DOL Issues New FMLA Poster and Publishes Guide to Help Employers Administer FMLA

Posted in Uncategorized

FMLA posterThis week, the Department of Labor announced that it soon will issue a new general FMLA Notice that can be used interchangeably with their current FMLA posting.  In issuing this new directive, the agency also unveiled a new guide to help employers navigate and administer the FMLA.

Here’s the scoop:

New DOL Poster

Under the FMLA, an FMLA-covered employer must post a copy of the General FMLA Notice in each location where it has any employees (even if there are no FMLA-eligible employees at that location). According to the FMLA rules, the notice must be posted “prominently where it can be readily seen by employees and applicants for employment.”

The DOL has announced that it will release a new General FMLA Notice for employers to post its workplaces.  According to the DOL, the new poster won’t necessarily include a whole bunch of new information.  Rather, the information in the notice will be reorganized so that it’s more reader friendly.

After today’s announcement, I had the opportunity to connect with the DOL’s Branch Chief for FMLA, Helen Applewhaite, about the timing and obligations to post the new General FMLA Notice.  She confirmed that employers would be allowed to post either the current poster or the new version.  In other words, employers will not be required to change the current poster.  For those that want to use the new poster, you can access it here.

New Employer FMLA Guide

In 2012, the DOL issued a guide to employees to help them navigate their rights under the FMLA.  Several years later, DOL now has issued a companion guide for employers.  According to the DOL, the Employer’s Guide to the Family and Medical Leave Act (pdf) is designed to “provide essential information about the FMLA, including information about employers’ obligations under the law and the options available to employers in administering leave under the FMLA.”

DOL Employer guideThe new guide was unveiled by Ms. Applewhaite at an annual FMLA/ADA Compliance conference sponsored by the Disability Management Employer Coalition (DMEC). Generally speaking, the new guide covers FMLA administration from beginning to end, and it follows a typical leave process — from leave request through medical certification and return to work.

As for the Guide itself, my initial take is that it will be a decent resource for the employer community. I also appreciate the fact that the DOL asked me and a couple of other leaders on the employer side in the FMLA space to offer constructive feedback before the guide was released. At the time, I encouraged the agency to tackle in its guide some difficult FMLA administration issues that employers grapple with, feedback of which did not make its way into the DOL’s final draft (nor did I expect it, I suppose!).

While the guide helps explain the FMLA regulations in a user-friendly manner, the Guide primarily is meant to answer common questions about the FMLA, so it leaves unanswered leave issues that continue to frustrate employers in their administration of the FMLA.  However, the Guide is likely to have some benefit to employers when administering the FMLA.  For instance, the Guide:

  1. Follows the FMLA regulations and the course of a typical leave request in a relative orderly manner.
  2. Contains easy to follow flowcharts so that employers can better understand the typical FMLA process, including a cute little “Road Map to the FMLA” [yes, I think I just called the DOL “cute”] that provides an overview of the FMLA process.  You’ll even find some interactive cartoons along the way to further explain the regulations.
  3. Includes “Did You Know?” sections to give employers a heads-up on some of the lesser-known provisions and nuances of the FMLA regulations.
  4. Highlights user-friendly charts and explanation of the medical certification process, including what information is required in certifications.
  5. Provides a helpful overview of military family leave, which often can be a bit overwhelming to employers attempting to navigate this portion of the FMLA.

I welcome feedback on the new guide — what do you like?  Dislike?

Paid Family Leave Becomes Law in New York Through an Insurance-Style Scheme. Will Other States Follow?

Posted in Paid Leave, Regulatory Activity

New York paid family leave 1Could this be a game-changer when it comes to paid family and sick leave?

Yesterday, New York Governor Andrew Cuomo signed into law what is being dubbed the country’s longest and most comprehensive paid family leave program, which allows employees partially paid leave to care for a family member or a newborn child.

New York follows other states such as California, New Jersey and Rhode Island in providing paid leave in conjunction with unpaid leave entitlements under state and federal law.  All three states administer their programs through their respective disability insurance programs.

