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Posts Tagged ‘FMLA’

Are You Prepared To Grant Intermittent Family Medical Leave?

Posted on: May 14th, 2019

By: David Daniels

One of the biggest employer complaints about the Family and Medical Leave Act (FMLA) is the productivity problems caused by employees’ use—and abuse—of FMLA intermittent leave.

The problem: Employees with chronic health problems often take FMLA leave in short increments of an hour or less.

The Department of Labor (DOL) took a big step to help minimize workplace disruptions due to unscheduled FMLA absences in its revised regulations, which took effect in 2009. The DOL says that, in most cases now, employees who take FMLA intermittent leave must follow their employers’ call-in procedures for reporting an absence, unless there are unusual circumstances.

Tracking Intermittent FMLA Leave

Even though managing FMLA intermittent leave can be vexing, the law does give employers some tools to combat leave abuse.

As with leave taken in one block, employees requesting FMLA intermittent leave must provide his or her employer with notice. Employees must give at least 30 days’ notice when their need for FMLA leave is foreseeable. When it’s not, they must notify you “as soon as practicable.”

A. Certify and schedule the leave.

Don’t accept FMLA requests at face value. The law gives employers the right to demand certification from the employee’s doctor of his or her need for leave. An employer can request new medical certification from the employee at the start of each FMLA year. The law also entitles an employer to ask for a second or third opinion, if necessary, before granting leave.

When employees have chronic conditions and their certifications call for FMLA intermittent leave, an employer should attempt to work out leave schedules as far in advance as possible. It’s legal to try to schedule FMLA-related absences, but an employer can’t deny them.

It’s important to immediately nail down the expected frequency and duration of FMLA intermittent leave. An employer can insist on a medical provider’s estimate of how often the employee will need time off. An employer also can wait until the provider gives an estimate to approve intermittent leave.

B. Intermittent Leave Tips.

  • Ask about the specific condition. Medical certification must relate only to the serious health condition that is causing the leave. An employer can’t ask about the employee’s general health or other conditions.
  • Allow 15 days to respond. After an employer requests certification, the employer should give employees at least 15 calendar days to submit the paperwork. If the employee’s medical certification is incomplete or insufficient, specify in writing what information is lacking and allow the employee seven days to cure the deficiency.
  • If an employer doubts the need for leave, it should investigate the certification. Under the updated FMLA regulations, the employer can contact the employee’s physician directly to clarify the medical certification. The employer’s contact person can be a health care provider, a human resources professional, a leave administrator (including third-party administrators) or a management official, but not the employee’s direct supervisor.
  • If an employer is still not convinced, it can require (and pay for) a second opinion. The employer should use an independent doctor who it selects, not a doctor who works for the employer. If the two opinions conflict, an employer can pay for a third and final, binding medical opinion.

Employees who take FMLA intermittent leave can wreak havoc with work schedules. Because their conditions can flare up at any time, their absences are by nature unpredictable. But there are ways you can legally curtail intermittent leave.

C. Use the Calendar-year Method.

Employees who take FMLA intermittent leave can wreak havoc with work schedules. Because their conditions can flare up at any time, their absences are by nature unpredictable. But there are ways you can legally curtail intermittent leave.

One way is to use the calendar-year method to set FMLA leave eligibility.

Here’s how it works. Sometime during the calendar year, an employee submits medical documentation showing she will need intermittent leave for a chronic condition. If she is eligible for leave at that time, she can take up to 12 weeks of intermittent leave until the end of the calendar year.

Then the process starts again.

If, on Jan. 1, she hasn’t worked 1,250 hours in the preceding 12 months, she’s no longer eligible—and won’t be eligible again until she hits 1,250 hours.

Final tip:  Employees who are approved for FMLA intermittent leave can take that time off as needed. But that doesn’t mean an employer isn’t entitled to some supporting documentation for each absence. An employer can ask for proof that the absence was for the chronic condition—but a simple doctor’s note to that effect should suffice. No new formal certification is required.

