Curbing FMLA abuse Top 10 FMLA mistakes and suggested best practices Rob Larson Senior Account Executive 2015 FX-3358 (8-14) 1
Top 10 FMLA employer mistakes 2
The following mistakes allow FMLA abuse and can create liability for employers who are not administering FMLA requests appropriately. 3
Top 10 mistakes 1. Improperly determining eligibility 2. Deeming employees FMLA eligible 3. Failing to provide required notices 4. Using a calendar-year 12-month period 5. Failing to calculate leave entitlement appropriately 6. Failing to properly designate and track FMLA time 7. Inappropriately using medical certifications 8. Failing to request a new certification and redetermine eligibility in a new leave year 9. Improperly using recertifications 10. Failing to monitor intermittent leaves closely 4
1. Improperly determining eligibility (825.104; 825.105; 825.110; 825.111) Employee must: Work for covered employer, Have worked 1,250 hours and 12 months, and Work at a worksite where there are 50 employees in a 75-mile radius. 5
1. Improperly determining eligibility (continued) Best practice (825.104; 825.105; 825.110; 825.111) Make sure you are a covered employer. Verify that you had 50+ employees for each calendar day for 20 weeks in the current or preceding year. At the time the leave is requested, determine that the employee works at a location where there are 50 employees within 75 miles. Count all employees on payroll (including temps) except expatriates. For work at home employees, look to site in to which employee reports or receives assignments from. Verify that the employee worked for 12 nonconsecutive months prior to start of leave. Include employment prior to a continuous break in service of 7 or fewer years. Include military service in calculation of tenure and hours worked. Verify that the employee worked 1,250 hours immediately prior to the start of leave using FLSA hours worked standard. Do not include leaves or PTO. Include temp time in hours worked and tenure for any employee who worked for you as a temp. 6
2. Deeming employees eligible for FMLA (825.110(d); 825.120(a)(2); 825.121(a)(2); 825.207(c); 825.301; 825.701(a)(3)) An employer cannot deem an employee eligible for FMLA if they are not eligible. An employer cannot deem an absence to be FMLA-covered if it is not. Best practice (825.104; 825.105; 825.110; 825.111) Do not count FMLA absences against an employee unless the employee is eligible and the absence is covered. If you improperly deduct time from an employee s FMLA bank, the employee may be entitled to an additional 12 or 26 weeks of FMLA leave. Do not treat office locations as covered if there are not 50 employees within a 75-mile radius. Grant a corporate leave if you wish to provide leave in circumstances that are not covered by FMLA (i.e. same sex marriages not recognized in the state of residence, domestic partners, grandparents, small offices, new employees). 7
3. Failing to provide required notices (825.300): Employers have to give 4 notices: GENERAL NOTICE ELIGIBILITY NOTICE RIGHTS & RESPONSIBILITIES NOTICE DESIGNATION NOTICE General rights under the FMLA Send within five days of request for leave State at least one reason why if ineligible Once eligible, employee remains eligible for remainder of the leave year for that leave reason (although may exhaust entitlement) Provide at the same time as eligibility notice Advise of method used for 12-month period Use of paid leave and conditions Must explain that if employee wants, can go unpaid Within five business days of determining that leave qualifies as FMLA, send notice as to exactly how much time is designated If not possible to determine time, provide every 30 days on request of employee if leave was taken within 30- day period Must inform about Fit-for- Duty requirements and essential job functions if those are to be addressed in Fit for Duty Failure to designate employer is liable only if employee can demonstrate harm 8
The risk of Non-compliance The Case: Failing to comply with the law can be costly. Managers can be held personally responsible for violations. Companies can be faced with expensive legal fees and settlement fees. In Young v. Wackenhut Corp., an employee was terminated after exhausting her 12 weeks of FMLA Leave. The employee never received from Wackenhut any individual notices (i.e. Eligibility Notice, Rights & Responsibilities Notice, Designation Notice). The employee filed an FMLA interference claim and later a motion for summary judgment. The Court ruled in favor of the employee. The Result: The Court held that the individual FMLA notices provided the employee are absolute and if not provided, the employee is prejudiced. 1 Employers must provide: 1. Eligibility Notice 2. Rights and Responsibilities Notice 3. Designation Notice 1 Young v. The Wackenhut Corporation., 2013 WL 435971 (D.N.J., February 1, 2013) 9
3. Failing to provide required notices (continued) Best practice Electronic general notice is sufficient but it must be accessible to employees and applicants. If you have a handbook, general notice must be in the handbook. If no handbook, must distribute upon hire. 10
4. Using a calendar-year 12-month period (825.200(b)) Employer can choose the method by which the applicable 12-month period during which employee is entitled to leave is measured (calendar, fixed year, measured forward or rolling backward). Best practice: Rolling backward method provides that each time an employee takes leave, the employer looks backward 12 months to determine how much FMLA time the employee has taken. Each time an employee takes FMLA leave the remaining leave entitlement is any unused balance of the 12 weeks which has not been used during the immediately preceding 12 months Rolling backward method prevents stacking of leave. The calendar method allows for stacking. Under the calendar method, an employee can take 12 weeks of leave at the end of one calendar year and immediately take another 12 weeks at the beginning of the new calendar year. Caution: You must use the measured forward method for leaves to care for an injured service member, regardless of the method chosen for other types of leave. 11
5. Failing to calculate leave entitlement appropriately (825.205(h)) (825.205(b)) Holidays within a full week of FMLA are counted as FMLA. If an employee is using FMLA leave in increments of less than one week, the holiday will not count as FMLA unless the employee was otherwise scheduled to work during the holiday. If employer s business activity has temporarily ceased for one or more weeks, the days the employer s activities ceased do not count as FMLA. The actual workweek is the basis of leave entitlement to determine how much FMLA leave time an employee is entitled to take. For example, a 40 hour/week employee is entitled to twelve 40-hour weeks of FMLA or 480 hours of FMLA. A 20 hour/week employee is entitled to 240 hours of FMLA. 12
