Oh No - Not you again 2.jpgFor employers who have been involved in an FMLA investigation conducted by the U.S. Department of Labor, the process can be a bit of a head-scratcher because no two investigations look the same.

The FMLA investigation often starts with a somewhat mysterious phone call from a DOL investigator identifying him or herself as such. What follows, though, is far from certain. Occasionally, the employer is informed why it’s being investigated.  Other times, it’s not. Occasionally, the matter is assigned a case number.  Other times, it’s not.  At times, the DOL uses what appears to be a standard request for information – like this one.  Other times, a request for information looks much different – like this other one.  [Employer names redacted to protect the innocent.]

Last week, DOL Branch Chief for FMLA Diane Dawson sought to clarify the DOL’s investigation process. Speaking at an FMLA/ADA compliance conference hosted by the Disability Management Employer Coalition (DMEC), Ms. Dawson explained (from the DOL’s standpoint) how a DOL FMLA investigation is initiated and what it looks like.  Although the presentation provided some valuable insight into the DOL’s approach in an FMLA investigation, one nugget of information stood out:

The DOL expects to increase the frequency in which 

 it comes on-site during an FMLA investigation.  

Before we all start panicking, let me remind employers: the DOL always has had the right to conduct on-site investigations — both announced and unannounced.  However, at least in the FMLA context, this approach has been virtually non-existent in my experience and based on anecdotal evidence shared by employers generally.  EEOC has increased this practice in recent years, but not the DOL.  

Given the infrequency of on-site visits to date, however, the change in the DOL’s approach here is noteworthy.  In her DMEC presentation, Ms. Dawson reported that the DOL’s national office has instructed its regional offices to identify occasions when it would “make sense” to conduct an on-site visit during an FMLA investigation.  Examples might include situations where an employer has racked up a number of recent FMLA violations or where a remedy might quickly be sought for an employee whose termination is imminent or has recently occurred.  

So, why is the DOL changing its approach?  

The DOL reports that on-site visits are easier for its investigators largely because: 1) it tends to make the investigation less time consuming for the agency; 2) investigators have ready access to records, data, FMLA policies and FMLA forms; and 3) investigators can interview employees face-to-face while reviewing documents on-site.    

How Do Employers Prepare for an FMLA Investigation, including an on-site visit?

Given the DOL’s new approach to FMLA investigations, Ms. Dawson advises employers to be proactive in their approach to FMLA compliance before the DOL even knocks on the door.  I couldn’t agree more.  It makes good business sense for employers to engage in a self-audit their FMLA policies, forms and practices so they can substantially reduce their risk of FMLA liability in a DOL FMLA investigation or FMLA-related lawsuit.

Whether we agree or disagree with the DOL’s new strategy, let’s move past that.  We need to prepare for the inevitable.  So, grab your favorite employment counsel (if there is such a thing!?!) and start conducting that review!  A self-audit should include the following:

  1. Conduct a thorough review of your FMLA policy.  Important compliance alert: Ms. Dawson pointed out that the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure that the March 2013 regulations are incorporated in these documents.  As to your policy, is it up to date?  If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)?  Moreover, does your policy incorporate issues such as: eligibility requirements; the reasons for FMLA leave; the definition of your 12-month FMLA leave year; requirements for bonding leave/placement in foster care or adoption; your call-in procedures; substitution of paid leave; the employee’s obligations in the FMLA process; medical certification process; explanation of intermittent leave; benefit rights during leave; fitness for duty requirements; outside work prohibitions during FMLA leave?
  2. Adhere to the Employer Posting Requirements.  In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants.  If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language. (DOL is still working on the new Spanish version.)  
  3. Ensure your FMLA forms are legally compliant.  Examine all existing FMLA forms to determine whether they comply with FMLA regulations.  Again, your forms must incorporate the recent regulatory changes.  A technical violation of the FMLA can be costly (just ask Wachenhut here), so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.  This is no small task.  In the DOL’s model forms, for example, the DOL failed to include the GINA safe harbor language.  What!?!  View this post so you know the specific GINA language to add to your certification forms.
  4. Prepare legally compliant FMLA correspondence.  In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding certification, recertification, failure to provide certification, insufficient/incomplete certification, employee’s return to work, second/third opinions.  These communications also will be reviewed by the DOL during an investigation.
  5. Conduct a comprehensive audit of your FMLA practices and procedures.  A couple immediately come to mind: a) What procedures are used by managers when an employee reports an absence that may be covered by the FMLA?  Are they asking the correct questions to determine whether FMLA applies? (See a previous post that recommends several intake questions.) b) Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources? c) How are you calculating increments of intermittent leave (and are you following the DOL’s new rule on this issue?) d) Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions? e) Are you properly designating FMLA leave and providing timely notice to employees of the designation?  f) Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules? g) Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave?  h) Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave?  Don’t have answers to these questions (or worse yet, you don’t have a clue about what I’m referring to)?  All the more reason to pull in your in-house or employment counsel on this self-audit.
  6. Clean up your recordkeeping now.  Are you maintaining all the data DOL will be looking for, and are your data accurate?  Employers should have ready their employees’ identifying information, their payroll data, date(s) of FMLA leaves, FMLA hours/days/weeks taken, copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave.  These documents should be maintained for at least three years, and they should be kept separate from the personnel file.
  7. Train your employees!  Call me a resounding gong (of course, in the most endearing kind of way!), but why aren’t more employers training their managers about FMLA compliance and their role in administering FMLA and following your FMLA policy?  There are way too many examples of employers who have paid out a whole lot of money because their manager said something foolish about FMLA, did not properly handle an absence covered by FMLA, or did not follow the FMLA regulations.  Managers at all levels can drastically increase your liability when it comes to FMLA. Training them now immediately reduces your risk of liability — both in court and as a result of a DOL investigation.

