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.

physician payment for cert.jpgLet’s put our heads together on this one. You see, it appears as though far too many employees have bought into the notion that their employer is always responsible for the cost of obtaining medical certification to support an FMLA-related absence. Case in point: just last week, a client called me for help after one of her employees simply refused to return medical certification because she didn’t want to foot the $50 bill quoted by her physician for completing the certification form. She firmly believed her employer should pick up the tab.

Your employee is wrong.  Dead wrong.

Let’s start with the FMLA regulations, which make clear that the employee is solely responsible for obtaining medical certification.  If you don’t believe me, here is the language:

It is the employee’s responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee’s family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee’s FMLA request. 29 C.F.R. § 825.305(d)

Going further, the regulations even state explicitly that “any recertification requested by the employer shall be at the employee’s expense unless the employer provides otherwise.” 29 C.F.R. § 825.308(f).

Other DOL publications are just as explicit about the employee’s obligation to pay for his/her own medical certification.  In its Employee Guide to the Family and Medical Leave Act (pdf), the DOL reminds employees that they alone are “responsible for the cost of getting the certification . . . and for making sure that the certification is provided to your employer.”

Notably, this requirement also is outlined by the DOL in DOL Fact Sheet #28G (pdf), the relevant portion of which I’ve highlighted in yellow.

The DOL Guide and Fact Sheet can be extremely helpful to employers in impressing upon employees the obligations they have under the FMLA to cooperate with the medical certification process.

That said, employers, let’s not get too cocky.  The above applies to FMLA medical certification.  If the employer requires the employee to be examined by a physician chosen by the employer, the EEOC cautions that it is the employer’s responsibility to pay all costs associated with the examination. Keep in mind, too, that a number of states also have very specific statutes that require the employer to pay the cost of a medical examination where the exam is required as a condition of employment.  In short, where FMLA is not involved, tread very carefully.  And call your favorite employment attorney before making the decision.

webinar2.jpgThanks to those who attended my webinar last week with Matt Morris on “Conquering the FMLA Medical Certification Process: Best Practices for Employers.” If you missed the program, you can access the webinar and materials here.

We covered a whole host of topics during the webinar:  How does an employer handle an employee who does not return medical certification?  Or one that is vague and ambiguous?  How should an employer respond to an employee who appears to be abusing FMLA leave (e.g., another employee rats him out, or the employee takes FMLA leave after a denied vacation request)?  How should an employer certify patterns of absenteeism or occasions when the employee’s absences exceed the frequency or duration on the certification?

We tackled these issues and many more during our webinar.  We even sang an absolutely awful rendition of our own “Happy Christmas” FMLA jingle.
Despite our singing, we are pleased to made the webinar recording and PPT materials available at: http://www.franczek.com/news-events-498.html.  Feel free to pass this link along to anyone who might be interested in the webinar.

We tackled these and many more issues during our webinar.  We even sang an absolutely awful rendition of our own “Happy Christmas” FMLA jingle.

Despite our singing, we are pleased to made the webinar recording and PPT materials available here. Feel free to pass this link along to anyone who might be interested in the webinar.

Some of the highlights include:

  1. How should an Employer respond when an employee does not return medical certification?  The regulations tell us that employers can delay or deny leave if an employee does not return medical certification within 15 days.  But should we automatically deny leave?  As I explained in the webinar, communication is key: ideally, you should have a “tickler” in your system reminding you of certification deadlines so that you know when certification is due.  If certification is not returned, the best practice is to call the employee and follow up with 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.) Also 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.  In in the webinar and in this previous blog post, I provided some insight on the kinds of questions you can ask the employee to determine whether they have been diligent in obtaining certification.
  2. What if the employee’s absences exceed the frequency or duration indicated on the medical certification form?  As we discussed during our session, recertification is available if the employee’s absences substantially exceeds the estimate provided in the certification.  As I highlighted in a previous blog post, an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule.  Employers must be careful not to seek recertification when the employee simply ticks past the absence estimate.  The webinar covers this issue in great detail.
  3. When you are clarifying certification, how far can you push the health care provider for information?  As we discussed, the key is to clarify, not challenge.  So, the focus should be questions such as: “We want to understand what you meant by “as needed” and whether the condition affects [employee] from doing her job” OR “”Would you provide a better estimate than “leave as needed” and would you provide detail on why the condition makes it medically necessary for [employee] to miss work”?