So then, what’s significant about New York’s law?  Similar programs in other states have fallen flat because those states have wrestled with how to fund these programs.  Take the State of Washington, for instance.  In 2007, Washington became the second state to pass a paid family leave law that would provide parents with $250 in weekly benefits for up to five weeks in the event of childbirth or adoption. However, the law has never taken shape because the state legislature has not funded it.

Unlike many of these other laws, New York’s version is funded not by the state or employers but by the employees themselves — through a ~$1 per employee weekly payroll deduction that will help fund a paid family leave program.

What’s the Entitlement?

Under the new law, after 26 weeks of employment, employees will be eligible for up to 12 weeks of partially paid family leave, which is defined as any leave:

  • to participate in providing care, including physical or psychological care, for a family member of the employee made necessary by a serious health condition (as defined by the FMLA) of the family member; or
  • to bond with the employee’s child during the first 12 months after the child’s birth, or the first 12 months after the placement of the child for adoption or foster care with the employee; or
  • because of any qualifying exigency ( as defined under the FMLA) arising out of the fact that the spouse, domestic partner, child, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the U.S. Armed Forces.

Paid benefits will phase in over time.  Beginning in 2018, benefits will cover 50 percent of an employee’s average weekly wage with a cap at 50 percent of the statewide average weekly wage.  When fully implemented in 2021, the plan will cover 67 percent of an employee’s average weekly wage with a cap at 67 percent of the statewide average weekly wage.  The leave period also will sweeten from eight to 12 weeks over time.  At the outset in 2018, employees will be entitled to eight weeks of paid leave, increasing to 12 weeks of paid leave by January 1, 2021.

In touting the new law, Governor Cuomo’s office focused its attention on how women and families, in particular, will be aided under the new law:

Paid family leave also has the potential to serve as a great equalizer for women. In many instances, women who leave the workforce to care for a newborn not only forfeit their existing salaries in the short-term, but also suffer diminished future earnings and career trajectories in the long term. Establishing paid family leave marks a pivotal next step in the pursuit of equality and dignity in both the workplace and the home.

Will Other States Follow New York’s Lead?

Multitudes of paid leave legislation have sprouted at the state level across the country. Many of these bills have languished because of strong opposition from the employer community — and rightly so, since these laws generally mandate employers of all sizes to provide paid sick or family leave to their employers.  All without the state’s help.

New York’s new law seems to undercut this argument, since the employees themselves will be funding what is essentially an insurance-style scheme to cover time away from work for family obligations.  Thus, is it natural to assume that resistance to these kinds of laws will diminish over time? Not so fast. They still face opposition from the business community, which argues that employers will end up with higher expenses in overtime and training for employees who will cover for their co-workers on leave. Businesses also are rightly concerned about how much control they’ll have over employees taking leave under these state administered programs.

So, are we back to political gridlock then?

FMLA FAQ: What if the Doctor Refuses to Use the Employer's FMLA Medical Certification Form? And They Want to Charge a Fee for It?

Posted in Medical Certification

Dr LoveA couple of clients have asked me recently whether a health care provider can use his/her own medical certification form or “doctor’s note” to support the employee’s need for FMLA leave, or can we require the HCP to use the employer’s form. Or what if the HCP charges a fee to complete the form?  What do you do then?

I offer feedback originally provided by my colleague, Bill Pokorny, when he was my partner in crime on this little blog, since his take on this issue is spot on.  Here’s the question posed:

Q. We have requested a medical certification from an employee who is seeking FMLA leave. We have our own certification form, and gave the employee a copy. The employee came back with a form letter from the doctor’s office stating that they charge a fee for filling out FMLA certification forms, and a note from the doctor stating that the employee was injured and needed FMLA leave. Do we have to accept the note in lieu of our form?

A. Generally speaking, it doesn’t matter whether a medical certification is written on your preferred form or on the back of a bar napkin. So long as the document is signed by a health care provider, and is “complete” and “sufficient” in the sense that it provides the employer with all of the information needed to determine if the leave is covered by the FMLA, then the certification should be accepted. But that does not mean that you should unquestioningly accept a “doctor’s note” in place of a complete FMLA certification.

