Penelope J. Phillips. (612)

Transcription

1 Penelope J. Phillips (612)

2 4 th HR Conference for Local Governments HR in the Fast Lane THE FMLA BASICS

3 FMLA ELIGIBILITY Employee has been employed for 12 months AND Has worked the equivalent of 1,250 hours before beginning the leave AND Is employed at a work site where 50 or more employees are employed 3

4 HOW MUCH FMLA LEAVE? 12 Weeks during each FMLA Year What is your FMLA year? 4

5 HOW LEAVE MAY BE TAKEN? 12 weeks (or less) block of time Intermittently - periodic leave Reduced leave - e.g., full-time to part-time 5

6 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 6

7 MILITARY LEAVE 7

8 DEFINITIONS OF FAMILY MEMBERS Spouse Child (Son or Daughter) Age Parent In loco parentis 8

9 PROVIDING CARE FOR FAMILY MEMBER Physical care Psychological care and comfort Filling in for health care provider Transportation Employee does not need to be the only one able to care for family member 9

10 WHAT IS A SERIOUS HEALTH CONDITION? A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either (1) inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility or (2) results in continuing treatment by a healthcare provider 10

11 The term treatment includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition A regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen) 11

12 Treatment does not include routine physical examinations, eye examinations, or dental examinations 12

13 The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom 13

14 CONTINUING TREATMENT Incapacity and treatment (more than 3 consecutive full calendar days) 2 Visits to health care provider OR 1 Visit to health care provider and regimen of continuing treatment (e.g., prescription of antibiotics) 14

15 CONTINUING TREATMENT (CONT.) Pregnancy or prenatal care Chronic health conditions Permanent or long term conditions Conditions requiring multiple treatments 15

16 CONTINUING TREATMENT (CONT.) Absences attributable to pregnancy and chronic conditions qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence And even if the absence does not last more than three consecutive, full calendar days 16

17 CONTINUING TREATMENT (CONT.) For example, an employee with asthma may be unable to report for work due to the onset of an asthma attack or because the employee's health care provider has advised the employee to stay home when the pollen count exceeds a certain level An employee who is pregnant may be unable to report to work because of severe morning sickness 17

18 Eligibility notice and rights and responsibilities notice Designation notice 5 business days NOTICE AND TIMING 18

19 FORMAL VERSUS INFORMAL NOTICE Advance Notice: Employee required to give advance notice to employer within 30 days of the need for the leave Informal: Notice as soon practicable Meaning: As soon as possible and practical. 19

20 CONTENT OF NOTICE Verbal notice sufficient to make the employer aware that the employee needs FMLA qualifying leave

21 Keep in mind that there is a difference between requesting FMLA for the first time versus when a medical condition is already certified 21

22 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

23 A basic leave request for time away from work because I am sick or my son has a fever does not trigger the FMLA Notice is sufficient if the employee states that leave is needed for a potentially qualifying reason 23

24 HOW DOES AN EMPLOYER KNOW WHETHER AN EMPLOYEE IS GONE FOR AN FMLA REASON? 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 was gone 24

25 What happens if the employee refuses to apply for FMLA or tells an employer s/he does not want to take FMLA leave? 25

26 A recent case suggests that employees can decline to use FMLA even if the underlying reason for seeking the leave would have invoked FMLA protection. Specifically, in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014), the Ninth Circuit held nothing in the FMLA precludes an employee from deferring the exercise of his or her FMLA rights and the preservation of future FMLA leave is a compelling practical reason why an employee might wish to do so. 26

27 DESIGNATION AND RETROACTIVE DESIGNATION OF FMLA LEAVE It is always the employer s responsibility to designate FMLA leave as FMLA leave and track the time Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee as provided in (d). 27

28 The employer s failure to timely designate leave must not cause harm or injury to the employee In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave 28

29 REQUEST FOR MEDICAL CERTIFICATION After an employer receives notice of need for leave, an employer has 5 business days to request med cert from an employee May be in writing or oral (writing is always better) 29

30 MEDICAL CERTIFICATION An employer may ask for medical certification to support the need of an employee to be gone from work The employee has 15 days to return the medical certification form 30