We covered these and so much more.  Take a listen and let us know what you thought.

Finally, as you may recall during the webinar, I made reference to an FMLA guide published by the U.S. Department of Labor that I believe is of value to employers when discussing with an employee their obligations under the FMLA. You can access the Guide here (pdf). What I like about the Guide is that, in a fairly plain-spoken manner, it impresses upon employees the obligations they have under the FMLA to cooperate with their employer when they need FMLA leave and what will be expected of them during this process. HR professionals and attorneys have mentioned to me that they have found the Guide useful in their discussions with employees largely for this reason.

Thanks again to those who attended the webinar. I look forward to your continued feedback on the issues we discussed. Feel free to post a comment here or email me at jsn@franczek.com.

Sick note.jpgIt’s webinar time! 

FMLA Medical certification is designed to help employers better understand an employee’s medical condition and their need for time off from work. So, why does such a helpful tool tend to create angst, confusion and frustration within the employer community?

Let’s tackle medical certification head on! Please join us on Thursday, December 5, 2013 (12:00 – 1:15p.m. central time) for “Conquering the FMLA Medical Certification Process: Best Practices for Employers.” I will be joined by my friend and fellow FMLA nerd, Matt Morris, Vice President, FMLASource, who promises (along with me) to keep cheesy jokes to no more than two during our session.    

I’ve summarized our webinar below, so you will have a good idea of the topics we’ll cover. And the best part? It’s FREE! So, you have no excuse not to join us, right!?! Click here to register for our webinar. When you register, please take a moment to tell us your most burning medical cert question — we’ll weave the best you have to offer into our presentation.

Overview of the Webinar

In this complimentary webinar, Matt and I will cover FMLA medical certification in detail and employ case studies throughout to help employers deal with the most confusing and maddening medical certification conundrums.

To heck with the basics about medical certification.  We’re going to dig into some difficult issues. Using real life situations from our own experience in dealing with the FMLA, we will cover topics such as:

  • Common employer questions and missteps in the medical certification process
  • Best practices for employers when an employee fails to return medical certification
  • Incomplete or Confusing Certification – Does the Employer Trash it and start over
  • Fighting the “Friday-Monday Leave Act” – how employers should use recertification when they see a pattern of misuse or suspect FMLA abuse
  • Managing the second/third opinion process

Click here to register for this complimentary webinar.  We look forward to your participation. In the meantime, please email me at jsn@franczek.com with any questions (within the topics above) that you would like us to address.

take two.jpgThe feedback from last week’s blog post on annual FMLA certification came fast and furious.  Most of it was complimentary (thank you!), but several of my fellow FMLA nerds raised an interesting issue.  They noted that the FMLA regulation covering “annual” certifications does not specifically state that the certification in the new FMLA year must come in conjunction with an absence.  So, they question whether an employer actually has to wait for the first absence in the new FMLA year before seeking new certification.

At first glance, I see where they are coming from. The regulation on annual certifications is not terribly clear.  It states simply:

Where the employee’s need for leave due to the employee’s own serious health condition, or the serious health condition of the employee’s covered family member, lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year.  29 C.F.R. 825.305(e)

An employer might read this provision to mean that it can ask for annual certification at any point in a new FMLA year — with or without a request for leave or an absence by the employee. However, when this regulation was addressed by the Department of Labor during its changes to the regs in late 2008, the DOL indicated that it was relying heavily on an opinion letter it issued on this topic back in 2005.  This essentially answers the outstanding question.  In the opinion letter, the DOL stated:

It is our opinion that an employer may reinitiate the medical certification process with the first absence in a new 12-month leave year . . . This is the case despite the fact that the employer had requested recertification in the previous 12-month leave year. 

