DOL employee guide.jpgThis week, I had the privilege of presenting on the “Nuts and Bolts” of the FMLA with Department of Labor Branch Chief for FMLA, Diane Dawson.  Our presentation was part of an FMLA/ADAAA compliance conference hosted by the Disability Management Employers’ Coalition (DMEC).  [My unsolicited opinion: DMEC is a fabulous non-profit organization devoted to integrated disability and absence management for employers.  Any employer should consider joining if they want to improve their integration of disability/absence management.]

Our “nuts and bolts” presentation materials were closely modeled after an FMLA PowerPoint that the DOL just published and posted on its web site for the public’s use.  The DOL’s PowerPoint can be accessed here (PPT).  (Access the pdf version)

For what it’s worth, I’ve found the DOL’s PowerPoint to be very even-handed in providing an overview of the FMLA, and I’d recommend that employers incorporate portions of the PowerPoint into their own FMLA training materials.  

Of course, when using the DOL’s PowerPoint to create training materials, it should be tweaked a bit to add emphasis on an employer’s rights — things like employee notice requirements, enforcing call-in procedures, and more background on requiring timely, complete and sufficient medical certification and re-certification — but this PPT is a really good start.  Good enough of a start that I thought I would call to all of your attention.

Happy FMLA training!

 

whack.jpgThe Department of Labor was serious when it required employers beginning in 2009 to provide individual FMLA notices to employees regarding their eligibility and rights (Notice of Eligibility and Rights & Responsibilities) and whether FMLA applies (Designation Notice). 

Apparently, courts think this is important, too.  And The Wackenhut Corporation learned this lesson the hard way.

The Facts

Jacqueline Young worked for Wackenhut Corporation.  Wackenhut met its general FMLA notice obligations in that it included in its employee handbook a notice to employees of their FMLA rights and also posted the DOL’s FMLA poster.  However, when Young sought and took FMLA leave, she took all 12 weeks without having received from Wackenhut a Notice of Eligibility and Rights & Responsibilities and a Designation Notice.  Nothing.  Nada. 

In Young’s case, she exhausted her 12 weeks of FMLA leave, and when she failed to return after her leave expired, Wackenhut terminated her employment two weeks later.  When Young filed an FMLA interference claim and later filed a motion for summary judgment, the court ruled in favor of Young.  No jury needed.  Automatic judgment was entered in favor of the plaintiff. 

Why?

The Court held that, per the FMLA regulations, the individual FMLA notices provided to the employee are absolute, and when they are not provided, the employee is prejudiced:

Plaintiff was not afforded the opportunity to make informed decisions about her leave, based on the lack of FMLA notice provided to her by [Wackenhut]. Had she been appropriately apprised of her leave time, Plaintiff could have planned and structured her leave time differently. Thus, Plaintiff did suffer prejudice.

According to the court (not to mention a clear read from the regulations), “individual notice” must be provided to the employee when he/she requests FMLA-related leave or when the employer acquires knowledge that an employee’s leave may be for an FMLA qualifying reason.  29 CFR 825.300(b). When the employer fails to do so, it suffers the consequences.  Young v. The Wackenhut Corporation (pdf)

Insights for Employers

When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), this is tantamount to strict liability: the employer is on the hook for the loss that results.  As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, the employer must provide the following notices or risk getting whacked like Wackenhut:

1. Eligibility Notice. Once an employee notifies an employer of an FMLA qualifying medical leave, including the birth of a child, “the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days” of ascertaining that her leave may be for an FMLA-qualifying reason, absent extenuating circumstances. 29 C.F.R. 825.300(b)(l). 

Right and Responsibilities Notice. Whenever the Eligibility Notice (above) is provided, “Employers shall provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. . . Employers are also expected to responsively answer questions from employees concerning their rights and responsibilities under the FMLA.” 29 C.F.R. 825.300(c)(1).