In the scenario above, the doctor’s note does not include all of the necessary information, such as the dates and expected duration of the employee’s leave. Here, we would recommend informing the employee in writing that it is his responsibility to obtain a complete and sufficient certification, and to pay any associated costs or fees. Give the employee a reasonable period of time in which to do this – at least 7 days, and more if they employee has a reasonable explanation for the delay (which is required under 29 CFR 825.305(c)).

If the employee fails or refuses to provide a proper certification (on your form or otherwise), you can deny the leave. However, a more detailed note or letter from the doctor might suffice, even if it is not on your preferred form. Exactly how much information is needed will depend upon the specific circumstances. Again, if you need more information to determine whether the FMLA applies, the appropriate course is to inform the employee in writing of the specific information needed to make the certification complete and sufficient.

But what if the certification actually was written on the back of a bar napkin? Given the size of most cocktail napkins, it is unlikely that the certification would be complete or sufficient. (That would probably require at least a dinner napkin.) Even if it were, we would strongly recommend contacting the health care provider to authenticate the certification, and perhaps seeking a second opinion.  You think?

What if the Health Care Provider charges a fee for completing the medication certification form?

Charging a fee for completing the FMLA medical certification form is a rapidly growing practice among health care providers.  In short, because the employee is responsible for providing the employer with complete and sufficient medical certification supporting the need for FMLA leave, the employee also is on the hook to pay the fee charged by the HCP.  Not the employer.

In these situations, I find it helpful to refer the employee back to the Department of Labor’s Employee Guide to the FMLA — specifically, page 12, which very clearly states that the employee is responsible for any costs associated with completion of the form.

FMLA FAQ: How Does an Employer Calculate Intermittent FMLA Leave When an Employee Moves from Full-Time to Part-Time?

Posted in Intermittent Leave

Part-Time-EmploymentQ: One of our employees was at full-time  status (40 hrs/wk.) six months ago when he was granted intermittent FMLA leave for a GI issue that flared up from time to time. He took 120 hours of FMLA leave (or three weeks) through last month when he transferred to a part-time position (20 hrs/wk.). He continues to require FMLA leave, but we are not sure whether to calculate the intermittent leave based on his former full-time hours or current part-time hours.

A: This situation actually is covered by an FMLA regulation. Under 29 CFR 825.205(b)(2):

If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

In this question, the employee has reduced his weekly hours worked from 40 to 20 hours. And he already has used the equivalent of 3 weeks of FMLA leave. So, 9 weeks of FMLA leave remain in his FMLA year. Moving forward, you will use his part-time schedule to calculate any intermittent FMLA leave. Thus, he would have 180 hours remaining.

Keep in mind, though, that the Department of Labor requires us to calculate FMLA leave in workweeks. It may be easier to use hours of leave from an FMLA administration standpoint, and this approach would work just fine for an employee who works the same number of hours every week. But what about your employee who works 20 hours one week and 25 hours the next?  In this situation, you should calculate his FMLA intermittent leave not in “hours” but as a fraction of that particular workweek in which he is absent.

For instance, if an employee is scheduled for 20 hours one week and takes intermittent leave for a total of 10 hours that week, he has used 1/2 of a workweek for FMLA purposes. If an employee is scheduled for 25 hours the following week and takes intermittent leave for 5 hours that week, he has used 1/5 of a workweek for FMLA purposes.  Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.

What about calculating FMLA leave for an employee who works a varying workweek? According to the DOL, this term should be used sparingly and only industries like the railroad industry where engineer and other employees’ schedules can vary widely such that you can’t determine with any degree of certainty what an employee’s schedule will look like in any given week. See my prior post for calculating a varying workweek.

This is riveting stuff, isn’t it?  Who says the FMLA ain’t sexy . . .

Butt Implants, Male Breast Reductions Among Top Plastic Surgery Trends. But Are These Procedures Protected by FMLA?

