FMLA Certifications: How to Get the Medical Information You Need to Designate Leave and Decrease Abuse

Transcription

1 FMLA Certifications: How to Get the Medical Information You Need to Designate Leave and Decrease Abuse Presented by: Danielle C. Garcia, Esq. Associate Fisher Phillips LLP Friday, April 7, :30 p.m. to 3:00 p.m. Eastern 12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific or For On-Demand purchasing information, contact customer service at: or BLR and HR Hero Business & Legal Resources and HR Hero. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission. This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI website at Business & Legal Resources (BLR) is recognized by SHRM to offer Professional Development Credits (PDCs) for the SHRM-CP or SHRM-SCP. This program is valid for 1.5 PDCs for the SHRM-CP or SHRM-SCP. For more information about certification or recertification, please visit

2 FMLA Certifications: How to Get the Medical Information You Need to Designate Leave and Decrease Abuse Presented by: Danielle C. Garcia, Esq. Associate Fisher Phillips LLP April 7, 2017 Introduction Nearly 10% of all employees will take FMLA leave in any 12-month period In 2015, the WHD recovered $1.9 million in back wages for employees due to Employer violations of the FMLA This does not take into account the millions recovered each year from private lawsuits It costs an average of $78,000 in legal fees alone to defend an FMLA lawsuit, regardless of outcome

3 Overview Quick Review of FMLA What Qualifies as a Serious Health Condition? Medical Certifications Return to Work Certifications How to use Certifications to Curb Abuse Quick Review of the FMLA The Family Medical Leave Act, enacted in 1993, provides 12 weeks of job-protected leave for employees to: have a child and to care for the newborn child within one year of birth; the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; to care for the employee s spouse, child, or parent who has a serious health condition; a serious health condition that makes the employee unable to perform the essential functions of his or her job Includes domestic partners Special leave protections for military Only applies to employers with at least 50 employees Employees must have worked 1,250 hours and be employed for the past 12 months

4 Why so Serious? Serious Health Conditions Why so Serious? Requirements for a Serious Health Condition Incapacity + Treatment Incapacity for more than 3 consecutive, full calendar days, plus either: Two or more treatments by healthcare provider Treatment within 30 days of first day of incapacity and first treatment in first 7 days At least one treatment plus regimen of continuing treatment under healthcare provider s supervision Treatment in first 7 days of incapacity

5 What about Chronic Conditions? Periodic visits to healthcare provider - Healthcare provider decides whether and when treatment is warranted - Requires 2 visits per year Need not visit healthcare provider for every episode or flare-up - Self care allowed if provider advises (e.g., asthmatic told to stay home if pollen count is high) No requirement of more than 3 days incapacity What about the Common Cold? General rule: Absent complications, the common cold and flu are not serious health conditions. But they can be if they meet one of the incapacity plus treatment definitions. Example: Flu may be a serious health condition if an employee is incapacitated for 3+ days and the continuing treatment requirement is met.

6 Developing Issue: Infertility May be serious health condition if employee can t work due to condition or its treatment Possible examples: Diagnostic tests Surgery to treat underlying condition Depression related to infertility Bed rest to prevent miscarriage if pregnancy results Pain from condition causing infertility (i.e., endometriosis) Caring for Others Serious Health Conditions Covers both physical and psychological care (comfort and reassurance) Can be intermittent Includes making arrangements for changes in care, such as transfer to nursing home Employee need not be only possible caregiver (watch out for gender stereotypes) When caring for children: an employee s child must be either under the age of 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time that FMLA leave is to commence.

7 Medical Certifications Medical Certification Basics Once put on notice by employee, employers may require medical certification for Employee s serious health condition Family member s serious health condition Fitness-for-duty NOTE: No certification to care for a newborn can ask for proof of familial relations

8 Timing of Certification Employer is required to request certification within 5 business days of: 1. Receiving notice from employee 2. Employee begins leave Notice requiring certification must be included in the FMLA Notice of Rights and Responsibilities Employee then has 15 calendar days to provide completed certification What if it s been 15 Days? Extension possible if doing so was not practicable despite diligent efforts If there is no valid reason for extension, employer may deny leave BE CAREFUL THOUGH! According to recent case, employer must wait full 15 days to deny leave even if certification form indicated no serious health condition

9 Content of the Certification- What Information do I Need? Contact information for health care provider The date the serious health condition began How long the condition will last Appropriate medical facts about the condition When it is for the employee s condition: information showing that the employee cannot perform essential functions of job Care for family member: statement of the care needed Intermittent leave: information showing the medical necessity for intermittent or reduced schedule leave Dates of planned leave or estimated frequency and duration of expected incapacity due to the condition What Forms do I use? DOL has created forms WH-380-E and WH-380-F Employers may use their own forms, but cannot ask for any other information that what is available under the law NOTE- this may result in the employee bringing in a doctor s note containing all of the required information. CANNOT require the employee to use a different format.

