The Partners Group Total Absence Management (TAM) practice hosted a webinar entitled “Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues”.

Webinar Overview:

Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job. Throw in ADA for good measure and you end up with one nasty headache. FMLA Insights blog author and labor and employment attorney, Jeff Nowak, will take us through some of the most difficult FMLA and ADA compliance issues and offer practical steps employers can take to maximize compliance and minimize the headaches.

Key Messages from this Webinar include:

  • Recognizing an employee’s need for FMLA leave. Is a text message good enough?
  • Whether an employer should designate FMLA leave on occasions when an employee does not want FMLA to apply.
  • Investigating employee conduct after social media posts show them acting inconsistently with their need for FMLA leave.
  • The latest on managing FMLA intermittent leave, seeking re-certification, and the value of second opinions.
  • The age-old question: Leave as an ADA reasonable accommodation – when is enough plenty?

 

Q&A from Webinar:

1. What is the website to subscribe to the FMLA newsletter?

You can subscribe to the FMLA Insights blog by visiting www.fmlainsights.com. On the right-hand side of the home page, there is a “Subscribe by Email” header. Simply type your email address into the available text box, click the GO button, and you’ll be all set to receive notices of new blog posts straight to your email.

2. Was there a paper trail that showed Maria declined FMLA? Was this assumed because she only asked for vacation?

It’s unclear whether there was a paper trail or not. If she did, indeed, decline FMLA, the employer should have detailed this fact in writing.

3. EE with Crohn’s Disease and Fibromyalgia Intermittent leave, FMLA certified November, uses most but not all of their time by the following November. EE recertifies in November. How can we prevent an employee from recertifying every year?

You can’t prevent an employee from applying for leave. To do so would be unlawful FMLA interference. The reality is that eligible employees have access to 12 weeks of leave in a defined 12-month period and many provisions of the law are in place to protect individuals with long-term chronic illnesses. However, that doesn’t mean you have to throw your hands up and allow FMLA to be a free-for-all entirely controlled by your employees. You can take the following steps to assert the controls you do have:

  • Recheck the employee’s eligibility for FMLA once every new leave year for each specific qualifying leave to ensure that the employee continues to meet the law’s 1,250 hours worked provision.
  • Be sure that you are consistently designating FMLA time where you can. Remember, employees only have 12 weeks of FMLA time (26 for care of a service member) in a 12-month period. There is a limit to how much time is job protected. Ask yourself the following questions to determine if you are adequately deducting from the employee’s 12-week allotment.
    • Are you running FMLA concurrent with Workers’ Compensation and other Disability Plans for your employee population? If not, rethink this practice as you are missing opportunities to reduce FMLA balances.
    • Are you taking care to put your employee through your certification process where applicable even if they have PTO time to cover their absence?
    • Are you accurately capturing intermittent absence under FMLA by specifically requiring that employees expressly state when their absences are related to their FMLA leave? Make sure your attendance notification expectations clearly communicate this expectation so you aren’t left guessing.

Unfortunately as employers we don’t have an “out” as far as meeting our obligations under FMLA for those employees who have a seemingly endless need for leave. The best thing we can do is to set ourselves up for accurate utilization tracking. And don’t forget your additional obligations under State leaves and the ADA. Be willing to utilize your rights as an employer to deploy methods to circumvent leave abuse and overuse; authentication/clarification of medical certifications, 2nd/3rd medical opinions, and, where appropriate, internal HR investigations.

4. If employer does allow vacation and sick time to be used when employee needs FMLA, is this paid time still part of their FMLA allotted time?

Yes, this is expressly permitted by the regulations in §825.207 Substitution of paid leave. “The term substitute means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave.” Whether you require or allow your employees to substitute their unpaid FMLA leave with paid time off, we recommend that you clearly communicate your approach within your FMLA policy and that you expressly state that paid time off will run concurrent with FMLA.

5. How is asking an employee about their own condition not a violation of HIPAA?

The FMLA regulations allow employers to gather the necessary medical facts to determine whether a condition qualifies as a serious health condition under the FMLA. Take care to limit your inquiries to the information outlined within §825.306 content of medical certification for leave taken, because of an employee’s own serious health condition or the serious health condition of a family member. We recommend either utilizing or modeling your own certification forms off of the DOL forms found here:

6. What if employee does not give permission for employer to contact their physician?

This is not uncommon; some employees just are not comfortable with you as their employer making direct contact with their medical provider. Just be sure that your employee understands what this means. Unless you are simply authenticating certification, you cannot contact the health care provider without the employee’s permission. If the employee does not allow you to contact their Health Care Provider, the obligation then rests solely with the employee to provide complete and sufficient information about their need for FMLA leave. Otherwise, FMLA leave can be denied.

