Curbing FMLA Leave Abuse HR Florida 2008 Conference & Expo. David S. Mohl, Esq. Senior Employment Attorney Willis August 27, 2008
Our Focus What is the FMLA 3 main themes of FMLA Up to 12 weeks (26 weeks in limited circumstances) of unpaid leave Right to continue health insurance benefits Right to reinstatement What you need to know about the FMLA family military leave amendments Preventing employee abuse of FMLA leave More changes to the FMLA on the way
Why Employees Abuse FMLA FMLA has become an excuse for tardiness/abseentism Lack of understanding of FMLA Lack of supervisor/manager training Employers are too generous Employers give an incentive not to return to work No Good Deed Goes Unpunished!
The Family and Medical Leave Act (pre-amendment) The Family and Medical Leave Act of 1993 allows eligible employees to take unpaid leave: Birth of a child Placement of a child with the employee for adoption or foster care To care for a parent, child or spouse with a serious health condition Employee's own serious health condition makes the employee unable to perform the functions of his or her job
FMLA Amendments On January 28, 2008 the FMLA was amended Part of the National Defense Authorization Act for FY 2008 Extends FMLA leave in two new circumstances Provides FMLA leave to military families Caregiver leave Active duty leave
FMLA Amendments Amendments did not repeal FMLA s existing regulations A lot of unanswered questions Watch for Department of Labor guidance Until guidance is issued, employers should act in good faith DOL has created a website devoted to amendments: http://www.dol.gov/esa/whd/fmla/ndaa_fmla.htm
FMLA Family Military Leave - Caregiver Leave Up to 26 weeks of unpaid FMLA leave Employee is needed to care for a parent, child, spouse, or next of kin (nearest blood relative) who has incurred a serious injury or illness while on active military duty 26 weeks is maximum amount of FMLA leave that may be taken for any FMLA qualifying reason (provided part of the reason is for caregiver leave) 26 week leave may only be taken in a single 12 month period Effective January 28, 2008
FMLA Family Military Leave - Active Duty Leave Up to 12 weeks of unpaid FMLA leave Qualifying exigency arising out of the employee s parent, child or spouse being on or called to active duty (or being notified of an impending call or order to active duty) in support of an action or operation against an opposing military force Amendments did not define qualifying exigency Directed the Department of Labor to issue regulations defining qualifying exigency Active duty leave provisions effective when DOL issues final regulations DOL encouraging employers to provide active duty leave
The Family and Medical Leave Act The Family and Medical Leave Act of 1993 allows eligible employees to take unpaid leave: Birth of a child Placement of a child with the employee for adoption or foster care To care for a parent, child or spouse with a serious health condition Employee's own serious health condition makes the employee unable to perform the functions of his or her job Employee is needed to care for a parent, child, spouse, or next of kin (nearest blood relative) who has incurred an injury or illness while on active military duty Qualifying exigency arising out of the employee s parent, child or spouse being on or called to active duty (or being notified of an impending call or order to active duty) in support of an action or operation against an opposing military force
FMLA s Applicability Covered employers Private employers who employ 50 employees 75 mile radius 20 workweeks Eligible employees 12 months 1,250 hours 50 or more employees within 75 mile radius
FMLA Year Calendar year Fixed leave year 12 months from start date of first FMLA leave Rolling 12 month period Curbing FMLA abuse use rolling 12 month period
Amount of FMLA Leave Up to 12 weeks Birth and care of newborn Adoption or foster care Immediate family member with serious medical condition Employee s own serious health condition Qualifying exigency arising out of the employee s family member being on or called to active duty (or being notified of an impending call or order to active duty) in support of an action or operation against an opposing military force Up to 26 weeks Employee is needed to care for a parent, child, spouse, or next of kin (nearest blood relative) who has incurred an injury or illness while on active military duty Curbing FMLA abuse only provide leave for FMLA qualifying events
Serious Health Condition Injury, illness, impairment, or physical or mental condition that involves: Inpatient care Period of incapacity 3+ days involving treatment Incapacity due to pregnancy/prenatal care Chronic conditions Permanent or long-term conditions Continuing treatment by a health care provider Curbing FMLA abuse - understand what qualifies as a serious health condition
Caregiver Leave Serious Injury or Illness An injury or illness incurred by the servicemember: In the line of duty On active duty in the Armed Forces That may render servicemember medically unfit to perform duties Servicemember must be undergoing medical treatment, recuperation or therapy, is otherwise in an outpatient status, or is on the temporary retired list