10 Common Issues with Certifications Incomplete certifications: Some required entries are left blank Insufficient certifications: All entries are completed, but answers are vague, ambiguous, or nonresponsive Questions of authenticity It is the employee s responsibility to provide sufficient certification. Addressing Common Issues Inform employee in writing what additional info is needed DOL Form WH-382 may be used for this purpose. Employee has 7 calendar days to obtain corrected certification Unless impracticable to do so despite good efforts If employee doesn t fix, employer may: Deny FMLA leave; or Contact HCP for missing info

11 Contacting the Employee s Healthcare Provider Valuable tool to use for clarification or authentication BEWARE- some states leave laws do not allow contacting the HCP for authentication purposes Authenticity: Ask the HCP who signed the certification to confirm that he really completed or authorized the information it contains. Clarification: Ask the HCP to help you understand handwriting, meaning of the response. Contacting the Healthcare Provider Contact may be made: Through another HCP; or Directly to employee s HCP by HR, FMLA administrator, management official (but not employee s direct supervisor) No inquiries allowed beyond scope of certification Get employee s permission to contact HCP if HIPAA applies

12 Do s and Don ts of Second Opinions DO: Ask for a second opinion if you doubt the validity of the certification May choose the HCP to give the 2 nd opinion Pay for reasonable travel expenses for employee of employee s family member Deny leave if employee refuses to release medical information to 2 nd HCP DON T: Have the employee pay for the 2 nd opinion Select the same HCP employer uses on a routine basis Deny FMLA leave while waiting for the results off the second opinion Third Opinions Allowed if Opinions 1 and 2 differ; you pay Third opinion binding HCP jointly chosen May deny FMLA leave if employee doesn t release medical info to third HCP Must provide employee w/ copies of second and third opinions within 5 business days upon request by employee

13 Employee Fails to Correct or Submit Certification You may deny leave if employee fails to turn in on time or correct certification FMLA won t protect any leave taken without proper certification Be careful, extenuating circumstances may excuse Recertification May ask for recertification no more often than every 30 days Only in connection with an employee s absence If certification indicates minimum amount of leave >30 days, employer must wait until that time expires before seeking recertification In all cases, including indefinite leave, may request recertification every six months Employee has 15 calendar days to return certification Employee covers expense for recertification Cannot ask for 2 nd or 3 rd opinion for recertification

14 Recertification Employer can ask for recertification more frequently than every 30 days if: Significant change in circumstances Employee requests more leave You learn info that casts doubt on validity of certification While can usually only get same information as original certification, can also show HCP record of employee s absences and ask if the serious health condition is consistent with needing that much time off Return to Work Certifications

15 Return to Work Certification/Fitness for Duty Approx. 98% of employees will return to work after taking FMLA Employers may have return to work program, which requires employee s HCP to certify that they may return to work in some capacity Leave is for employee s own condition RTW certification is sought in regard to the certified condition You have uniformly applied policy that employees provide RTW certification as condition to post-fmla job restoration You provided proper notice of the requirement (in handbook or Designation Notice) At employee s expense Do s and Don ts: Return to Work Certifications Employers may: Ask about health condition causing FMLA leave (but no others) Provide HCP with list of essential job functions Seek clarification, authentication from employee or HCP Terminate employee if he doesn t provide RTW certification practice requiring FFD certification - Provide proper notice of the FFD requirement (no later than the FMLA Designation Notice) - Include GINA safe harbor statement in any request for FFD certification Employers must: - Have a uniformly applied policy or

16 Fitness for Duty DON TS Employers may not: Dictate type of HCP to provide FFD certification Delay job restoration pending receipt of clarification or authentication Require second or third opinions Require complete healing for return to work Fitness for Duty and Intermittent Leave With intermittent/reduced-schedule leave, may require RTW certification every 30 days (max) if you have reasonable safety concerns related to reason for leave - Example: Reasonable belief in significant risk of harm to employee or others, such as a police officer who takes leave to address mental health issues

17 Intention to Return to Work May ask employee to report on this periodically Your FMLA obligations end when employee expresses unequivocal intention not to return May not terminate early even if employee thought she would be unable to return at end of leave, and it ended up that she couldn t Curbing Abuse and Avoiding Litigation

18 Remember Notice Requirements Before leave request General notice to applicants and employees After leave request Eligibility notice Rights and responsibilities notice Designation notice General Notice Two separate requirements Post notice conspicuously at worksite Applies even if employer has no eligible employees Provide written notice to all employees In handbook or to new employees upon hire Applies to employers that have at least one eligible employee at worksite If substantial number of employees lack English literacy, must translate May be provided electronically if all employees/applicants have access

19 Eligibility Notice Give within 5 days of learning of need for leave Also advise on certification, use of paid leave, benefits, including premiums, key employee status If not eligible, give at least one reason Rights and Eligibility Notice Give with each eligibility notice Advise employees on: Substituting paid leave for unpaid leave Certification Premiums for health care Include all forms employee needs to fill out and submit Combined with eligibility notice in DOL Form WH 381

