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Real Strategies and Solutionsto Intermittent FMLA LeaveSarah K. WilleyWe’re proud to offer a full-circle solution to your HR needs. BASIC offerscollaboration, flexibility, stability, security, quality service and an experiencedstaff to meet your integrated HR, FMLA and Payroll needs.
HR Solutions Come Full CircleHR solutions should be simple.Keep it BASIC.BASIC’s integrated HRsolutions come full circle foremployers nationwide.Consistently recognized as anInc. 5,000 Fastest GrowingPrivate Company, ourexpertise allows you to controlcosts, manage risks andimprove staff focus andeffectiveness.BASICONLINE.COM (800) 444 -19222
The materials and information have been prepared forinformational purposes only. This is not legal advice, norintended to create or constitute a lawyer-clientrelationship. Before acting on the basis of anyinformational or material, readers who have specificquestions or problems should consult their lawyer.TITLEBASICONLINE.COM (800) 444 -19223
How Full Is Your Tool Box?Strategies for Managing Intermittent Leave1.2.3.4.5.Make sure the eligibility requirements are met everytime a new leave is grantedUse the certification procedure toyour advantageHave a set call-in procedureProperly track and count time missedBe aggressive with fraudulent use of FMLA leaveBASICONLINE.COM (800) 444 -19224
Strategy 1: EligibilityRequirements 1250 hours in the past 12 months– Actual time worked– FMLA leave does not count 12 total months of employment Determined at the commencement of theleaveBASICONLINE.COM (800) 444 -19225
Case Studies - Jason Jason is an engineer and has beenemployed for 10 months. 2 years ago, Jason also was a summerintern during College. Jason injures his knee playing flag footballand needs to miss 4 weeks of work forsurgery. Is his time off work covered by the FMLA?BASICONLINE.COM (800) 444 -19226
Case Studies - Jason Jason returns to work from his surgery.However, Jason expects that he mightneed to periodically miss work forcontinued knee pain. Does the FMLA apply to those absences?BASICONLINE.COM (800) 444 -19227
The “Pre-emptive Strike”Certification An employee’s submission of acertification that is not in connection withan absence– Usually to “set up” intermittent leave for achronic condition This strategy is not authorized by FMLA– This certification should be rejected in writingand returned to the employeeBASICONLINE.COM (800) 444 -19228
Eligibility Requirements According to the DOL, eligibility must besatisfied– At the commencement of each leave– At the commencement of each leave yearBASICONLINE.COM (800) 444 -19229
Case Studies - Jason In October, Jason is approved to takeFMLA leave for his knee pain. He alsomisses two months of work over the winterdue to a hockey injury. During thesummer, he sprains an ankle and missesmore time. Are those absences covered by theFMLA?BASICONLINE.COM (800) 444 -192210
Eligibility Requirements At the commencement of each leave– Once intermittent leave is approved, it is asingle leave– The employer cannot require the employer tore-establish eligibility for each absence– If an employee requests leave for a differentreason, eligibility must be satisfiedBASICONLINE.COM (800) 444 -192211
At the commencement of eachleave year Eligibility lasts through the 12 month perioddesignated by the employer– Calendar– Rolling backward– Looking forward Rolling backward– Eligibility is re-calculated as of the first absence forthe condition after the 12-month period has ended(DOL Opinion Letter FMLA 112 (9/11/00))BASICONLINE.COM (800) 444 -192212
Case Studies - Jason The following October, Jason is stillmissing time for his knee pain. Is there anything the Company can – orshould – do?BASICONLINE.COM (800) 444 -192213
Strategy 2: Use Certification Procedure toYour Advantage The original certification– Use a certification form that has been tailored toaddress intermittent leave– Carefully evaluate the cert form Intermittent leave must be “medically necessary” Medical need must be “best accommodated” throughintermittent leaveBASICONLINE.COM (800) 444 -192214
Case Studies - Suzanne Suzanne is close to discharge forattendance.She comes into HR one dayand asks how to apply for FMLto care for her grandmother withAlzheimers. What do you tell her?BASICONLINE.COM (800) 444 -192215
Family Member “Spouse, child or parent”:– “Spouse”: does not include significant others– “Child”: includes adopted, foster andstepchild, legal ward, or child of personstanding in place of parent (has day-to-dayresponsibility for care and financial support) Must be under 18 years of age, unless child isincapable of self-care because of a mental orphysical disability– “Parent”: does not include in-laws, but doesinclude person standing in place of a parentBASICONLINE.COM (800) 444 -192216