Posted in Eligibility, Serious Health Condition

butt pepperApparently, Kim Kardashian isn’t the only one whose derrière seems to have transformed over the years.

According to data provided by the American Society of Plastic Surgeons (ASPS) and published in a number of news outlets, butt implants and male breast reduction are now among the fastest-growing types of plastic surgery in the United States.

According to the ASPS, there were just under 16 million surgical and minimally invasive cosmetic procedures performed in 2015 — that shakes out to one in 16 adults. Since 2000, procedures to pump up your behind have surged 250%. ASPS also reported more than 68,000 breast reduction surgeries in 2015, and men accounted for more than 40% of those procedures.

Can an Employee Take FMLA Leave for Plastic Surgery?

As all good things in life come back to the FMLA, let me pose the question:  Can your employee take FMLA leave for plastic surgery?

Make no butts about it, it is entirely possible.

If the procedure is related to a medical condition that otherwise qualifies as a “serious health condition” under the FMLA, then FMLA leave definitely is in play. So, for example, reconstructive surgery following a serious injury or illness would very likely qualify for FMLA leave.However, the FMLA regulations make clear that “conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ‘serious health conditions’ unless inpatient hospital care is required or unless complications develop.” Therefore, FMLA leave is generally not available for purely outpatient cosmetic procedures unless it:

  1. Involves an overnight stay in the hospital; or
  2. Results in complications that otherwise meet the definition of “serious health condition.”

Hat tip: To my friend Tiffany Passmore for passing along the perfect photo for this cheeky blog post!

Note to Self: Posting My Beach Vacation Photos on Facebook During FMLA Leave is Not a Good Idea

Posted in Abuse of FMLA leave, Court Decisions

Beach-Party-VacationI always love a good social media FMLA smack down. It’s even better when the employer handles the situation in textbook fashion. Today’s installment offers both, while also providing a road map for employers when investigating suspected FMLA abuse.

Let me share the story of Rodney.

Rodney was the activity director for Accentia Health, a local long-term care facility, and in that role, he was responsible for overseeing a staff which decorated the facility for holidays and events, and oversaw outings, parties and recreation for patients. Not a bad gig, if you can find it.

Rodney also had a bum shoulder. He took 12 weeks of FMLA leave for shoulder surgery and recovery, but he still was not able to return to work. For good measure, his doctor recommended one more month off work, and Accentia happily obliged. They called the additional month a “non-FMLA” leave of absence. As the story goes, during the final days of FMLA leave and during the month of his “non-FMLA” leave, Rodney took multiple trips to Busch Gardens in Florida and to the island of St. Martin, posting photos of his escapades on social media along the way. Rodney’s treasure trove of Facebook photos consisted of his favorite Busch Garden holiday decorations, and photos and updates about his trip to St. Martin, including some photos of him on the beach, posing by a boat wreck, and swimming in the ocean — all at the very time he should have been recuperating.

Swimming in the ocean? That shoulder must have been feeling pretty darn good.

It’s not surprising, of course, that Rodney’s employer later terminated his employment after he posted these photos.  Also understandable was the court’s quick dismissal of Rodney’s FMLA claims. Indeed, who could have counseled Rodney to sue here, knowing that he had engaged in this behavior? Click here for the court’s take on Rodney’s Facebook photos and its quick dismissal of his FMLA claims: Jones v. Gulf Coast Health Care of Delaware d/b/a Accentia Health and Rehab of Tampa Bay (pdf)

Insights for Employers

The result of this case in favor of the employer is not surprising. What’s instructive to us, however, is how the employer handled Rodney’s situation to best defend itself against an FMLA claim:

1. No Rush to Judgment: When the employer learned of Rodney’s Facebook posts, it did not rush to judgment and terminate Rodney on the spot.  Rather, it conducted a complete investigation of the facts at issue. Specifically, it invited Rodney to discuss his leave of absence.  During the meeting, Rodney’s boss confronted him with the Facebook photos in search of an explanation.  When Rodney responded with silence, it supported the employer’s honest belief that he had abused FMLA leave.

