Every once in awhile, my posts must return to the nuts and bolts of FMLA, and this is one of ‘dem ‘dere posts. After all, I can’t always cover scintillating topics such as Beyonce concerts, bullies who abuse FMLA leave and whether FMLA covers excess trips to the potty.

Yet, the FMLA topic de jour is no less important because I address below an issue critical to FMLA compliance:  How often must an employer check an employee’s eligibility for FMLA leave?

Screw it up and you could be looking at significant FMLA liability. Get it correct and you have just saved your boss hundreds of thousands of dollars in legal fees and a possible judgment (for which he/she may never thank you).

As we recently have turned the calendar to a new year, this article is particularly important to my peeps out there who track FMLA leave based on a calendar year. But I cover all the 12-month FMLA periods below:

First, Let’s Start with the Rule

Whenever an employee requests FMLA leave, the employer first must check whether the employee is eligible for FMLA leave.  The critical rule is at 29 CFR 825.300(b)(1):

Eligibility notice. When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances. . . Employee eligibility is determined (and notice must be provided) at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period . . . All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period.  (My emphasis)

What are the takeaways from this Rule?

There are two:

  1. The employer must check eligibility at the first instance of FMLA leave for each different FMLA reason in a 12-month FMLA period.
  2. Once eligibility is established for a particular FMLA reason, eligibility for FMLA leave as to that reason does not change for the remainder of the FMLA year.

I illustrate this rule the only way I know how — through examples.

Rolling year

Let’s assume you use a rolling FMLA year (or look back period).  Let’s further assume that your employee, Johnny, requests leave to begin on the following days:

  • Intermittent leave for migraine headaches as of March 2, 2017
  • Intermittent leave for chronic bad back as of November 17, 2017
  • Continuous leave of absence for back surgery (to fix said bad back) on December 13, 2017

When do you check eligibility for these leave requests? First, you check eligibility as of March 2, 2017 (the date leave begins for migraines) because it is the first time in the FMLA year that Johnny needs leave for migraines.  Second, you check eligibility again as of November 17, 2017 (the date leave begins for the bad back) because it is the first time in the FMLA year that Johnny needs leave for his bad back.

How long is FMLA Eligibility good for?

Let’s assume Johnny is FMLA-eligible on both of these dates for migraines and the bad back, respectively.  In a rolling year, FMLA eligibility for each condition remains in place for the 12-month period beginning with the first day of leave for the condition.  So, for migraines, Johnny’s is FMLA eligible through March 1, 2018.  Therefore, we would not check eligibility again until he needs leave for migraines the first time on or after March 2, 2018.  For his bad back, Johnny’s eligibility is all clear through November 16, 2018.  We would not check eligibility for his back until he needs leave again for this condition the first time on or after November 17, 2018.

Does the Need for Continuous vs. Intermittent Leave Change Things?

What about the continuous leave Johnny required for surgery on his bad back in December 2017? Shouldn’t we check eligibility because he’s now seeking a continuous (instead of intermittent) period of leave?  In a word, no.  Once Johnny became eligible for FMLA leave for his bad back, he maintains eligibility for that same reason for the remainder of the FMLA year.  The fact that the need for leave changed from intermittent to continuous doesn’t change the reason for the leave, so eligibility need not be checked until November 2018 or after.

Calendar year or fixed year

Checking eligibility is generally the same when you maintain a 12-month FMLA period based on a calendar year.  If you are using a calendar FMLA year, the key difference is that you will check eligibility for the first instance of leave for each different condition on or after January 1 of each year.

Again to illustrate, let’s go back to the example above.  For Johnny’s bad back, eligibility was first determined as of November 17, 2017. Because you maintain a calendar year FMLA cycle, you will need to check eligibility again upon the first instance of leave for a bad back on or after January 1, 2018.

If Johnny needs leave on January 1 for his back condition, doesn’t it seem a bit strange that you would need to check eligibility for the same reason a mere six weeks after you last checked eligibility? I hear you loud and clear, but we still must follow the regulations, which unambiguously tell us to check eligibility for the first instance of FMLA leave in a new FMLA year. For those FMLA nerds who really want to dive into this topic, take a look at Davis v. Michigan Bell Telephone, in which the court made clear that an employer must check eligibility in the first instance on or after January 1 when the employer is using a calendar year FMLA cycle.

