Posted on Jul 25, 2017

The Family and Medical Leave Act (FMLA) is often tweaked, adjusted or reinterpreted as cases of alleged abuse continue to pop up and courts are asked to weigh in. With so much change, it’s a good idea to check your policies regularly. Is your company in compliance?

Here’s a very streamlined recap of the top 10 FMLA fundamentals to refresh your memory. (Keep in mind that your state and local laws may have stricter requirements.)

1. Allowable purposes for unpaid leave up to 12 weeks: Attending to the birth or adoption of a child, caring for a family member with a serious health condition, or suffering a health condition that prevents one from performing essential  job tasks. (Special rules apply where family members are on active duty in the military.)

2. To be eligible, employees must: Have logged at least 1,250 hours of service during the period before the leave, and have worked for the employer for one year over a period no greater than seven years (that is, employment gaps are permissible).

3. Private sector employers are exempt from the FMLA if: They have fewer than 50 employees overall or at a specific site that’s at least 75 miles away from any of its other employment sites.

4. When taken, the FMLA leave period: Doesn’t have to be a single block of time consisting of consecutive days; intermittent leave may be possible, as well as working on a reduced schedule basis. When leave is intermittent in a nonemergency situation, employees should make a “reasonable effort” to accommodate the operational scheduling needs of the employer.

5. Maintenance of benefits: Employees out on FMLA leave must stay on the employer’s health plan under the same terms (including cost-sharing provisions) as before.

6. Coordination with paid leave benefits: Often it’s possible for employers to require employees taking FMLA leave to use up accrued paid leave time concurrently.

7. When requesting an FMLA-mandated leave, employees must: Give employers a 30-day notice, if the need for the leave was foreseeable, or otherwise as soon as possible. When making an FMLA leave request for the first time, employees don’t need to state that the request is being made under the FMLA. They merely need to provide employers enough information about the purpose of the leave for the employer to independently determine that the leave is sanctioned by the law.

8. Notification requirements: Employers must maintain posted notices about the FMLA; include information about it in their employee handbooks; and, upon request, provide information about employees’ rights and responsibilities under the law.

9. Medical certification: When a leave request is based on a serious medical condition of the employee or the employee’s family member, the employer can request documentation from a health care provider, as well as seek second and third opinions.

10. Job restoration: When employees return from their leave periods, they must be given their original jobs or another position with equivalent pay, benefits, and other employment terms and conditions.

Legal Authority

In an FMLA case, only a U.S. Supreme Court decision can affect the law nationwide. Still, a lower court ruling — even if it occurs in a jurisdiction other than your own — might be influential where you’re located. Below are three noteworthy cases that highlight the need to keep abreast of FMLA legal developments:

Case 1. The court upheld an employer’s decision to terminate an employee while she was on FMLA leave, against the employee’s claim that her termination violated her FMLA rights and was discriminatory. The court accepted the employer’s explanation that it had a sound business rationale to eliminate the employee’s position: The company was shrinking; other employees could assume her duties, and it would have made the same decision if the employee weren’t on leave.

Case 2. The court agreed with an employee’s argument that she was being prevented from gaining the full benefit of her FMLA leave because of her employer’s pattern of making substantial requests of her time while on leave. The court held that it was permissible for the employer to contact employees on leave for certain tasks. Examples include:

  • Passing along relevant institutional knowledge to new staff,
  • Providing computer passwords,
  • Giving closure on complicated assignments, and
  • Identifying other employees who could fill the void created by her absence.

But it was inappropriate for the employer to contact the employee regularly with questions about her work duties and absences, inputting data, and taking time out to receive training before returning to work. The fact that the employee was terminated shortly after her return to work buttressed her argument that her employer was trying to interfere with her rights.

Case 3. The Ninth Circuit Court of Appeals upheld a lower court ruling in favor of an employer that terminated an employee who claimed her FMLA leave benefits were denied. The employee had requested, and received, a period of leave to care for her sick father. But she’d requested that it not be treated as FMLA leave, but instead as ordinary paid leave. The company agreed.

However, the employee didn’t return to work until two weeks after the date she’d promised to come back and was terminated. She argued that the extra two weeks should have been treated as protected FMLA leave, because her reason for remaining away from work was to care for an ailing family member. The courts drew two conclusions: 1) It’s possible for an employee to seek and receive non-FMLA leave for an FMLA-eligible purpose, and 2) Unauthorized leave cannot automatically become protected FMLA leave without the employee explicitly requesting it on that basis.

Regular Tune-Ups Advised

New FMLA cases are decided all the time, creating a demand for attorneys who specialize in this corner of the law. Therefore, given the fluidity of FMLA legal interpretation, it’s prudent to periodically review your compliance with the evolving legal standards.

