Car Dealers & the Family and Medical Leave Act

Transcription

1 Car Dealers & the Family and Medical Leave Act How to guard against the alarming increase of FMLA employee lawsuits! With Penny Phillips, J.D. of Felhaber, Larson, Fenlen & Vogt Moderated by Mike Bowers, Executive Editor of DealersEdge

2 Penny Phillips, J.D. of Felhaber, Larson, Fenlen & Vogt After serving as Labor & Employment counsel for SUPERVALU INC., a national grocery and distribution chain, Penny Phillips rejoined Felhaber, Larson, Fenlon & Vogt in September 2008, where she had formerly been a shareholder. Since 1990, Ms. Phillips has focused exclusively on counseling and representation of employers in all areas of employment law, including FMLA, wage and hour, employment discrimination claims (including gender, age, religion, disability, national origin, and race), defamation, whistleblower, breach of contract and wrongful discharge. Ms. Phillips also investigates complaints of employee misconduct (including harassment and offensive behavior). She has worked with and practiced before the state and federal courts, various state and federal agencies, including the Department of Labor, the Equal Employment Opportunity Commission, and state and local fair employment practices agencies. Ms. Phillips has a particular emphasis on wage and hour/flsa matters. While in-house at SUPERVALU INC., she defended wage and hour cases throughout the country. She frequently conducts FLSA audits for companies, and is the author of the 2007 Wage & Hour Answer Book, A Guide for Human Resource Professionals, published by Aspen Publishers (a leading information provider for attorneys, business professionals and law students). Ms. Phillips is also a frequent teacher and trainer on employment issues. She provides ongoing training to employers, managers, human resource personnel and other lawyers on matters such as the FMLA, ADA, wage and hour laws, hiring and firing, sexual and unlawful harassment, discrimination, conducting investigations, alcohol and drug testing, and reductions-in-force. Ms. Phillips has spoken to companies and organizations throughout Minnesota, the Midwest, and the United States.

3 Putting the FMLA Into Practice The Basic Plus More Penelope J. Phillips Felhaber, Larson, Fenlon & Vogt, P.A. 220 South Sixth Street, Suite 2200 Minneapolis, MN

4 FMLA ELIGIBILITY Work for a covered employer Employee has been employed for 12 months; and Has worked the equivalent of 1,250 hours before beginning the leave

5 HOW TO CALCULATE HOURS OF SERVICE 1250 actual on the clock hours Does not include vacation, sick, PTO Exception: time away due to military service counts when calculating FMLA eligibility

6 HOW MUCH FMLA LEAVE 12 Weeks during each FMLA Year What is an FMLA year? Fixed year Measuring forward Rolling backward Switching FMLA years requires 60 days notice

7 HOW LEAVE MAY BE TAKEN? 12 Weeks (or less) Block of Time Intermittently - Periodic Leave Reduced Leave - e.g., Full-time to Part-time

8 TYPES OF LEAVE For the birth of a child For adoption or foster care To care for spouse, child, or parent with a serious health condition Because of the employee s own serious health condition which makes the employee unable to perform the essential functions of the job

9 Spouse DEFINITIONS OF FAMILY MEMBERS Child (Son or Daughter) Parent

10 PROVIDING CARE FOR FAMILY MEMBER Physical care Psychological care and comfort Filling in for health care provider Transportation New Regulations Clarify - Employee Does Not Need to be the Only One Able to Care For Family Member

11 1. In-patient care SERIOUS HEALTH CONDITIONS 2. Incapacity and Treatment A. Continuing treatment by a healthcare provider for employee if there is 2 Visits To Health Care Provider OR 1 Visit to Health Care Provider And Regimen Of Continuing Treatment (e.g., Prescription Of Antibiotics

12 Prior Regulations: No time requirements for visit to health care provider Final Regulations: First (or only) visit must occur within 7 days of the first day of incapacity Second visit must occur within 30 days of first day of incapacity Provider decides whether the second visit or continuing regimen of care is necessary

13 SERIOUS HEALTH CONDITION 3. Incapacity due to pregnancy or prenatal care 4. Incapacity because of chronic health condition Requires Periodic Treatment -- Periodic Treatment means at least twice a year Continues Over Extended Period Of Time Results In Episodic Incapacity Employers can require re-certification every six months 5. Incapacity due to condition for which treatment is not effective 6. Period of absence to receive multiple treatments

14 INCAPACITY/INCAPACITATED In order to have a serious health condition an employee must be incapacitated. Incapacity is defined as inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment thereof, or recovery there from.

