FMLA Insights - Guidance & Solutions for Employers

I received a ton of feedback on last week's blog post, which discussed Yahoo's new parental leave policy and its FMLA implications.  Much of the feedback related to Yahoo's decision to provide 16 weeks of paid maternity leave to female employees and 8 weeks of paid paternity leave to male employees.  Some wondered whether such a policy is discriminatory on the basis of gender because different leave benefits would be offered to moms vs. dads.  

In fact, this discussion carried over to a number of Linkedin groups: FMLA Nation (where the vote was split), FMLA, Employment Practices Risk Management and ABA Labor and Employment litigation (all are groups definitely worth joining on Linkedin).

I had the opportunity to speak with Colin O'Keefe of LXBN on this issue.  In the brief interview, which you can access below, I explain Yahoo's paid parental leave policy and whether it discriminates on the basis of gender [short answer is "no," but employers must tread carefully for reasons I explain to Colin].  I also share my thoughts on some related FMLA questions this situation raises. [As an aside, in the era of skype, the imperfect recording (my fault, not Colin's) once again proves I have a face made for radio.]

I welcome your continued feedback on this parental leave issue so that we maximize the chances of crafting leave policies in a way to provide our employees a benefit without running afoul of the law.

Q:  We have become more aggressive on suspected cases of FMLA abuse and, as a result, we have sent a greater number of employees for second and third opinions after they turn in medical certification.  Once we have received the second or third opinion, how long can we rely on it?  That is to say, can it be used to approve or deny absences now and for the same reason in the future?

A:  Over the past couple of years, I have noticed an uptick in the number of my clients who are using the second and third opinion process as a tool to ensure employees are taking legitimate FMLA leave and to combat FMLA abuse.  To them, I say bravo!  These patient employers have realized that, over time, second and third opinions tend to deter fraudulent use of leave and are useful tools in the leave management process.

Overview of FMLA regulations regarding Second and Third Opinions

Under the regulations, an employer can seek a second opinion and third opinion (aka the "tie-breaker") if the employer doubts the validity of an initial medical certification provided by an employee.  29 C.F.R. § 825.307(b).  For an employer who works through a second and third opinion process, it can be a time consuming and expensive process.  In fact, it could be several months before an employer has a definitive answer after moving to the tie-breaker third opinion. 

For the employer that prevails in the third opinion process, it clearly has an interest in making that third opinion stick as to absences of the same kind in the future.  But here's the slight problem: the regulations are completely silent as to whether the second/third opinion results can be used to challenge an employee's request for leave in the future.  As a result, employers have asked me: if the employee's medical condition is determined not to be a serious health condition through the second or third opinion process, what's to stop him/her from simply calling in the following week seeking leave for the same medical condition and making us go through the process all over again?

How Long Can an Employer Rely on a Second or Third Opinion?

My take is that the second and third opinion process is not a one-and-done situation.  If this process is to have any meaning, employers must be able to rely on second and third opinions not only for the absence presently in question, but as to future absences for the same reason. 

This position has some support.  First, the FMLA regulations do not prohibit an employer from using prior certifications to determine that the employee is not qualified for FMLA leave.  Thus, if an employee’s serious health condition has been tested through the second/third opinion process, an employer arguably can rely on that certification for future absences.  In other words, if the employer has clear guidance through the certification and/or the second/third opinion process that a condition is not a qualifying serious health condition under the FMLA, there is no obligation to deviate from the latest and most reliable information the employer has on file for the employee when designating leave in the future.

At least one federal court agrees with this approach.  In Stoops v. One Call Communications, Inc., a federal appellate court grappled with this very issue.  The court succinctly stated:

where an employer . . . receives a physician’s certification that indicates an employee’s serious health condition does not require him to miss work, the employer may rely on that certification until the employee provides a contradictory medical opinion." (emphasis added)

Under the reasoning in Stoops, an employer can rely on a second or third opinion “in the absence of some overriding medical evidence.”  Therefore, where the employer informs the employee that it is relying on previous medical certification (e.g., a second or third opinion) to count particular absences against the employee under its attendance policy, this provides enough notice to the employee that he has an obligation to provide an alternative medical opinion.  In other words, the employee must offer some “overriding medical evidence” suggesting that the previous certification is no longer reliable for the current request for leave.

Until then, employers, use the second and third opinion process to your advantage to ensure accurate and honest use of FMLA leave.

Have your employees' absences from work been a bit more frequent lately?  And are you tired of the lame excuses they're providing?  After all, there are only so many times your employee's dog can knock over the Christmas tree....on top of your employee, right?

