuals suspect or is aware of someone who is abusing FMLA leave. The best way to discourage abuse is to implement an interactive and consistent approach to the leave process. Page 12

13 Here are some useful tips to discourage policy abuse: 1. Maximize the medical certification process: Ask detailed questions about the reason for leave and have the employee s healthcare provider confirm these. Some states like California have restrictions on the kind of information you can ask for. 2. Don t automatically approve insufficient medical certifications: If a certification comes back insufficient or there is reason to doubt it, employers have the right to request a second opinion from a healthcare provider of their choice. 3. Seek Independent Medical Evaluations (IME): Unlike a second opinion that involves a face to face examination, IMEs can simply have an uninvolved healthcare provider assess the employee s case and documents. 4. Offer more generous benefits: You can offer your employees more generous benefits to be run concurrently with FMLA (such as requiring use of paid time off concurrently as stated previously) and enforce more stringent requirements such as advance notice, more detailed certification and absence reporting. 5. Use accrued paid leave: Require employees to use any accrued paid time off, for example sick or vacation, when taking FMLA leave. Page 13

14 Techniques to limit impact on work environment: 1. Lateral Transfers You can transfer employees to another job where the absences won t be as disruptive You cannot transfer them to a job with lower pay, fewer benefits, or less opportunity to advance You cannot use a transfer as punishment or retaliation (such as less desirable shifts or distant locations) 2. Schedule Changes You can ask employees to schedule treatments for less disruptive times (such as evenings or weekends) If workers are uncooperative, HR can contact health providers directly to find a schedule that works The employee s direct supervisor cannot contact providers directly 3. Notification You can insist that employees follow the rules for notification when they take FMLA For foreseeable absences, workers must give 30 days notice if they can; otherwise as soon as possible and practical For unforeseeable absences, they must abide your normal notice requirements for sick leave Page 14

15 Discipline and Termination An employee may not be disciplined for absences which are protected under the FMLA. When an employee is on intermittent FMLA leave, employers should adjust expectations appropriately. If performance under modified expectation is deficient, then employer should consider discipline. Test Your Knowledge Scenario Options Answer Employee gets certified for intermittent FMLA leave for post-traumatic stress disorder & states flare ups occur once a month. Once certified, flare ups occur 3 to 4 times a month. In addition to recertifying, what else can be done? 1. Fire employee for missing too much work 2. Consider transfer to an equivalent job where impact won t be felt as much 3. Point out to employee that work is suffering Number 2 Consider transfer to another job where impact won t be felt as much Employee is certified for intermittent FMLA leave. She calls and leaves a message that she s not feeling well and isn t coming in. Is this sufficient notification for FMLA leave? 1. Yes 2. No Number 2 No; an employee in this situation must explicitly state that she is taking intermittent FMLA Employee calls HR to state she is taking intermittent FMLA leave for a joint inflammation. Its her fourth leave this month and it comes on the day of a big customer s visit, a visit she was supposed to guide. Her boss tells her that he knows she s on intermittent FMLA leave, but her actions are pretty inconvenient. If employee sues, is boss on solid legal ground? 1. Yes, because he s acknowledged her rights under FMLA and approved the leave 2. No, because his negative comments might make her feel pressured not to take leave to which she is entitled Number 2 Because his negative comments might make her feel pressured not to take leave to which she is entitled Page 15

16 CHAPTER 5: Staffing Plus Solutions Staffing Plus offers personalized HR services that will help control cost, lower risk and minimize the financial impact to your organization. We will provide you with the HR expertise and resources you need, so that you can stay focused on your strategic business and financial goals. As it pertains to FMLA, Staffing Plus can offer the following assistance by: Conducting a risk assessment Establishing procedures for FMLA and Intermittent Leave tracking Documenting the policies to ensure compliance with the laws For further guidance on Intermittent FMLA Leave and other HR related areas, please contact our HR experts at (610) or via at hro@staffingplus.com Page 16

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