31 CHALLENGES TO MEDICAL CERTIFICATION If you think it is a SHC, but you are not sure of the details because the medical certification is inadequate or incomplete, you can get more information A certification is incomplete if one or more of the entries has not been completed or if the information provided is vague, ambiguous or non-responsive You can ask the employee to return a complete and sufficient certification, if requested 31

32 VAGUE AND INSUFFICIENT To cure the certification insufficiencies, the employer should first provide written notice to the employee identifying what additional information is needed The employee must be given 7 calendar days to provide complete and sufficient information The employee has an obligation to either provide a complete and sufficient certification or give the employer permission to communicate directly with the healthcare provider If the resubmitted certification does not correct the deficiencies, the employer can deny the leave as FMLA leave 32

33 AUTHENTICATION Employer may authenticate a medical certification: Ask provider whether provider signed form Employee s permission not required 33

34 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 34

35 WHO MAY MAKE CONTACT Management Representatives include: Health Care Provider Human Resources LOA Administration Management NOT Employee's supervisor 35

36 CERTIFICATION ALTERNATE METHOD The regulations also allow an Employee to provide a written authorization allowing the Employer to communicate directly with the employees health care provider 36

37 FAILURE TO PROVIDE CERTIFICATION Foreseeable leave: If an employee fails to provide medical certification, leave is denied until certification provided Example: Certification not provided until 45 days after notice, the employer can deny FMLA protection for 30 days after the 15 days expire if the employee takes leave during this time 37

38 UNFORSEEABLE LEAVE - FAILURE TO PROVIDE MEDICAL CERTIFICATION Absent extenuating circumstances, if an employee fails to provide medical certification within 15 calendar days from receipt of the certification, the employer may deny FMLA coverage for the requested leave until the certification is provided If the certification is never provided, no part of the leave is FMLA leave 38

39 If the second opinion differs from the original opinion, the employer can either accept the employee s doctor s opinion, or require the employee to obtain a certification from a third doctor, at the employer s expense The third opinion then becomes final and binding. The employer and employee must agree on the doctor to provide the third opinion 39

40 If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies 40

41 MEDICAL CERTIFICATION ABROAD In circumstances in which the employee or a family member is visiting in another country, or a family member resides in another country, and a serious health condition develops, the employer shall accept a medical certification as well as second and third opinions from a health care provider who practices in that country 41

42 SECOND AND THIRD OPINIONS If the employee s situation is suspicious enough for the employer to doubt the validity of the medical certification, the employer should seek a second opinion This second opinion would be from the medical provider of the employer s choice (but not one that the employer regularly contracts with), at the employer s expense 42

43 SECOND AND THIRD OPINIONS (CONT.) To facilitate the second/third opinion process, the employee must authorize the release of relevant medical information pertaining to the condition for which leave is being sought to the health care provider contracted to provide the second/third opinion, if so requested by that individual The failure to authorize the release of this information is grounds for denying FMLA leave. The employee is provisionally entitled to leave while the second/third opinion is being obtained 43

44 Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits 44

45 MISCELLANEOUS FMLA ISSUES The FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour The employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour Only the amount of leave actually taken may be counted against an employee s FMLA leave entitlement 45

46 Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee s actual workweek The amount of FMLA leave taken is divided by the number of hours the employee would have worked if the employee had not taken leave of any kind (including FMLA leave) to determine the proportion of the FMLA workweek used 46

47 When a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave When a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day 47

48 When an employee s schedule varies so much that the employer is unable to determine how many hours the employee would have worked during the week the employee takes FMLA leave, the employer may use a weekly average to calculate the employee s FMLA leave entitlement. The weekly average is determined by the hours scheduled over the 12 months prior to the beginning of the leave and includes any hours for which the employee took any type of leave 48

49 Required overtime hours that are not worked by the employee because of an FMLA-qualifying reason may be counted as FMLA leave Voluntary overtime hours not worked due to an FMLA-qualifying reason may not be counted as FMLA leave 49

50 FMLA medical certification for not working overtime? Pay for working the day before and the day after a holiday and FMLA 50

51 RE-CERTIFICATION The employee requests an extension of leave Circumstances described in the original certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications) OR The employer receives information that casts doubt upon the continuing validity of the original certification When an employee cannot return to work after leave (thereby preventing the employer from recovering its share of health benefit premium payments made on the employee s behalf during the leave period), the employer may require medical certification of the employee s or family member s serious health condition 51