“Look forward” year

Some employers base the 12-month FMLA period on a “look forward” period measured forward from the date any employee’s first FMLA leave. Testing for eligibility is the same as the “rolling year” above. You check eligibility for the first instance of FMLA leave for a particular reason, at which point they are eligible for that reason for the following 12-month period.  Upon the first instance of FMLA leave for this condition in the next FMLA year, eligibility should be checked again.

For what it’s worth, if you need a refresher about which 12-month FMLA period is best to use, and an explanation of all your options, take a look at one of my previous posts on the topic.

Heavy stuff? Naw! This is why employment law is so damn sexy! 

Backs across America must collectively be giving out, as my clients’ questions about medical certification from chiropractors are on the increase.

So, I’ll hit this one head on: Is a chiropractor considered a health care provider under the FMLA? And are there any special rules that apply to them? Yes and yes.

Are Chiropractors “health care providers”?

Chiropractors are considered health care providers but only to the extent that their work with the patient involves “treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist.” 29 C.F.R. § 825.125(b)(1)

That’s a mouthful.

Let’s break it down. Where medical certification is provided through a chiropractor, two factors must be present: 1) the chiropractor must actually have taken an x-ray of the back; and 2) the x-ray and treatment from the chiropractor must relate to subluxation (i.e., misalignment) of the spine.

If these factors are present, the chiropractor is considered a “health care provider,” and therefore the treatment and any time off due to incapacity (because of the misalignment of the spine) is covered by the FMLA. The time off work could be continuous or intermittent.

How have the Courts Interpreted Situations involving Chiropractors?

There are very few cases dealing with chiropractors, but a few recent cases give you a flavor of what courts have required where chiropractors are concerned:

  • No x-ray = No FMLA Leave!  In Olsen v. Ohio Edison Co., the employee requested FMLA leave to treat with a chiropractor, but the chiropractor didn’t take any x-rays at the time he completed medical certification. Because the chiropractor hadn’t yet taken any x-rays, the court determined that the chiropractor was not acting as a health care provider as defined by the FMLA regs, and it dismissed the FMLA claims.
  • Davison v. Roadway Express: The court found that the employee could be entitled to FMLA leave where he was able to show that the chiropractor took an x-ray, treated him for subluxation and that he needed leave on a continuous basis and for flare ups due to his back condition.

Insights for Employers

In determining whether you are required to grant FMLA leave in situations involving chiropractic care, you should confirm through medical certification:

1. Whether an x-ray of the back was taken
2. Whether the chiropractor has found and is treating for subluxation of the spine
3. Whether the chiropractor has then certified a condition (relating to treatment of subluxation) requiring continuous or intermittent leave

Anything short of this is not protected by FMLA.

Online HCPQ: Our employee is trying to support his need for FMLA leave with medical certification from an online health care provider. Is this valid under the FMLA?  And What if It’s a Licensed Clinical Professional Counselor? 

A: Tackling the online doctor issue first, my knee-jerk reaction is NO WAY! After all, the FMLA regulations make clear that treatment by a health care provider means an “in-person” visit to the doc.

Case closed, right?

No so fast.

Before you slam the door on this FMLA request, reacquaint yourself with the definition of “health care provider” in the FMLA regulations. You may not have spent much time with it since it’s among the most boring provisions in the bunch. 29 CFR 825.125. There, the DOL has inserted a rather weasly, catch-all provision for health care provider.  Way down there, in subsection 125(b)(4), the regulations state that there are “others” capable of providing health care services, specifically:

Any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

Drat! So, the regulations go to some length to define “who” a health care provider is, only to open the door to virtually anyone your health plan is willing to cover. The DOL acknowledges as much in the preamble to the regulations (see discussion of this issue at page 67954).  Mind yourself accordingly. In short, if your group health plan accepts the physician, you are in a tough spot to argue that this professional is not a health care provider for purposes of FMLA.

What About Licensed Clinical Professional Counselors (LCPCs)?  Are They Considered a Health Care Provider?

I am asked this question often enough. If you take a close look at the regulations, although clinical social workers are covered by the FMLA regulations, Licensed Clinical Professional Counselors are not. That said, the same issue above applies here. If your group health plan covers LCPCs, the regulations indicate that you have to accept medical certification from these professionals on behalf of your employee.

funny-snowman4Q. Like many east coast employers preparing for the impending blizzard, we want to know how we calculate FMLA leave if our office is closed due to the weather. I have an employee out on FMLA.  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 any 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.

