NOVATIME TECHNOLOGY, INC. PRESENTS FMLA AND INTERMITTENT LEAVES Presented by Marie D. Davis Landegger Baron Law Group, ALC Exclusively Representing Employers Employment Law, Advice, Litigation and Solutions
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ABOUT OUR SPEAKER Marie D. Davis, Esq. Attorney with the Landegger Baron Law Group Specializes in helping businesses navigate complex employment laws Member of the Ventura County Bar Association, the Consumer Attorneys Association of Los Angeles County, and the Ventura County Hispanic Chamber of Commerce Received her J.D. from the U.C. Hastings College of Law
TODAY S AGENDA Definition of FMLA Leave Reasons for FMLA or Reduced Scheduled Leave Exemptions for Intermittent Leave Job Duties During Intermittent Leave Counting Intermittent Leave Taken Compensation and Intermittent Leave
FMLA Under the Family and Medical Leave Act (FMLA), covered employers must provide up to 12 weeks of unpaid, job-protected leave to eligible employees for: Incapacity due to pregnancy, prenatal medical care or child birth
FMLA CONTINUED Care for employee s child after birth, or placement for adoption or foster care Care for employee s spouse, son, daughter or parent with a serious health condition A serious health condition that makes the employee unable to perform their job
FMLA DEFINITION OF SERIOUS HEALTH CONDITION Definition of a serious health condition Illness, injury, impairment, or physical or mental condition Involves either an overnight stay in a medical care facility or continuing treatment by a health care provider Either prevents the employee from performing their job or prevents their qualified family member from participating in daily activities
FMLA: MILITARY ENTITLEMENT Eligible employees with a spouse, son, daughter or parent on covered active duty or called to covered activity duty may use leave for qualifying reasons. Attending military events Arranging alternative childcare Addressing financial & legal arrangements Attending certain counseling sessions Attending post-deployment reintegration briefings
FMLA: MILITARY ENTITLEMENT CONTINUED Eligible employees may take up to 26 weeks of leave during a single 12-month period to care for a covered service member. Current members of the Armed Forces undergoing medical treatment, recuperation or therapy, in outpatient status, or on temporary disability retired list for a serious injury or illness A veteran discharged or released during five-year period prior undergoing medical treatment, recuperation, or therapy for a serious injury or illness
FMLA: BENEFITS & PROTECTIONS During FMLA leave, employer must maintain employee s health coverage. On return from leave, most employees must be restored to original or equivalent positions with equivalent pay, benefits, and other employment terms. Use of FMLA leave cannot result in the loss of any employment benefit accrued prior to leave.
FMLA: ELIGIBILITY Employees are eligible if: They have worked for a covered employer for at least 12 months, Have 1,250 hours of service in the previous 12 months, and Their employer employs at least 50 employees within 75 miles.
FMLA USE OF LEAVE Leave can be taken intermittently or when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment to not disrupt employer s operations. Leave due to qualifying reasons can also be taken intermittently All too often, employers make the mistake that they can terminate an employee who has exhausted their 12 weeks FMLA entitlement.
INTERMITTENT OR REDUCED LEAVE Intermittent Leave: Taking leave in multiple blocks of time because of a single qualifying reason Reduced Leave: Change in employee s work schedule meaning shorter hours per day or per week
REASONS FOR INTERMITTENT OR REDUCED SCHEDULED LEAVE Medical necessity related to chronic serious health condition of the employee or covered family member Medical necessity related to a planned or expected medical treatment of a serious health condition of the employee or covered family member
REASONS CONTINUED Medical necessity related to a covered service member s serious injury or illness A qualifying exigency relating to covered military service Birth, adoption, or foster care of a child, but only with the employer s consent unless the mother or child has a serious health condition
AVAILABILITY Intermittent or reduced schedule leave is not available: For voluntary treatments or procedures If essential job functions cannot be performed during working time
AVAILABILITY CONTINUED Employees who do not make reasonable effort to schedule planned medical treatment that does not disrupt the employers business operation Employees taking more time than necessary to address the circumstances for the leave under the DOL regulations effective March 8, 2013
JOB DUTIES Employers may transfer employees taking intermittent or reduced schedule leave to a position of equivalent pay and benefits Transfer must comply with any CBA requirements and other state and federal laws
JOB DUTIES CONTINUED Employer may modify an existing job to more appropriately accommodate the employee s intermittent or reduced scheduled leave needs Employers should not require employees to perform job duties while taking FMLA leave, intermittent or reduced scheduled leave
COUNTING INTERMITTENT LEAVE TAKEN Incremental or reduced schedule leave can be counted using increments no greater than one hour If smaller increments are offered they must use the smaller increments to count the leave
EXCEPTIONS Employers are not permitted to count any hours not actually taken as leave towards FMLA entitlement except: When it is not physically possible for employees to begin working in the middle of a working day (e.g., a flight attendant on an airplane)
EXCEPTIONS CONTINUED If the employee chooses to substitute FMLA leave with paid leave and the employer deducts paid time off in greater increments than the time actually taken, but is consistent with the paid time off policy. However, if the employer requires substitution of paid time off for FMLA leave, the employer cannot count time off in increments greater than one hour
EXCEPTIONS CONTINUED If an employee cannot work the normally required overtime because of intermittent or reduced leave, then the required overtime hours may be counted against the employee s FMLA leave If the overtime hours are not required but voluntary, then the overtime hours not taken because of intermittent or reduced leave may not count against the employee s FMLA leave
ELIGIBILITY FOR INTERMITTENT LEAVE Employers may have trouble determining eligibility for leave for employees whose work hours vary week to week, because of intermittent or reduced schedule leave. Employers must calculate a weekly average of hours worked over the 12 months before the beginning of the leave period (including any hours of leave taken).