Case Studies - Suzanne Suzanne responds that she wouldthen like FML for herself becauseher grandmother’s condition isactually making her feel stressed What do you do?BASICONLINE.COM (800) 444 -192217
Case Studies - Suzanne Suzanne returns the medical certificationform completed by the family doctor Several sections of the form are notcompleted The sections that are completed say theSuzanne has a chronic condition and thatthe duration of her condition is unknown. Do you accept the form?BASICONLINE.COM (800) 444 -192218
Case Studies - Suzanne The form is:– Incomplete– Unclear as to whether Suzanne has achronic condition– Unclear as to whether (and why) Suzanneneeds to miss workBASICONLINE.COM (800) 444 -192219
Did ER requireMed Cert?YesNoWas Med Cert timelyprovided?NoYesWas Med Cert“complete”?NoYesDoes ER questionauthenticity of MedCert?NoDoes Med Cert needclarification, e.g.,duration?NoIs there a FMLAleave need based onMed Cert?YesER must notify EE of“incomplete” MedCert and give EEopportunity to cureDid EE providerevised Med Certthat is “complete”?NoYesYesYesNoYesSeek EE permission for ER HCPto contact HCP who signed MedCert.EE grantspermissionEE deniespermissionER HCP may contactsigning HCP to clarify/authenticate Med Cert.No ER contact withsigning HCP allowedGrant FMLA leaveNoDoes ER reasonablydoubt the validityDid info provided by EEshow there is need forleave covered by FMLAYesUse FMLA procedure forsecond and thirdopinions20Deny FMLA leaveBASICONLINE.COM (800) 444 -192220
Medical Certifications Certification must be complete– Complete means that all relevant portions arefully completed– Incomplete certifications do not meet theemployee’s obligation– Give the form back to the employee, identify thedeficiency, and set a new date for thecompleted form to be returned – in writingBASICONLINE.COM (800) 444 -192221
Case Studies - Suzanne Next Steps: Step 1: Return the form to Suzanne to have doctorcomplete itStep 2: Possible clarificationStep 3: Possible second opinionBASICONLINE.COM (800) 444 -192222
Medical Certifications –Authentication/Clarification Authentication / Clarification process– Must have permission from employee (use thecertification form)– Use a health care provider to clarify /authenticate cert– Establishing relationships with health careproviders for this purpose is very valuable– Make sure the employer’s health care providerfully understands the concerns with thecertificationBASICONLINE.COM (800) 444 -192223
Medical Certification – Second &Third Opinions Reason to doubt the validity of the need for leave Goal might be to narrow the scope of intermittentleave (e.g., unlimited / unknown need to onceevery month) At the employer’s expense Carefully choose a provider– Cannot be provider with whom the employerregularly contracts– There is nothing unlawful about asking thoseproviders for referralsBASICONLINE.COM (800) 444 -192224
Medical Certification – Second &Third Opinions Speak with the provider Use a customized certification form Provide a copy of the initial certification, letterexplaining why the employer doubts the validity ofthe certification and any other relevantdocumentation (e.g., attendance records) Employee’s non-compliance with second opinionprocess is grounds for denialBASICONLINE.COM (800) 444 -192225
Case Studies - SuzanneYou decide to customize a cert form for Suzanne What do you want to include?– Chronic condition:(1) Requires treatments,(2) Continues over extended period of time, and(3) May be episodic– How condition makes Suzanne unable to work andperform other activitiesBASICONLINE.COM (800) 444 -192226
Case Studies - Suzanne Customized cert form for Suzanne (cont.)– How long condition will last– Whether there is a medical need for intermittent leave– How frequently will she be incapacitated (particular daysand shifts)– How long will each incapacity lastBASICONLINE.COM (800) 444 -192227
Recertifications Obtain a re-certification if:– The circumstances of the leave have changed (e.g.,a change in frequency or duration of absences, orin the condition itself); or– Information casts doubt on the employee’s statedreason for an absence.– Every 6 months Often unhelpful because the employee’s healthcare provider submits the same information,and a second opinion is not availableBASICONLINE.COM (800) 444 -192228
New Certifications A new certification can be required:– Yearly, or– For a new condition. Re-establish eligibility Second and third opinion process availableBASICONLINE.COM (800) 444 -192229
Strategy 3: Have a Set CallIn Procedure Written policy– Require notice of absence within certainperiod of time– Require notice for each day of absenceBASICONLINE.COM (800) 444 -192230