East coast friends — hope your snowblowers are working.  Those of us west of you will be enjoying the warm glow of El Nino (assuming you call 30 degrees in Chicago “warm“)!

autismQ:  One of our employees, a front desk receptionist, maintains an erratic work schedule because she must attend to her autistic son.  In short, her son throws a tantrum at school if his mom does not personally drop him off and pick him up from school.  For instance, he hides under a table, refuses to participate, and becomes very aggressive when his mom doesn’t not drop him off and pick him up.

The difficulty we have is this — our employee not only misses the first hour of work and another hour in the middle of the work day, but she claims she needs the entire day off to attend to her son.  First, is autism a serious health condition under the FMLA? And if so, are there any limitations we can place on the employee’s need for FMLA leave in these situations?

A: These are not uncommon questions posed by employers, who wonder whether they are required to provide intermittent FMLA leave to an employee in this kind of situation.

To be clear, employers generally don’t deny that autism is a serious health condition (since it often is considered a disability under the ADA). However, employers struggle with an employee’s unpredictable attendance in situations where it presents a burden on staffing, like the example above.

Is Autism a Serious Health Condition?

Generally speaking, courts have found that autism is a serious health condition.

As we know, an otherwise eligible employee can take leave to care for a child with a serious health condition.  Under the FMLA regulations, a serious health condition  includes a period of incapacity which is “permanent or long-term due to a condition for which treatment may not be effective.” A “period of incapacity” includes the inability to attend school or perform other regular daily activities due to the serious health condition, including treatment or recovery.  29 C.F.R. § 825.114.

In the example above, there appears to be sufficient facts for a jury to conclude that the employee’s son likely suffers from a serious health condition because he is has a permanent medical condition rendering him unable to participate at school in certain situations.

If Autism is a Serious Health Condition, are there any limitations we can place on the employee’s need for leave?

Put aside the question about whether autism is a serious health condition, as that’s a definition over which the attorneys can argue.  What you’re really worried about is whether your front reception desk gets properly staffed and whether you have to accept your employee’s erratic schedule on days when she tells you she must attend to her son.  In short, there are not many limitations you can place on your employee if they need FMLA leave in these situations to care for her son.  But there are tools available to employers:

1.  Analyze the medical certification.  In many instances, the certification will articulate the kind of care the employee is required to provide to the autistic child.  Does the certification appear to cover the need for transport, drop off and pick up?  If it is unclear, follow the FMLA’s cure process to obtain the information you need.

2.  Rein in the excess time off.  Does the certification require your employee to take the entire workday off (or even a significant portion of the workday) for trips to school with her son at 8am and at 2pm?  If so, why does the certification make such a pronouncement?

Assuming the cert does not contain this information, the employer should consider having a candid conversation with the employee about the need for leave for the entire or even a significant portion of the workday.  Keep in mind that intermittent leave is required only where it is medically necessary. FMLA leave from work from the period of ~9am to 2pm does not appear to be medically necessary, so if you can’t come to an understanding with your employee as to the additional time during the workday, employers should require that the employee cure the certification (to obtain additional information about the need for leave), and clarify the certification, if necessary.

Hat tip: Thanks to Linda Croushore for suggesting that I address this question on my blog!

holiday-payThere must be something in the water, but several clients have asked me this week whether they are required to pay an employee for the Memorial Day holiday even though the employee was out on FMLA leave. Interesting question, and the answer is fairly straightforward: treat them the same way you would treat another employee on non-FMLA leave.  This issue is governed by 29 C.F.R. § 825.209(h), which states:

An employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).

Put in simple terms, you first look to treat the leave in the same manner you treat other forms of non-FMLA leave.  If FMLA is being taken in conjunction with paid leave, look to the manner in which you treat employees on paid leave.