In this "best of" FMLA post, employers need not settle for patterns of absences or even suspicious excuses for absences.  Keep in mind a few best practices to combat FMLA abuse: 

1.  Recognize whether whether the employee is seeking leave that might be covered by the FMLA: Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave. If it's an absence that clearly does not trigger the FMLA (e.g., "I'm sick," or "My daughter has the flu"), you simply can subject this absence to your usual attendance policies and take action as necessary.

Of course, it's never that easy. Employees are not required to cite specifically to the "FMLA" as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play. As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that pops up intermittently throughout the year; c) is seeking treatment for what appears to be a serious medical condition; d) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness. Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA.

2.  Require that Employees complete a written leave request form for all absences: Although an employer cannot deny FMLA leave if the employee verbally puts the employer on notice of the need for FMLA leave, requiring the employee to actually write out his/her request tends to deter them from gaming the system.  And it tends to help your administration of employee leave.

3.  Enforce usual and customary call-in procedures:  Also under the FMLA regulations, absent an unusual circumstance, employers may deny FMLA leave if the employee fails to follow the employer's call-in procedures.  For example, if the call-in policy requires the employee to call in one hour before their shift starts to report an absence, and the employee fails to do so, the employer can deny FMLA leave (and discipline the employee) absent an unusual circumstance.  In practice, not nearly enough employers utilize this tool, even though they should!

4.  Prepare a list of probative questions you ask of all employees when they call in to report an absence:  This list will help you determine whether any of the conditions in No. 1 above may be in play.  As the employer, you have the right to know why your employee cannot report to work.  So ask!  During the call with the employee (or when you call them back after they've left you a voicemail reporting their absence) you should inquire about:

• The specific reason for the absence
• What duties of the job they cannot perform
• Whether they will see a doctor for the injury/illness
• Whether they have suffered from this condition before and previously taken leave for it. If so, when?
• When they first learned they would need to be absent
• The expected return date (or time, if less than a day)

5.  Use medical certification and recertification to your advantage: Medical certification is one of the best tools to combat FMLA abuse.  So, use it!  Moreover, if this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option.  Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays?  Is the absence inconsistent with the information previously provided on the medical certification form?  Has medical certification expired? If your answer is “yes” to any of these questions, seek recertification immediately.  

If you are concerned about a Monday/Friday pattern of absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.

6.  Conduct a comprehensive audit of your FMLA policy, procedures and use of leave: As we approach a new year, it is the perfect time to work with your employment counsel to ensure that your FMLA policy and procedures are up to date, that you are employing the best strategies to combat FMLA abuse and that your FMLA administration is a well-oiled machine.

For more strategies on combating FMLA abuse, feel free to access a webinar I conducted on this subject and another I conducted recently on administering difficult FMLA issues.  In these webinars, we covered real life FMLA abuse scenarios and offered practical tips to address them so that you can set your FMLA administration right. 

Best wishes for a peaceful New Year!  I look forward to connecting with you in 2013.

In a flurry of activity at the end of 2011, several employers contacted me to determine whether the DOL notice and certification forms still were valid, even though they contain an expiration date of December 31, 2011.  In short, employers may continue to use the DOL's FMLA forms, although consider our suggestions below before using these standard DOL forms.

Why did the DOL's FMLA forms expire?

Under the Paperwork Reduction Act of 1995, the DOL is required to submit its FMLA forms to the Office of Management and Budget (OMB) for approval, so that OMB can ensure the information request and the time spent responding to the request is minimized.  [Insert your own sarcastic comment about the efficiency of the federal government here.]  OMB approved the DOL's FMLA forms in late 2008 around the time the new FMLA regulations took effect.  As a result, the forms were approved for three years, which is the maximum time period allowed.  Upon expiration of the forms (in this case, on December 31, 2011), the DOL may continue to use the forms while it seeks renewal of OMB's approval, which it has done in this instance. 

Even if employers can continue to use the DOL's FMLA forms, should they use them?

Ahem, this really is the more important question.  In a nutshell, we encourage employers to proceed with caution.  At a minimum, keep the following in mind and make appropriate changes in 2012 and beyond:

1. Add the GINA safe harbor provision to your FMLA notices and forms.  Under the Genetic Information Nondiscrimination Act (GINA), employers requesting medical certifcation or fitness for duty certification must instruct health care providers not to collect or provide any genetic information.  Therefore, employers should strongly consider adding language to their FMLA medical certification forms for an employee’s serious health condition and when an employee is seeking to care for a family member with a serious health condition.  And to avoid any further procrastination, I am even giving you the new language you should use.  Here it is:
   
   Employee's Serious Health Condition
   
   The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
   
   Family Member’s Serious Health Condition
   
   The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Please provide medical history information regarding your patient only to the extent necessary to fully respond to all relevant items below.
   
