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Serious Health Condition

Our thoughts and prayers are with those in Texas and Louisiana whose lives have been impacted by Hurricane Harvey and those in Florida in the dangerous path of Hurricane Irma.  Join us sending a donation to those organizations performing rescue operations and providing much needed help to our fellow Americans in need.

Natural disasters like Harvey and Irma raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered?

The aftermath of a hurricane also raises questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Several years ago, I covered this question, so I refer you that post for a more detailed analysis of an employee’s right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave.

However, it’s worth pointing out again a few general points to consider as we’re confronted with natural disasters like Hurricanes Harvey and Irma:

  • Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives. Case in point: poor Joe Lane, whose FMLA lawsuit was dismissed after he sought FMLA leave, in part, to clean up his mom’s flooded basement because her health conditions precluded her from doing so.
  • However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a “serious health condition” and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Some examples might include the following: 1) as a result of the natural disaster, an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job. Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster. Take, for instance, an employee’s parent who suffers from diabetes. If the event took out power to the parent’s home, the employee may need to help administer the parent’s medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
  • Could the Hurricane actually cause a serious health condition requiring time away from work? See my answer here.
  • What if an Employee was already on FMLA leave when the Hurricane hit and your business now is shut down for a period of time? Here, the FMLA regulations are clear: If your business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, these days do not count against the employee’s FMLA leave entitlement.
  • Finally, do you have to pay your employee on FMLA leave while your workplace is closed down? In short, you treat them the same way you would treat another employee on non-FMLA leave.  See my previous post here for an explanation.

Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours from several years back covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

Clinton pneumoniaDisclaimer! Disclaimer! This is not a political post. This is meant to be good, clean fun. But where current events meet the FMLA, I’m as giddy as a five-year old boy coming eye-to-eye with his first dump truck!

Unless you’ve been living under a rock the past week, or you plug your ears and go “la-la-la-la . . . I can’t hear you” every time 2016 presidential news echos over the airwaves, you know that Democratic presidential candidate Hillary Clinton is battling pneumonia.

Naturally, Hillary’s predicament raises some curious questions in this one-track FMLA mind:

First, can Hillary take FMLA leave for her pneumonia, and does it matter that she still keeps showing up to work? [Frankly, I found myself more fascinated by the John Lennon sunglasses she was sporting when she fell ill on Sunday.]

Second, is Hillary a “key employee” under the FMLA who does not need to be returned to her position?

Is Hillary’s Pneumonia a Serious Health Condition?

Assuming Hillary is otherwise qualified to take FMLA leave and her campaign a covered employer, she can take job-protected leave so long as her medical condition involves either:

  • Inpatient care (i.e., an overnight stay in a health care facility); OR
  • An absence from work for more than three consecutive calendar days and either
    • two or more in-person visits to the health care provider within 30 days of the date of incapacity or
    • one in-person visit to the health care provider with a regimen of continuing treatment, such as prescription medication or physical therapy.

Keep in mind: simply staying at home, drinking fluids, and staying in bed (even if exposed to decades old hits sung by longtime Clinton supporter Barbara Streisand) are activities which can be initiated without a visit to a health care provider and do not establish a serious health condition.

What about the fact that Hillary keeps coming to work? Aside from a quick visit to recuperate on Sunday at daughter Chelsea’s home, Hillary has continued her full campaign schedule, despite her illness. Having received medical documentation confirming her serious health condition, any other employer (besides, of course, a presidential campaign two months out from the election) would designate the FMLA leave and require Hillary to remain off work until she provided a fitness for duty certification.  After all, she has pneumonia!

Is Hillary a “Key Employee” Who Can Be Denied Reinstatement to Her Position After FMLA Leave?

First off, Hillary ain’t going no where on her own campaign.  But let’s suppose for a nanosecond that we lived in some bizarro world (which is not all that far-fetched this election season), and in an 11th-hour attempt to gain the nomination, Bernie Sanders convinced the Clinton camp to invoke the “key employee” exception and not return Hillary to her position. Would it work?

Under the FMLA’s “key employee” exception, the campaign could give her the boot so long as it could show that:

1. Hillary is among the highest paid 10 percent of all the employees on the campaign. (Ummmm . . . Is that really in doubt?)