Employers can access this Notice here.  (Notice of Eligibility and Rights & Responsibilities)

2. Designation Notice. Within five days of when an employer has enough information to determine whether the employee’s leave is FMLA qualifying, the employer must notify the employee in writing as to whether the leave will be designated and will be counted as FMLA leave. 29 C.F.R. 825.300(d)(1)(4).

Employers can access this Notice here.  (Designation Notice)

Employers: training your staff about their responsibilities under the FMLA is essential.  When they forget these responsibilities, a simple oversight of the kind here can be extremely costly. 

military

Is Congress poised to amend the Family and Medical Leave Act again? Late last month, legislation was introduced in the U.S. House of Representatives that would allow employees who work part-time or for small employers up to two weeks of leave in connection with a family member’s military deployment, thereby expanding the qualifying exigency provisions of the FMLA.

Currently, FMLA leave (for military family leave or otherwise) is only available to employees who work 1,250 hours in a 12-month period and who work for an employer with 50 or more employees.  But not under this proposed legislation.  The Military Family Leave Act of 2013 would allow employees (regardless of hours worked or who they work for) to take up to two workweeks of leave in any 12-month period if their family member: 1) is notified of an impending call or order to active duty in support of a contingency operation; or 2) is deployed in connection with a contingency operation.  [Oh no!  The return of the “contingency operation” language! Didn’t we get rid of that language several years ago?]  For those keeping track at home, a “contingency operation” is a military operation that involves or may involve military actions, operations, or hostilities against an enemy of the United States or against an opposing military force, or one that results in a call to active duty during a war or national emergency.

What’s at least initially interesting about this bill (and which makes it different than the other bills seeking to amend the FMLA) is that it already has 25 co-sponsors and some bipartisan support.  Still, govtrack.us gives it a 4% chance of even getting out of a House committee.  (Not sure how they come up with this seemingly unscientific percentage, so I’m not sure of its value.)

Lead sponsor, Rep. Matt Cartwright (D-Pa.), stated in a press release that enacting this legislation “is the least we can do to ensure that the needs of all military families are met, regardless of their employment situation . . . [and] also respects the challenges faced by small businesses.

Will the legislation ever see the light of day after being referred to the House Committee on Veterans’ Affairs?  In what might seem to be a bill with broad popular appeal, it would be the first of its kind to cover employers regardless of size and employees regardless of hours worked. Might it be the first among several bills to broaden FMLA rights in President Obama’s second term?

Let the games begin…

Photo credit: Group & Benefits Consultants

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

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

Overview of FMLA regulations regarding Second and Third Opinions

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

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

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

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

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

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

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

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

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

TPA.jpgEmployers often outsource to third party administrators the task of managing their FMLA processes.  Under this model, the TPA handles FMLA requests, paperwork and approvals instead of the employer’s human resources or benefits department.  TPAs often utilize nurse case managers to help make leave determinations, and they generally oversee the FMLA administration.

Where a TPA simply performs administrative functions as part of the leave process, the FMLA regulations do not hold the TPA liable for any FMLA violations that may result.  In these instances, the employer remains on the hook for any these violations.  29 CFR 825.106(b)(2) 

However, a federal court decision issued last week may well turn this concept on its head by opening the door to viable FMLA-related claims against TPAs. 

The Facts

Arango v. Work & Well started out as a proposed class action of current and former Sysco employees who claimed that the Company (through its TPA, Work & Well) violated the FMLA by insisting that employees provide more medical information than is legally required in the FMLA medical certification and clarification process.  

Here is what the plaintiff claims the TPA did:  The plaintiff submitted medical certification supporting the need for FMLA leave from November 22 through January 15.  It appears as though the TPA did not clarify the certification or otherwise question its validity.  Instead, it accepted the certification but granted the plaintiff only four weeks of leave through December 18 (or about one-half of the leave certified by the employee’s health care provider).  The TPA then informed the plaintiff that his leave would be extended only if he provided additional medical information supporting his need for FMLA leave from December 19 through January 15.  When the plaintiff failed to provide the information, his employment was terminated.