15 HOW AND WHEN IS INTERMITTANT LEAVE TAKEN? Intermittent leave may be taken when medically necessary for a planned or unanticipated treatment of a SHC or for recovery from treatment or recovery from a SHC or for intermittent treatment of a SHC.

16 SCHEDULING MEDICAL TREATMENT The employee must consult with the employer and make a reasonable effort to schedule the treatment so as not to disrupt the employer s operations.

17 EMPLOYER NOTIFICATION Four Types of Employer Notification Requirements: 1. General Notice Requirement 2. Eligibility Designation 3. Rights and Responsibility Notification 4. Designation Notification

18 ELIGIBILITY DESIGNATION Prior Regulations: Provide designation in 2 days Of employee s notification that leave is needed Final Regulations: Provide designation within 5 business days Notify employee of amount of leave available If employee is ineligible, provide at least one reason See Department of Labor Eligibility Notice Form at Appendix D

19 Retroactive Designation An employer may retroactively designate FMLA leave so long as it does not cause harm or injury to the employee.

20 EMPLOYEE NOTICE REQUIREMENTS For foreseeable leave, employees must give at least 30 days notice When not possible to give 30 days notice, employees must give notice as soon as practicable Prior Regulations: as soon as practicable as ordinarily...within 1 or 2 business days Final Regulations: Ordinarily. is gone As soon as practicable means as soon as both possible and practicable Employee can be expected to follow Employer s notification procedures for unplanned absences

21 WHEN IS AN EMPLOYER ON NOTICE OF THE NEED FOR FMLA LEAVE? Employee must provide sufficient information to notify the employer that the employee needs FMLA-qualifying leave If on FMLA intermittent leave, employee must either mention FMLA or the qualifying condition Just saying I am sick is not enough to put employer on notice of need for leave

22 DESIGNATION RESPONSIBILITY Employer s responsibility to designate leave as FMLA qualifying Where employer does not know whether qualified reason or not employer should inquire further of the employee. It is not an invasion of privacy to ask why someone is gone from work HIPAA does not apply

23 CALL IN REQUIREMENTS May an employer discipline an employee who does not follow call in procedures?

24 MEDICAL CERTIFICATION AND RE-CERTIFICATION Form 380E Leave for Employee's own serious health condition Form WH-380F Leave for Employee's family member s serious health condition

25 CERTIFICATION FORMS An Employer may give a health care provider a statement of the essential functions of the Employee's position The medical certification must specify what functions the Employee is unable to perform It is up to the Employer (not the physician) to determine whether the function is essential Determining an essential function is a legal, not a medical, conclusion

26 INTERPLAY WITH ADA Where an employee's serious health condition may also be a disability under the ADA, the FMLA does not prevent the employer from following procedures for requesting medical information under the ADA

27 How Much Time? 15 days to return the medical certification forms and recertification forms

28 COMPLETE AND SUFFICIENT MEDICAL CERTIFICATION An employee is obligated to provide a complete and sufficient medical certification Incomplete means the form is missing information Insufficient means the form is vague, ambiguous or non-responsive

29 COMPLETE AND SUFFICIENT MEDICAL CERTIFICATION If medical certification is incomplete or vague, employer may: Notify employee in writing of specific questions Allow employee 7 days to respond If employee fails to provide a complete and sufficient certification the leave may be denied

30 AUTHENTICATION AND CLARIFICATION OF EMPLOYEE S MEDICAL CERTIFICATION The regulations permit the employer to request clarification or authentication of a medical certification

31 AUTHENTICATION Employer may authenticate a medical certification: Ask provider whether provider signed form Employee s permission not required

32 CLARIFICATION An employer may also request clarification which means contacting the health care provider directly to better understand the certification The Employer may not ask for information not contained in form Employer conversations with health care provider must be authorized (and meet HIPAA requirements) An Employee may NOT require authorization, but if Employee does give authorization and certification remains unclear, Employer may deny leave.

33 WHO MAY MAKE CONTACT? Management Representatives may include: Health Care Provider Human Resources LOA Administration Management Not Employee's supervisor

34 NEW FORM OF MEDICAL CERTIFICATION The new regulations also allow an employee to provide a written authorization allowing the employer to communicate directly with the employees health care provider

35 RECERTIFICATION GENERAL RULES If the certification provides that the minimum duration of the leave is more than 30 days, the employer must wait for the minimum duration to expire before asking for recertification unless: Circumstances have changed or The employer receives information that casts doubt on the reason for the absence.

36 RECERTIFICATION If the certification provides that the minimum duration of the leave is less than 30 days, the Employer must wait for the minimum duration to expire before asking for recertification unless: Circumstances have changed or The Employer receives information that casts doubt on the reason for the absence.

