How to Identify and Investigate FMLA Abuse

How to Identify and Investigate FMLA Abuse Total Solar Eclipse Solar Eclipse Safety BeneFLEX experts say that viewing the eclipse without protecting your eyes can be dangerous - and could even cause blindness. BeneFLEX & BASIC Partnership 1

How to Identify & Investigate FMLA Abuse Presenter Joe Aitchison, SPHR, SHRM-SCP, CHRS - BASIC Vice President. Joe provides Business & HR client advisory services and HR outsource services nationally. He is a Human Resource professional with over twenty five years business management and HR consulting experience. He has worked with multi plant International Tier I Automotive Manufacturing, retail, food processing, health care, legal administration and professional services. Mr. Aitchison is recognized as a leader in human resources and has obtained a lifetime certification as a senior professional in human resource management, SHRM Senior Certified Professional and Jaitchison@basiconline.com Healthcare Reform Specialist by the Healthcare Reform Center & Ph: 269.488.6236 Policy Institute. Mr. Aitchison serves on several for profit and not for profit boards. 5 Agenda Session Topic: How To Identify & Investigate FMLA Abuse What to look for/understand when certifying an FMLA Leave DOL Forms: WH-380-E / WH-380-F Understanding Employer risk - Interference / retaliation regarding employee rights and use of FML. Understand the most common abuse of FMLA and why it's happening. Best practices to documenting FMLA use & abuse effectively to confront abusers. Know the types of company policies that you should have in place to effectively manage FMLA leaves effectively. Patterned absence / excessive time away from work. Basic steps in conducting an effective investigation Recordkeeping requirements What is required if audited by the DOL or Defend a FMLA Employee Compliant if sued. Questions 6 2

FMLA: Know the Facts Employer Responsibility DOL Employer ELAW FMLA Guidelines http://www.dol.gov/compliance/guide/fmla.htm DOL Fact Sheet #28G: Certification of a Serious Health Condition under the Family and Medical Leave Act http://www.dol.gov/whd/regs/compliance/whdfs28g.pdf 7 WH 380 E Certification Form 8 380 E Certification Form 9 3

380 E Certification Form 10 11 Recertification Do s & Don ts Don t Recertify ~ General Rule: Without a connection to an absence Before the next day after the certified end date of a continuous leave Without a legitimate concern over the employees eventual RTW For the purpose of discouraging someone from taking leave Without a reasonable suspicion of fraudulent activity In a discriminatory manner (don t pick & choose) 12 4

Recertification Do s & Don ts Continuous Leaves - when is it ok to recertify? The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. Example 1: An employee is on FMLA leave for four weeks due to the employee's knee surgery, including recuperation, and the employee plays in company softball league games during the employee's third week of FMLA leave; such information might be sufficient to cast doubt upon the continuing validity of the certification, allowing the employer to request a recertification. 13 Recertification Do s & Don ts Intermittent Leaves - when is it ok to recertify? After 6 months, if the certified duration is lifetime, in connection with the next absence. OR.. The employer receives information that casts doubt upon the employee's stated reason for the absence, or the continuing validity of the certification in connection with an absence. Example 2: An employee calls out FMLA leave for a migraine, and the employee takes their children to the public swimming pool during working hours. This information might be sufficient to cast doubt upon the continuing validity of the certification, allowing the employer to request a recertification. 14 Recertification Do s & Don ts Intermittent Leaves - when is it ok to recertify? Significant changes to the frequency or duration of absences in connection with an absence. Example: Migraines certified 2X/month at 2 Days/episode start running 4X/month and 3 Days/episode Easily recognizable timing or patterns of absences in connection with an absence. Example: If an employee had a pattern of using unscheduled FMLA leave for back pain in conjunction with his or her scheduled days off. 15 5