Posted on Mar 15, 2017

In most cases, the verdict on the Family and Medical Leave Act (FMLA) is … it’s working. However, in a 2007 report from the Department of Labor, both employers and employees expressed concerns about the law and how it affects their day-to-day lives.

FMLA Basics

The FMLA covers businesses with 50 or more eligible staff members. Eligible employees are those that have worked for a company for the 12 months prior with at least 1,250 hours of service.

Covered employers must grant up to 12 work weeks of unpaid leave during a 12-month period for the following reasons:

  • The birth and care of the employee’s newborn child.
  • The adoption or foster care placement of a son or daughter.
  • To care for an immediate family member (spouse, child or parent) with a serious health condition.
  • When the employee is unable to work because of a serious health condition.
    Many states have additional laws that grant employees leave beyond the FMLA.

When the FMLA was passed back in 1993, it was greeted with apprehension, mostly from employers who worried that staffers would take advantage of it. To follow up on those and other concerns, the Department of Labor (DOL) requested feedback from both sides. Generally, a report of this nature is compiled when legislators are considering rule changes. But the purpose of this study was to generate a discussion about how the FMLA plays out in the workplace.

After collecting more than 15,000 comments, the DOL summarized them in a Request for Information Report. Not surprisingly, employee comments were generally more favorable than those made by employers, as you’ll see in the excerpts below.

How Employees Feel

In part, the FMLA was passed to allow employees the time needed to recuperate from illness, seek medical treatment or care for certain family members without fear of losing their jobs.

“When my mother was diagnosed with lung cancer my brother and I decided I would be the one to take her to all her appointments and therapy. I would’ve had to lose my job or leave it without FMLA. It was difficult for the people I worked with because it put a strain on the office, however, they were, for the most part, emotionally supportive as well.”
Besides the obvious benefits to themselves and their families, some employees said they returned to work feeling more productive and more motivated.

“Thanks to the FMLA, I was able to take three months off … in order to take care of my husband when he was reduced to a state of complete dependency … and I developed a keen sense of loyalty to my employer, which has more than once prevented me from looking for work elsewhere.”
Do employees see any weaknesses in the FMLA? Some felt the leave should be paid and there should be more time off allowed. Others would like the law to cover a broader range of family members, such as siblings and grandparents.

How Employers Feel

Clearly, some managers are dissatisfied about how the FMLA affects their businesses. Many concerns centered on the vague provisions of the law, plus the uncertainty that there will be adequate staff coverage.

“Dealing with such situations is extremely difficult. Supervisors do not know if the employee will come in to work on any given day. They do not know if the employee will work an entire shift … Without proper notice, a supervisor cannot make plans for a replacement.”
In certain industries, FMLA absences can be devastating to operations.

“My company is a manufacturing facility … Unfortunately, the production process is often slowed down or brought to a halt when an employee is out on FMLA.”
In other cases, a missing employee can inconvenience customers, as well as staff members.

“An office worker who shows up one hour late for work may find some extra paperwork on his desk … A flight attendant who reports at 10 a.m. for a 9 a.m. departure … has either (a) forced 100-400 passengers to wait and miss later connections, or (b) caused the airline to reposition another flight attendant onto the aircraft because, by federal regulation, an aircraft cannot board passengers or take off without a minimum number of flight attendants. The ripple effects of such delays can affect an infinite number of passengers, as well as numerous coworkers.”
To make matters worse, unscheduled absences in certain jobs, such as 911 operators, can be detrimental to public health.

“Employees are given free license to call in sick on a day-to-day basis … The remaining employees are working an enormous amount of short notice overtime and are denied their own personal and family time in order to cover these absences. The number of overtime hours being worked leads to overtired people making critical life and death decisions in an emergency driven environment.”
Here are four other complaints employers cited about the FMLA:

1. Better definitions are needed. The FMLA states that a “serious health condition” relates to a “period of incapacity of more than three consecutive calendar days and treatment of two or more times by a health care provider.” Employers argue that this definition is too general to limit absences to conditions that actually are serious.

2. The verification process needs tightening. Employees are expected to document their illnesses (or those of family members). But, some maintain that their conditions are unpredictable and getting medical certification for every flare-up can be expensive. Meanwhile, employers are frustrated because the FMLA-required medical certifications do not give clear guidance about how much time off is needed.

3. There is no clear distinction between other laws. Employers complain the FMLA overlaps with other laws, like the Americans With Disabilities Act (ADA). In response to the comments, the Labor Department admitted that, “employee requests for medical leave often are covered by both statutes.” As a result, many employers asked the DOL to implement a definitive process for administering leave requests with regard to the two statutes.