Call-In Systems Centralized system with trained personnel– For ALL time off work (even if leave early)– Specific reason for the absence – “sick” is notenough– When employee expects to return– Whether employee has been taken off work by ahealthcare provider (if so, for how long)– Whether employee has seen a health care provider– Whether employee is on medicationBASICONLINE.COM (800) 444 -192231
Example Denise Pellegrino is employed by the CWA andwas given copies of the FMLA and sick leavepolicies. In October, Pellegrino takes FMLA leave for aplanned surgery. Her leave is to last four weeks. About two weeks after the surgery, she and 3friends travel to Cancun for a week. Pellegrinodoes not notify the CWA of the trip. But someone else does.BASICONLINE.COM (800) 444 -192232
Example CWA meets with Pellegrino after shereturns, and she admits to traveling duringher leave. She is fired. Claim: The CWA interfered with my rightsunder the FMLA. Response: We had a legitimate reason toterminate your employment – youadmittedly violated our sick leave policy.BASICONLINE.COM (800) 444 -192233
Example Court: The CWA is correct, noting:– The sick leave policy was not inconsistentwith the FMLA.– Pellegrino received a copy of her Notice ofEligibility & Rights and Responsibilities (WH381), which told her that she would berequired to use sick leave.BASICONLINE.COM (800) 444 -192234
Example Here another example of a call-in rule thatanother court found lawful:If you must be late for work or absent because of illnessor for an unforeseen circumstance, personally notifyyour appropriate manager or immediate supervisor assoon as possible by telephone .If you are not at work during your regular hours, youmust be on authorized leave. This means that yoursupervisor knows of and has approved your absence.In accordance with the law and rules, jobabandonment occurs when an employee is absentfrom work without approval for three consecutiveworkdays or two consecutive workdays following theexpiration of any authorized leave.BASICONLINE.COM (800) 444 -192235
Call-In Systems Consider automated systems Consider a system by which reason forabsence is objectively recordedBASICONLINE.COM (800) 444 -192236
Case Studies – Suzanne(again) Suzanne returns the completed cert form It states that her chronic condition is stressand that she is intermittently unable to workand perform other activities due to her stress Her family doctor has referred her to apsychologist for treatment She is expected to miss approximately2-3 days per month, on no particular daysor shiftsBASICONLINE.COM (800) 444 -192237
Case Studies - Suzanne The following Wednesday, Suzanne callsthe team leader. The team leader’s notesstate that Suzanne is taking “FML.” She does the same thing on thesubsequent three WednesdaysSuzanneFMLFMLFMLFMLBASICONLINE.COM (800) 444 -192238
Case Studies - Suzanne The following day after the most recentcall in, the manager notices the patternand asks the team leader about the calls The team leader responds that Suzannehad called and said that she was takingFML to care for her grandmother You speak to Suzanne, who claims thatwhen she called, she was crying and alsotold the team leader that she was stressedby the situationBASICONLINE.COM (800) 444 -192239
Case Studies – Suzanne How could this have been prevented?BASICONLINE.COM (800) 444 -192240
Strategy 4: Properly Track & CountFMLA Time Used Trained supervisors Scheduling foreseeable leave Correct calculation of leave usedBASICONLINE.COM (800) 444 -192241
Trained Supervisors Notice under the FMLA– Prior to approval: enough information to put theemployer on notice that the leave might qualify underthe FMLA– After approval: specifically state medical condition orFMLA Supervisors must have the ability to recognize FMLAabsences Training is essentialBASICONLINE.COM (800) 444 -192242
Qualifying Reason For Leave FMLA red flags– An employee calls in sick for more than 3 days– An employee is admitted overnight toa hospital or other medical care facility– An employee repeatedly misses workfor the same health condition– An employee misses work to care ofa spouse, parent or child– An employee tells you that she is pregnant– An employee tells you that s/he has a permanent orlong-term condition such as cancer or AlzheimersBASICONLINE.COM (800) 444 -192243
Scheduling Foreseeable Leave Employees needing intermittent leave mustattempt to schedule it so as not to disrupt theoperations. Ideally, during non-work hours Most effective with treatmentBASICONLINE.COM (800) 444 -192244
Calculating Intermittent LeaveHow Much to Put into the Bank? Common mistake assuming that allemployees work 40 hours per week The amount of leave available is 12 weeks If an employee normally works 20 hours perweek, the employee is entitled to 240 hours ofFMLA leave every 12 monthsBASICONLINE.COM (800) 444 -192245