7. If you send a letter to the doctor via employee, can you seal the letter or do you keep it open so employee can see it.

Make sure that the employee has access to the contents of the letter. At the very least, being transparent with your employee in this manner will show them that you are paying attention and taking action on suspicious behavior that you have witnessed.

8. You mentioned we can’t automatically request a recertification at six months. Is there a time where we can automatically request an updated certification? Can we automatically request at one year?

Requests for Recertifications or Annual Certifications should always be in connection with an absence. Our recommendation is to send the employee a “closure” letter at the end of their certified period of leave letting them know that if additional absences are reported, you will be following up with a request for updated certification.

If your employee’s need for leave continues for an extended period of time, or if it changes significantly, you may require your employee to provide an updated certification. In all cases, an employer may request recertification every six months in connection with an absence.

Where the need for leave for an employee’s or family member’s serious health condition lasts beyond a single leave year, the employer may recheck an employee’s eligibility for FMLA and may require a new certification in each subsequent FMLA leave year. That means you may request a new medical certification with the first absence in a new 12-month leave year and because it is considered a new certification, you may also seek a second and third opinions for these new medical certifications.

9. Any advice dealing with employees who are married couples or qualifying family members who take intermittent leave at the same time? (One has the health condition and one employee is the care giver)

Review the provision for spousal entitlement-sharing carefully. In some situations, such as the birth of a child, you can require that married couples share the 12-week leave bank. But in other situations, such as if one spouse is caring for the other, you cannot require that they share their entitlement for this purpose. Below is an excerpt from §825.201 Leave to care for a parent.

  • “Same employer limitation. Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different work sites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where the spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes.”

10. Employee wants to go with her daughter on a school trip. The dept. manager is not able to have her gone during the time requested due to staffing needs and she states she will use FMLA since her daughter has a breathing problem. Would this be FMLA?

Talk with your employee to try and determine why her child’s needs are not being met through the school, which should provide the personnel available to assist her (just as they do in school). First, meet with your employee about the appropriate use of FMLA leave before the school trip. Make sure the employee is aware that the leave is to be used for caring for her child because she otherwise is incapacitated, which presently is not obvious to you in this situation. If she insists on attending, we would suggest seeking certification, which should address the incapacitation and the need for the employee to be present with her daughter (in other words, what “caring for” function is she providing?).

11. How far back can you go to claim an absence or absences as FMLA?

First, look to your Leave of Absence timely filing provisions. Your policy should expressly state when an employee should be providing notice of their need for leave. If you do not have timely filing provisions in your leave policy, we recommend that you make an update to add them. Setting clear, documented expectations for how far back you will review absences once an employee has put you on notice will really help you out when you are, say, issuing an attendance violation and the employee suddenly makes you aware that their absence from three months ago was related to a serious health condition that they are just now telling you about. But that never happens to you, right? Riiiiigggghhhhht!

If the employee did put you on notice of their need for leave and you did not designate within the timeline prescribed in the regulations, we recommend that you exercise caution in your consideration of retroactive designation of that time and only retroactively designate if you have documented agreement from the employee and have provided them with a clear explanation of what this means for their FMLA balance. Here is what the regulations say about retroactive designation of leave:

  • §825.301 Designation of FMLA leave: “(d) Retroactive designation. If an employer does not designate leave as required by §825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by §825.300 provided that the employer’s failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave”

12. What about a Workers Comp injury? They have used their 12 weeks of FMLA now what? Do they stay under Workers Comp forever?

Like Jeff discussed during the session, the extended need for leave should be analyzed under the ADA. Although worker’s compensation obligations should be closely analyzed under state law, it isn’t treated differently under ADA. The same analysis Jeff discussed would apply.

13. The doctor usually says they need a leave until the next appointment for re-evaluation when we have extended after FMLA–So they never really give us an end date.