2. Having to reinstate Hillary would cause substantial and grievous economic injury to the campaign’s operations.  This is an overwhelming standard for any employer to meet, and the FMLA regulations even note that this test is significantly harder to establish than the “undue hardship” test under the ADA. In other words, an employer has to show it would be in a world of hurt because of a key employee’s reinstatement after FMLA leave. Given that she is the whole show herself, I *think* the campaign just might be able to show such an injury here.

Notice to “Key Employee” is Critical. Even if the campaign could satisfy the above factors, it still must provide Hillary written notice at the start of her FMLA leave explaining the potential consequences with respect to reinstatement and maintenance of benefits.  If the campaign fails to do so, it cannot deny her reinstatement.  Once the employer makes a determination that substantial and grievous economic injury will occur to its operations, the campaign must provide notice to Hillary, including the determination that her reinstatement will cause such injury, and the basis for the determination.  If Hillary already has begun FMLA leave, the campaign still must provide FMLA leave but allow her a reasonable period to return to work in lieu of additional FMLA leave (again, so long as she is fit to return).

If Hillary does not return after receiving this notice, she still is entitled to take FMLA leave. If the campaign continues to find that this substantial and grievous economic injury still will occur, the campaign can deny reinstatement in writing and, like before, provide the basis for the determination.  Keep in mind: the “key employee” provision of the FMLA does not allow the employer to deny FMLA leave, but only to deny reinstatement.

Hmmm, after all that, I’m no longer feeling like that five-year old with his new dump truck . . . .

Children Play DoctorFrank, your night custodian, reports that he suffers from Crohn’s disease, a chronic condition that will cause him to miss work when the condition flares up from time to time, including his absence yesterday. Cleaning floors causes him a great deal of stress, which in turn exacerbates his medical condition, and yesterday was one of those days.

On Frank’s FMLA medical certification, his doctor confirms that he will need to have treatment twice per year for the condition, but he also lists only one occasion within the past year when he treated Frank for the condition.

Can you deny Frank’s FMLA leave because he only has treated one time over the past year?  After all, a chronic serious health condition is one which:

Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider. 29 C.F.R. 825.115(c)(1) (my emphasis).

Frank has not racked up two doctor’s visits, so he’s out of luck, right?

What Are the Most Common Approaches?

In my experience, employers and third party administrators tend to handle Frank’s situation in one of two ways, both of which are defensible:

  1.  The conservative approach: A favorite for most employers and TPAs, the conservative approach gives the employee as much time as possible to attend that second visit with the doc.  So, they typically approve FMLA leave in this instance, so long as the employee has another visit with the health care provider within the 12 months ahead.
  2. The moderate approach: Another approach employers take (albeit a less common one) is to wait and see whether the employee has a second visit within the year before granting or denying the FMLA leave. Potentially an administrative mess, the thought behind this approach is that the employer does not yet want to treat the absence as covered or not covered by the FMLA until the employee does or does not have another visit with the doc.

But Can Employers Take An Aggressive Approach?

Here’s a wild idea. Why not take the regulation at face value and enforce it — to obtain FMLA leave, the employee must have visited with a health care provider twice within the year leading up to the certification. Therefore, if the employee’s doc does not list two treatment dates within the previous 12-month period, and the employee is otherwise unable to provide documentation of two visits, FMLA leave is denied.

In taking this approach, employers can rely on the Department of Labor’s own words in the preamble of the 2009 regulations when it endorsed a change to today’s “two visit” rule:

The Department recognizes employers’ concerns regarding requiring only two treatment visits per year, and their desire for some clearer way to assess the seriousness of a chronic health condition, but is concerned that imposing some greater standard could effectively render ineligible many employees who are entitled to the protections of the law.  On the other hand, the Department does not agree with comments from employee groups that because many chronic conditions are stable and require limited treatment, the twice per year standard is unreasonable since that effectively ignores the requirement for ‘periodic’ visits in the current regulations.  The need for two treatment visits per year is a reasonable indicator that the chronic condition is a serious health condition.  The Department believes the requirement for two visits per year thus strikes a reasonable balance between no minimum frequency at all, as supported by many employee groups, or four or more times per year, as suggested by many employer groups, for employees who use FMLA leave for chronic serious health conditions.  Federal Register Volume 73, No. 222 / Monday, November 17, 2008 at page 67948, column 3 (pdf)(my emphasis)

But Jeff, Can You Find Me a Court Case I Can Cite?

