Handling FMLA: Seven Policies and Seven Strategies Every Employer Should Know October 27, 2017 PRESENTED BY Rex P. Fennessey McMahon Berger, P.C. 2730 North Ballas Road, Suite 200 St. Louis, MO 63131 (314) 567-7350 fennessey@mcmahonberger.com
PRELIMINARY WARNING Leave use/abuse is one of the most common problems employers face. The ADA and FMLA statutes and regulations often do not provide clear guidance. There is no undue hardship defense under the FMLA, and the defense under the ADA is limited. Always check with legal counsel before granting or denying leave State laws may have different requirements. Every set of facts is different.
FMLA BASICS TheFamilyandMedicalLeaveActpermitseligibleemployeestotake a total of 12 workweeks of leave during any 12-month period for the following reasons: (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter. (B) Because of the placement of a son or daughter with the employee for adoption or foster care. (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. (D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. (E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces. 29 U.S.C. 2612(a)
FMLA INTERMITTENT LEAVE BASICS Intermittent leave: FMLA leave taken in separate increments of time due to a single qualifying reason. Reduced leave schedule: Reduces an employee s usual number of working hours per workweek or workday increment. The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall not result in a reduction in the total amount of leave to which the employee is entitled beyond the amount of leave actually taken. 29 U.S.C. 2612 (b)(1).
FMLA INTERMITTENT LEAVE BASICS: WHO CAN TAKE INTERMITTENT LEAVE Leave may be taken intermittently or on a reduced leave schedule when medically necessary: (C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. (D)Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee. (Also available for spouse, son, daughter, parent, or next of kin of a covered service member for qualifying exigency for up to 26 weeks important to remember but will not be discussed) 29 U.S.C. 2612 (b)(1).
FMLA INTERMITTENT LEAVE BASICS: WHO CAN TAKE INTERMITTENT LEAVE Intermittent leave can NOT be taken by an employee intermittently or on a reduced leave schedule : (A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter. (B) Because of the placement of a son or daughter with the employee for adoption or foster care[.] UNLESS the employee and the employer of the employee agree otherwise. 29 U.S.C. 2612
FMLA INTERMITTENT LEAVE STRATEGY: 1. DON T COVER THE UNCOVERED. Make sure the employee is entitled to FMLA leave: Employed for at least 12 months (within past seven years if rehired) Has worked at least 1,250 hours during the 12 months prior to start of the leave; and, Works at a worksite with 50 or more employees within 75-mile radius. Employer must designate as FMLA covered or not. If employee is not eligible, deny FMLA eligibility in writing.
FMLA INTERMITTENT LEAVE STRATEGY: 1. DON T COVER THE UNCOVERED. If employer is not covered by FMLA, DO NOT reference FMLA in handbooks, manuals, work policies, etc. Employee handbooks, manuals, policies, and collective bargaining and employment agreements often summarize FMLA rights and thereby unintentionally expand them to those who would not otherwise be entitled. Some courts have found that employer must comply with FMLA if it stated that employees were entitled to FMLA rights and leave.
FMLA INTERMITTENT LEAVE STRATEGY: 2. OBTAIN CERTIFICATION Intermittent leave must be medically necessary. Employers can require medical certification that need for intermittent leave is medically necessary. Use DOL Form or those drafted by an attorney overbroad certification requests can cause FMLA and ADA problems. If you don t ask for certification, employees are not required to provide it so require certification! Oral requests are sufficient, but written requests will better protect the Employer if FMLA leave is denied based on the failure to provide certification.
FMLA INTERMITTENT LEAVE STRATEGY: 2. OBTAIN CERTIFICATION Make clear in request for certification that failure to provide certification will result in FMLA request being denied. Another reason to provide a written request.
FMLA INTERMITTENT LEAVE STRATEGY: 2. OBTAIN CERTIFICATION Employee generally has fifteen (15) calendar days from date of employer request to provide certification. If employee is making good-faith efforts, employer must allow extra time. If employee does not provide timely certification, FMLA leave request can be denied. Caution! Make your practices (not just policies and procedures) uniform, avoid discrimination claim.
