Getting a Handle on Intermittent FMLA a/k/a: Firmly Gripping Jelly

Transcription

1 Getting a Handle on Intermittent FMLA a/k/a: Firmly Gripping Jelly Presented by: Bob Simandl and Jon Eiden von Briesen & Roper, s.c. February 22, 2018 Fundamentals of FMLA Administration What is FMLA leave? Job protected leave It is not an alternative to vacation, sick, holiday, or other paid leave such as short term disability. Those categories determine pay, but do not necessarily bring job protection. The FMLA brings job protection, but no pay status. Taking Leave Intermittent Reduced Schedule Block Leave 1

2 Test your knowledge. Trisha had minor surgery and was required to stay in the hospital overnight. This condition caused Trisha to miss one day of work. This time off should have been counted as FMLA. True or False? Under which law? Test your knowledge. An FMLA serious health condition can be a disability. True or False? 2

3 Test your knowledge. Kim has a chronic medical condition that requires her to be off work for treatments one day each week. Her absences should be considered FMLA leave. True or False? HR Steps in Determining Employee Entitlement to FMLA Leave Determine employee eligibility based upon hours worked, time served and employee population; Identify whether leave qualifies for federal FMLA and/or Wisconsin FMLA; and Does employee have federal and/or Wisconsin FMLA leave available in Administrative Year? 3

4 Federal FMLA Has worked for employer for 12 months within the past 7 years Worked for at least 1,250 hours during the 12 month period immediately preceding the commencement of the leave Worked at a facility having at least 50 employees within 75 miles Wisconsin FMLA Has worked for employer for 52 consecutive weeks (at any time) Was paid for 1,000 hours in the immediately preceding 52 week period 50 or more employees PERIOD! Federal FMLA and workers compensation leaves run concurrently 4

5 Covered Family Members Child: this includes birth, adopted, foster, stepchild or legal ward as well as any child for whom the individual stands as a parent in terms of day to day care Adult child must be incapable of self care. This would likely include the child of domestic partners. Wisconsin FMLA covers leave to care for a domestic partner or the parent of a domestic partner (for 4/1/18 and before relationships) Federal leave does not cover domestic partners but does include in loco parentis relationships Employee Leave Options Intermittent/Reduced Leave Intermittent Leave: Leave taken in separate blocks of time due to a single illness or injury Reduced Leave: Leave schedules that reduce usual number of working hours per workweek or hours per workday 5

6 Intermittent FMLA Leave Employees can take leave intermittently only if it is medically necessary Many legitimate needs for intermittent leave: asthma, migraines, chronic illness The medical certification form asks the doctor to explain the medical need for intermittent leave If employee s use of leave does not correspond to certification, the employer can seek certification, recertification or clarification from the physician Have the data to protect against fraud or abuse Intermittent FMLA Leave Foreseeable intermittent leave is to be planned so as not to unduly disrupt employer s operations Employer cannot require an employee to bring in a doctor s note for every FMLA absence which is intermittent Recertification no more often than every six months for leave longer than that period If no duration is noted, employer can require employee to recertify every 30 days. Where there is a change in circumstances, recertification can be requested 6

7 Circumstances Supporting Reduced Leave Planned medical treatment that is medically necessary Unanticipated medical treatment or time off due to incapacity that is medically necessary Recovery from medical treatment Recovery from a serious health condition Time off related to the birth or adoption of a child Providing qualifying care or psychological comfort to qualified family member Reassignment During Reduced Leave Employer may temporarily reassign an employee to a different position better suited to a reduced schedule. May alter an existing position to provide part time hours May not eliminate benefits if moved to part time position May proportionally reduce benefits under employer's normal practice. Example: if vacation is based on hours worked, employer may reduce vacation benefit pursuant to the policy. 7

8 FMLA Eligibility During Intermittent/Reduced Leave An employee must meet the eligibility requirements for FMLA each time they request to use intermittent leave except... An employee who fails to work 1,250/1,000 hours in the 12 months prior to the leave request he/she is ineligible. Employees who are on the border may no longer be eligible after a period of working a reduced schedule for FMLA leave. Developing a Leave Plan Employee medical needs may dictate a specific leave schedule associated with treatment. Supervisors may need to assist HR in: working out a schedule for partial leave identifying impacts upon production identifying temporary alternative assignments during FMLA 8

9 End of Leave Fitness for Duty Employer may require fitness for duty slip upon return. Fitness for duty certification is limited to the condition that caused the employee s need for FMLA leave. it is not a general work release for any and all health conditions Employer must provide notice of fitness for duty exam with designation notice and provide job description with Heath Care Provider Certification form. Fitness for duty exam must apply equally to all similarly situated employees. End of Leave Return to Work Position to which employee must be returned: Same or equivalent position Virtually identical conditions and benefits Substantially similar duties and responsibilities Does not have to include same job duties, but duties equivalent in terms of significance to those performed prior to leave. Factors: similar skill, effort, responsibility, and authority. 9

10 Inability to Return from Leave If the employee is unable to return to work or has restrictions at the end of their time of FMLA or STD leave Employee may be entitled to reasonable accommodation under ADA and WFEA, which could include extending leave (if no other alternative) Must engage in cooperative, interactive process with each employee to determine if accommodation is available under the circumstances This is an area of focus for EEOC enforcement Interactive Process Steps if employee is unable to return at full capacity at end of FMLA/STD leave: 1. Human Resources will conduct an accommodation analysis 2. Human Resources will consult with employee, supervisors, medical providers and other appropriate person regarding possible accommodations 3. Accommodations might include adjustments to job duties, transfer, and additional leave. 4. All steps in interactive process should be documented (including each communication with employee Note: Employer does not have to accommodate an indefinite term leave 10

11 Relationship Between ADA and FMLA Many cases that might only have been covered by the FMLA before are now also covered by the ADA or WFEA Though reasonable accommodations not required by FMLA, they are required by ADA and WFEA. Reasonable accommodations must be offered unless they will cause undue hardship for employer During FMLA time, a qualifying employee can insist on taking leave. Once FMLA is exhausted, employer has the right to try to identify an alternative, effective accommodation to avoid continued leave of absence QUESTIONS? Robert J. Simandl, Esq. Jonathan R. Eiden, Esq. von Briesen & Roper, S.C. von Briesen & Roper, S.C Swenson Drive, Suite W. Lawrence Street, #106 Waukesha, WI Appleton, WI rsimandl@vonbriesen.com jeiden@vonbriesen.com (262) (920)