   Note:  This language should be added to the FMLA medical certification form or other written documentation that accompanies the form, and should be used when a fitness for duty certification is requested.  I also recommend that employers also use the above language in any correspondence to a health care provider where the employer is requesting medical information (e.g., to support a request for an ADA accommodation).
   
   
2. Consider adapting the DOL's "model" FMLA forms to suit your needs.  As my colleague Bill Pokorny shared in a prior post, the DOL's "model" FMLA forms fall short in several respects.  To name a few: 1) the medical certification forms do not request all of the information that employers may require, such as information regarding an employee's work restrictions; 2) the model designation notice does not include language addressing the rules for fitness-for-duty certifications for intermittent or reduced work schedule leave, which will be crucial to combat FMLA misuse and abuse; and 3) because the DOL's forms are designed as a "one-size-fits-all" solution, they include extraneous information that will not apply to all or even most employers, and do not reflect individual employers' policies and procedures.  Additionally, the forms do not account for the changes to exigency leave, which now is possible as a result of a family member's call to duty in a foreign country (as opposed to the confusing "contingency operation" language originally used). 
   
   However, changing the language of the DOL's model FMLA forms should be done carefully.  At a minimum, we encourage you to update your notices and forms regarding the change to exigency leave above.  Either way, we strongly encourage employers to work closely with their employment attorneys to develop forms, policies and procedures that fully take advantage of their rights under the FMLA regulations while also fully complying with the rules.

In this opening weekend of major league baseball, hope springs eternal for every baseball fan.  In honor of my beloved Chicago White Sox, I offer an FMLA lineup card below that from top to bottom will help employers stay atop the pennant race throughout the year. 

[First, feel free to play the National Anthem if you so desire...]

From the Leadoff Hitter to the end of the lineup, here are my FMLA All Stars: 

Continue Reading

Some of the most common questions thrown at us by clients involve how to effectively navigate the medical certification process.  Join us on Tuesday, December 21, at 12:30 p.m. CST, for a webinar entitled "FMLA Certifications: How to Effectively – and Legally – Use This Weapon To Combat Abuse." 

Overview

Medical certifications may just be the most effective tool in your arsenal for combating abuse of leave rights under the Family and Medical Leave Act (FMLA). They provide valuable insight into whether a claimed condition qualifies as a serious health condition.

Surprisingly, though, many employers don’t take advantage of this powerful weapon for combating abuse. As a result, they’re left second-guessing whether an employee’s ailment qualifies them for protected leave.

Additionally, if an employee presents you with a doctor’s note for an absence, it’s in your best interests to request a medical certification. Otherwise, if you accept a note stating that an employee can’t work and you later terminate that employee—say, for excessive absenteeism—it’s quite likely that a court will find that you forfeited the right to challenge an assertion that he or she was covered under FMLA in the first place.

Join us on Dec. 21 for an in-depth, 90-minute webinar on how to use medical certifications as a powerful weapon in curbing FMLA abuse. Our speakers – both seasoned labor and employment attorneys – will explain the types of juicy nuggets of information you can learn from completed certifications so you can properly assess whether leave is medically necessary.

You and your colleagues will learn:

• The questions you may ask a medical provider, and the legal line you must never cross when requesting medical information
• How to tweak your FMLA certification form so you get the specific information needed to determine whether the leave is protected under federal law
• Why you should always include a copy of the job description with your request for a certification
• Best practices for handling situations where employees have the “Monday/Friday” call-in syndrome, so you can minimize abuse
• How to request re-certifications in a way that gets you the information you need when the original certification was effectively useless due to vagueness or ambiguity
• When you may ask for second or even third opinions, and how much information you can request on a claimed condition in those cases
• How long employees have to produce an acceptable certification when the need for leave is unforeseeable
• Why your failure to get completed certifications can cause you legal grief
• When you should feel confident that a judge or jury would stand behind your decision to deny leave based on the language provided in a medical certification or re-cert

Thanks to BLR for inviting us to present this program. Visit BLR on the web for more information and to register: http://catalog.blr.com/product.cfm?product=30712000

If the need to keep careful track of FMLA paperwork was not already obvious, a recent decision from a federal district court in Ohio emphasizes the perils of misplacing an employee's FMLA certification. Wellman v. Sutphen Corp.

Read on to find out how to avoid the same mistakes.

Continue Reading