WIXLIB

FMLA Intermittent and ReducedSchedule Leave: Best Practices forManaging Leave and Mitigating AbusePresented by:Jeffrey Shoskin, Esq.MemberFrost Brown Todd LLCJeffrey Lindemann, Esq.MemberFrost Brown Todd, LLCThursday, April 6, 20171:30 p.m. to 3:00 p.m. Eastern12:30 p.m. to 2:00 p.m. Central11:30 a.m. to 1:00 p.m. Mountain10:30 a.m. to 12:00 p.m. Pacificwww.blr.com or www.hrhero.comFor On-Demand purchasing information, contact customer service at:800-727-5257 or E-mail: service@blr.com 2015 BLR and HR Hero —Business & Legal Resources and HR Hero. All rights reserved. These materialsmay not be reproduced in part or in whole by any process without written permission.This program has been approved for 1.5 credit hours toward PHR and SPHR recertificationthrough the Human Resource Certification Institute (HRCI). For more information aboutcertification or recertification, please visit the HRCI website at www.hrci.org.Business & Legal Resources (BLR) is recognized by SHRM to offer Professional DevelopmentCredits (PDCs) for the SHRM-CP or SHRM-SCP. This program is valid for 1.5 PDCs for the SHRM-CPor SHRM-SCP. For more information about certification or recertification, please visitwww.shrmcertification.org.

FMLA Intermittent and Reduced-ScheduleLeave: Best Practices for ManagingLeave and Mitigating AbusePresented by:Jeffrey Shoskin, Esq.Frost Brown Todd LLCJeffrey Lindemann, Esq.Frost Brown Todd, LLCApril 6, 2017Federally Mandated Lax AttendanceMost frustrating part of the FMLA Unpredictable and random absences“Get out of jail free” cardDifficult to trackAbuse Poor performance? Sense termination? Weapon of choice? Intermittent and reducedleave

FMLA BASICSDoes FMLA apply?Employer Coverage Private Sector: 50 within 75-mile radius for at last 20weeks during current or preceding year Public Sector: any public agency State Laws: Some have own FMLA lawEmployee Eligibility Worked at least 12 months (can be non-consecutive) Worked at last 1,250 hours prior to start of leave Works at worksite where there are 50 employees within75-mile radius Has a “serious health condition”FMLA BASICS Qualified reasons: birth/care newbornadoption/foster carecare for spouse, child, parentself-sick or injuredqualifying exigency (military)covered servicemember (military)

FMLA BASICSSerious Health Condition (“SHC”) Set definition. Not difficult to meet. Cannot substitute personal judgment* * *Types of SHC1. Inpatient care (overnight stay)2. Continuing treatmentFMLA BASICSSHC3. Pregnancy or prenatal care*4. Chronic conditions*5. Permanent or long-term conditions*6. Conditions requiring multiple treatments** No set number of days off

FMLA BASICS Unpaid Can run all applicable “paid time off” concurrent.Effective deterrent. Can run workers’ compensation concurrent Can run STD/LTD concurrentor noFMLA BASICSLength of Leave 12 weeks in designated 12-month period26 weeks in single 12-month period for “covered servicemember”leaveBlock/intermittent/reduced leaveNo automatic termination after 12 weeks exhausted. Then – ADAanalysis.Medical Documentation Use the DOL forms (document-driven law)Nothing moreRestricted or Light Duty Cannot require light duty in lieu of leaveBe careful with your “ask”

FMLA BASICSBenefits on Leave Generally, continue same insurance coverageOther benefits – based on employer’s policy –same for employeeson other leaves (paid or unpaid)Reinstatement Same or equivalent jobNarrow exception: would not have otherwise been employed (e.g.,embezzlement; whole department eliminated)FMLA DEFINITIONSIntermittent:-Reduced Leave:-Leave taken in separate blocks of timedue to a single qualifying reasonRandom/episodicLeave that reduces an employee’susual number of work hours perworkweek or hours per workdayUsually for a set period of time.Predictable.Funny. Does not seem to be a problem with the “good witches.”

INTERMITTENT/REDUCED LEAVE Must be medically necessary for plannedand/or unplanned medical treatment Best accommodated through one of those twoleaves Examples:-doctor appointmentsmigraineschemo/radiation treatment-physical therapycare or psychological comfortsevere morning sicknessINTERMITTENT/REDUCED LEAVEHealthy Baby Bonding After birth / adoption / foster care Healthy child Only if employer agrees If mother or baby has SHC employer agreement not required

INTERMITTENT/REDUCED LEAVEScheduling If planned medical treatment, “employee mustmake a reasonable effort to schedule [it] so as notto disrupt unduly the employer’s operations.” Nice but what is “reasonable effort?” Doctor will have some “say.” Right? Jaded view. Susie will schedule PT sessions onthe other side of town.INTERMITTENT/REDUCED LEAVETemporary Transfer Only if “foreseeable based on planned medicaltreatment .” Can temporarily transfer to an availablealternative position Employee is qualified Transfer better accommodates recurring periodsof leave Not because of inconvenience to employer (i.e.,call center operator)

INTERMITTENT/REDUCED LEAVETemporary Transfer May require compliance with labor contract, ADA,and state law May include altering existing job Alternate position must have equivalent pay andbenefits Does not need to be equivalent dutiesINTERMITTENT/REDUCED LEAVETemporary Transfer Employer may: Increase pay and benefits to be equivalent to regular job Transfer to part-time job with same hourly rate and benefitsBUT Employee cannot take more leave than medically necessary Cannot eliminate benefits which otherwise would not beprovided to part-time employeesBUT Can proportionately reduce benefits (e.g., vacation) wherepractice is to base benefits on hours worked