Calculating Intermittent LeaveHow Much to Take Out of the Bank? Calculating intermittent leave– Fraction of weeks– If employee works a part-time schedule or variablehours, compare new schedule with normal schedule– If employee’s hours vary from week to week, useweekly average of hours worked over the 12 weeksprior to the beginning of the leave periodBASICONLINE.COM (800) 444 -192246
Case Studies - JaneJane is a full-time employee who normally works40 hours per week. She has asked to reduceher schedule to 30 hours per week due to herMS. How much leave does she use each week? When will she exhaust her 12 weeks? What if she also began taking additionalintermittent leave?BASICONLINE.COM (800) 444 -192247
Case Studies - ChipChip’s schedule varies from week to week.Some weeks, he works quite of bit of overtime.Other weeks, he may only work 20 hours or so.He has now requested intermittent leave tocare for his son with asthma. How much leave is Chip entitled to take? How will you calculate his intermittent usage?BASICONLINE.COM (800) 444 -192248
Strategy 5: FMLA Fraud Fraudulent use of FMLA leave is unprotected. FMLA does not prohibit investigation of anemployee’s activities while using FMLA leave. Intermittent leave is FMLA-protected only if it ismedically necessary. “Family member” leave is authorized only “to carefor” that person. “New child” leave is only for birth, placement, or“to care for the newborn child.” Other uses are not FMLA leave, and may befraudulent.BASICONLINE.COM (800) 444 -192249
FMLA Fraud To defend an employment decision basedon FMLA fraud, the employer must showthat it had an honest suspicion of FMLAfraud. On what evidence might an employer rely?– Rumor– Admission by employee– DocumentationBASICONLINE.COM (800) 444 -192250
Case StudyWhat is an Honest Belief? Gwendolyn Donald is an assistant manager at an Arby’srestaurant. Donald suffers from a number of health problems forwhich she takes intermittent FMLA leave. Arby’s suspects that Donald is improperly enteringcustomer orders in order to steal cash from the register.– Her supervisor has noticed that she initially charges customersfull price but then orders are changed to a discounted price.Also, her drawer is 4 or 5 short.– Her supervisor listens to her orders and compares the ordersshe took to the figures in her register.– It appears that Donald is improperly discounting the orders andpocketing the difference.BASICONLINE.COM (800) 444 -192251
Case StudyWhat is an Honest Belief? After the investigation but before Donald isconfronted, Donald misses work forreasons covered by the FMLA. Upon her return, Arby’s confronts Donald. She denies all allegations of theft but isfired anyway.BASICONLINE.COM (800) 444 -192252
Case StudyWhat is an Honest Belief? Donald’s FMLA claims:– I was fired because I took FMLA leave.– Arby’s interfered with my rights to take FMLA leaveand to return to work. Court: Arby’s can defend against both if it canprove a legitimate reason for firing Donald. Court: Arby’s successfully articulated an “honestbelief” that Donald pocketed money. FMLAclaims dismissed.BASICONLINE.COM (800) 444 -192253
Case StudyWhat is an Honest Belief? Tom Seeger has is a network technicianfor Cincinnati Bell Telephone Company. Seeger is diagnosed with a herniatedlumbar disc on Sept. 5. He remains offwork on FMLA (with paid benefits perunion contract) through Sept. 24. AfterSept. 24, he is on unpaid FMLA leave untilhe returns to work on Oct. 16.BASICONLINE.COM (800) 444 -192254
Case StudyWhat is an Honest Belief? On Sept. 23, at least four of Seeger’s co-workers seehim at the Cincinnati Oktoberfest. Some believe that he has no difficulty walking, while atleast one says that he seems to be in pain. CBT interviews and obtains sworn statements from twoco-workers who claim they saw Seeger at the festival. When Seeger returns to work on Oct. 16, he issuspended. He submits a letter from his doctor statingthat walking for a few hours does not equal “working foran eight hour day.” Seeger is fired anyway.BASICONLINE.COM (800) 444 -192255
Case StudyWhat is an Honest Belief? Court: CBT proved that it had an honest belief thatSeeger committed fraud. Important factors:– Seeger represented to CBT that he experienced“excruciating pain,” an inability to sit, stand, or walkfor long periods of time.– Seeger’s doctor did not clear him even for restrictedwork.– Seeger was observed interacting with co-workers andwalking seemingly without pain.– CBT conducted a thorough investigation.– CBT gave Seeger an opportunity to provide additionaldocumentation and information.BASICONLINE.COM (800) 444 -192256