I’ve got your back on this one, too. Employers can rely on Lusk v. Virginia Panel Corp., which established that the window you consider for the two visits is the one year period prior to the time the employee needs FMLA leave for the chronic condition.  In Lusk, the plaintiff, Leslie, had not visited with a physician at all in the year leading up to her request for leave for a mental health condition. She argued that, as we might expect she would, the two-visit requirement could be met by treatment that occurred after she took FMLA leave.

The court didn’t buy Leslie’s argument, finding that the critical time period for determining whether a particular condition qualifies for FMLA purposes is the time at which the FMLA leave is requested. Because she did not accumulate two visits in the year leading up to that request, it was no soup for Leslie.

Consider this another tool you can use to confirm an employee’s chronic condition and combat FMLA misuse.

Hat tip: Jeff Fraser

butt pepperApparently, Kim Kardashian isn’t the only one whose derrière seems to have transformed over the years.

According to data provided by the American Society of Plastic Surgeons (ASPS) and published in a number of news outlets, butt implants and male breast reduction are now among the fastest-growing types of plastic surgery in the United States.

According to the ASPS, there were just under 16 million surgical and minimally invasive cosmetic procedures performed in 2015 — that shakes out to one in 16 adults. Since 2000, procedures to pump up your behind have surged 250%. ASPS also reported more than 68,000 breast reduction surgeries in 2015, and men accounted for more than 40% of those procedures.

Can an Employee Take FMLA Leave for Plastic Surgery?

As all good things in life come back to the FMLA, let me pose the question:  Can your employee take FMLA leave for plastic surgery?

Make no butts about it, it is entirely possible.

If the procedure is related to a medical condition that otherwise qualifies as a “serious health condition” under the FMLA, then FMLA leave definitely is in play. So, for example, reconstructive surgery following a serious injury or illness would very likely qualify for FMLA leave.However, the FMLA regulations make clear that “conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not ‘serious health conditions’ unless inpatient hospital care is required or unless complications develop.” Therefore, FMLA leave is generally not available for purely outpatient cosmetic procedures unless it:

  1. Involves an overnight stay in the hospital; or
  2. Complications develop as a result of the procedure.

Hat tip: To my friend Tiffany Passmore for passing along the perfect photo for this cheeky blog post!

midnightQ: One of my employees complained of chest pains at work and later went to the emergency room at the local hospital. However, we have learned through his medical certification that he was not admitted to the hospital until after midnight.  He spent most of the day in the hospital and was discharged later that same day. In total, he missed two days of work. Is this absence covered by the FMLA?

A: Under the FMLA, an employee can take job-protected leave for “any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital.” So, your employee’s protection under the FMLA hinges on whether his visit to the hospital is considered an overnight stay.

Consider this scenario, which answers our question:  Jeff (a fabulous name, as an aside) worked for a tool manufacturer and had a history of heart problems. One day he was having chest pains at work — curiously, they occurred as he was being disciplined for sleeping on the job — and he asked his supervisor if he could leave work to go to the hospital. The supervisor granted his request to leave work.

Jeff arrived at the hospital before midnight, but was not admitted until after midnight.  He remained in the hospital for 14 hours, at which point he was released.  He missed work that day and was fired for “walking off the job.” There must be another story we’re missing here, but we’re not privy to it.  Jeff (which may not be a fabulous name after all), filed suit, claiming FMLA interference and retaliation.

The Court Ruling

The FMLA regulations define “inpatient care” as “an overnight stay in a hospital, hospice, or residential medical facility, including any period of incapacity as defined in 29 C.F.R. Sec. 825.113(b), or any subsequent treatment in connection with such inpatient care.”

Therefore, the appellate court reviewing Jeff’s case was charged with defining “overnight stay” under the FMLA.  Earlier, the trial court had determined that the employee had to stay at the hospital from “sunset on one day to sunrise the next day.”  That was not workable, according to the appellate court.  After all, how could that principle work on a wintry December day in Fairbanks, Alaska, where those poor souls live in near darkness the entire day?