For what it’s worth, I would have counseled the employer here to be even a bit more methodical in its investigation of Rodney’s conduct. Before confronting Rodney with the Facebook pics, I first would have addressed the following with him:

  • Confirm that he required additional leave through the present because he was unable to perform his job
  • Confirm with him the extent of his injuries that he believed prevented him from performing his job
  • Ask him to confirm that he understood the requirements of the FMLA policy and how seriously the employer took fraudulent use of leave
  • Confirm that he remained in the local area during his FMLA and non-FMLA leave (whether he lies or tells you the truth that he took trips out of town, you get a good answer for your investigation)
  • Disclose that you have received information indicating that he was out of town during his leave, and specifically, Busch Gardens and St. Martin
  • Show him (or explain to him) the Facebook entries and photos so that he can address them directly

Simply put, employers lose these “honest belief” FMLA cases when there is a rush to judgment. Don’t do it. Follow the script above.

2.  The Employer used its social media policy to its advantage: Notably, Accentia maintained a social media policy which stated, in part:  “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of [Accentia] or violates the HIPPA privacy law may result in disciplinary action up to and including termination.”

Then, it used this policy as a basis for terminating Rodney’s employment, since his Facebook entries were entirely inconsistent with the policy.  Makes complete sense. This case is a reminder that it is critical for employers to maintain an effective social media policy, which among other things, includes strong language to address FMLA abuse that arises in situations like these.

ABA's Summary of 2015 FMLA Cases an Outstanding Resource for Employers, Attorneys

Posted in Court Decisions

aba_logo_01.jpgThis is one of the most exciting days of the FMLA year for me. Literally, one of those Steve Martin “The phone books are here!” days.

Why?

Every mid-February or so, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year.  Although our little FMLA blog here catches some of the big FMLA cases as they occur throughout the year, the ABA’s annual report includes every FMLA decision from 2015. This year’s report is as comprehensive as always — it summarizes 2015 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf). I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys. All the credit goes to attorneys Jim Paul, Melissa Pierre-Louis and Heidi Parker, who head up the ABA’s FMLA subcommittee.

Enjoy!

Can Employees Be Disciplined When They Exceed the Frequency or Duration on Their FMLA Medical Certification?

Posted in Medical Certification, Regulatory Activity

Sick-note.jpgOne of the biggest headaches for employers when administering FMLA leave is how to deal with the employee who exceeds the frequency or duration identified on the employee’s medical certification. Nearly all of these situations involve intermittent leave, which is the type of leave most frequently abused by employees.

Take, for example, Joe, who suffers from irritable bowel syndrome (IBS). On the FMLA medical certification you received for Joe, his physician indicated that he will be absent for this condition three times each month for one day each episode.  But here’s Joe’s pattern over the previous two months: in month one, he was absent five times (one day each) and in month two, he was absent four times, but one of these absences was four days in duration.

Can we discipline Joe for exceeding his frequency and duration indicated on his medical certification?

Not yet. First, we must determine whether we have an obligation to recertify Joe’s absences under the FMLA.

As a general rule, employers can seek recertification only every 30 days unless:

Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days when the employee suffered a migraine headache and the employee’s absences for his or her last two migraines lasted four days each, then the increased duration of absence might constitute a significant change in circumstances allowing the employer to request a recertification in less than 30 days.  29 CFR 825.308(c)(2)

Joe’s circumstances clearly have changed significantly (i.e., more than double the frequency in month one, and a lengthy duration for one absence in month two).  Therefore, the regulations tell us we can do the following:

As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. 29 CFR 825.308(e)

Being the exceedingly reasonable, compliant employers we are, we follow the regulations and ask Joe’s physician to confirm for us whether this change in frequency and duration is consistent with Joe’s serious health condition and his need for leave. If your employment counsel is worth anything, they should be able to draft for you an articulate letter to the doctor explaining the pattern you have observed and your concerns about whether these absences are consistent with Joe’s need for leave.

