FMLA Insights - Guidance & Solutions for Employers

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.

Q. We provide our employees “non-FMLA” leave after they have worked for us for six months. They are given up to six weeks off during that time if it can be certified by a physician.  Since these employees are not eligible for FMLA leave at this point, can we credit the time they took off against their allotment for the following FMLA year as soon as they become eligible for FMLA leave? 

A.  First of all, good for you for offering this benefit to your employees.  However, the Department of Labor is not going to give you a big pat on the back.  In the FMLA regulations, it is clear (if it wasn't before) that an employer cannot credit leave given in the first year of employment against an employee's FMLA allotment once he or she becomes eligible for FMLA leave.  This is true even if the employee otherwise suffered from a serious health condition that would have been covered by the FMLA had he or she otherwise been eligible.  This situation is covered, in part, by the following regulation:

The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start.  An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be “FMLA leave.”  29 CFR 825.110(d) (emphasis added)

As the regulation makes clear, a leave of absence can only be designated as FMLA leave after the employee meets eligibility requirements.  This situation is covered even more explicitly in the preamble to the FMLA regulations, which I provide here.   In the preamble, the DOL states:

...any leave that employers voluntarily provide before an employee attains eligibility under the FMLA is not FMLA leave. Therefore, the FMLA protections do not apply to such leave, and employers may apply their normal policies to such leave. Employers may not, however, count any such non-FMLA leave toward the employee’s 12-week FMLA entitlement.

Q. We terminated an employee who has been reinstated by an arbitrator with full back pay.  Now, he has requested FMLA leave.  Are we obligated to provide leave even though he has not worked 1,250 hours in the previous 12 months?

A.  When determining whether an employee has worked the requisite 1,250 hours in the previous 12 months to be eligible for leave under the Family and Medical Leave Act, an employer must account for hours actually worked by the employee within the meaning of the Fair Labor Standards Act (FLSA). 29 CFR § 825.110(c).  The issue here is whether an employer must treat the back pay award as the equivalent of "hours worked."  

This issue even has the courts conflicted.  In Plumley v. Southern Container, Inc., the First Circuit Court of Appeals ruled that several months of back pay awarded to an employee who was reinstated after successfully grieving his termination does not count towards the 1,250-hour requirement.  The court found that hours worked:

"include only those hours actually worked in the service and at the gain of the employer,” and not hours for which a wrongfully-discharged employee was compensated in the form of back pay pursuant to an arbitral award.

However, the Sixth Circuit Court of Appeals in Ricco v. Potter (pdf) held precisely the opposite.  Where an employee has been wrongfully terminated and is reinstated with back pay, the court held that an employer is obligated to to treat the period of time covered by the back pay as "hours worked" for purposes of FMLA eligibility.  In short, the court reasoned that an employee should be credited for the hours that he wanted to work but was unlawfully prevented from doing so.  Thus, under Ricco, if the back pay period provides the hours necessary to meet the 1,250-hour requirement, and the employee is otherwise eligible, he is entitled to FMLA leave. 

From an anecdotal standpoint, I find that most employers tend to follow the Ricco holding, since the risk of following Plumley clearly could be more costly in light of the split in the appellate courts.  Interestingly, the courts have not addressed grievances that are settled and which result in some amount of back pay awarded to the employee.  Here, it seems as though the employer has a much stronger argument that the time covered by the back pay does not count as "hours worked," since there is no finding of wrongful termination against the employer, and the parties otherwise have compromised their positions to achieve resolution.  In this scenario, my sense is that a court would be far less likely to count this period of time toward an employee's 1,250 hours worked.

Q. An employee recently missed five days of work due to the flu. She did not visit the doctor, but did call in to the doctor's office while she was out. Based upon the call, the doctor wrote her a prescription for some medication. Does this count as FMLA leave?

A. Unless there is more to the story, probably not. Under the FMLA, a "serious health condition" means an injury, illness, impairment, or physical or mental condition that involves inpatient care or "continuing treatment" by a health care provider.

One of the ways in which a condition can meet the "continuing treatment" requirement is if the condition involves a period of incapacity of more than three full calendar days, and treatment by a health care provider two or more times within 30 days, or one time followed by a "regime of continuing treatment," which can include a course of prescription medicine.

In the scenario above, the employee appears to have been incapacitated for more than three days. She also appears to have received a course of prescription medication.  The question, therefore, is whether her call to the doctor constituted a "treatment." On this, the regulations are clear: "treatment by a health care provider means an in-person visit to a health care provider." 

Note that if the employee's absences were related to a chronic condition rather than a temporary illness like the flu, the employee might still be eligible for leave even though she did not visit the doctor in connection with this specific absence. 

Q. Like many employers, we were closed yesterday due to the massive blizzard. We have an employee out on FMLA leave. Do I count the snow day against this employee's 12-week leave entitlement?

A. Although the FMLA rules do not directly address this question, the general rule for counting FMLA leave during a holiday week would likely apply. So, if the employee is out on FMLA for the entire week, then yes, you can count the snow day against the employee's 12 weeks of FMLA leave. If the employee worked part of the week, then only the days the employee would actually have been expected to report to work should be counted as FMLA leave.

Note that this rule applies for closures of less than a week. If an employer's operations are shut down for one or more full weeks (for example, if your roof collapses under the snow and shuts down operations for a few weeks while repairs are made), any days the employee would not be expected to work should not be counted against the employee's FMLA leave entitlement. 

Q. I have an employee who is certified for FMLA leave. Our office is closed for Thanksgiving next Thursday and Friday. Do those days count as FMLA leave?

A. It depends upon whether the employee is absent for the entire week. 

Under the FMLA, leave is calculated in workweek increments. While employers have to deal with fractions of workweeks to keep track of shorter leaves and intermittent or reduced schedule leave, the workweek is always the basic unit. Consequently, "the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave." 

However, the situation is different if the employee is using FMLA leave in increments of less than a full workweek. In that case, the holiday days will not count against the employee's FMLA leave entitlement unless the employee was otherwise scheduled to work on those days. 

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Q: An employee seeking FMLA leave just turned in a medical certification form with handwriting that looks suspiciously like her own. If the employee filled out this form, do we have to accept it?

A: If it was authorized by the health care provider who signed it, then yes. 

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Q: We have an employee returning from FMLA leave due to his own serious health condition. Although the employee has provided a doctor's note stating that he is released to work "full duty," we have serious concerns about his ability to do his job without risk of injury to himself or others. Can we require him to see a doctor selected by the company?

A: Yes, if the medical examination is "job-related and consistent with business necessity."

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Q: I have reason to believe that a former employee is going to file a complaint with the Department of Labor. What should I do?

A: Review your files and start getting ready to respond to requests for information. 

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Q: An employee has advised that she needs to take leave for cosmetic surgery. Do I have to grant the leave?

A: It depends on the procedure.

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