FMLA Insights - Guidance & Solutions for Employers

Over the past month, as we recognized the 20th Anniversary of the Family and Medical Leave Act, advocates for employees and employers have been clamoring for changes to the Act.  

On one hand, employee advocates are calling for a broad expansion of the FMLA that would allow for paid leave or broader coverage (e.g., lowering the threshhold so more employers are required to provide FMLA leave and extending the Act to part-time employees).

On the other hand, the employer community has called upon Congress and the Department of Labor to fix the ills of the FMLA.  Count me among them. In a column I wrote for the Chicago Tribune this past weekend, I encouraged federal lawmakers to repair a broken FMLA before they tackle the issue of mandated paid leave. 

My Tribune column naturally was limited because of space.  If I had more room, as I do here, I'd share with lawmakers and the Department of Labor changes I believe are necessary to improve the FMLA so that it works for employees and employers for the next 20 years.

From my experience assisting employers administer the FMLA, I find that the FMLA and its regulations are (most) flawed in three fundamental areas: the definition of a serious health condition, the use of intermittent leave and the medical certification process.  Here's what I'd encourage Congress and the DOL to change:

Clearly Define Serious Health Condition

During its deliberations before passing the FMLA, Congress made clear that the term "serious health condition" was not intended to cover "short-term conditions for which treatment and recovery are very brief,” “minor illnesses which last only a few days,” or “surgical procedures which typically do not involve hospitalization and require only a brief recovery period.”  Rightfully so, these medical conditions should be covered by typical sick leave or PTO policies.  

So, why has "serious health condition" become so watered down?  Let's use a good example.  In a 1995 opinion letter, the DOL found that a common cold or flu, absent complications, would not satisfy the definition of a serious health condition.  WH Opinion Letter FMLA-S7 (Apr. 7, 1995). However, just a year later, DOL pulled back on this interpretation, stating that the 1995 opinion “expresses an incorrect view, being inconsistent with the Department’s established interpretation of qualifying serious health conditions under the FMLA regulations.”  WH Opinion Letter FMLA-86 (Dec. 12, 1996).   In its opinion letter, the DOL stated that minor illnesses would be considered serious health conditions if they otherwise meet the incapacity and continuing treatment prongs of the FMLA.  In doing so, the DOL arguably rendered meaningless the regulation relating to the common cold and flu.  Put another way, minor illnesses that should have never been covered by FMLA are now covered by the Act.  That has to change.

To ensure that employees are provided FMLA leave consistent with what Congress intended, the following changes should be considered:

• Give meaning to the FMLA regulation regarding common colds and the flu, recognizing a strong presumption that these kinds of conditions are not covered by the Act.  The DOL should take a hard look at what's "minor" and make sure those conditions stay in that category.  This is what ordinary sick leave or PTO policies are good for.
• Continuing treatment should be defined as two visits to a health care provider within 30 days of the onset of incapacity.  As it stands now, an employee can go to the doctor once, get an antibiotic, and qualify for FMLA.  Remove the mumbo jumbo in the rules and make it clear -- if the medical condition is serious enough to qualify for FMLA, the employee should have two visits to the doctor.  We require two visits in one year for a chronic condition, so why not two visits in 30 days for a condition that renders the employee incapacitated for several days.  This change would alleviate the need to determine whether the employee is under a "regimen of continuing treatment," which is entirely (and rightfully) confusing to HR professionals.
• Increase the number of days of incapacity.  Common colds and flu can last several days, thereby potentially triggering the FMLA.  The period of incapacity should be a full calendar week.

Use of Intermittent Leave

Ask HR professionals or in-house attorneys to put together a Top Three pet peeve list, and they will tell you the bane of their existence is administering FMLA leave, particularly where intermittent leave is involved.  Why?  Because intermittent leave comes in dribs and drabs, all of which naturally lend themselves to a whole lot of abuse.  In a 2007 survey, "FMLA and its Impact on Organizations," SHRM found that 66% of HR folks reported challenges with intermittent leave abuse and over 40% felt they had to approve a request they believe was not legitimate.  

How do we clean up intermittent leave?  I know all of you have plenty of suggestions (and I welcome them), but here are a few of mine:

• Allow more flexibility in seeking recertification.  Too many certifications supporting intermittent leave list the duration of the condition as "indefinite" or "lifetime."  In these situations, an employer can recertify only every six months.  Unless the employer receives reliable infor­mation that the circumstances have changed significantly, the employee can go quite a bit of time without recertification. Medical certification in these instances should be valid for a much shorter period to time -- perhaps 60 or 90 days.
• Require the use of FMLA leave in half-day or full-day increments.  In its latest regulatory changes, the DOL confirmed that unforeseeable FMLA leave can be taken in teeeeeeny-tiiiiiiiny increments.  What does this mean for employers?  That we will continue to be nickeled and dimed to death.  I am shocked at the amount of time my clients spend logging small increments of FMLA time and following up on these leave requests. Requiring longer increments will greatly help employers track and manage leave, and I think it will cause employees to be more judicious about their use of FMLA.  
• Endorse policies that require submission of doctors' notes for absences.  Under the FMLA, employers arguably cannot require an employee to submit a doctor's note for an absence already covered by valid medical certification.  In fact, employers have been dinged for engaging in such a practice (listen to our podcast on this topic here).  But why?  If the employer has reason to doubt an absence, or simply wants confirmation that the employee was incapable of working, the DOL should support an employer's right to seek confirmation from the employee's doctor.  Simple as that!
• Employers need a better solution for employees who are on indefinite, unpredictable absences from work.  An employee who has rhinitis ten times per month for one-half day each?  One who has a chronic bad back fifteen times per month for 1-2 days per flare up?  Another who has IBS and his schedule is entirely unpredictable?  These present a most difficult conundrum, as the need for leave may or may not be legitimate.  Where do we draw the line?  We may never be able to arrive at a solution that makes everyone happy, but at a minimum, employers must be given the option to deal with these situations to better accommodate their operations, such as temporarily reassigning the employee or placing them on a block leave of absence. 

Medical Certification

This list could just as easily be a continuation of the intermittent leave section above, but here are a few more suggestions where medical certification is concerned:

• Require more specific information in the "medical facts" section of the certification form, including the requirement that the health care provider report a diagnosis.
• Allow employers to obtain more information supporting the notion that a medical condition actually incapacitated an employee from working on a particular occasion. Again, employers often are stuck with whatever the certification on file indicates, yet they have no confidence that, for example, a migraine headache on a particular day renders the employee unable to perform the job.  
• Similarly, employers are skeptical when there appears to be no objective clinical basis for deter­mining that the employee has a serious health conditions that incapacitates them from working.  Instead, the doctor relies on an employee's subjective complaints.  The DOL should insist that medical certification provide evidence of objective clinical evidence of a serious health condition.
• When the employee fails to submit certification or fails to cure a poorly composed certification, there should be a stronger presumption that the employer can deny leave. Too many employers are gun shy about denying leave in these instances.  They also are confused as to the latitude they must give employees to cure an insufficient certification. The DOL should provide stronger language supporting employers' rights in this area.
• The second and third opinion process should carry more weight, and employers should be able to rely on them for absences in the past and the future.  The DOL covers this process in a paragraph or two in the regulations.  However, as employers increasingly use this costly second and third opinion process, these processes should be given greater weight as to absences that occur in the future.  As it stands now, it's entirely unclear whether these opinions apply in the future.  A handful of court cases say that employers should be able to rely on them.  DOL should endorse the same approach.

Dang, I'm pooped.  Chew on these for awhile, then tell me what you would change about the FMLA and its regulations so that it would work better for both employees and employers.  I'll post all feedback below in the comment section.

This scenario is all too familiar for employers: shortly before Christmas, your employee requests vacation leave for Christmas Eve and New Years Eve.  Due to seniority or the employee's last minute request for time off, her leave request is denied.  However, like clockwork, she calls off sick and requests FMLA leave on Christmas Eve and NYE, claiming she can't work due to a flare up of her chronic bad back.

Plenty of employers just mark these days off as FMLA leave.  But they often do so with a whole lot of regret and with a wish they could do something more to push back on what they believe is a suspicious leave request.

But employers can push back, and here's how...

Unfortunately, the FMLA regulations give employers little guidance when dealing with a leave request like the kind above.  However, the regulations relative silence on this issue opens the door to lawful maneuvers by employers to get to the truth.  Let me explain the ways:

1.  Enforce your rights at the medical certification stage.  If this is an initial medical certification of a serious health condition, I would consider including a cover letter addressed to the employee (to be shown, in turn, to the health care provider) noting that the employee's request for FMLA leave covers precisely the same days for which the employee just recently sought vacation leave.  As a result, you explain to the employee that you are (rightfully) concerned whether leave on these particular days actually are consistent with the employee's alleged serious health condition and the pattern of absences.  In your letter, you ask that the health care provider specifically confirm this in the certification.

A risky move?  It's not a conservative move, I admit, since this approach is not specifically sanctioned in the regulations (at least for an initial certification).  However, I also would be perfectly comfortable arguing to the DOL that that this approach does not remotely interfere with the employee's substantive FMLA rights.  In taking this approach, you are making no determination as to the merit of the leave request just yet.  You simply are enquiring further since it's necessary to obtain more information to ensure FMLA leave actually is being sought.  This kind of inquiry arguably is allowed under the regulations at 29 CFR 825.302(c).