2 ND & 3 RD Opinions on Certifications When can you a do a 2 nd opinion? o Prior to certifying (or designating) the initial FMLA event as being FMLA qualifying. Why do a 2 nd opinion o Employer may question or challenge the Initial Employee s HCP s opinion or employee condition and the Frequency & Duration and / or to ensure the FMLA leave is valid. Employer can select the 2n opinion physician - If the Opinion challenges the Employee s HCP opinion - a 3 rd opinion is required. 3 rd Opinion o Employer and employee jointly select the Physician to conduct the 3 rd opinion (tie breaker). Note: Typically the 2 nd & 3 rd opinion HCP is a specialist. 16 Who Invokes the FMLA? Pfizer: $660,000 Employee says: Boss, I need some time off for the international adoption my wife and I are involved in. We have a meeting with the adoption agency tomorrow afternoon, and I d like to take the afternoon off. This is the only notice that the employee contended was necessary in order to invoke FMLA rights, and the Fourth Circuit agreed, based on a review of the case law and the applicable regulations. After the employee makes this request, the ball is in the employer s court to figure out whether the leave is covered by the FMLA. Michaels: $8,000,000 A director of communications asked for FMLA leave for knee replacement surgery. He informed his boss that he would need 6 to 8 weeks of leave to get better. 10 days after the request, the boss recommended that the employee's position be eliminated and he was terminated. The company claimed that the FMLA request had nothing to do with the layoffs. After all, the economy was sluggish and other layoffs had been made as a result. After the case had started, a review of the company emails revealed a message from the boss that basically said, We may as well lay the employee off, because he will be on leave anyway. So now, the employee has enough to take his case to the jury. He can present facts that can put the termination in real light. How long had he worked there, his good employee reviews, raises, all that he did for the company. 17 FMLA Legal Issues What damages can an employee seek/sue for? Wages, salary, employment benefits or other compensation denied or lost to such employee by reason of the violation (i.e. unlawful termination) Actual monetary losses sustained by the employees as a direct result of the violation, such as the cost of providing care (i.e. they had to pay out of pocket for a caregiver) Liquidated damages (2x) Interest Reinstatement, Promotion w/ front pay 18 6

FMLA Legal Issues FMLA lawsuits Are Costly? *Disability & Absence Management / Guardian - 2016 19 FMLA Intermittent Leave Intermittent or Reduced Schedule leave are the most problematic for employers.however, Employers often don t fully recognize the risk with regard to continuous FMLA Leave or Leave Requests Employers must review and certify legitimate FMLA requests for intermittent or reduced work hours for: Medical appointments chronic conditions Prenatal exams Migraines & other episodic medical conditions Psychological conditions anxiety & depression 20 Employer / Supervisor / Manager FMLA Mistakes Retaliation and Interference Threaten Termination or Discipline for Missed Work Time Leave Denial Point System/ No Fault Policy Failure to Recognize Sufficient Information for FMLA Designation Failure to Provide Notice Medical Certification & Recertification Issues 21 7

DOL Two Types of FMLA Claims Interference claim: employer denied or interfered with employee s rights under the FMLA Retaliation claim: employee suffered an adverse employment action because the employee engaged in an activity protected by the FMLA 22 DOL Two Types of FMLA Claims Employer Awareness - Prohibited Employer Actions Interfere with, restrain or deny employees FMLA rights Retaliate or discriminate against an employee for having exercised FMLA rights Discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA Use the taking of FMLA leave as a negative factor in employment actions 23 Interference FMLA Claims Interference with FMLA rights: employer denied the employee FMLA benefits to which he was entitled Any FMLA violation can be interference Examples: Denying FMLA leave Discouraging employee from taking leave Denying reinstatement following leave 24 8

Retaliation FMLA Claims Retaliation: Employer makes an adverse decision with respect to the employee s terms & conditions of employment because the employee exercised rights under the FMLA Examples: Terminating employee because she requested FMLA leave Demoting employee because he is taking intermittent leave to care for a family member Considering FMLA absences as a negative factor in performance reviews or project assignments 25 How to Avoid FMLA Retaliation Claims FMLA retaliation occurs when an employee on FMLA experiences an adverse employment action because the employee engaged in taking FMLA leave (continuous or intermittent), complaining about a possible FMLA violation or engaged in other matters regarding use or other related FMLA activities or processes. The Employer is responsible for the actions of their managers & employees 1. Employees who are on FMLA are to be treated the same as all other employees. Supervisors should contact Human Resources: - Prior to disciplining an employee on FMLA - If employee is going to receive a poor performance review - Prior to changing job positions or responsibilities 2. Employee FMLAuse & medical condition/information is not to be shared. 3. FMLA absences are not to be counted against an employee who is taking intermittent FMLATime away from work or while on continuous leave. 26 Employee FMLA Fraud What Is Employee FMLAFraud & Abuse? Defined as when an employee with Intent Uses deception while on FMLA Leave - Using approved FMLA leave time for non-fmla purposes (Deception) Or is untruthful as it pertains to FMLA - Misrepresenting a medical condition to obtain an FMLA Certification (Untruthful) - Falsifying or exaggerating a medical condition with HCP - Altering a FMLA certification form prior to turning it in to the employer Fraud does not occur solely based on an employee not being home sick in bed / or at a family member s home caring for the family member. FMLA Fraud is when an employee requests /uses FMLA Leave time that fall outside of the medical purposes or other parameters intended. Example: Using FMLA Leave to be absent from your primary work place to work a parttime job Do you have a policy to prevent this??? 27 9