So, DOL takes the position annual certification can be done with the first absence in the new FMLA year.  To be clear, if I were litigating the issue, I wouldn’t shut the door to an argument that the DOL’s failure to be more specific in the regulations should be construed against the agency.  But it also seems apparent that DOL intended for an annual certification in a new FMLA year to be subject to the same standards as an initial certification under 29 C.F.R. 825.305(b), which allows the employer to seek initial certification only when the employee first requests leave under the Act.

Still not convinced?  Let’s discuss — I welcome your feedback.

busted2.jpgThe DOL is on a roll, and employers can’t be amused. Over the past few months, the Department of Labor seemingly has issued statement after statement after statement announcing settlements it has reached with various employers in conjunction with alleged FMLA violations. Heck, DOL now even has its own blog highlighting its recent FMLA enforcement. [Hey, where did they get that crazy idea!?!]

Whether it’s improperly denying FMLA leave, mishandling the medical certification process or fudging up return-to-work rules, employers have found themselves in the crosshairs of the DOL lately when it comes to FMLA.

One recent DOL press release stood out to me because it involved a mistake employers occasionally make in the medical certification and recert process.  In this case, the DOL accused a healthcare services company in New Mexico of automatically renewing medical certification requests from employees, even though the request didn’t involve an actual employee absence.

So, the situation goes something like this: let’s say an employer’s 12-month FMLA period is based on a calendar year: January 1 to December 31.  One of their employees, let’s call him A-Rod for fun, suffers from a condition that causes his muscles to inflate involuntarily, causing a very painful condition as well as a wee bit of a personality disorder.  When this condition flares up, A-Rod needs intermittent FMLA leave.  When the new FMLA year begins on January 1, the employer does not wait for A-Rod’s first absence associated with this unfortunate condition. Rather, it sticks him with a certification request shortly after the new year — completely unconnected to any leave request.  The employer administers it this way so that it can get ahead of the game and to ensure that certification is neat and efficient for the rest of the FMLA leave year.

Here, the employer’s *efficiency* violates the FMLA.  When it comes to medical certification, the FMLA rules are clear: 

the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter. . . 29 CFR 825.305(b)

Same holds true for recertification.  Under the regulations, employers may seek recertification at certain intervals or circumstances, but so long as it comes in conjunction with a request for leave. 29 CFR 825.308(a)(b)    

Employers should aggressively enforce their rights when it comes to FMLA, especially during the medical certification process.  However, let’s not go overboard.  Whether you have A-Rod on your team or not, medical certification and recertification requests can only come in conjunction with an employee’s actual request for leave.  If you stray from this rule, you risk becoming the DOL’s next press release.  

wad of money.jpgHave you ever suspected that your employee has given you an excuse too rehearsed or provided a doctor’s note a bit too slick in support of their leave of absence? Don’t be fooled: they actually might be paying for the excuse.

Just when we thought we’d seen it all. According to a report from the St. Paul Pioneer Press, for a mere $54, your employees can pay a “deception service” to provide a white lie or alibi to support their request for a day off.  

One of the businesses responsible for these tales of woe is Paladin Deception Services. For what some might say is a reasonable $54 fee, this deception company will return a phone call to an employer to vouch for a ficticious doctor’s appointment or support a case of the sniffles.  The sole purpose of this service is to dupe employers into believing the employee’s request is legit.  Says Paladin on its deception web site, the company “will will provide the white lie or alibi that you need regardless the reason, as long as it’s important to you.”

With its moral compass intact, Paladin is quick to point out that there are some lines even this deception company won’t cross.  For instance, it apparently will decline making make false statements or provide fictitious references to law enforcement agencies, courts, banks, medical institutions, government agencies or fire departments.  

Well, that’s is a relief, isn’t it!?! 

Nevertheless, for the rest of us employers who seemingly are open game, it gives us yet another reason to be concerned about our employees’ sick leave excuses.  Yet, there are many tools available to employers to weed out these tall tales: 1) ask questions of the employee up front to determine whether FMLA might apply; 2) require completion of a leave of absence form that the employee (not the fake doctor) must complete; 3) authenticate and/or clarify the FMLA certification so that you can confirm that the health care provider and reasons for leave are legit; 4) where you have reason to doubt the FMLA certification, use the second and third opinion process; and 5) where an employee’s return to work is a question mark and the information from the employee is fishy, keep in mind my suggestions for seeking an independent medical examination.