FMLA INTERMITTENT LEAVE STRATEGY: 3. SCRUTINIZE THE CERTIFICATION The FMLA requires employees to provide complete and sufficient certification Complete: All applicable entries on the certification form are addressed and completed Sufficient: For purposes of Intermittent/Reduced Leave request, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment. 29 U.S.C. 2613; 29 C.F.R. 825.305
FMLA INTERMITTENT LEAVE STRATEGY: 3. SCRUTINIZE THE CERTIFICATION Employer can contact healthcare provide directly for authentication or minor clarification; no additional information can be requested regarding the need for leave. 29 U.S.C. 2613; 29 C.F.R. 825.305 Best practice is generally to request most clarification through the employee.
FMLA INTERMITTENT LEAVE STRATEGY: 3. SCRUTINIZE THE CERTIFICATION Evaluating Whether a Certification is Complete and Sufficient Establish the existence of a serious health condition? Is it complete all applicable portions filled-out? Legible? Internally consistent? Ambiguous or vague? Frequency of absence articulated? Planned treatment when and why? Intermittent Leave medically necessary when and why? Flare-ups expected how often? Bottom-line: can you tell (generally) when the employee will need leave and how often?
FMLA INTERMITTENT LEAVE STRATEGY: 3. SCRUTINIZE THE CERTIFICATION If insufficient and/or incomplete, state in writing [to employee] what additional information is necessary to make the certification complete and sufficient. Employee must be given seven (7) calendar days to cure. Caution! Employer should not be contacting health-care provider directly to obtain sufficient and/or complete certification If complete and accurate, Employer can request authentication or clarification, but not request additional information Failure to cure incomplete and/or insufficient certification permits employer to deny FMLA leave. 29 C.F.R. 825.305
FMLA INTERMITTENT LEAVE STRATEGY: 3. SCRUTINIZE THE CERTIFICATION For planned medical treatment, push back on unduly disruptive intermittent leave schedules: If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer's operations. 29 C.F.R. 825.203 But remember employers cannot veto intermittent/reduced leave under FMLA even for planned medical treatment: if the employee qualifies, they are entitled to intermittent/reduced leave.
FMLA INTERMITTENT LEAVE STRATEGY: 4. GET A SECOND/THIRD OPINION Employer may, at its own expense, require Employee to obtain a second medical certification. Employer may choose healthcare provider for second opinion, except that Employer may not regularly use the services of the health care provider. If opinions of Employee and Employer providers differ, Employer may require Employee to obtain certification of third health care provider (again at employer expense) Must be jointly approved by employer and employee Third opinion final and binding. (Additional opinions can also be alternative to requesting clarification of employee requests)
FMLA INTERMITTENT LEAVE STRATEGY: 5. REQUIRE RE-CERTIFICATION Require employee to complete medical certification forms: When the need for leave first arises; Every leave year when the leave lasts beyond a single year (also an opportunity to seek second opinion); Every time the reason for leave changes; Every time there is a request for an extension of leave. Consult counsel when requesting re-certification outside of the annual re-certification.
FMLA INTERMITTENT LEAVE STRATEGY: 5. REQUIRE RE-CERTIFICATION Caution! Employers generally cannot request certification of every instance of FMLA intermittent leave. Courts uniformly deem this to require more certifications than the FMLA statute permits.
FMLA INTERMITTENT LEAVE STRATEGY: 6. TRANSFER TO ALTERNATIVE POSITION If an employee requests intermittent leave, or leave on a reduced leave schedule that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that-- (A) has equivalent pay and benefits; and (B) better accommodates recurring periods of leave than the regular employment position of the employee. Duties can differ Cannot require light duty to avoid permitting FMLA leave Of limited value: only for foreseeable planned medical treatment; must return to equivalent position when leave ends. 29 U.S.C.A. 2612
FMLA INTERMITTENT LEAVE STRATEGY: 7. CONDUCT A FRAUD INVESTIGATION In general, employer can terminate based on honest belief employee is committing fraud in use of FMLA Suggestions: Track leave more occurrences on Mondays or Fridays, near holidays Investigate thoroughly through friends, coworkers, possible private investigator; Internet research (e.g. Facebook) = Gold Mine Re-review certification and medical documentation; Give employee Your Side of the Story letter/form
POLICIES DISCOURAGING ABUSE: 1. ESTABLISH & ENFORCE CALL-IN POLICIES Establish and uniformly enforce a call-in procedure for all employees: When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. If an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA protected leave may be delayed or denied. Caution! If they cannot call-in, FMLA leave cannot be denied. 29 C.F.R. 825.303
POLICIES DISCOURAGING ABUSE: 1. ESTABLISH/ENFORCE CALL-IN POLICIES Call-in Policy should require employee to: Reference the qualifying reason or reference the need for FMLA leave Employees with FMLA-approved leave for multiple reasons/conditions, can be required to identify the specific reason/condition for which FMLA leave is being taken; Out sick or I m sick is not sufficient to qualify for FMLA. Caution! employer certified for continuous leave may generally not be required to call-in daily.