The practical impact of this move: Even though the health care provider likely will confirm that your employee was incapable of working on Christmas Eve and NYE [author's note: what a coincidence!], it sends a message to your employee that you take your own FMLA rights as the employer seriously and will vigorously enforce them to ferret out possible FMLA abuse.  The true impact of this move will be felt the next go around when the employee thinks twice about abusing leave time.

2.  Enforce your rights by seeking clarification and/or a second opinion.  This situation is fishy enough that it creates reason to doubt the validity of a certification that supports the absence.  Before moving toward a second opinion, however, employers should work with the employee to cure the certification and seek to clarify it with the health care provider.  During this process, you may learn information that either supports the merits of the employee's leave request or, conversely, casts further doubt on the validity of the certification.

3.  Enforce your rights at the recertification stage.  If you already have medical certification on file, the timing of the FMLA absences on the same days that were requested and denied earlier as vacation arguably constitutes "a significant change in circumstances" from the previous certification which, in turn, allows the employer to request recertification.  Similar to point No. 1 above, I would recommend including (directly to the health care provider) the pattern of the suspicious leave requests and requesting that the doctor confirm whether the need for leave on these precise days is consistent with such a pattern.

4.  Consider implementing a personal certification procedure.   Some employers require as part of their usual and customary practice that an employee sign a "person certification" acknowledging that he/she took time off for FMLA or another medical reason.  If the employee fails to provide one, or takes leave inconsistent with the stated reason on the personal certification, it can be grounds for discipline.  Keep in mind, though, that this practice should be usual and customary; otherwise, employers fall prey to claims of discrimination (i.e., requiring one employee but not another to complete the personal certification).

5.  If the abuse is particularly bad, termination may be appropriate (in extreme cases).  In an earlier blog post, I highlighted Rydalch v. Southwest Airlines (pdf), which is a fabulous case for employers.  Here, Southwest found that the plaintiff was abusing FMLA leave by taking leave in conjunction with other vacation days he requested off.  Southwest relied on its honest belief that the plaintiff was abusing leave, and the court agreed.  As a result, the court dismissed the plaintiff's FMLA claims in their entirety.

A similar case is Crouch v. Whirlpool Corporation, in which the employer had an honest belief that its employee was using FMLA leave for vacation purposes instead of recovering from an injured knee. 

Employers, all hope is not lost.  Use the tools above to probe further on leave requests, particularly when they are part of a suspicious leave request or an unusual pattern of absences.  In doing so, you properly assert your FMLA rights and serve warning to your employees that FMLA abuse will not be tolerated.

Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification? 

Here's a real life application of this question:  Kimberly Miedema was an employee of Spectrum Catering, and after having claimed she was sexually harassed at work, she sought leave to be treated for post-traumatic stress disorder.  Shortly thereafter, her physician sent the employer a note indicating that she was being treated for this condition and "would be unable to return to work yet." 

The employer played by the rules.  As required under the FMLA regulations, after it was put on notice by Miedema of the possible need for FMLA leave, her employer issued a Notice of Eligibility and a medical certification form, which was to be completed by her health care provider.  Fifteen calendar days came and went, and the employee had not returned the certification.  Spectrum contacted the employee shortly after the expiration of the 15-day period to remind her of the need to submit certification.  However, the employee still did not return the certification.   

No Soup for You!

In these situations, where the employee fails to return certification, the regulations clearly state "No Soup for You!"  Well, something close, at least: if the employee never returns the certification, according to the regs, "the leave is not FMLA leave."  29 C.F.R. 825.313(b).  Here, Miedema suffered the consequences.  Because she did not return the medical certification, her employment was properly terminated, despite clear evidence that she otherwise suffered from a serious health condition.  As a result, her FMLA interference and retaliation claims were dismissed.  Miedema v. Spectrum Catering & Concessions

Interestingly, the court also rejected the employee's argument that she should not have been terminated because the employer did not explicitly tell her in the follow-up letter (after she missed the 15-day deadline) that her employment would be subject to termination for failing to return the certification.  The court found no such obligation in "follow-up communications," however, since the employer already had informed her of the consequences when it initially provided the blank certification.

Insights for Employers

Spectrum followed the rules and won.  Other employers should follow its lead:

1. Identify a potential FMLA absence at the earliest opportunity and issue the proper FMLA notice and medical certification.
2. When the employee fails to return completed certification within 15 calendar days, send the employee a letter informing them of their oversight and giving them a new deadline to return the certification.  (Make it a fairly tight one -- I typically recommend seven days.)
3. Give the employee an opportunity to explain whether he/she has acted diligently and in good faith to obtain certification, leaving room for an explanation as to why the employee didn't turn it in on time.
4. When the employee doesn't cooperate despite your own efforts to seek compliance, know that you have treated the employee fairly and have given him/her every opportunity to comply.  At this point, termination of employment often can be an appropriate option.