Uh oh.  

The Court Ruling

The court quickly cut this case down to size.  It dismissed the FMLA claim because it could not be raised against the TPA.  It also dismissed the class action claims.  But the TPA caught a bad break — it ran into a creative and very well regarded plaintiffs’ attorney, Alex Caffarelli, who raised a unique legal theory on behalf of his client.  Making an end run around the FMLA, he argued that the TPA still should be on the hook because it tortiously interfered with plaintiff’s employment relationship with his employer.  

Huh?  What is t-o-r-t-i-o-u-s interference?

Tortious interference with employment is a creative but rather nebulous legal claim that can be raised under state law in virtually any state.  In raising the claim, the plaintiff alleges that the defendant’s wrongful conduct intentionally caused the employer to end an ongoing business relationship that it had with its employee when that relationship otherwise would have continued.

Here, the plaintiff claimed that the TPA intentionally denied a portion of his FMLA leave even though it was supported by medical certification, and as a result, the TPA’s actions caused Sysco (as the plaintiff’s employer) to terminate his employment.    

The court bought into the plaintiff’s argument.  Although the decision allowing this claim to be heard by a jury is not necessarily surprising, I found the court’s reasoning interesting.  Notably, the court took an interest in the language of the contract for services between the TPA and Sysco.  That contract stated, in part, that “[the TPA’s FMLA adminstration] services ensure consistent, complete FMLA compliance” and “will reduce the number of leaves and leave time out of work.”  (I’ve seen this language in nearly all the TPA contracts I’ve reviewed, so it’s not unique.)  

Based on this contract language, the court found that “it is reasonable to infer that [the TPA] knew what kind of information the FMLA permitted it to obtain from an employee and when it was permitted to do so. The court also picked up on language straight out of the FMLA regulations:

[The TPA] knew that if an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider.

It also knows that if the medical certification indicates that the minimum duration of the condition is more than 30 days, the employer must wait until that minimum duration expires before requesting a recertification. . . . 

Because the TPA accepted complete and sufficient certification supporting the need for eight weeks of leave, but only provided four weeks, the court held that these facts “are sufficient to suggest, though they do not conclusively prove, that defendant intentionally denied meritorious FMLA leave requests to enhance its reputation as a benefits administrator and increase its book of business.”  The Court’s decision can be found here: Arango (pdf)

Unless I am missing something, the facts here certainly are not flattering toward the TPA. Keep in mind, however, that these facts are viewed in a light most favorable to the plaintiff, since the TPA was seeking to dismiss his case.  At trial, the TPA will have a chance to tell its side of the story.  

Insights for Employers

There are plenty of takeaways from this decision for employers (and TPAs).  Several suggestions come to mind:

  1. It is imperative that employers consider whether (and how) their FMLA policies and procedures expose them to claims that can be advanced by a group or class of employees.  Strongly consider conducting a comprehensive audit of your entire FMLA administration to ensure your procedures do not violate the regulations and expose potential class claims.  A couple questions might help to guide your analysis:
    • Does your leave request form elicit necessary information without delving beyond the medical condition at issue?
    • Are you requesting more medical information than allowed through the FMLA’s medical certification form or the regulations?
    • Are you approving only a portion of an employee’s leave of absence where a complete and sufficient certification clearly indicates a longer leave is necessary? 
    • What medical information do you require upon an employee’s return to work?  Does your practice comport with the FMLA’s return-to-work rules?
    • As to those employees who have taken FMLA leave, are there a disproportionate number who have been denied promotional opportunities or terminated (for unexplained reasons)?
    • How does your FMLA policy mesh with your attendance and other leave policies?  Are there inconsistencies?
  2. Closely analyze your relationship with any third-party administrator that conducts FMLA administration on your behalf.  Do you know how your TPA handles the questions above?  If not, find out.  Keep in mind that the employer generally is on the hook for the TPA’s FMLA administration.  Thus, the lines of communication between employer and TPA must constantly remain open so that you are able to obtain information, as necessary, and that you are partnering with the TPA on particularly difficult FMLA scenarios.
  3. TPAs obviously should be concerned about this decision, as it broadens the risk of liability for administering their clients’ FMLA processes.  At a minimum, TPAs should review their contracts and marketing materials in light of the decision.  Do they need to be tweaked?  
  4. TPAs also should review how they administer FMLA, particularly the medical certification process.  Where certification is incomplete or insufficient, what is the process to cure/clarify/seek second opinion?  On the other hand, where certification is complete and sufficient, the regulations clearly indicate that no further information can be obtained. So, if the TPA still denies leaves of absence on these occasions, the process needs to be reviewed with employment counsel to ensure proper compliance. 
  5. I know I sound like a broken record, but employers must ensure that your managers are properly trained on their responsibilities in FMLA administration.  Although front-line managers may play little to no role in the FMLA process, they are your eyes and ears of potential FMLA abuse.  Conversely, their inappropriate comments or poor handling of an FMLA situation may create significant liability.