POLICIES DISCOURAGING ABUSE: 2. REQUIRE PERSONAL CERTIFICATION Require employee to certify that absence on particular day was due to reason stated in FMLA Certification. Require affirmation that false or misleading information connected to absences will result in disciplinary action including termination.
POLICIES DISCOURAGING ABUSE: 3. TRACK FMLA USAGE & NOTIFY Employee should always be told whether absences are being counted as FMLA where FMLA is in play. Employee should be notified shortly before and when FMLA leave is exhausted. Treat non-fmla absences as regular absences under attendance policy (beware ADA and Workers Compensation laws) Enforce attendance policies discipline the good and the bad employee alike or risk discrimination complaint.
POLICIES DISCOURAGING ABUSE: 3. TRACK FMLA USAGE & NOTIFY Caution! FMLA leave cannot be counted against attendance or used in evaluating performance. Example: Employer should exclude FMLA leave days (or partial-days) in determining whether production or sales goals/quotas are being met.
POLICIES DISCOURAGING ABUSE: 4. RUN FMLA LEAVE CONCURRENTLY WITH OTHER LEAVE Require FMLA leave to run concurrently with other leave (including paid sick leave, paid-time-off, etc.) Caution! At least one court has held that employee gets to decide whether to designate leave as FMLA leave. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014)
POLICIES DISCOURAGING ABUSE: 5. PROHIBIT OUTSIDE EMPLOYMENT Prohibit outside employment entirely; or, Prohibit outside employment over certain number of hours per week/month
POLICIES DISCOURAGING ABUSE: 6. UTILIZE ATTENDANCE BONUSES Perfect attendance bonuses ok if awards can be denied to employees who take non-fmla leave Caution! such bonuses are ok under fault-based attendance policies, but likely not in no-fault based policies.
POLICIES DISCOURAGING ABUSE: 7. DISCIPLINE WHEN APPROPRIATE, EVEN WHEN EMPLOYEE IS ON LEAVE Employers can discipline/terminate an employee on FMLA leave if termination is not because of or to discourage use of leave. If Employee is found to have violated workrules, enforce them. Caution! proximity of discipline to use of FMLA leave may complicate lawsuit. Ensure any other employee would have been disciplined under the same circumstances.
SUMMARY OF STRATEGIES 1. Don t cover the uncovered 2. Obtain Certification 3. Scrutinize the Certification 4. Get a Second/Third Opinion 5. Require Re-Certification 6. Transfer to Alternative Position 7. Conduct a Fraud Investigation
SUMMARY OF POLICIES 1. Establish/Enforce Call-In Policies 2. Require Personal Certification 3. Track FMLA Usage & Notify 4. Run FMLA Leave Concurrently with Other Leave 5. Prohibit Outside Employment 6. Utilize Attendance Bonuses 7. Discipline When Appropriate
ADA AND FMLA INTERACTION ADA and FMLA concerns are often intertwined. Compliance with both ADA and FMLA are simultaneously required. Leave may be a reasonable accommodation under the ADA; no time limits except those which create an undue burden on employer.