In the meantime, though, be on the lookout for guys in dollar-rimmed glasses…

Hat tip: HRBenefits.com and DMEC.  

dumb-mistake-300x200.jpgHave you ever made a rash decision that you wish you could take back the second you made it? One employer must feel that way right about now. Last week, a federal court refused to dismiss FMLA claims made against the employer by an employee who was terminated for exceeding the number of “episodes” of depression his doctor estimated he would have. This sad story is a lesson for all employers, because it raises such a common circumstance all employers face.

Facts

Fincantieri Marine Group (FMG), which builds ships, employed Jim Hansen, a shipbuilder, who suffered from depression.  Jim provided medical certification documenting his depression as a serious health condition and indicating that he would have episodic flare-ups that would periodically prevent him from working.  Jim’s doc estimated that he would have about four flare-ups during a six-month period with a duration of incapacity of two to five days per episode.

That’s easy enough, I suppose.  Until Jim had 10 episodes of depression in about half that time.  The employer clearly had reason for concern.  But what followed was a costly misstep. The employer (through its third party administrator) sent a rather cryptic note directly to Jim’s doctor, stating simply:

“[Jim]’s 7/1 absence is out of his frequency and duration. Please confirm item #7.”  [Author Note: #7 mistakenly referred to the wrong question on the medical certification.  Nevertheless, the court presumed that the employer was referring to the frequency and duration of the serious heath condition.]

Jim’s health care provider, Dr. Post, replied with an equally cryptic response:

“7/6/11: Item #7 confirmed. P.”  

Garbage in, garbage out, it seems to me.

Based on Dr. Post’s response, FMG denied Jim’s request for FMLA leave for his July 1 absence and sent him a letter informing him that his request was denied because his approved leave under the medical certification was exhausted.  Jim was absent thereafter on several occasions and all were denied in reliance on the doctor’s notation above.

When Jim blew past the number of absences allowed under FMG’s attendance program, FMG terminated Jim’s employment.  Although he had been granted FMLA leave, FMG explained that he had exceeded the frequency his doctor certified.  After his termination, Jim filed a lawsuit alleging FMLA interference and retaliation claims.

Ruling

In seeking to dismiss Jim’s lawsuit, FMG argued that Jim’s termination was proper because his absences “significantly exceeded the estimated frequency set forth in the certification provided by Dr. Post.”

Agreed that they exceeded the estimate by a long shot.  But did exceeding the doctor’s estimate mean that Jim was not entitled to leave and could be terminated for these absences?  As an initial matter, there was no evidence that Jim was engaging in FMLA abuse or fraud.  Similarly, everyone agreed that Jim provided adequate notice of his need for FMLA leave on each occasion he had a flare-up. Because Jim already had an initial medical certification on file with FMG regarding his depression, the employer’s only recourse under the regulations was to seek recertification of the serious health condition.  

Under the FMLA regulations, an employer may request recertification if:

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). . . . 

29 C.F.R. § 825.308(c)(2) (emphasis added).  Clearly, circumstances changed significantly here when Jim took leave on 10 occasions even though his certification estimated it should only be four.

Rather than request recertification, however, FMG took an entirely different approach: 1) it didn’t send Jim a notice that recertification was required; 2) instead, it inappropriately contacted Jim’s doctor directly to seek certification; and 3) it did not ask the doctor to certify that the additional absences were due to Jim’s serious medical condition.  In fact, FMG didn’t seek recertification at all.  It merely asked that the doctor confirm his previous certification.  Based on the doctor’s ambiguous response, it is unclear whether the doctor even understood the employer’s request.