Employee FMLA Fraud If Employer Suspects FMLA Intermittent Leave abuse or Continuous Leave is not consistent with the reason for FMLA 1. Review the medical certification for exceeded frequency or duration 2. Monitor / Investigate for a period of time 3. Send Frequency and Duration Letter to employee (expressing concern severity of condition [as example]) Send letter to employee identifying time away from work - Patterned absences (identify pattern dates/times) - FMLA Leave time exceeds Frequency & Duration as specified on Form WH 380. Require that the employee provide clarification from HCP 4. If there is a suspicious pattern, the employer can request recertification, including asking HCP (recommended - through the employee) whether condition and need for leave is consistent with absence pattern 28 Employee FMLA Fraud Example: Employee is denied Vacation request Returns FMLA paperwork requesting continuous leave due to Family member medical condition coinciding with vacation time requested: Prior to approving or certifying the FMLA Leave Determine: 1. If FMLA request is legitimate? Does the Family member have a serious health condition? 2. What does the Medical Certification state (WH-380- F Form)? Condition Frequency & Duration 3. Request a 2 nd opinion or recertify 29 Employee FMLA Fraud Example: Employee working other job / volunteering / pursuing recreational activity. - Coworker informs employer about the situation Employer Action: Approach employee - inform employee that you are aware of the activity (outside job, other activity) If a job request the employee provide a copy of the job description compare to restrictions referenced on the FMLA WH-380-E Form. Recreational activities or similar activities consider surveillance (Legitimate FMLA employee absence?) - Not the final or only determinate on a part of the investigation. - Need to establish Employer Reasonable Belief that the employee is/was defrauding the FMLA or breaking other company policy while out on FMLA. Code of conduct / Ethics Policy (as example). 30 10

Reducing FMLA Abuse Best Practices to curb FMLA abuse - Have a consistent absence / FMLA call in policy & Practice FMLA call-offs must follow the absence call-off requirements. - Create a process flow and procedure for FMLA Leave Requests (Consistency) - Recommend using the DOL FMLA Forms Don t accept incomplete Certification Forms Certify (approve /deny) all FMLA Leave Requests - Track intermittent FMLA call-offs from work - Maintain accurate absence call-off / FMLA absence records - Establish a 6 month recertification requirement (requires an employee to recertify medical condition with the first absence after 6 month period expires). - Monitor FMLA intermittent leave time for all FMLA employees regarding frequency and duration Request clarification / recertification from HCP when appropriate - Train Managers / Supervisors on FMLA requirements. 31 Leave Beyond FMLA Leave as a Reasonable Accommodation Must be considered at the exhaustion of FMLA No date certain auto termination policies allowed May allow for requesting more specific medical information Can be denied if: There is another effective accommodation that would enable the person to perform essential functions of his/her position (exceptions apply) There is an undue hardship recommend a 3 times rule before determining undue hardship 32 ADA - EEOC Fact Sheet Reference: http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm 33 11

Extenuating Circumstances Additional Obligations for Employer Reasons for Employee s failure to return documentation I did not understand (common language Employee No Fault out Employers need to make sure that they include appropriate extenuating Circumstances language in with their certification documentation & Rights and Responsibility notices. 34 Substance Abuse ~ Serious Health Conditions Substance Abuse No Terminations for applying for FMLA (prior to being discovered) Terminations for Substance Abuse before applying permitted Terminations for substance abuse while on another type of FMLA is permitted Caregiver for Substance Abuse is permitted No terminations of caregiver during care for family member being treated for Substance Abuse (under the care of a HCP) 35 Record Keeping (Min. of 3 Years) 1. Dates FMLA Leave was taken 2. Hours of FMLA leave taken in increments of less than one full day 3. Copies of employee notices of leave furnished to the employer 4. Copies of all written notices given to employees as required under FMLA 5. Documents describing employee benefits or employer paid and unpaid leave policies and practices (*policies may change over time) 6. Premium payments of employee benefits 7. Records of disputes regarding FMLA 8. GINA Disclosures (document safe harbor language ) All kept in a separate confidential file! 36 12

Questions THANK YOU Office Hours 7:00 a.m. to 6:00 p.m. CST Phone 314-909-6979 800-631-3539 (toll free) Email info@beneflexhr.com This presentation is intended to provide common and useful information regarding the subject matter, with the understanding that it is general information and the presenter is not engaged in providing legal advice or opinion regarding employer or employment specific matters. In most cases, specific facts, circumstances and knowledge of current and past employer and employee actions is needed in order for an experienced attorney, CPA or other qualified professional to render an opinion on employment practices affecting employees. 13