The Response from Joe’s Physician

Eight times out of 10, Joe’s doctor simply will rubber stamp Joe’s pattern and confirm that these absences are related to his IBS. Right? That goes without saying. But 20 percent of the time, you strike gold — in other words, Joe’s doctor will respond with something to the effect, “I said three times/mo. for one day each, and I meant that! No soup for you!” Well, it’s never that neat, but you know what I mean — the physician will indicate that Joe’s pattern somehow is not consistent with his need for FMLA leave. If we’re lucky, in one in 100 situations, the doctor will tell us in not so many words that Joe is “full of c#&@”!  [In light of Joe’s situation, pun definitely intended.]

Can We Discipline Joe?  Here’s My Recommendation…

In these “20-percent” situations, can we discipline Joe for any absences that exceed the frequency and/or duration, as now confirmed by Dr. Zhivago?

What do the FMLA regulations tell us? Absolutely nothing. Nada. Zilch. Not even a half-hearted attempt by the Department of Labor to give guidance as to how employers might consider handling these situations.  Worse yet, I know of NO court cases that give the employer guidance in this particular situation.

So, what’s my recommendation?  You issue discipline for any absences that exceed the frequency and duration.  

And what’s my rationale? If this FMLA regulation at Section 308(e) (which allows you to contact the doctor regarding Joe’s pattern) is to have ANY meaning, it must mean that an employer has the right to discipline the employee for absences that exceed the physician’s medical opinion.  After all, we have given the doctor two chances to provide cover the for the employee — 1) the initial certification and, with our letter explaining the pattern, 2) the recertification.  In this second go around, the doctor now has confirmed that he stands by his position that we can expect Joe to miss work three times per month at one day each because of his IBS. Therefore, it seems to me eminently reasonable — and defensible in an FMLA lawsuit — to discipline the employee for the excess absences.  I recommend standing by this approach until the employee provides a contradictory medical opinion.  See my previous post providing additional guidance in that situation.

To be clear, this position is not without risk, particularly given that no courts have offered their opinion on the issue. I have tussled with the DOL from time to time on this issue during FMLA investigations, and some of my clients have as well. Of course, the DOL takes the position that the doctor’s opinion on frequency/duration is just an estimate, and that you cannot hold the employee strictly accountable. Then, why DOL, did you issue the regulation at Section 308(e)? Ultimately, the DOL has relented in these handful of situations, suggesting that our take on this particular regulation makes some sense.

In the meantime, I look forward to litigating this issue, as I am confident for the love of all things good and holy in this world, the employer has the better argument here.

Use The "Rolling" Method to Calculate FMLA Leave! This Employer Learned the Hard Way

Posted in Court Decisions, Eligibility, Interference

FMLA-CalendarEvery once in awhile, I find myself counseling an employer with either no FMLA policy or one completely lacking any meaningful details. Often, these policies fail to include key provisions to protect against liability.

Take, for instance, the FMLA 12-month period.

As employers are aware, an otherwise eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. Notably, this “12-month period” is defined by the employer. What happens when an employer fails to disclose the 12-month period in its FMLA policy? They may end up like the Illinois Department of Corrections (IDOC).

IDOC apparently maintained an FMLA policy, but it failed to inform employees how the 12-month FMLA period was defined. When that happens, the 12-month option that provides the most beneficial outcome for the employee is used. IDOC learned this the hard way. One of its employees, Mike, took and seemingly exhausted FMLA leave. He later was terminated for three unexcused absences.

Finding that IDOC did not inform employees of what it was using as the 12-month FMLA period, the court determined that the “most beneficial” outcome should be used for Mike, effectively earning him back two weeks of FMLA leave that he could have used in this instance. Caggiano v. Illinois Dept. of Corrections (pdf)

Ouch. That stings.

How Many Ways are There to Count to 12?