37 An Employer may also: Request recertification every 6 months regardless of the length of leave specifiedincludes where duration is lifetime, indefinite, or unknown Present a health care provider with a record of the employee's absence pattern for purposes of inquiring whether the pattern is consistent with the serious medical condition certified by that provider Request a recertification where SHC extends beyond the 12 month period

38 FITNESS-FOR-DUTY Employer can require that health care provider address employee's ability to perform essential job functions If fitness for duty is required, employer must provide written notice of the requirement, including list of essential functions with the notice of designation If employer fails to provide notice, employer cannot refuse employee's return to work But, if notice given and no return to work notice, employer may delay restoration until employee submits return to work info

39 FITNESS-FOR-DUTY CERTIFICATIONS INTERMITTENT FMLA Employer may obtain certification of fitness to return to duty for intermittent or reduced schedule leave up to once every 30 days if reasonable safety concerns exist.

40 FMLA LEAVE PAID OR UNPAID? FMLA is unpaid Substitution of paid leave for unpaid leave may be made under employer s policy; and If requirements to qualify for payments under a STD plan are more stringent than FMLA, an employer can require employees to follow more stringent requirements.

41 SUBSTITUTION OF LEAVE Substitution of leave means two types of leave run concurrently Employers may require employees to substitute accrued paid leave for unpaid FMLA leave Examples: sick, vacation, maternity, disability, worker s comp

42 SUBSTITUTION OF LEAVE Must include in your Rights and Responsibilities Notice You may require the employee to follow terms of the paid leave policy that is being substituted If substitution is not required? Employee may choose it anyway If substitution is not required or elected by employee? Employee keeps all paid leave

43 SUBSTITUTION OF LEAVE An employer may not require 2 types of paid leave to run concurrently at the same time May, however, have each one run concurrently with FMLA in succession

44 SUBSTITUTION OF LEAVE Workers comp benefits may run concurrently with FMLA leave Employer may not require workers comp and other paid leave to run at same time, but: Employer and Employee may agree for paid leave benefits to supplement workers comp benefits When workers comp runs out, remaining paid leave runs concurrently with FMLA

45 BENEFITS WHILE ON LEAVE Must maintain employee's group health benefits at same level as before leave Same amount Same Employer contribution Any changes that go into effect during leave Rule applies only to group health plans, not other voluntary health-related benefits

46 COVERAGE COMPLICATIONS If employee either declines or fails to pay for health coverage during leave, he may re-enroll on return with no waiting period You may stop health coverage if employee on FMLA leave doesn t pay premiums, but must re-enroll as above upon return If insurance won t allow re-enrollment, you may pay employee's premiums while on leave, then seek reimbursement

47 IF EMPLOYEE DOESN T PAY You still have FMLA duties No action until employee is 30 days in arrears Then notify employee of non-payment, give at least 15 days to pay up or benefits will be canceled Be specific on amount owed, date of cancellation

48 OPTIONS, ALTERNATIVE Don t terminate employee's coverage but tell her she s in arrears and how much owed If she s returning to work, negotiate plan for repayment of amounts you paid on her behalf during FMLA leave Promissory note Authorization of wage deduction

49 JOB RESTORATION Employee who is on FMLA leave in same position she would have been had she not taken the leave Same or equivalent job in pay, benefits, perks, responsibilities Need not give perfect attendance award to Employees who took FMLA leave, as long as you don t give it to those who took other types of leave Not required to award other bonuses if FMLA leave prevented Employee from earning them

50 NO RESTORATION OF KEY EMPLOYEES Key Employees: Are in highest-paid 10 percent of workforce within 75 miles of work site Fit FLSA executive, administrative, professional, and computer Employees. Not required to rehire if restoration would cause substantial economic injury Tougher standard than undue hardship under ADA

51 LAYOFF Show that employee returned from leave would have lost job even if she stayed Document your decision well Shift eliminations, decreases in overtime can apply to employees returning from leave Substitute most vacate job of employee returning from FMLA leave

52 JOB RESTORATION: ADDITIONAL EXCEPTIONS Employee can t perform essential job functions after FMLA leave ends But ADA must be considered Employee requests different job (i.e., different shift, schedule or position) Term or project for which employee was hired has ended Employee fails to provide Return To Work certification

53 EMPLOYEE SUBMITS RETURN TO WORK FORMS WITH LIMITATIONS Employee s note from health care provider says he needs to work in clean air You feel it s impossible to provide

54 PERFECT ATTENDANCE No need to give perfect attendance bonuses to those whose only absence was FMLA leave, unless you give to those who took other types of leave Still may not count FMLA absences against employee under attendance/absenteeism policy