Wait until the end of your FMLA leave year to get the new intermittent-leave certification.

This is only a short primer on FMLA leave laws which can be a trap for the unwary employer. David Daniels the managing partner of the FMG Sacramento office. Please feel free to contact him at (916) 765-2570 ([email protected]) should you wish to further discuss the FMLA or any other areas of employment law at your convenience.

DOL Guidance Says Employers Cannot Exhaust Paid Leave Prior to Beginning Employee’s FMLA Leave

Posted on: March 18th, 2019

By: Brent Bean

The U.S. Department of Labor issued an opinion letter on March 14, 2019, re-affirming its view that employers must start the clock on an employee’s FMLA leave when the employer first learns the absence qualifies as a serious health condition under the FMLA.

The Opinion Letter specifically addressed the question of whether an employer can delay the designation of FMLA leave until after an employee first uses any paid leave the employee has accrued. Answering this question, the DOL emphasized that, once an employer has enough information to conclude that the leave is covered by the FMLA, it must designate such leave with 5 days. In issuing its answer, the DOL made clear that, even if an employee desires to delay the designation of FMLA leave so it can first use accrued paid leave, the employer is not permitted to do so.

Rather, as the Labor & Employment Group at FMG has long emphasized to our clients, if an employee has accrued paid leave, it should simply count any paid leave against the FMLA 12-week entitlement (in other words, simultaneous exhaustion of paid leave and FMLA leave). For instance, if an employee has 6 weeks of paid sick leave and wants to take 10 weeks of FMLA leave, the first 6 weeks of the FMLA leave will be paid and the remaining 4 weeks will be unpaid. When the employee returns from the 10 weeks of FMLA leave, the employee, having used his/her 6 weeks during FMLA leave, will have no more paid sick leave until the employee begins to accrue new paid sick leave time.

Not only does the DOL’s Opinion Letter reiterate that FMLA leave will always run from the date the employer learns the leave qualifies, it also clarifies the DOL’s position with respect to a 2014 Ninth Circuit opinion that permitted an employer to decline FMLA leave in favor of paid time off.  See Escriba v. Foster Poultry Farms, 743 F.3d 1236 (9th Cir., 2014).

In Escriba, the plaintiff requested leave to help her ill father in Guatemala. And when she asked for leave, she specifically requested that she be allowed to use vacation time instead of FMLA leave time for her trip. She then left for Guatemala but didn’t contact the company again until 16 days after she said she would return. When she returned, her employer notified her that it had terminated her as she had violated its three-day no-call, no-show rule. After she was fired, the plaintiff filed a lawsuit claiming FMLA interference, saying that informing her supervisors about her father’s illness should have triggered FMLA protection. The court held that the employee can delay the use of FMLA leave by opting instead to first use paid leave (even if the leave is related to an FMLA-qualifying condition).

The DOL Guidance provides that the rule in Escriba would no longer apply. Employers must designate FMLA leave once they have enough information to conclude the leave is covered and, if the employee desires to use some other form of paid leave, that leave would run concurrently.

If you have any questions or would like more information, please contact Brent Bean at [email protected].

DOL Guidance On No Fault Attendance Policies

Posted on: September 21st, 2018

By: Joyce Mocek

The Department of Labor (DOL) Wage and Hour Division issued a new opinion letter on an employer’s no-fault attendance policy which effectively froze an employee’s attendance points that had accrued prior to taking the FMLA leave.  The DOL maintained that the no-fault attendance policy did not violate the FMLA if it was applied in a non-discriminatory manner, and applied consistently with other types of leave.

The FMLA prohibits employers from “interfering with, restraining, or denying” an employee’s exercise of FMLA rights, and prohibits employers from “discriminating or retaliating against an employee.. for having exercised or attempted to exercise FMLA rights.”  29 CFR 825.220.  In its opinion letter, the DOL noted that employees cannot accrue points for taking FMLA leave under a no-fault attendance policy.  Further, the FMLA does not entitle an employee to superior benefits simply because they take FMLA leave.