Did I overwhelm you?  This was not my intention, so if you’re rattled, I beg a thousand pardons! In an era of rigorous enforcement by the DOL and increased FMLA litigation, we need to take the time now to ensure we are FMLA compliant. The alternative is far too costly.  

I welcome your feedback on anything you believe is critical to the self-audit process above and which I missed.  Let’s make this a continuing conversation…

(Hat tip to Marti Carti, Chief Compliance Officer at Reed Group, who did a great job outlining many of these self-audit principles during the DMEC presentation with Ms. Dawson.)

department-of-labor-300x300

When an employer ignores the FMLA regulations as it ponders a termination decision, the consequences can be severe.

A water bottling company recently learned this the hard way.

Peter Lyle was a route driver for “O Premium Waters,” a company that provided bottled water.  In December 2009, Peter took FMLA leave, which was approved by the Company.  During his leave of absence, Peter’s employer was acquired by D.S. Waters (d/b/a “Sparkletts”), also a water bottling company.  According to the Department of Labor, Sparkletts was a nearly identical company to its predecessor for purposes of the FMLA, so there should have been no break in FMLA coverage for Peter and any of his co-workers.

Rather than return Peter to work upon conclusion of his FMLA leave, Sparkletts sent Peter down the raging rapids of termination.  What did the DOL find to be a big part of the problem here?  The new water bottling company retained 87 percent of the drivers from the previous company.  So, something was fishy here.  According to a DOL investigation, it determined that Sparkletts had a legal obligation to allow Peter to complete his FMLA leave and to restore him to the same or equivalent position, as required by the FMLA.

The Court Case and Decision

In one of just a handful of FMLA cases recently filed by the DOL, it brought suit on behalf of Peter.  (Access the complaint here (pdf).)  After discovery between the parties, the DOL and the employer agreed to a consent judgment, which essentially is a type of settlement that ends the litigation with a judgment that is enforceable against the employer.  (Access the consent judgment here (pdf).)

Take note of the penalties involved: the consent judgment required Peter to be reinstated to his position, paid back wages and reimbursed for his medical expenses, which otherwise would have been covered had he remained employed.

Insights for Employers

This lawsuit and consent judgment provide several pearls of wisdom for employers:

  1. Come on employers, we can get this right!  Whether it’s an acquisition or reduction-in-force, employers should seek legal counsel where terminations are at issue.  Although we don’t know all the facts here, this doesn’t seem to be a close call.  Of course, FMLA leave itself does not act as a shield against any adverse action, but employers should have a darn good reason (with supporting documentation) for terminating an employee while he or she is on FMLA leave.
  2. Is this a sign of things to come for the DOL?  The DOL’s FY 2014 budget calls for more resources dedicated for FMLA enforcement, and the DOL’s solicitor’s office already has indicated we will see an increased number of FMLA lawsuits filed by the government in the time ahead.  Moreover, as we see in this case, the DOL will not hesitate to seek a broad range of damages — even reinstatement — where appropriate.  This reality makes it critical that employers self audit their FMLA policies, practices, and forms to ensure compliance with the FMLA and its regulations.  The regulatory and enforcement environment is only going to get more difficult in the time ahead, so money budgeted now for self-audits and training is money well spent.
  3. Where acquisitions occur, pay attention to the “successor employer” regulations.  The FMLA regulations have very specific rules regarding whether a successor employer is bound by the FMLA obligations of the previous company.  Therefore, the acquiring company is well served to conduct the appropriate due diligence and seek legal counsel on their obligations as a successor employer under the FMLA and other employment laws.  For reference, the FMLA’s “successor employer” regulations are as follows:

§ 825.107   Successor in interest coverage

(a) For purposes of FMLA, in determining whether an employer is covered because it is a “successor in interest” to a covered employer, the factors used under Title VII of the Civil Rights Act and the Vietnam Era Veterans’ Adjustment Act will be considered. However, unlike Title VII, whether the successor has notice of the employee’s claim is not a consideration. Notice may be relevant, however, in determining successor liability for violations of the predecessor. The factors to be considered include:

(1) Substantial continuity of the same business operations;

(2) Use of the same plant;

(3) Continuity of the work force;

(4) Similarity of jobs and working conditions;

(5) Similarity of supervisory personnel;

(6) Similarity in machinery, equipment, and production methods;

(7) Similarity of products or services; and

(8) The ability of the predecessor to provide relief.

(b) A determination of whether or not a successor in interest exists is not determined by the application of any single criterion, but rather the entire circumstances are to be viewed in their totality.

(c) When an employer is a successor in interest, employees’ entitlements are the same as if the employment by the predecessor and successor were continuous employment by a single employer. For example, the successor, whether or not it meets FMLA coverage criteria, must grant leave for eligible employees who had provided appropriate notice to the predecessor, or continue leave begun while employed by the predecessor, including maintenance of group health benefits during the leave and job restoration at the conclusion of the leave. A successor which meets FMLA’s coverage criteria must count periods of employment and hours of service with the predecessor for purposes of determining employee eligibility for FMLA leave.

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!