In the case where FMLA has exhausted and you are considering an extension of leave under the ADA, utilize the process Jeff outlined in his presentation. Reach out to the healthcare provider to determine the likelihood that additional leave time will enable the employee to return and why more additional leave time will be effective when it has not been effective yet. At each point of extension, be transparent with your employee about the challenges that exist with continuing to hold their position open and whether you believe you will be able to continue to hold their position in the event that additional leave time is needed.

14. So you recommend supervisors ask why someone is calling in sick and document response?

Absolutely! As the employer, you have a right to know why your employee cannot come to work. In addition to setting a general expectation that employees provide the reason for their absence, we would also recommend that you set an expectation that your employees on intermittent FMLA specifically state whether their absence is related for their FMLA leave. Take the guess work out of regular absences versus FMLA absences by having your employees be specific.

15. Regarding intermittent FMLA: When can an employer deny the claim as not able to accommodate the leave. Example: two days a week, every week – and they take off on Monday and Friday?

Unlike the ADA, there is no undue hardship argument available for FMLA. Once FMLA exhausts, complete an individualized assessment and engage in the interactive process. Is attendance an essential function of the job? Build the case for undue hardship only once FMLA and state protected leave has exhausted.

16. When FMLA leave is exhausted and an employee continues to miss work BUT has not actually formally requested additional leave and/or accommodation do we have to honor or is that grounds for termination?

At the point of FMLA exhaust, you will likely always have enough history of knowledge due to the FMLA leave that you should engage in the interactive process to determine if a reasonable accommodation can be provided. A court would be hard pressed to believe that, at the end of FMLA leave, the employer “wasn’t aware” that the employee may need an accommodation. We recommend that you establish a formal procedure for entering into the ADA interactive process when job-protected leave expires, whether or not there was a formal request by the employee if they are not back working full time.

17. How many times can we recertify FMLA? We had an employee that has intermittent FMLA for four years. Each year the physician extended the # of days off. She was working a max of three days and it became a PT position.

Generally, you can recertify a leave no more often than every 30 days and the recertification must be requested in connection with an actual absence. However, if the minimum duration of the condition is greater than 30 days, you must wait until that minimum duration has passed to recertify unless the absences reported by the employee vary significantly from the expectations described by the healthcare provider in the original certification. For example, if an employee will be receiving physical therapy for treatment of a condition that is expected to last four months, your complete and sufficient certification form would be valid for four months. Now, if the healthcare provider estimated that an employee would need to miss work for one appointment a month and your employee is reporting multiple days off per week, that might give you reason to recertify prior to the four-month duration is up because the pattern of absences significantly varies from the expectations of the original certification.

In any case, you can request recertification of a medical condition every six months in connection with an absence. For an employee with a chronic or life-long condition, our recommended best practice is to recertify every six months. In the situation you describe above, if you have reason to doubt the validity of the certification, consider your option to a 2nd/3rd opinion at the commencement of the employee’s new 12-month leave year. The 2nd/3rd opinion process is not available at the point of recertification, but can be initiated with the employee’s new 12-month leave year. Also, be sure that you have a grasp on whether your employee is exhausting time and that you are re-checking eligibility at the start of each new leave year.

18. If you give one person additional leave would this set precedent that you would have to grant this to all future employees?

With respect to the ADA, his would likely not be true unless the environmental factors impacting your business never changed. For example, if everyone in the company made widgets at the same rate all the time due to consistent never-changing margins, you could likely make the argument that if you can provide leave for Fred in August, you can probably provide the same leave for Joe in December. However, we are hard-pressed to think of a company whose business is quite this stable and predictable. This is precisely the reason that we have the benefit of an allowed individualized assessment. If you were able to provide Fred additional leave in August because it was your slow season, you were overstaffed, and production was down, that does not mean that you can provide the same leave for Joe in December when sales are up 30% and your operation is running around the clock just to fill the back orders. The important thing is to document your individualized assessment and be clear about why the consideration of additional leave time is an undue hardship to your organization.

19. Can you recommend an FMLA tracking software?

There are many solutions available in the space of absence tracking technology. We find that there is no one-size-fits-all solution out there. Rather, The Partner’s Group can engage with your organization to do a deep dive into what you are doing today, what your pain points are, what is working well for you, and what your ideal state would look like. Only after understanding what your current environment is do we engage in a specific market analysis to find a solution that best fits you and your organization. Please reach out to us if you would like to discuss how we can assist you in the area of Total Absence Management solutions.