Ultimately, the court determined that an “overnight” stay had to constitute a “substantial period of time” from one calendar day to the next calendar day “as measured by the individual’s time of admission and time of discharge.”  Here, Jeff did not satisfy this test — although he arrived at the hospital before midnight, he was not admitted until after midnight.  Thus, his hospital stay did not span one calendar day to the next and was not protected by the FMLA.

Although it was not applicable in this case because Jeff did not stay overnight, the court also advised that the individual must remain overnight for a substantial period of time.  In other words, if the employee is admitted at 11:59 p.m. and discharged one hour later at 1:00 a.m., this would not constitute an overnight stay protected by the FMLA.  Short of creating a bright line rule, the court suggested that “a minimum of eight hours would seem to be an appropriate period of time.”  But it left closer analysis of this eight-hour time frame to another day.

A 57-page decision to decide all of that.  Must have been written by a true FMLA wonk, and I like it!  You can read the decision here: Bonkowski v. Oberg Industries

spermIs that all it takes to get you to click on my blog entry — make a reference to “sperm” in the blog title and post a silly photo of this little guy?  That was like taking candy from a baby!

Now that we have that behind us, I was posed an interesting question a few weeks back: Can a woman take FMLA leave for in vitro fertilization treatments?

What Does the FMLA Say on the Issue?

Given that the FMLA regulations do not specifically address in vitro fertilization treatments and since the courts have not ruled definitively on the issue, it is an open question whether the FMLA covers absences for in vitro fertilization treatments.

The employee arguably can take leave in this instance if she has a serious health condition that renders her unable to perform the functions of her position. 29 U.S.C. § 2612(a)(1)(D). So, does a woman who undergoes in vitro fertilization (IVF) treatments have a “serious health condition” protected by the FMLA?

According to the only court in the land that has addressed the issue in the context of the FMLA, the answer generally is, “No” — there is no FMLA protection. In 2009, a federal appellate court determined that an employee who took leave for IVF treatments was not protected by the FMLA because she was not required to take leave for more than three days at a time for the treatments (rendering her unable to show that she suffered from a serious health condition).  In this case, the court closely reviewed the employee’s FMLA medical certification, which stated that the employee would be required to take two separate three-day periods of intermittent leave (for a total of six days of leave) and work a reduced work schedule of two to three days per workweek during the leave periods.  Culpepper v. Blue Cross Blue Shield of Tennessee (pdf)  Using a rather straightforward analysis — that the employee had not required “continuing treatment” by a health care provider — the court determined that the employer was not required to provide FMLA leave in this instance.

As a related aside, I don’t see how the quality of dad’s sperm impacts this issue, as the female employee in question still would have to establish that she suffers from a serious health condition by way of the IVF treatments.  But I welcome your feedback if you think there is an angle here that would impact the FMLA question.

Not So Fast

The Culpepper case provides some authority as to the FMLA analysis of the issue.  But employers: let’s not be too quick to hit the FMLA denial button in these situations.  Why?  Keep reading…

Unless you’ve fit yourself securely under a rock lately, you know that the EEOC and United States Supreme Court recently have taken up the issue of pregnancy discrimination and accommodation. In short, given the authority below, employers run some level of risk in denying leave to an employee who seeks leave for IVF treatments.

Denial of Leave for Infertility Treatment May Lead to Gender/Pregnancy Discrimination Claims

In its July 2014 Enforcement Guidance on Pregnancy Discrimination, the EEOC told employers in no uncertain terms that failure to provide protected leave to an employee for IVF treatments will lead to an inference of gender discrimination:

Because surgical impregnation is intrinsically tied to a woman’s childbearing capacity, an inference of unlawful sex discrimination may be raised if, for example, an employee is penalized for taking time off from work to undergo such a procedure.   (See example 5 in EEOC’s Guidance)

Notably, EEOC’s guidance cited to an unfavorable court case for employers: Hall v. Nalco. In this 2008 case, Cheryl Hall worked as a secretary at Nalco, and she requested leave to undergo IVF treatments, which was approved. When she was to begin a second leave of absence for IVF treatments, she was told that her office was merging with another office and that only the secretary from the other office would be retained. Unfortunately for the company, there was evidence that decisionmakers decided to RIF Cheryl because she had missed work due to her IVF, and her supervisor marked down her performance evaluation, citing “absenteeism—infertility treatments.”