20 Tools for Curbing FMLA Abuse Not a lot employers can do without risking litigation based on interference or retaliation (discussed later) Can investigate employees What to do with moonlighting employees? Timing Issues Problem: Timing of leave looks suspicious Solution: You may give healthcare provider the employee s absence record and ask if it s consistent with her FMLA medical certification Consider investigation

21 Tracking Intermittent Leave Problem: Tracking intermittent leave Solution: You can require employees to take FMLA leave in minimum increments. Shortest period used to measure other leave Can t be more than 1 hour If employee takes leave of shorter duration, you can t dock her for minimum amount. Employer may not require an employee to take more leave than is necessary. Dealing with Abuse Make sure your own leave policies don t encourage leave by being too generous. Don t accept incomplete, unclear, unauthenticated, or internally inconsistent certifications. Don t be afraid to seek 2nd, 3rd opinions.

22 Dealing with Abuse Don t be afraid to seek recertification: If you learn info raising questions about stated reason for leave Every 6 months Get new certification for every new 12-month period employee seeks/uses FMLA leave Remember this is new certification and not subject to restriction placed on recertifications Dealing with Abuse Keep diligent records: Specific reasons for leave Amount of leave taken Assigning leave to proper leave years when they overlap Reevaluate eligibility: For each new qualifying reason for leave At beginning of each new leave year

23 Dealing with Intermittent Leave Abuse Manage intermittent leave by: Requesting certification, recertification, additional opinions Weighing alternatives to intermittent leave (temporary transfer, modified schedule) Tracking patterns of intermittent leave usage, follow up with healthcare provider Exploring whether employee can perform essential job functions, but be careful of ADA Dealing with Abuse Discipline employees who don t comply with your notice and other policies. Have a no-moonlighting policy, or at least one that forbids moonlighting while on leave. You can t prohibit moonlighting only while on FMLA leave; the policy must also apply to other types of leave. The policy must be enforced uniformly and fairly.

24 Investigating Employees Surveillance is tricky and will often backfire if no evidence of abuse is found. Jury may think you had it in for the employee. Following up with the healthcare provider is always a safe bet in compliance with recertification restrictions. Terminating Employees and Preventing Claims Types of FMLA claims Interference Retaliation What are the differences? Good preventive practices Prohibit negative comments about FMLA. Provide quick reference guide (could use DOL s employee guides). Debunk myths/misconceptions. Carefully outline employees rights under the FMLA.

25 Types of FMLA claims Interference Employee entitled to leave, but employer denied it No intent required Discouraging employee from taking leave Manipulation by employer to avoid FMLA responsibilities (e.g., moving employees around to avoid the 50- worker rule requiring FMLA coverage) Failure to provide required notice Retaliation: Discrimination based on employee requesting/making FMLA claim Intent required Denying employees on FMLA leave benefits given to those who aren t on FMLA leave Using an employee s FMLA leave as a negative factor in employment decisions Preventing Interference Claims Watch the timing of any adverse actions against employees seeking/taking FMLA leave. Even if you allow leave, take care when basing adverse action only on factors predating an employee s return to work, because the employee may argue a link to FMLA leave. When in doubt and with close cases- seek legal advice

26 Preventing Retaliation Claims Give employees plenty of notice about your policies, enforce them consistently, and document your actions well. Do not base adverse employment decisions on FMLA leave even in part. Educate managers about the need for care in casual remarks and s. Final Questions Presented by: Danielle C. Garcia Phone: (858)

27 BLR.com/FMLAclass Gain even more confidence and skills to handle employee leave issues when you attend a nearby 2017 FMLA Master Class: Advanced Skills for Employee Leave Management Participants in this webinar are entitled to $100 off Master Class registration! For a FMLA Master Class near you, visit BLR.com/FMLAclass You ll benefit from face-to-face interaction with experienced in-state employment law attorneys who defend and counsel leading employers. In just one day, you ll learn : How to judge a serious health condition and eliminate disputes about what does and doesn t constitute it The latest FMLA revisions, so you don t risk noncompliance What recent FMLA court decisions really mean, so you can adjust your policies accordingly FMLA recordkeeping errors that trip up even the savviest Human Resources managers How to tame the intermittent leave and reduced schedule beasts, and put a stop to abuse and fraud How FMLA, ADA, and state workers comp laws overlap, so you can avoid violations And much, much more... As a webinar attendee, you re entitled to a $100 loyalty discount off the registration fee. Visit BLR.com/FMLAclass for a list of FMLA Master Classes near you, then enter discount code LOYAL100 at checkout. Disclaimers *This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

28 Danielle Garcia, Esq. Danielle Garcia focuses on representing clients in all aspects of labor and employment law, including traditional labor relations management, harassment, and discrimination. She currently advises employers in all areas of employment law, including properly managing employees with disabilities to prevent costly litigation. Prior to her legal career, Ms. Garcia worked as a human resources generalist where she managed complicated disability and leave scenarios. She has also presented at BLR s FMLA masters class in San Diego.