In her firm’s blog, Sara Jodka illustrates the point with a common scenario:

Suppose you have an employee who is taking vacation time during the holiday week and your policy provides that if an employee is on vacation the day before the holiday the employee will get paid for the holiday, but will not get paid for the holiday if the employee is on an unexcused absence the day before the holiday. Now suppose an employee is absent for an FMLA-qualifying reason the day before the holiday. The way you treat that holiday pay may depend on whether the FMLA leave is going to be running concurrent with the employee’s paid vacation leave, or whether it is simply an unpaid leave under the FMLA. If the employee is using vacation, and the employer policy would allow the employee to take holiday pay if they are using vacation the day before the holiday, the employer would have to allow that for the employee on FMLA leave. On the other hand, if an employer does not ordinarily pay an employee for the holiday if the employee is absent on some other kind of unpaid leave the day before the holiday, the employer would not have to pay the employee on FMLA leave. Employers just have to be sure they are treating employee consistently with similar forms of non-FMLA leave under your policies.

The Department of Labor addressed this issue head on in one of its first FMLA opinion letters in 1993. There, the employer did not provide holiday pay to any employee on personal leave or educational leave, which were unpaid forms of leave.  Because FMLA by its very nature is unpaid, the DOL opined that the employer was not required to pay holiday pay in this instance because it did not provide holiday pay to those employees on unpaid leave.  However, if the employee was entitled to obtain holiday pay while on paid leave, “the employee is entitled to holiday pay when the paid leave is being substituted for unpaid FMLA leave.”

Insights for Employers

To pay or not to pay for the holidays rests largely on the language in your personnel policies.  In my model FMLA policy, when addressing non-group health benefits, I make clear the expectations with respect to payment of holidays that occur during FMLA leave.  Consider adopting this language in your own FMLA policies:

Consistent with Company policy for all types of leave, you will not accrue vacation or other benefits while you are on unpaid FMLA leave. Additionally, you will not be paid for holidays that occur during the leave. However, the leave period will be treated as continuous service (i.e., no break-in-service) for purposes of vesting and eligibility to participate in the Company’s retirement plan.

Bottom line: Treat employees on comparable leaves in the same fashion.   It will help insulate you from an FMLA claim.

Kid saying NO.jpgI received a ton of feedback last week in response to my post about whether an employee can decline FMLA leave even though the absence qualifies under the Act. One question, in particular, was thrown at me repeatedly, and it went something like this:

In our workplace, when an employee doesn’t want to take FMLA leave, they simply refuse to return medical certification to us.  In these instances, can we designate the absence as FMLA leave even though we do not have certification?

Here, you have two options:

  1. Deny FMLA leave. If the employee has not returned complete and adequate medical certification within 15 calendar days, and he has not engaged in any good faith efforts to return it, you have the right to deny FMLA leave and subject the employee to your attendance policy, which often will treat the absence as unexcused.    
  2. Designate the absence as FMLA leave. For some employers, denying FMLA leave above will not result in an unexcused absence because the employee simply can use accrued paid leave without any consequence. For other employers, they simply want to start the FMLA clock running so that the employee exhausts FMLA leave as quickly as possible and return to work. Here’s my general take: Where an absence may trigger the FMLA, it’s always advisable to obtain medical certification.  That said, it is not necessary to obtain medical certification in order to designate the absence as FMLA leave.  Look at what the regs say on this point: 

If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee’s need for leave, the employer may provide the employee with the designation notice at that time.  29 C.F.R. 825.300(d)(2)

Simply put, you do not need medical certification in your hand to designate leave. As the regulations state, if you have enough facts based on the employee’s notice to establish that the employee requires leave that is covered by the FMLA, you can designate it as such. No other questions asked or information needed. Notably, under 29 C.F.R. 825.305(b), you can always ask for certification later “if the employer later has reason to question the appropriateness of the leave or its duration.”

Designating the absence as FMLA leave in these situations arguably is the best route to take, particularly when they have other paid leave available to them that they can utilize to avoid an unexcused absence.  

But be careful. Only designate FMLA leave without certification when you have a level of confidence that the absence qualifies as such. Incorrectly designating FMLA leave where a serious health condition is not involved could leave to an FMLA interference claim. Where it is a close call, seek legal counsel.

kid on back.jpgI just returned from Disney World, a trip that had me chasing my kids (ages 8, 6 and 4) for days on end. So, I’m tired.  And I ache.  My feet ache.  My back aches from my four year old riding on my shoulders. My head aches from thinking about my back.  Even my aches have aches.  

Don’t get me wrong — we had a wonderful time.  I’ve fully bought into the magic of Disney, and I’m drinking the Tinkerbell kool aid.

But back to my feet.  And back. What if my pains were sufficient enough (in my own mind) to keep me off work for four consecutive days? Would this be enough to trigger the FMLA?