5. Failing to calculate leave entitlement appropriately (continued) (825.200(b)) (825.205(c)) If an employee s schedule varies from week to week so that an employer is unable to determine with certainty how many hours the employee would have worked (but for the taking of FMLA leave): Use a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave (including any hours for which the employee took leave of any type) for calculating the employee s leave entitlement. If an employee would normally be required to work overtime but is unable to do so because of an FMLA-qualifying reason: The hours which the employee would have been required to work may be counted against the employee s FMLA entitlement but must also be factored into the employee s entitlement. 13
5. Failing to calculate leave entitlement appropriately (continued) Best practice Take care to appropriately determine an employee s FMLA bank, factoring in the employee s normal schedule and any required overtime. Review an employee s FMLA usage to determine if a holiday falls within a full week of FMLA. 14
6. Failing to properly designate and track FMLA time (825.300) (825.205) Employers must: Designate FMLA time within five business days of determining that leave qualifies as FMLA. Employers can: Track intermittent leave in the smallest increment used to track other forms of leave, provided it is not more than one hour. 15
6. Failing to properly designate and track FMLA time (continued) Best practice If you fail to provide timely designation, you can retroactively designate but you should ask the employee if she relied to her detriment on your failure to designate. If employee can demonstrate harm, you should not retroactively designate. If you have a problem with employees taking FMLA in small increments to excuse late arrivals or late return from lunch, adopt leave policies that require that employees take leave in one-hour increments. If employees want to take time for prescheduled appointments, they must take time off in one-hour increments. Generally, you cannot make an employee take more FMLA than needed. However, there are exceptions for physical impossibility, i.e. missed flights or trains, clean rooms, etc. Caution: You can only deduct FMLA in one-hour increments if the employee was not allowed to work for the full hour. For example, you cannot allow an employee to arrive 15 minutes late, begin work and still deduct one hour from their bank. Also, be careful of employees who leave less than one hour before the end of their shift due to medical reasons. 16
7. Failing to use detailed medical certifications/proper clarification and authentication (825.305) Employer must provide employee written notice that a certification is incomplete or insufficient including: What additional information is necessary to make the certification complete and sufficient. The employer must provide the employee seven days to cure any deficiencies. (825.307) Employer can contact the health care provider for clarification or authentication. Contact can be made by a human resources professional, a leave administrator or a management official. Caution: The employee s immediate supervisor cannot make contact. Best practice: Use comprehensive medical certification forms. Use new improved Department of Labor (DOL) forms. Return all incomplete and insufficient certifications to employee. Contact medical provider to clarify any answers that you do not understand. Do not allow supervisor to contact HCP. Authenticate all questionable certifications. 17
8. Failing to request a new certification and redetermine eligibility in new leave year (825.300(b)(2); DOL Opinion Letter 2005-3-A: Once an employee is determined to be eligible for FMLA, (s)he remains eligible for one year for that leave reason. When the employee s need for leave lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year. The new medical certification is subject to authentication/clarification and second and third opinions.. (825.305(e)): Best practice: Establish the one-year period of eligibility for each leave request/ reason. Do not redetermine eligibility prior to that time. Re-evaluate eligibility upon the first absence in the new leave year. Employees with ongoing intermittent leaves for chronic conditions may become ineligible due to hours worked. Request a new certification if the employee continues to be eligible. Authenticate, clarify and request second and third opinions on the new certification as warranted. 18
9. Improperly using recertification (825.308) Recertification cannot be requested more often than every 30 days unless: An extension is requested, An employer has reason to doubt the validity of the leave request, The circumstances of the leave have changed, or The minimum duration has expired. Best practice Recertify at a minimum of every six months. Recertify patterns of absence (i.e. Monday/Friday). Recertify absences that exceed stated frequency and duration. Recertify if you receive information that questions validity. Utilize clinical resources to determine whether/when to recertify unknown or indefinite conditions. Regardless of the minimum duration of the condition, recertification can be requested every six months. The DOL clarified that this applies even to unknown and indefinite conditions. 19
10. Failing to monitor intermittent leaves closely Best practice Check certifications carefully: Require the Health Care Provider to certify that leave is medically necessary. Require probable frequency and duration of episodes, if known. Require estimated treatment schedules, including recovery, if known. Monitor absences: Monitor whether absence is for treatment or episodes. Watch for patterns of absence. Consider requiring employees to take bonding/adoption leave in continuous block. Request recertifications as often as possible. Require employees to attempt to schedule planned medical treatment at less disruptive times. 20
Conclusion The FMLA regulations that became effective in 2009 provide employers with mechanisms by which we can better curb FMLA abuse. However, there are also some traps employers can fall into if they do not review the regulations carefully and administer leave requests appropriately. Employers should adopt leave policies that allow the employer to prevent abuse while maintaining compliance. Always remember to consider state leave laws when evaluating employee leave requests. 21
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