confused-baby.jpgOver 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.

fmla poster.pngEarlier this month, the Department of Labor issued final new rules regarding the amendments to military family leave, flight crew eligibility and a handful of other relatively minor issues.  At the time, I covered those changes at some length here. 

Perhaps a bit lost in the changes to the regulations, however, is the obligation to begin using updated FMLA notice and certification forms and to post the new FMLA poster, effective March 8, 2013.  

Notably, the DOL’s model forms will no longer be included as part of the appendices to the regulations.  Instead, they will be available on the DOL website.  This allows the DOL to make changes to the forms without having to approve every change through the federal government’s Office of Management and Budget.  [Read: bureaucracy] A new certification form related to the serious injury or illness of a covered veteran also was created.

The new regulations also confirm employers’ confidentiality obligations under the Genetic Information Nondiscrimination Act of 2008 (GINA). The DOL indicated in its final rule that GINA allows employers to disclose genetic information or family history obtained by the employer so long as it is consistent with the FMLA.  Nevertheless, the DOL did not propose adding any GINA safe harbor language in the new forms.  In a prior post, we recommended GINA safe harbor language for employers to include in medical certification.

Although employers can safely use the new FMLA forms, they also may adapt the DOL’s version in creating their own forms, so long as these forms do not require the employee or health care provider to disclose more information than what is required by the FMLA regulations.  For those employers who have created their own forms, it is critical that you update your forms by March 8 to account for the changes in the final rules. 

At a minimum, I would recommend that employers review the forms closely with their employment counsel and tweak certain portions.  For example, in the updated Notice of Eliigibility (Part A), as to qualifying exigency leave, the DOL does not indicate that the call to active duty involves a deployment to a foreign county, which is a critical part of the leave entitlement.  This phrase should be added; otherwise, employees are likely to be confused about the entitlement.  

Where can you find the new FMLA forms and poster?  Here you go:

Forms

Poster

Still trying to figure out exactly what changed under the new rules? 

If my previous blog post missed the mark, the DOL has prepared a snazzy side-by-side comparison between the old and new regulations.

aba_logo_01.jpgAs always, 2012 was an active year for cases involving the Family and Medical leave Act.  Remember the manager who gave his employee the book “No More Hysterectomies” when she asked for leave because she had to undergo a hysterectomy?  We covered that one here.  Or how about the employee who sought leave to care for her mom…on a vacation in Las Vegas?  We covered that one, too.

Although our little blog catches some of the big FMLA cases as they occur throughout the year, the American Bar Association’s Federal Labor Standards Legislation Committee publishes an annual comprehensive report that catches virtually all significant cases from the prior year.  It is a great reference for me throughout the year, and I highly recommend it to HR professionals and employment attorneys.  Plus, it’s free!