In the opinion letter, the DOL advised that since the employee’s number of accrued points remained frozen during the FMLA leave the employee neither lost a benefit that accrued prior to taking the leave, nor accrued any additional benefit which he or she would not have been otherwise entitled.  The DOL thus advised that this policy would not violate the FMLA.  However, the DOL noted that if the employer counted other types of leave (i.e. active service) under its no-fault policy, then the employer may be discriminating against employees that take FMLA leave as this inconsistency would violate the FMLA.

Employers should be mindful of this recent DOL opinion letter guidance and review their no-fault attendance policy to ensure compliance and consistency with other leave policies.

If you have any questions or would like more information, please contact Joyce Mocek at [email protected].

Is Your Attendance Policy Too Rigid?

Posted on: September 6th, 2018

By: Christopher Curci

Employers need to be mindful of both the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when considering how to enforce their attendance policies.  When an employee requests time off from work to attend to a medical condition, most employers will consider the request as one for medical leave under the FMLA.  However, what happens if the employee has exhausted his or her FMLA leave or is not eligible for FMLA leave.  Many employers will simply conclude that the employee is not eligible for FMLA leave without considering whether the ADA requires the leave as a reasonable accommodation.  This common mistake often results in a violation of the ADA.

For example, in August 2018 the EEOC filed a lawsuit against Stanley Black & Decker for terminating an employee who took leave for medical treatments related to her cancer.  To qualify for FMLA leave, the employee must have been employed with the company for at least one year and worked at least 1,250 hours during the prior year.  In the Stanley Black & Decker lawsuit, the employee requesting leave had been employed for less than one year.  When she asked Human Resources what her options were to receive her medical treatments, she was correctly told that she was not eligible for FMLA leave.  However, Human Resources did not consider whether the requested leave was a reasonable accommodation under the ADA.

What happened?  The employee exceeded her allowed vacation days to undergo her cancer treatments and Stanley Black & Decker terminated her employment for excessive absenteeism in violation of its attendance policy.  Then what happened?  The EEOC filed a lawsuit against Stanley Black & Decker for violating the ADA.

Per the EEOC, Stanley Black & Decker’s attendance policy “does not provide exceptions for people who need leave as an accommodation to their disability.”  EEOC Regional Attorney Debra M. Lawrence said, “Employers can run afoul of the ADA if they have a rigid attendance policy that penalizes employees taking leave as a reasonable accommodation for their disabilities.”

Inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.  The take away: when an employee requests leave due to a medical condition, employers must consider both the FMLA’s leave requirements and the ADA’s reasonable accommodation requirements.

Christopher Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of  Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  He can be reached at [email protected].

 

Georgia Employers Must Become Familiar With State’s New Paid Leave Law

Posted on: July 9th, 2018

By: Will Collins

Across the country, there are an increasing number of state laws requiring that employers provide paid sick leave, including paid leave for the care of a family member. For instance, under the Georgia Family Care Act, which went into effect in July of 2017, employees who work at least 30 hours per week and receive a paid sick leave benefit may use up to five (5) days per calendar of that paid leave to care for “immediate family members.”  This includes the employee’s child, spouse, grandchild, grandparent, parent, or “any other dependents as shown on the employee’s most recent tax return.”

To be clear, the Act, which applies to the State of Georgia and all of its political subdivisions and instrumentalities as well as all employers with twenty-five (25) or more employees, does not create an obligation to provide sick leave, but instead requires covered employers that elect to provide paid sick leave to allow their employees to use a portion of that leave to care for immediate family members.

Georgia is just one of several states, including New York, expanding paid family leave obligations. While Georgia stopped short of mandating paid sick leave, eleven (11) other states have laws addressing paid leave policies. As a result, employers must be mindful of state law requirements as well as unpaid leave obligations under the Family Medical Leave Act (FMLA).

If you have questions about your leave policy or leave obligations, please contact one of the attorneys in our National Labor and Employment Practice Group to help you navigate the state and federal regulations and answer questions as they arise.