4. Unscheduled absences are hard to handle. Unscheduled “intermittent leave,” which is allowed under the FMLA, is “the single most serious area of friction between employers and employees” and a “central defining theme in the comments,” the DOL report stated. Scheduled leave is far less frustrating because employers have time to develop adequate solutions. But nearly 25 percent of those who took FMLA leave took at least some of it intermittently.

Problems are frequent in time sensitive, public health and safety operations, including police and fire departments, hospitals, long-term care facilities, transportation, manufacturers and services like electric utilities during a power outage.

The DOL report states that, while intermittent leave is the source of much tension in the workplace, the agency does not currently plan to intervene.
With this list of complaints, do employers see any benefits from the FMLA? According to the report, many comments emphasized “the positive impact the FMLA has on employee morale and how it increases worker retention and lowers turnover costs.” By reducing turnover, some argued the law reduces employer costs.

A Step in the Right Direction

The Labor Department acknowledges that better communication is necessary to further educate employers and employees about the FMLA. Although no legislative or regulatory changes are currently under consideration, the report is a step towards improved communication. It allowed employers and employees to voice their concerns, as well as view the FMLA from the other side. At the same time, policymakers can use the report to see how the law affects the lives and operations of businesses and employees in the real world.

Posted on Jun 20, 2016

FMLA Fraud, FMLA Abuse

The Family and Medical Leave Act (FMLA) protects jobs when employees need extended time off because of their own or a family member’s health problems.

Who Qualifies for FMLA Leave

Employees are eligible for FMLA leave if they worked for a covered employer for at least 12 months and at least 1,250 hours during that time. The months do not have to be consecutive, but work periods before a break in service of seven years or longer don’t have to be counted unless:

1. The break is to fulfill a National Guard or Reserve military obligation, or

2. There is a written agreement stating the employer’s intention to rehire the employee after the break.

There are restrictions on family leave when spouses work for the same employer. Leave is limited to a combined total of 12 weeks for the birth and care of a newborn child, placement of a child for adoption or foster care, or to care for a parent. Leave for a birth or placement must end within 12 months.

To help prevent such abuses, the law allows you, as an employer, to insist that employees supply medical certifications verifying the seriousness of their conditions. The Labor Department regulates both the process you must follow and the information you can request when asking for certification.The law allows employees as many as 12 weeks of unpaid medical leave in any 12-month period to take care of qualifying medical conditions. While in most instances these leaves are legitimate, there are employees who try to take advantage of the system.

Generally speaking, a health care provider must attest that the employee or a qualifying family member has an illness, injury, impairment or physical or mental condition that involves one of these two conditions:

A period of incapacity or treatment that requires overnight stays in a hospital or residential medical care facility, or

Continuing treatment that causes incapacity, such as:

  1. A treatment and recovery lasting more than three consecutive days. There must either be two or more treatments or one treatment followed by a regimen such as prescription medications or physical therapy.When there is more than one treatment, the first must occur within seven days of the day the employee becomes incapacitated. When there are two treatments, both must occur within 30 days of the incapacitation.
  2. Pregnancy or prenatal care (a visit to a health care provider is not necessary for each absence).
  3. A chronic health condition that continues over an extended period and requires at least two visits a year to a health care provider. This may include such episodic conditions as asthma or epilepsy and does not require a visit to a health care provider for each absence.
  4. Permanent or long-term conditions for which treatment may not work and that require supervision by a healthcare professional. This includes such conditions as terminal cancer, Alzheimer’s disease or a stroke.
  5. Restorative surgery after an accident or injury, or conditions that would likely result in incapacitation for more than three days if not treated, such as radiation or chemotherapy for cancer or dialysis for kidney disease.

The Certification Process

If you require certification, employees must provide it within 15 days. As an employer, you must:

  • Use either the Labor Department’s WH 380 Certification of Health Care Provider forms or devise your own. If you use your own, you cannot ask for more information than the government forms require.
  • Ask for certification within five business days after the leave request or after the start of the leave if it was unforeseen.
  • Tell employees that you can deny FMLA leave if the certification is incomplete, insufficient or unclear.
  • Give employees a written notice of the problems with the certification and allow seven calendar days to fix them.

In some cases, the employee’s medical condition may be considered a disability under the Americans with Disabilities Act (ADA). In such situations, information obtained through ADA procedures may be used in the FMLA leave determination.

You can directly contact the employee’s medical provider for clarification through a health care provider, human resources professional, leave administrator or management official. The employee’s direct supervisor, however, cannot contact the provider for clarification.

You may require annual certifications if an employee’s need for FMLA leave lasts longer than a year. And you may ask for certification at a later date if you doubt the appropriateness or duration of the leave.

FMLA leave is an entitlement, but it can be abused. Talk to a professional about these and other procedures that can help prevent misuse of the law and cut the unnecessary costs and workplace disruptions that can stem from illegal, lengthy absences.