COMPENSATION AND INTERMITTENT LEAVE Exempt employees under FLSA: Employers may dock their pay for the hours these employees are on FMLA leave without affecting the exempt status To help preserve exemptions, the employer and employee should sign a document agreeing on the employee s average hours worked per week
COMPENSATION CONTINUED Employees working a fluctuating workweek: Fluctuating workweek Employees receive a fixed salary even if their hours are not fixed. But while taking intermittent leave or reduced schedule leave, employers may pay employees for only the hours worked
COMPENSATION CONTINUED However, Both the employer and employee must be in agreement that the salary compensates for all hours worked The employee also receives appropriate overtime compensation (50% more pay for hours worked over 40 hours a week).
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #1 Implement A Companywide Formal Leave Policy Communicate to all employees and supervisors Enforce a concurrent use of paid time-off and FMLA leave Require 30 days of advance notice for foreseeable leaves
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #2 Fine Tune Your Paid Time-Off Policy Employer may require employees to use up paid time-off time for their intermittent FMLA absences. If you do not have this in your FMLA policies, an employee may take paid time-off AFTER their FMLA leave expires and extend a leave of absence beyond the FMLA entitlement.
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #3 Dock Their Pay FMLA Leave is always unpaid Courtesy of TrackSmart
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #4 Enforce Eligibility Within 75 miles of a worksite with at least 50 employees Work at least 1,250 hours during the previous 12 months
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #5 Deny Parental Leave Even though intermittent leave is FMLA leave, you can deny it for parental care. Childbirth and adoption purposes are not eligible for intermittent leave. Courtesy of HR Morning
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #6 Question the original certification - Incomplete or insufficient certification You may ask an employee, in writing, to provide complete information in the certificate. You must specify the reason the certificate was considered incomplete or insufficient. If an employee fails to provide the info within 7 days, leave may be delayed or denied. See https://www.fisherphillips.com/resources-newsletters-article-curbing-abuse-of-intermittent-fmla-leave
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #7 Question the original certification Authenticate the certification HR or your FMLA Administrator may contact the health care provider to authenticate the certificate, and to authenticate the handwriting. Do not ask for more information than what is required to authenticate the form. See https://www.fisherphillips.com/resources-newsletters-article-curbing-abuse-of-intermittent-fmla-leave
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #8 Ask for A Second Opinion Employer s responsibility to pay for the second opinion. Employer s cannot use the same physician that the employer employs on a regular basis. If 1 st opinion is not the same as the 2 nd opinion, employer may require the employee to see the third health care provider at the employer s expense. The third provider s opinion is binding.
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #9 Supervisor Training and Awareness Employers need to ensure all absences related to the FMLA are not counted against the employee under a no-fault attendance policy. Supervisors should be trained to recognize absences that may be covered by the FMLA. Supervisors should be trained to notify HR any time an employee is out for more than three (3) days with an illness, esp. if the employee saw a doctor during the time.
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #9 Control Scheduling of Intermittent Leave FMLA Act 2008 requires employees to make a reasonable effort to schedule leave and not just an attempt the least disruptive schedule to an employer s operation. 29 CFR 825.203. Discuss with your employee about the frequency of the treatment, the office hours of the health care provider to reduce disruptions.
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #10 Request Recertification Any time an employee seeks to extend an existing FMLA leave; Employer may request recertification in connection with an absence every thirty days for long-term conditions that may require sporadic absences; Employer may request recertification if an employee is taking a solid block of leaves for more than 30 days, if the leave extends beyond the requested leave period;
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #10 (CONTINUED) Request Recertification Employer may request recertification every six months, if the employee is out on a leave that has been certified to extend to more than six months; Employer may request recertification at the beginning of each leave year Employee has fifteen days to provide the recertification
MANAGING INTERMITTENT FMLA LEAVE - STRATEGY #11 Job Transfer with Equivalent Pay and Benefits Employer may transfer an employee to an alternative position that the employee is qualified and better accommodates the recurring period of leave, if the intermittent leave is too disruptive in their normal position. Equivalent pay and benefits, not necessary duties.
HOW NOVATIME CAN HELP Employees FMLA request validation On-screen compliance form entry Administrator Configurable workflow / to-do list Reminders sent via the notification engine Calendar / Analytics integration
HOW NOVATIME CAN HELP Document Manager View scanned documents Fill in PDF compliance forms on screens Analytics integration
HOW NOVATIME CAN HELP Workflow integration Questionnaires To-do lists / dates Compliance forms Notifications / reminders
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THANK YOU FOR ATTENDING! LANDEGGER BARON LAW GROUP NOVATIME TECHNOLOGY, INC. Marie D. Davis, Esq. marie@landeggeresq.com Scott Rose, Enterprise Sales scott.rose@novatime.com 15760 Ventura Blvd., Suite 1200 Encino, California 91436 1440 Bridgegate Dr., Suite 300 Diamond Bar, California 91765 751 Daily Drive, Suite 325 Camarillo, California 93010 Headquarters: 909.895.8100 Los Angeles Office: 818.986.7561 Ventura County Office: 805.987.7128