52 COMBATING FMLA ABUSE Stay on top of leave usage and leave year Certify, recertify and recertify again Require a new medical certification each new FMLA year 52

53 ESTABLISH AND ENFORCE REASONABLE CALL-IN POLICIES AND PROCEDURES Consider creating a Hot-line Employers may require an employee to follow their normal attendance policy call-in procedures when on leave Discipline if the employee fails to follow the employer s call-in procedures 53

54 REQUIRE THAT EMPLOYEES COMPLETE A WRITTEN LEAVER REQUEST FROM OR CERTIFICATION FOR ALL ABSENCES An employer cannot deny FMLA leave when the employee verbally puts the employer on notice of the need for FMLA leave But an employer may require an employee to actually write out his or her request for leave and require that the employee certify the need for the leave 54

55 In Holder v. IL. Dep't of Corr., 751 F.3d 486 (7th Cir. Ill. 2014), the employer failed to follow its procedures regarding documenting leave approval, designation, and tracking. The employer inadvertently assured an employee that he could take intermittent leave after his protected leave ended. When the employer later discovered its error, it attempted to rescind the leave. It also sought to recoup medical insurance premiums paid on the employee s behalf. The court ruled that the employer could not take this action after previously having assured the employee that the leave would be protected. 55

56 TRACK ABSENCE PATTERN AND STAY IN TOUCH WITH EMPLOYEE DURING LEAVE Employers have far greater success combating FMLA abuse when they maintain regular contact with an employee who is out on FMLA leave. The key is to maintain a check-in policy with employees out on leave and apply it in a consistent manner 56

57 ATTENDANCE POLICIES An employer may not count FMLA absences against an Employee under attendance/absenteeism control policy But, there is no need to give perfect attendance bonuses to those whose only absence was FMLA leave, unless you give to those employees who took other types of leave 57

58 CALL-IN PROCEDURES Company X has a requirement that if you are going to call in sick, you need to call in at least 2 hours in advance of the start of your shift. Mary Smith, who is certified for intermittent leave, always calls in 5 minutes before the start of her shift. Can she be disciplined? 58

59 CALL-IN PROCEDURES (CONT.) Where an employer s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee s need for leave, the employer s notice requirements can be enforced. DOL Op. Ltr. FMLA A (Jan. 6, 2009) 59

60 CALL-IN PROCEDURES (CONT.) The Department recognizes that call-in procedures are routinely enforced in the workplace and are critical to an employer s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence 60

61 CALL-IN PROCEDURES (CONT.) The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer s call-in procedures are more stringent than the timing for FMLA notice... where unusual circumstances prevent an employee seeking FMLA-protected leave from complying with the procedures, the employee will be entitled to FMLA-protected leave so long as the employee complies with the policy as soon as he or she can practicably do so 61

62 SUBSTITUTION OF LEAVE FMLA is unpaid 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 Must include in your Rights and Responsibilities Notice You may require the employee to follow terms of the paid leave policy, including terms of the collective bargaining agreement, that is being substituted 62

63 If requirements to qualify for payments under a STD plan or other policy are more stringent than FMLA, an employer can require employees to follow more stringent requirements If the notice requirements under an employer s paid leave policy are less onerous than the FMLA s notice requirements for employees whose leave is foreseeable (i.e., 30 days), the less-restrictive requirements of the paid leave policy apply 63

64 SUBSTITUTION OF LEAVE An Employer may not require two types of paid leave to run concurrently at the same time An employer may, however, have each leave run concurrently with FMLA in succession 64

65 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 65

66 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 by policy? Employee may choose it anyway If substitution is not required or elected by Employee? Employee keeps all paid leave 66

67 PRACTICAL APPLICATION Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer s sick policy only permits employees to take sick leave in full days. Neila may either choose to comply with her employer s sick leave policy by taking a full day of sick leave for her doctor s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours. Frequently Asked Questions and Answers About the Revisions to the Family and Medical Leave Act, 67

68 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 68

69 RETURN TO WORK: 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 69

70 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 70

71 QUESTIONS? Thank you. 71