Let’s use IDOC’s loss as an opportunity to discuss what 12-month FMLA period you should use for your workforce.  The FMLA regulations allow employers to utilize any one of four different methods to calculate the amount of FMLA leave an employee uses within a 12-month period.  Per the regulations, an employer may choose any one of the following 12-month periods:

  1. The calendar year
  2. Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary” date
  3. The 12-month period measured forward from the date any employee’s first FMLA leave begins
  4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave

Pros and Cons in Choosing a Particular 12-Month Period

Employers may select any one of these four counting methods, so long as the method is applied consistently and uniformly for all employees.  Once the employer chooses a particular 12-month period, however, it cannot change to another 12-month period without first giving all employees at least 60-days’ notice of the change.  29 CFR 825.200(d)(1)  As I referenced above, if the employer fails to select one of the above 12-month periods, or if the employer has changed the method but it is within the 60-day window, the employer must use the 12-month period that provides the most beneficial outcome to that employee.

Clearly, there are pros and cons with each of these four methods.  But one method stands out above the rest: the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.

Let me explain.

Methods One and Two

The first two methods are materially the same in that they set a fixed point in time by which to start calculating FMLA leave.  Although these two options are by far the easiest to administer, they allow for employees to “stack” 12-week FMLA periods back to back, thereby potentially providing more leave than necessary.  “Stacking” means taking FMLA leave for a subsequent FMLA leave year right after leave taken during the previous year.

Take Jane, for example.  Under her employer’s “calendar year” method, Jane takes four weeks of FMLA leave the first time on February 1.   Later in November, she takes another eight weeks of leave, which takes her through the end of the calendar year.  In theory, beginning on January 1, Jane could utilize another 12 weeks of FMLA leave.  In this example, this method of calculation allows Jane a total of 20 consecutive weeks of FMLA leave.  (It could have been worse — Jane could have taken 12 weeks at the end of the year and another 12 at the beginning of the following calendar year, for a total of 24 consecutive workweeks of FMLA leave.)  For employers seeking a continuity of business operations, this unintended result might be a difficult pill to swallow.

Method Three

The third method is not entirely different from the two above, but it offers a marginally better balance between protecting the continuity of businesses operations and ease of administration. Under this method, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken.  From an administrative perspective, this is easier to understand:  the employee begins leave on February 1, so the employee’s leave year begins on February 1.  However, this method does not avoid the “stacking” conundrum identified above.  Here, employers cannot avoid a situation where an employee takes FMLA leave later in the FMLA leave year, which is followed consecutively by as many as 12 weeks taken at the beginning of the following FMLA year (on February 1).

Notably, under the FMLA regulations, employers must use this method when calculating leave for an employee who is caring for a covered servicemember with a serious injury or illness. 29 C.F.R. 825.200(f)

Method Four

The most common method (but clearly the most confusing) that employers use is referred to as the “rolling” method.  Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment.  Therefore, when calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.

The regulations provide a fairly straightforward example of how the employer would calculate leave using this method:

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

29 C.F.R. 825.200(c)

The Winner

When using the rolling calendar or look-back period, an employee’s FMLA leave remaining in his or her 12-week FMLA leave entitlement literally can change daily, since the employer must add days (or hours) used upon the 12-month anniversary of an FMLA absence.  Although this method can be confusing to administer (such as calculating the leave available from different FMLA dates for each employee, and to do so each time FMLA leave is requested), it is the only method available under the regulations to ensure that an employee will not take a block of FMLA leave for more than 12 consecutive weeks.  Implementing this method is an employer’s best defense against FMLA abuse, and it tends to save costs in the long run.  Moreover, it discourages employees’ use of extended periods of leave across consecutive 12-month periods. When balanced against the others, this method often is the best choice for employers.

Work with your employment counsel to ensure you’re using an FMLA year that meets your operational and business needs.

But REMEMBER!

Don’t make the same mistake IDOC did above.  Regardless of what 12-month FMLA period you choose, make sure it is clearly defined in your FMLA policy.