Cheryl filed a pregnancy discrimination lawsuit, claiming that she was dismissed because she was a female with a pregnancy related condition — infertility.   Although a federal trial court dismissed Cheryl’s claims on the basis that infertile women were not a protected class under the Pregnancy Discrimination Act (PDA) because infertility is a gender-neutral condition, a federal appellate court disagreed and allowed Cheryl to proceed with her discrimination claim.  The Court noted the following:

Employees terminated for taking time off to undergo IVF—just like those terminated for taking time off to give birth or receive other pregnancy-related care—will always be women. This is necessarily so; IVF is one of several assisted reproductive technologies that involves a surgical impregnation procedure . . . Thus, contrary to the district court’s conclusion, Hall was terminated not for the gender-neutral condition of infertility, but rather for the gender-specific quality of childbearing capacity.

Given the comments from supervisors and direct evidence of discrimination in comments made on her performance evaluation, the appellate court allowed her PDA claims to go to a jury.

Insights for Employers

Leave requested and taken for IVF treatments may very well not be protected by the FMLA unless the employee can establish an absence of more than three consecutive days plus continuing treatment. However, it’s likely a different story when the question is analyzed as one of pregnancy or disability discrimination.  And I have not even raised the issue of whether certain state laws would require leave or an accommodation in these situations. In fact, given the growing number of pregnancy accommodation laws at the state level, it is possible that IVF treatments may enjoy certain protection under various state laws.

So, don’t win the battle and lose the war: before you deny leave for IVF treatments, analyze your exposure to a gender or disability discrimination claim. As evidenced by the EEOC’s recent guidance and the Hall case, the EEOC and some courts suggest your exposure could be significant.

Hat tip: Thanks to my friends at UPMC WorkPartners for raising this issue with me. It’s a good one!

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

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

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

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

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

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

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

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

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

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

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

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.

business damaged by hurricane.jpgThanks for the great feedback we received on our post earlier this week about Hurricane Sandy’s impact on employers when it comes to issues arising under the Family and Medical Leave Act.  In your feedback, I received several requests to address the following question:

If an employer shuts down because of damage related to the Hurricane, and an employee was out on FMLA leave at the time the office closed, is the employee charged FMLA leave for these days?

The FMLA regulations (at 29 CFR § 825.200(h)) clearly state how an employer should calculate FMLA leave when it shuts down its operations:

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.

Thus, the regulations indicate that, if an employer’s business is closed for a week or more because of the natural disaster, the days that the business is shuttered could not count against an employee’s FMLA leave allotment. 

Keep in mind: in these situations, you cannot count the time against the employee’s FMLA allotment even if it is obvious the employee would not have been able to perform the duties of the job during the break. Listen to our previous podcast here for more information on how to calculate FMLA leave during periods in which the employer is closed for business.

hurricane sandy.jpgOur thoughts and prayers are with those on the east coast who are attempting to return to some sense of normalcy in the wake of the devastation left behind by Hurricane Sandy

Natural disasters like Sandy raise a host of issues for employers: how do you pay your employees during during suspended operations?  Whether and to what extent should health benefits and other benefits be offered? 

The aftermath of the hurricane also raises questions about an employer’s obligation to provide a leave of absence to employees under laws such as the Family and Medical Leave Act.  Awhile back, I covered this question, so I refer you that post for a more detailed analysis of an employee’s right to take FMLA during a natural disaster and whether the disaster itself could cause a serious health condition requiring FMLA leave. 

However, it’s worth pointing out again a few general points to consider as we’re confronted with natural disasters like Hurricane Sandy:

  • Keep in mind that the FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.
  • However, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a “serious health condition” and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Some examples might include the following: 1) as a result of the natural disaster, an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) flares up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play; or 2) an employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee’s parent who suffers from diabetes.  If the event took out power to the parent’s home, the employee may need to help administer the parent’s medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.
  • Could the Hurricane actually cause a serious health condition requiring time away from work?  See my answer here.

Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.  (A previous FMLA podcast of ours covers how an employer should respond to a request for FMLA leave.  It might be helpful here.)

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.