Before you tell me to jump in a lake, let’s take a closer look at the FMLA regulations.  The DOL has told us: 

Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave. 29 C.F.R. 825.113(d).

Additionally, simply staying at home, drinking fluids, and staying the day in bed are activities which can be initiated without a visit to a health care provider and do not constitute “continuing treatment” necessary to establish a serious health condition.  29 C.F.R. 825.113(c)  

Sounds pretty good so far.  This regulatory language seems to support Congress’s own deliberations when it passed the FMLA, as the legislative history makes clear that FMLA should not cover short-term conditions for which treatment and recovery are very brief.

But before you slap me with discipline for my four-day hiatus, be mindful of a thorough 1996 opinion letter from the DOL, which explains that a several-day absence could be covered by the FMLA:

If . . . any of these conditions met the regulatory criteria for a serious health condition, e.g., an incapacity of more than three consecutive calendar days that also involves qualifying treatment, then the absence would be protected by the FMLA. For example, if an individual with the flu is incapacitated for more than three consecutive calendar days and receives continuing treatment, e.g., a visit to a health care provider followed by a regimen of care such as prescription drugs like antibiotics, the individual has a qualifying “serious health condition” for purposes of FMLA.

As for my minor aches and pains, I am likely out of luck.  And for good reason, as the FMLA was not meant to cover these minor conditions.  The DOL opinion letter above is instructive, however, so it’s important for us as employers to inquire, where necessary, to ensure we have sufficient facts to determine whether a multi-day absence has triggered the FMLA.  If you forgot how to go about that, consider my guidance from a prior post here, which includes various questions you can ask your employee to determine whether an absence may be covered by the FMLA.

In the meantime, I’ll be singing Supercalifragilisticexpialidocious in the background…

temp ee.jpgQ: We regularly utilize temporary employees, some of whom we hire permanently. Does the time they work as a temp (through an agency) count toward the 12-month and 1,250 hour eligibility requirements?

A: An employee is eligible to take FMLA leave when, among other things, he/she has worked for the employer for 12 months (which, of course, need not be consecutive) and worked 1,250 hours in the previous 12-month period.  

According to the Department of Labor, the time worked as a temporary employee does indeed count toward the 12-month service and 1,250 hour requirement.  In one short sentence in the FMLA regulations, the DOL sums up its position:

joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a seconary employer. 29 C.F.R. 825.106(b)(1)

This position is only further cemented by a long-standing 1994 DOL opinion letter, in which the agency confirmed that “the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests” under the FMLA.  I wish it weren’t so, but the courts generally have agreed with DOL’s position. Mackey v. Unity Health System (finding that, for FMLA eligibility purposes, “an employee’s term of employment begins once assigned by the temporary agency, rather than when hired as a permanent employee”).

No wiggle room here, as far as the DOL is concerned.  As to FMLA eligibility, a temp employee apparently is no different than a regular employee on day one.  No 326-point joint employer test required. No nothin’. It’s just a done deal.    

Since we’re on the topic, one additional point is worth noting with respect to temporary employees: keep in mind that the primary employer (i.e., the temp agency) is responsible for providing the required FMLA notices, administering FMLA leave and maintaining health benefits. The secondary employer (i.e., the one receiving the employee’s sevices) becomes responsible for these obligations only after the individual becomes employee an employee of the secondary employer permanently.  

moveovertime.jpgQ:  Is an Employer Liable for Overtime Pay and similar damages for an FMLA Violation? 

A:  The FMLA provides for a broad range of damages in the event an employer is liable for an FMLA violation.  The statute states that an employee may be awarded “any wages, salary, employment benefits, or other compensation denied or lost to the employee by reason of the [FMLA] violation.”  As my colleague Staci Ketay Rotman points out in her wage and hour blog article, damages also likely include the amount of overtime the employee would have earned during the period covered by the FMLA violation.

In an FMLA case highlighted by Staci, a federal court estimated that a plaintiff who prevailed on his FMLA retaliation claim would have worked 6.5 hours of overtime per week over the 125-week period between his termination and the judgment.  The court arrived at this figure using an average of the plaintiff’s weekly hours during the four months preceding his termination. Notably, the court apparently found that the year-to-date average was more reliable than a 12-month average for determining how much overtime the plaintiff would have worked had he not been terminated.