20. Can large employers ever claim undue hardship?

As a large employer, avoid any arguments around the “cost” of providing an accommodation. It is very difficult, especially for large employers, to prove undue hardship due to financial reasons. Any arguments around undue hardship due to cost will likely lead to the EEOC asking you to open your books and that is one thing everyone would probably prefer to avoid. Rather, focus on operational impacts: loss in productivity, lower quality, lost sales, increase in OT/Temp workers needed, projects being delayed, management required to take on more tasks of the employee. Also analyze whether the continued need for leave is effective, and whether the leave turns indefinite (i.e., no reasonable estimate for return). Ask yourselves (and the healthcare provider) if the additional leave is really an effective accommodation if it is not allowing the employee to return to work.

21. FMLA paperwork needs to be mail certified. Can we hand deliver the paperwork as well at work?

There were a couple of court cases in 2014 that sent us all into a tailspin over the way we provide FMLA paperwork to employees. The court cases were actually conflicting on the need to send paperwork “certified” but the meaning that we, as employers, could gain behind the decisions was clear; the key is to communicate with your employees while on leave and to document that communication. It’s not enough just to slip a package of forms into the mail and call it a day. Call the employee, make sure they know the forms are coming. Call them again and make sure they confirm that the forms were received and that they understand what it is they are supposed to do with them. Communication and documentation are the keys here! Document the conversations that you have with your employees around the FMLA certification process. And be willing to show some good faith by providing your employees with additional time to certify if they tell you they didn’t get the paperwork. Courts are more likely to be reasonable to an employer that is willing to go out of their way to accommodate an employee that is having a hard time making their way through the certification process. And, to answer your original question, it is absolutely OK to meet with your employee in person in advance of their leave to provide them with paperwork. In fact, while you have their dedicated attention, we recommend that you also take that opportunity to discuss the process of applying for leave, discuss pay practices and benefits while they are out on leave, and set expectations with your employee about their role and accountability in the LOA process. And, remember to document that this conversation, as well as the passing of the paperwork, took place. Jeff Nowak has a couple of really great FMLA Insights blog posts on this very topic:

22. Employee on intermittent FMLA for the next possible 20 years per doctor’s note. Approx. 1-2 days per week. We are on a “rolling” 12 weeks. Due to hardship to other employees getting called at 5:15am since we require 1.5 hours’ notice to her calling in can I move her shift from the starting 6:45 am shift to the 8 am shift or whatever shift I might want to move her to make it easier on us?

Remember, there is no undue hardship argument under the FMLA. We recommend that you exercise extreme caution here as the regulations expressly state that transfer or reassignment is only permissible for leave due to planned medical treatment. The reality is, the ability to reassign to a less impactful shift would be most helpful to us as employers when the absences are unpredictable, but the regulations just don’t give us any wiggle room here.

23. What is your stance on an employee reporting intermittent absences to his/her manager, but refusing to call and report their time to a TPA because (s)he feels they already met their obligation of reporting FMLA time?

As more and more organizations choose to outsource administration of protected leave, there is some really great case law emerging advocating for an employer’s right to require that an employee report their FMLA leave both to their supervisor and to their TPA. We recommend that you make absence reporting expectations crystal clear both in your regular attendance policy and in your FMLA policy and that these expectations are reviewed with your employee at intake of a new leave, even if you have to ask your TPA to add this information to their regular intake script. Check out the following recent court cases that were all wins for employers exercising their rights to require call-in to the Employer as well as the TPA:

  • Scales v. FedEx Ground Package System, Inc. (N.D. Illinois 1/24/17)
  • Alexander v. Kellogg USA, Inc. (6th Cir. 1/4/17)
  • Duran v. Stock Building Supply West, LLC (9th Cir. 1/12/17)
  • Perry v. American Red Cross Blood Services, TVA Region (6th Cir. 06/01/16)

24. Even if someone declines FMLA and does not return paperwork, we have obligation to designate them as on FMLA leave? How does pay factor in since FMLA is unpaid and they are most likely wanting and expecting to be paid?

If an employee decides not to return paperwork, you could still designate the leave as FMLA if you have enough reason to know that the absence qualifies. Another option would be to deny the leave under FMLA (due to no certification returned) and handle the absence under your normal attendance policy. As far as how to allocate pay, the FMLA regulations allow an employer to either require that an employee substitute unpaid FMLA leave with their available Paid Time Off benefits, or allow an employer and employee to agree on whether PTO will be used. If you want to require the use of PTO during otherwise unpaid FMLA leave, make sure you have this information stated in your FMLA policy and that you are consistently enforcing the use of PTO for your employees on otherwise unpaid FMLA leave.