Consequently, the court determined that there was enough evidence for a jury to decide whether FMG interfered with Jim’s FMLA rights.  Hansen v. Fincantieri Marine Group (pdf)

Insights for Employers

What should FMG have done here?  Several items are worth noting:

  1. When the frequency or duration of the employee’s absence(s) change substantially, the regulations give the employer the right to seek recertification.  Here, however, FMG simply asked the doctor to confirm the previous certification, but without any context.  As the court properly pointed out, FMG should have provided Dr. Post with a record of Jim’s pattern of absences and asked whether Jim’s serious health condition and need for leave was consistent with such a pattern. 29 C.F.R. § 825.308(e).  It also should have provided Dr. Post with an entirely new certification form to complete.
  2. Employers can contact the health care provider directly without the employee’s permission in the very limited circumstance where the employer is concerned that the employee submitted a falsified certification.  Only then can an employer send a copy of the certification to the health care provider to confirm that he/she actually completed the form.  29 C.F.R. § 825.307(a)  Otherwise, the employer’s communications to the doc should go through the employee.
  3. Do not terminate employment until you have all the relevant documentation back from the employee and his/her health care provider.  In this case, the court seemed irked by the employer’s rush to terminate Jim without having all the information clarified by his doctor. 
  4. Be careful about seeking recertification too early.  To quote the court, “an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule.” The change in frequency here was significant, so recertification was warranted.  However, be careful of seeking recertification when the employee simply ticks past the absence estimate.  According to the regulations, the change in frequency or duration must be significant before doing so.   
  5. Remember employers!  You are on the hook for the mistakes of your third party administrator. Where, as here, a TPA is involved in your leave management, it is critical that you have the highest confidence in their ability to administer FMLA leave. Take the time now for your employment attorney to review your leave procedures, including those established by the TPA. Based on facts identified by the court, the TPA’s actions in this case created risk for the employer, ultimately leaving it exposed heading into trial.  

kid doctor.jpgHave you ever doubted whether one of your employees actually was fit to return to work from a leave of absence?  

Take this situation I counseled a client through a few months back: one of their employees texted a suicide note — to about 40 of his co-workers.  Not surprisingly, it turned the workplace upside down.  Thankfully, the employee did not go through with it, but after a short leave of absence, he claimed he was ready to return to work.  My client rightfully was concerned whether it had an obligation to return him to work with little more than a conclusory prescription pad note stating, “Johnny can return to work now.”  

It’s not uncommon for circumstances to suggest that an employee may not be mentally or physically capable of performing their job duties even after they have had some time off.  In these instances, can the employer require the employee to submit to a medical examination as a condition of returning to work? 

In a word, yes.

The FMLA offers no help, as it simply requires the employee to present certification from his health care provider that he is able to resume work. 29 C.F.R. § 825.312(a)  In most cases, this will not provide the employer sufficient information to ease its concerns about the employee’s medical condition.  But where the FMLA fails us, the ADA saves the day!  

Under the Americans with Disabilities Act, an employer may require the employee returning from FMLA leave to undergo a medical examination if the employer has a “reasonable belief” that the employee’s ability to perform essential job functions will be impaired by a medical condition or that he or she will pose a direct threat due to a medical condition.  In its enforcement guidance, the EEOC gives us an example:

As the result of problems he was having with his medication, an employee with a known psychiatric disability threatened several of his co-workers and was disciplined.  Shortly thereafter, he was hospitalized for six weeks for treatment related to the condition.  Two days after his release, the employee returns to work with a note from his doctor indicating only that he is “cleared to return to work.” Because the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat [to his co-workers or himself] due to a medical condition, it may ask the employee for additional documentation regarding his medication(s) or treatment or request that he submit to a medical examination. (Question No. 17).

The courts generally support an employer’s right to require a medical examination in these instances. Just recently, in fact, in Owusu-Ansah v. Coca-Cola Co., a federal appellate court upheld an employer’s right to require a medical examination from an employee returning from leave after he made threatening comments in a meeting with his supervisor.  See my colleague Abizer Zanzi’s practical guidance on the case here.  

Insights for Employers

As Abizer points out, employers need not take a “wait-and-see” approach to medical examinations. If you have a reasonable belief that the employee’s medical condition may render him unable to perform the job, or that he may be a threat to himself or a co-worker, courts will enforce your right to obtain a medical examination so that you have the confidence you need to make a fitness-for-duty determination. However, employers should tread carefully. Work with employment counsel to ensure that a mandated medical examination is not viewed as retaliatory simply because the employee took leave.

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), FMLAEmployment 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 here, 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.