Spouses Working for Same Employer Combined total of 12 workweeks of leave Birth and care of a child Adoption or foster care Care for parent with serious medical condition Family member called to active duty Combined total of 26 workweeks of leave Any of the reasons listed above, and Provide care for injured servicemember
Don t Fear Intermittent Leave If you understand it, it s not that bad Must be granted when medically necessary Must be granted for military leave reasons Up to the employer s discretion for: Care of newborn Care for newly placed adopted or foster child Transfer employee to alternative position Require employee to schedule medical treatment so it is least disruptive to business
Run Leaves Concurrently Don t permit employees to stack leaves Run all leaves that qualify for FMLA concurrently Require use of accrued paid leave during unpaid FMLA Understand limitations Avoid the cruising employee
Benefits Health benefits must be maintained Employee may elect not to maintain coverage Employer obligation to maintain health benefits Employee pays own share of premiums
Reinstatement from Leave Return to same or equivalent position Pay Benefits Terms and conditions At conclusion of FMLA leave, FMLA rights disappear Reinstatement rights forfeited if employee does not return to work If employee informs employer that he/she is not returning, get it in writing Employee may be liable for health insurance premiums Curbing FMLA abuse - don t make exceptions
Key Employee Exception Top 10% Reinstatement causes substantial and grievous economic injury Determination must be made at time of notice of leave
Fitness For Duty Certification Don t let employees return from medical leaves without a fitness for duty certification No exceptions Employer liability
Employee Notice 30 days if foreseeable For active duty leave as soon as reasonable and practicable As soon as practicable if not foreseeable Sufficient information Constructive knowledge Train supervisors, managers and HR professionals Curbing FMLA abuse have strict rules for employee notice
Employer Notice to All Employees Notify employees of FMLA rights Posters http://www.dol.gov/esa/regs/compliance/posters/fmla.htm http://www.dol.gov/esa/whd/fmla/ndaaamndmnts.pdf Handbook Training Meet with employees prior to their going on leave
Employer Notice to Employees on FMLA Leave Within two days of going on leave Notice describing FMLA rights Expectations and obligations (DOL form WH-381) Designation of FMLA leave Medical certification requirement Use of accrued paid leave Insurance co-premium payments Revise forms to reflect family military leave Curbing FMLA abuse Send paperwork to employee out more than three days If there is any doubt, send the paperwork Shift the burden to the employee
Employer Response to Employee Request for Family or Medical Leave (WH-381) http://www.dol.gov/esa/forms/whd/wh-381.pdf
Require Completed Health Care Provider Certification Use updated forms reflecting family military leave When updated, use the DOL recommend form (DOL form WH- 380) Only accept completed form Require a completed form for all medical FMLA leaves no exceptions! For active duty leave require certification that servicemember has been called to active duty Require certifications be returned to employer within 15 days Do not contact health care provider Require a second or third opinion Require recertification if necessary
Certification of Health Care Provider (WH-380) http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf
Record Keeping Requirements Payroll Dates FMLA leave taken Hours of leave taken Copies of notices Policies Premium payments Records of disputes Separate medical file Maintain for at least three years
Administrative Separation Policy After a set period of time (i.e. 6 months), employees who do not return to work are administratively separated unless otherwise provided by law Acts as a stop gap when consistently applied Apply to all leaves of absence Check state laws for exceptions
FMLA Amendments What Employers Should Do Notify employees of new leave entitlements Update FMLA policy Update workplace posters Update FMLA documentation/certifications Train HR, supervisors and managers Watch for DOL new regulations/guidance Understand interaction with state laws
Curbing FMLA Abuse Summing It Up Make sure employees qualify for FMLA Use a rolling 12 month FMLA year Only provide FMLA leave for FMLA qualifying events Understand what qualifies as a serious health condition Understand new family military leave requirements Run FMLA leave currently with other leaves Have strict rules for employee notice Send FMLA paperwork promptly Require completed health care provider certification Limit reinstatement rights Require fitness for duty certification Administrative separation policy Check state law
There s More to Come On February 11, 2008 DOL published Notice of Proposed Rulemaking to update FMLA regulations In response to court decisions, new family military leave amendments, comments in response to 2006 Request for Information DOL has stated that no one will lose FMLA protection Proposed rules open for public comment for 60 days from publication DOL expects to issue new regulations before end of Bush administration
Questions
David Mohl, Esq. Senior Employment Attorney Willis Legal & Research Group David.Mohl@Willis.com This material and any accompanying remarks are provided for informational purposes only and nothing contained in either should be taken as a legal opinion or as legal advice Copyright 2008 Willis North America, Inc.