Feel free to access the 2013 ABA FMLA report here (pdf).  Kudos to Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee and serve as the main editors of the report.  Enjoy!

giddy.jpgAs a management side attorney, I love when FMLA cases provide real, practical takeaways for employers that help them better administer FMLA leave.  Yesterday was one of those days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith effort to turn the certification in on time.  In its decision, the court explained for employers the various ways the employee could have shown that she was attempting in good faith to return medical certification. 

The Facts

Ronita Brookins was employed by Staples Contract & Commercial, Inc. to review customer orders for credit card fraud.  Sadly, she also grappled with breast cancer.  She beat the cancer the first time, but it returned several years later.  During this later period, Brookins had a serious of suspect, unexcused absences that put her on the verge of termination.  When Staples called the attendance problems to Brookins’ attention, she informed the Company for the first time about the recurrence of the cancer and insisted that many of the absences were related to her treatment.  Giving her the benefit of the doubt, Staples asked Brookins to provide medical certification, which was due back to Staples with 15 calendar days.

When Brookins didn’t return the certification on time, Staples gave her another seven days.  And another extension after that.  About one month after Brookins should have returned the certification, Staples decided to convert her absences to unexcused leave and, as a result, it terminated her employment.  Brookins later filed FMLA interference and retaliation claims.

The Ruling & Insights for Employers

Under the FMLA regulations, employers have the right to request and obtain complete and sufficient medical certification to support an absence due to an employee’s alleged serious health condition.  The employee’s obligation to return this medical certification is fairly clear:

The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts.  29 C.F.R. § 825.305(b)

If the employee does not provide certification, the FMLA regulations allow the employer to deny FMLA coverage to the employee until the certification is provided.  Thus, any absences in the interim are unexcused and could subject the employee to termination.

Here, Brookins blew the 15 day turnaround.  So, she could save her FMLA claim only if she could establish that she was engaging in diligent, good faith efforts to return the certification on time.

Employers regularly ask me — what precisely are diligent, good faith efforts?  Let’s start with what Brookins did here to obtain certification: she called her two primary physicians and asked them to complete the certification.  When they flat out refused to complete the form, Brookins did nothing further to obtain certification.  Literally nothing.  Nada.  This was hardly impressive to the court.

The Brookins court suggests what the employee could have done to show that she was engaging in diligent, good faith efforts to obtain complete and sufficient certification:

  • When Brookins initially was rebuffed by these two physicians, she could have contacted them again, explaining the importance of completing the certification.
  • She could have asked any one of three other additional specialists she visited with during her treatment to complete the form.
  • She could have mailed the form to any of these doctors.
  • She could have delivered the form in person to any of these doctors.
  • Perhaps most significant to the court: she should have contacted her employer to explain her difficulties in obtaining timely certification and requested an extension before the 15-day deadline expired.  (In her case, she didn’t seek an extension until after the deadline passed.)

Because the court found that Brookins did not make diligent efforts to obtain certification, it dismissed her FMLA claims, finding that the exception to the 15-day rule did not apply.  More importantly, the ruling gave employers a guide map when determining whether their own employee has engaged in “diligent, good faith efforts” to obtain certification.  Brookins v. Staples Contract & Commercial, Inc. (pdf)

Cheesy moment alert:  I must confess a moment of weakness here — perhaps it’s my Catholic guilt setting in a bit on Ash Wednesday, but I can’t help but feel a bit for Ms. Brookins’ situation, since it appears as though her primary care doctors’ refusal to complete the form is what likely did her in.  As she battled breast cancer for a second time and now was rebuffed by her two main doctors, obtaining medical certification had to be a low priority for her.  Nevertheless, the FMLA rules apply to Brookins just as they do any other employee in far less empathetic situations.

And Brookins didn’t follow the rules.  As harsh as it may seem to some, it’s the correct ruling.   

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This week, the Department of Labor released its final rule implementing the Family and Medical Leave Act amendments under the National Defense Authorization Act of 2010 (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA).  The final regulation also revises a handful of existing regulatory provisions, and removes the model FMLA forms from the appendices of the regulations.  I reported on these proposed changes in greater detail in a previous blog post last year.  The final rule takes effect March 8, 2013.