25. What if an employee requests a reduction in work schedule as an accommodation in lieu of intermittent FMLA?

Treat the reduced work hours as FMLA leave first. Do not miss an opportunity to designate FMLA and deduct from the 12-week entitlement. Once FMLA is exhausted, complete an individualized assessment under the ADA to determine whether the reduced schedule can be provided as a reasonable accommodation.

26. How might you handle an employee who calls out sick for lots of different conditions? FMLA may cover one condition, but the employee often calls out for others.

Be sure that your attendance and FMLA policies set clear expectations on how employees are to report their FMLA time. You absolutely can set the expectation that an employee states that an absence is an FMLA absence where the FMLA should apply. For all other conditions, be consistent in applying your attendance policy to manage their absences.

27. Can we set a deadline by which we need to hear from the HCP?

Absolutely! Once you’ve communicated the need for your employee to certify their leave, the FMLA requires that you provide no fewer than 15 days to the employee to allow them to return a complete and sufficient certification. If an employee does not return a complete and sufficient certification within 15 days, you have the right to delay or deny the taking of FMLA leave. However, be willing to work with the employee by providing additional time if they communicate to you that they are struggling with getting certification back from their doctor. And, if you receive a certification that you deem to be incomplete or insufficient, be sure that you are giving the employee adequate time to cure the deficiencies (at least 7 days). The regulations clearly lay out the rules around certification of leave starting with §825.305 Certification, general rule.

28. Should the “medical facts” questions be asked only by HR rather than direct managers?

Unless you can be assured that your supervisors are experts in what can and cannot be requested in the way of FMLA certifications, we recommend that you leave this level of detail to your HR team or your LOA administrator. However, your supervisors can and should set the expectation that employees on approved FMLA clearly indicate when their absences is due to their FMLA leave.

29. So the employer cannot reach out to the HCP directly? All communications must go through the employee?

Correct, unless you have authorization. Some TPAs/employers obtain an authorization to release information at the time the notice of eligibility/R&R is issued. Obtaining authorization early in the process is potentially risky if your employee sees this step as mandatory. If an employer chooses this route, it is advisable to request that a copy be signed and returned, but do not to require it in order to designate the leave. In doing so, offer to communicate with the Health Care Provider, make sure the employee is aware that you are doing it to assist them with the process, trying to help it go as smoothly as possible.

30. Under ADA, what if there are no positions to reassign to an employee? Do we have to alter the current position – even move to part- time status to accommodate work restrictions?

Under the ADA, you are not required to create a fundamentally new position, remove essential functions of a position, or move your employee to a position unless one is available for which he/she is qualified. If working their position part-time will enable them to return to the position full-time within a defined period of time, you may want to consider this as a reasonable accommodation, but only if you can accommodate the temporary part-time schedule. Complete your individualized assessment to determine whether you can accommodate. Document your findings.

31. Is there anything you can do if a physician refuses to fill out the med certification?

If you have enough information to know that the reason for leave qualifies under FMLA, you could designate the time as FMLA. Or, if the employee informs you that their doctor is not cooperating with the certification process, you could provide the employee with additional time to receive treatment by a healthcare provider that IS willing to provide certification. You may also choose to accept doctor’s notes as sufficient if they provide enough information to substantiate the need for leave. Most healthcare providers are willing to comply with the medical certification process, though there is a definite trend in charges associated to the completion of employer FMLA certification forms.

32. How do you handle intermittent leave that has expired and they want to continue intermittent absences under ADA

Engage in the interactive process with your employee and complete an individualized assessment as to whether additional leave time, even on an intermittent basis, can be provided as a reasonable accommodation. Or, is there another accommodation that can be provided? Follow the accommodation steps Jeff Nowak outlined in the “Effectively Managing Difficult FMLA and ADA Issues Webinar”.

33. If the request for intermittent FMLA is not reasonable, can we put an employee out on continuous FMLA instead?

We would not recommend this approach. The FMLA does not allow us as employers to assess whether the employee’s need for leave is “reasonable.” In addition, in general the FMLA does not permit us to deduct more FMLA time then what an employee actually needs in connection with their serious health condition/the serious health condition of their qualifying family member.