INTERMITTENT/REDUCED LEAVETemporary Transfer Cannot transfer to discourage or work a hardship Examples:- Office to factory- Day shift to night shift- Significant commute Must reinstate to same or equivalent jobINTERMITTENT/REDUCED LEAVEIncrements of Leave Must use an increment no greater than shortestperiod of time used to account for other forms ofleave No greater than one hour Cannot be reduced by more than amount of leaveactually taken Cannot require take more leave than necessaryto address circumstances triggering the leave

INTERMITTENT/REDUCED LEAVEIncrements of Leave Actual workweek is the basis of the leaveentitlement 40 hour workweek / 1 workday off 1/5 ofworkweek Can convert to hourly equivalent if conversionequitably reflects the employee’s total normallyscheduled hoursINTERMITTENT/REDUCED LEAVEIncrements of Leave Overtime Voluntary – not counted Involuntary – counted FLSA Can deduct from salaried exempt employee withoutlosing exemption

INTERMITTENT/REDUCED LEAVEEmployee Notice At least 30 days’ advance notice if foreseeable If not practicable, then notice given as soon aspracticable (possible and practical) Generally, the same day or next business dayINTERMITTENT/REDUCED LEAVEEmployee Notice Must provide sufficient notice to make employeraware employee needs FMLA leave Not a game show. No magic words. First time need not mention FMLA Next time, same reason, must specify FMLA Employer can ask questions to determinewhether absence is FMLA-qualifying Employee must cooperate

INTERMITTENT/REDUCED LEAVEEmployee Notice Can require compliance with your usual and customary notice andprocedural requirements – absent unusual circumstances Written notice Reasons for leaveDurationStart date Contact specific individual/number (digital voice messages) Consequence? Can delay or deny request More courts are receptive to this defense What are “unusual circumstances”? Be patientNo knee-jerk decisionsINTERMITTENT/REDUCED LEAVEFailure to Provide Notice If foreseeable (30 or more days), then can delayFMLA coverage until 30 days after notice given If foreseeable (less than 30 days) orunforeseeable, then depends on facts Surgery scheduled one month out Complications arise

INTERMITTENT/REDUCED LEAVECertificate of Health Care Provider (“CHP”) Form 15 calendar days to respond unless notpracticable to do so despite employee’s diligent,good faith efforts (e.g., doctor out of town) Be patient. Remind employee. Must be complete and sufficient. Read it. 7 calendar days to “cure” May deny taking of FMLAINTERMITTENT/REDUCED LEAVECHP Can require new CHP each subsequent leaveyear. Do it. Use the DOL form No additional information

INTERMITTENT/REDUCED LEAVECHP If sufficient and complete, can authenticate orclarify 7 calendar days to cure Then employer can contact doctor Not a supervisorINTERMITTENT/REDUCED LEAVE2nd and 3rd Opinions If reason to doubt validity, may require 2nd opinion Employer’s expense Pending receipt, leave is provisionally entitled to FMLAbenefits Doctor cannot be employed by employer on regularbasis

INTERMITTENT/REDUCED LEAVE2nd and 3rd Opinions If 2nd opinion differs, can require 3rd opinion Employer’s expense Doctor selected jointly Final and binding 2nd/3rd opinions Employee receives reports – upon request Reimbursed for reasonable travel expenses Cannot require travel outside normal commutingdistanceINTERMITTENT/REDUCED LEAVERecertifications No more often than every 30 days connected to thatabsence If duration longer than 30 days, must wait until periodexpires Exception: can recertify every 6 months Less than 30 days Extension requested Circumstances changed significantly (duration, frequency) Information that casts doubt (Monday/Friday, OT assignments,after PIP, Facebook photo, etc.)

INTERMITTENT/REDUCED LEAVERecertifications Must allow at least 15 calendar days to respond –unless not practicable Employee must cooperate/participate Employer can provide doctor with record ofabsence pattern (Monday/Friday) or changedcircumstances (frequency increased) Employee’s expense No 2nd/3rd opinionsINTERMITTENT/REDUCED LEAVEFitness-For-Duty Certifications (“FDC”) Employee initially told FDC will be required Only required if policy/practice for all similarlysituated employees on leave Not for intermittent/reduced leave Narrow exception: “reasonable safety concerns” No DOL form Certify employee can resume work and address hisability to perform the essential functions of job

INTERMITTENT/REDUCED LEAVEFDC If foreseeable leave, and fail to provide FDC, thencan deny until provided If unforeseeable leave, and fail to provide FDC,and no extenuating circumstances, then can deny If never provides FDC or new CHP, the employeemay be terminatedFMLA BEST PRACTICES Understand the law. States may have own laws. No magic words Train your supervisors. They do not know. Supervisors do not contact doctors. Ever. Callous and careless comments can trigger FMLA claims(Interference, Retaliation) Supervisors should not share personal opinions or experiences.They are not “Batman”. Do not permit whining about employees taking FMLA

FMLA BEST PRACTICES Carefully review all FMLA documents. Sufficient and complete?Clarify or authenticate when necessary. Consider 2nd/3rd opinions (FMLA) Utilize FMLA recertification process Keep in touch Seek new CHP every FMLA year Accurately count FMLA time. Confirm with employee. Betransparent. Listen to co-workers. Trend – alerting HR of abuse. Facebook can be your friendFMLA BEST PRACTICES If suspect fraud, consider third-party surveillance. Some courts (6th and 7th Circuit) recognize “honestbelief/suspicion” test – that BillyBob was abusing leave. Factintensive. Do not discuss employee medical conditions with coworkers Keep all medical information confidential Cannot demand RTW at 100% Do not terminate on first day of 13th week. ADA issues.