Military Family Leave

The new rules regarding military family leave are not controversial and effectively carry out the amendments made by the NDAA.

Caregiver Leave

As for caregiver leave, it now can be taken up to five years afterthe service member leaves the military and for an injury or illness that results from a condition that predates the individual’s active duty but that was exacerbated by the military service.  Prior to the NDAA, caregiver leave was available only to employees caring for current service members, not veterans.

Qualifying Exigency

Prior to the NDAA’s enactment, exigency leave only was available to family members of Reserve and National Guard members, and not regular service members.  However, the NDAA and proposed regulations reverse that position.  FMLA leave is available to family members of regular armed service members, as well as family members of Reserve and National Guard members, so long as they are being deployed to a foreign country.  The final regulation also added and tweaked current qualifying exigencies:

  • Expands from five to 15 days the amount of “Rest and Recuperation” FMLA leave an eligible employee can take to spend with a covered family member; and
  • Creates a new category for parental care (caring for the servicemember’s parent when the parent is incapable of self-care)

Airline Flight Crew FMLA Leave

Enacted in 2009, AFCTCA closed an apparent loophole in the “hours worked” eligibility requirements for airline pilots and flight attendants whose unique schedules often left them short of the hours required to qualify them for FMLA leave. Under the FMLA, employees must work at least 1,250 hours in the previous 12-month period, which equates to 60 percent of a typical 40-hour workweek.

AFCTCA applies the same concept to airline flight crews, providing that the hours flight crew employees work or for which they are paid – not just those hours working in flight – count as hours of service for purposes of FMLA eligibility.  Under AFCTCA and the FMLA regulations, an airline flight crew employee (as defined by FAA regulations) will meet the FMLA hours of service eligibility requirement if he or she has worked or been paid for not less than 60 percent of the applicable total monthly guarantee and has worked or been paid for not less than 504 hours during the previous 12 months. This calculation does not include personal commute time, or time spent on vacation, medical or sick leave.  The changes will result in more employees who are eligible for FMLA leave.

The final rule also includes:

  • Listing of all special requirements applicable only to airline flight crew employees and their employers (subpart H);
  • Adoption of a uniform entitlement for airline flight crew employees of 72 days of leave per applicable leave year for one or more FMLA-qualifying reason and 156 days of military caregiver leave; and
  • Imposition of special recordkeeping requirements on employers of airline flight crew employees.

Other Notable Changes (or Non-Changes!)

Physical Impossibility

Although the DOL appeared poised to make changes to the “physical impossibility rule,” it simply reminded employers that this rule is to be applied in only the most limited circumstances, and that the employer bears the responsibility to restore the employee to the same or equivalent position as soon as possible.  Notably, the DOL shared the following in its Fact Sheet 28I on the issue:

In a situation where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, the entire period the employee must be absent is designated as FMLA-protected leave and counts against the employee’s FMLA entitlement. The period of the physical impossibility is limited to the period when the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position after a period of FMLA leave due to the physical impossibility. This rule applies only to situations where it is truly physically impossible to return the employee to work after an FMLA-qualifying absence, for example, a railroad conductor whose FMLA leave prevents him from boarding the train before it leaves for its scheduled trip.

Increments of Leave

The DOL maintained a provision that allows employers to use varying increments of leave at different times of the work day or shift.  It reaffirmed the current rule that employers “must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour.”

DOL’s Model FMLA Forms

Notably, the WHD removed its model FMLA forms from the regulations’ appendices.  Employers may now locate the optional-use forms on the DOL website.  This change was made so that DOL has the flexibility to change (and hopefully, improve) the forms as needed without getting bogged down in the regulatory approval process.  DOL remarked that any future substantive changes to the forms will remain subject to normal notice and comment.

Resources

More information regarding the rule, including a side-by-side comparison of the new rule with the prior version, frequently asked questions and a fact sheet, is available on the DOL’s website.

Photo credit: U.S. Department of Labor