A Big Yawner? DOL Issues FMLA Fact Sheet Regarding Joint Employers

Posted in Regulatory Activity

baby-yawn.jpgJoint employer issues are all the rage right now. Recently, the National Labor Relations Board (NLRB) put the screws to McDonald’s in finding that the Company is liable “jointly” along with their franchisees for alleged labor violations. So, it’s not shocking to learn that the U.S. Department of Labor recently jumped on the bandwagon, putting in its two cents on joint employers.

Last week, the DOL quietly issued a new Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers. Although the AI focuses largely on the Fair Labor Standards Act, the DOL issued Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.  This new AI and FMLA fact sheet were highlighted on the DOL’s own blog!

What precisely is a joint employer, you ask? The DOL sums it up in one sentence: “When a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with a statute.”

Where a joint employer relationship exists under the FMLA, one employer is considered the primary employer, while the other is the secondary employer. As the DOL points out, “determining whether an employer is a primary or secondary employer depends upon the particular facts of the situation.”  The main factors include:

  • who has authority to hire and fire, and to place or assign work to the employee;
  • who decides how, when, and the amount that the employee is paid; and,
  • who provides the employee’s leave or other employment benefits.

Keep in mind: According to the FMLA regulations, where a temporary placement or staffing agency provides employees to another company, the staffing agency is most commonly the primary employer.

In its AI, and as provided in the FMLA regulations, the DOL outlines the FMLA responsibilities for both primary and secondary employers:

Responsibilities of Primary Employers

  • Providing required FMLA notices to its employees, and providing FMLA leave
  • Maintaining group health insurance benefits during the leave
  • Restoring the employee to the same job or an equivalent job upon return from leave, and
  • Keeping all records required by the FMLA with respect to primary employees

Responsibilities of Secondary Employers

  • Prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA
  • Restoring the employee to the same or equivalent job upon return from FMLA leave, such as when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer, and
  • Maintaining basic payroll and identifying employee data with respect to any jointly-employed employees

Generally, a yawner of an AI. Come on, you have to agree, yes?

That said, the DOL did include in its AI this handy-dandy chart that at least looks pretty and contains links to other relevant fact sheets.  It’s worth a look.

FMLA Responsibilities of Joint Employers Primary Employer Secondary Employer
Count jointly-employed employees for coverage and eligibility determinations (Fact Sheet #28) Yes. Yes.
For employee-eligibility determination, use its worksite for the eligibility test (50 employees within 75-miles of the worksite)(Fact Sheet #28) Yes, unless the employee has physically worked at the secondary employer’s facility for at least one year. No, unless the employee has physically worked at the secondary employer’s facility for at least one year.
Provide FMLA notices to the jointly-employed employee (Fact Sheet #28D) Yes. No; however the secondary employer must provide FMLA notices to its own employees.
Provide FMLA leave to the jointly-employed employee (Fact Sheet #28F) Yes. No; however the secondary employer must provide FMLA leave to its own eligible employees.
Maintain benefits for the jointly-employed employee (Fact Sheet #28A) Yes. No; however the secondary employer must maintain benefits for its own employees who take FMLA leave.
Restore the jointly-employed employee to work (Fact Sheet #28A) Yes. No, unless the secondary employer is continuing to use the placement agency and the agency places the employee with that secondary employer.
Not retaliate, discriminate or interfere (Fact Sheet #28A and Fact Sheet #77B) Yes. Yes.
Keep records Yes, the primary employer keeps all required records. Yes, the secondary employer keeps payroll data and identifying employee information.

Insights for Employers

Any practical insight gleaned from this AI is nicely outlined by my friend, Marti Cardi, in her article on the new AI.  In short, Marti encourages us to:

  • Analyze your worker arrangements that are not straight-up employer-employee relationships
  • Inquire about the FMLA practices/procedures of any staffing or labor agency you use to ensure it is fulfilling its FMLA obligations
  • Coordinate FMLA compliance with any other employer with which you share workers.  Do it now so that you’re not deciding as on the fly
  • Joint employer obligations extend beyond FMLA obligations – don’t forget compliance with the wage and hour rules established by the Fair Labor Standards Act and its state law counterpart
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