WORKERS COMPENSATION, FMLA AND ADA An on-the-job injury may be simultaneously a serious health condition under FMLA, a disability under the ADA, and a disability or injury under the state s workers compensation laws. However, even if an employee with an occupational injury has a "disability" as defined by a workers' compensation statute, s/he may not have a "disability" for ADA purposes or a serious health condition under the FMLA
WORKERS COMPENSATION, FMLA AND ADA Medical Certification/Inquiries No matter why you are asking, the certification request or inquiry should always be limited to what the employer needs to determine whether the employee qualifies for FMLA/ADA or state workers compensation law. Should never be a general request for current or prior health records
WORKERS COMPENSATION, Full Release or Full Duty FMLA AND ADA You cannot require someone from workers compensation or other leave to provide a full release or be able to work full duty The terms full release or "full duty" may include marginal as well as essential job functions or may mean performing job functions without any accommodation. An employer may not require that an employee with a disability-related occupational injury who can perform essential functions be able to return to "full duty" if, because of the disability, s/he is unable to perform marginal functions of the position or requires a reasonable accommodation that would not impose an undue hardship.
WORKERS COMPENSATION, FMLA AND ADA Permanent disability or Totally Disabled Workers' compensation laws are different in purpose from the ADA. They may utilize different standards for evaluating whether an individual has a "disability" or whether s/he is capable of working. For example, under a workers' compensation statute, a person who loses vision in both eyes or has loss of use of both arms or both legs may have a "permanent total disability," although s/he may be able to work. Such a determination is never dispositive regarding an individual's ability to return to work, although it may provide relevant evidence regarding an employee's ability to perform the essential functions of the position in question
WORKERS COMPENSATION, FMLA AND ADA Leave versus Accommodation If an employee with a disability-related occupational injury does not request a reasonable accommodation, but simply requests leave that is routinely granted to other employees (e.g., accrued paid leave or leave without pay), an employer may not require him/her to remain on the job with some type of adjustment unless it also requires employees without disabilities who request such leave to remain on the job with some type of adjustment. If an employee qualifies for leave under the Family and Medical Leave Act, an employer may not require him/her to remain on the job with an adjustment in lieu of taking a leave of absence. 29 C.F.R. 825.702(d)(1).
WORKERS COMPENSATION, Light Duty FMLA AND ADA The term "light duty" has a number of different meanings in the employment setting. For purposes of this presentation, the term "light duty" refers only to particular positions created specifically for the purpose of providing work for employees who are unable to perform some or all of their normal duties. An employer need not create a light duty position for a non-occupationally injured employee with a disability as a reasonable accommodation.
WORKERS COMPENSATION, Light Duty (cont.) FMLA AND ADA However, if a light duty position is available, a nonoccupationally injured employee with a disability must be considered for transfer to that position as a reasonable accommodation. Take-away: Create only temporary light-duty positions and make them exclusively for occupationally-injured employees. There is some tension in the law regarding light-duty; stay tuned
MITIGATING CHANCES FOR INTERFERENCE, DISCRIMINATION AND RETALIATION CLAIMS Evaluate each injury or disability separately: ADA: disability; substantially limits one or more major life activities FMLA: serious health condition Workers Comp: qualifying injury or disability Evaluate obligations under ADA/FMLA/Workers Compensation separately
MITIGATING CHANCES FOR INTERFERENCE, DISCRIMINATION AND RETALIATION CLAIMS Be consistent, be consistent, be consistent Consistently apply policies regarding leave to everyone If you offer a good employee a certain kind of leave, you must offer every employee that leave under similar circumstances. Document, document, document... Discussions with employees Correspondence with employees and physicians
MITIGATING CHANCES FOR INTERFERENCE, DISCRIMINATION AND RETALIATION CLAIMS Generally, you should not take ADA/FMLA/Work Comp protected leave into account (or loss of productivity or failure to meet goals because of leave) as a reason for discipline or termination. Could be a discrimination or interference claim. May become a retaliation claim. When in doubt, consult counsel. The interaction between the ADA, FMLA and Workers Compensation statutes are often highly technical and difficult to apply. Involve an attorney whenever you are in doubt
Questions? No information contained in this presentation should be relied upon by you as legal advice. An attorney s answer to a question depends on many facts, and the facts of each case are different. If you encounter a situation where you believe you need legal advice, contact an attorney and relay the facts of your case to him or her.