Case StudyWhat is an Honest Belief? Daryl Scruggs is a production employee atCarrier Corp. Scruggs is granted intermittent FMLA leave totake his elderly mother to doctors’ appointments. On July 24, 2007, Scruggs informs Carrier thathe needs the entire day off for FMLA leave. Carrier hires a private investigator, who stationshimself outside Scruggs’ driveway. Scruggs’ carnever leaves. What should Carrier do?BASICONLINE.COM (800) 444 -192257
Case StudyWhat is an Honest Belief? Carrier gave Scruggs an opportunity to explain. Stumbling at first, he eventually developed a convolutedstory by which he left his house via the backdoor, rode tohis mother’s nursing home with his brother and returnedvia a neighbor’s house. Scruggs could not remember his neighbor’s name whenasked. Scruggs did submit documents showing that he pickedup him mother that day and took her to an appointment,but Carrier found them to be suspicious.– The sign-out sheet at the nursing home said that hepicked up his mother at 11:30, but the doctors notesaid that the appointment was at 10:30. Carrier did not believe Scruggs and fired him.BASICONLINE.COM (800) 444 -192258
Case StudyWhat is an Honest Belief? Claim: Carrier interfered with my right totake FMLA leave. Defense: You do not have any right tomisuse FMLA leave, and we can fire youfor dishonesty. Court: Carrier established an honestbelief that Scruggs was lying.BASICONLINE.COM (800) 444 -192259
Case StudyWhat is an Honest Belief? Diandra Gurne is a call center employee forMichigan Bell. Gurne is certified to take intermittent FMLA leavefor migraines, depression and anxiety. On April 10, Gurne does not feel well and,assuming that it is from her medications, callsinto work and takes FMLA leave. Gurne wasscheduled to work until 5 pm that day.BASICONLINE.COM (800) 444 -192260
Case StudyWhat is an Honest Belief? Gurne rests throughout the day. She feels a littlebetter, but her symptoms continue on and off. That evening, Gurne makes the questionabledecision to attend a birthday party for a coworker’s husband. The following day, a co-worker (Hasler) reportshaving seen Gurne at the party between 4:30and 6:30 pm – and puts in it an email to themanager. What should Michigan Bell do?BASICONLINE.COM (800) 444 -192261
Case StudyWhat is an Honest Belief? An investigation was conducted. Threeemployees who were at the party, as well asGurne, were interviewed. Gurne stated that she was home until 5:30 pmand that Hasler arrived at the party around 6:15. No other employees were able to confirm whenGurne arrived at the party, although one saidthat Hasler did arrive after Gurne. Gurne is terminated.BASICONLINE.COM (800) 444 -192262
Case StudyWhat is an Honest Belief? Claim: Michigan Bell both interfered withmy right to take FMLA leave and alsoretaliated against me. Defense: We honestly believed that youwere dishonest. Court: Not so much. Let a jury decide.– Michigan Bell failed to make a reasonablyinformed decision.BASICONLINE.COM (800) 444 -192263
Social Media Example of real life Facebook postings:– “Ok, way 2 much time off work, I’m bored!!!Who wants 2 hang out or go out 2nite? I’mready !!”– “Had a great wkend, job interview in themorning, then to visit my mom, and maybe abike ride.”BASICONLINE.COM (800) 444 -192264
FMLA Fraud FMLA Policy– Prohibit any FMLA absence for reasons notstated in the documentation– Prohibit any activity that it inconsistent with“incapacity” (e.g., travel, vacations, bar) See certification form for information related toemployee’s incapacity– Prohibit outside employment Consider surveillanceBASICONLINE.COM (800) 444 -192265
Case Studies - Sally Step 1: review certification form– Scope of need for leave?– Information about frequency and duration? Consider recertification/new certification Investigate, including speaking with employee Surveillance– Note: surveillance is particularly effective for leaveto care for family membersBASICONLINE.COM (800) 444 -192266
? ? ?QuestionsWe’re proud to offer a full-circle solution to your HR needs. BASIC offerscollaboration, flexibility, stability, security, quality service and an experiencedstaff to meet your integrated HR, FMLA and Payroll needs.
Presenter Contact InformationSarah K. LINE.COM (800) 444 -192268
Contact UsHR solutions should be simple.Keep it .COM (800) 444 -192269
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DisclaimerThis presentation is designed to provide accurateinformation in regard to the subject matter covered. It isprovided with the understanding that BASIC is not engagedin rendering legal or other professional services. If legaladvice or other expert assistance is required, the services ofa competent attorney or other professional person should besought. Due to the numerous factual issues which arise inany human resource or employment question, each specificmatter should be discussed with your attorney.BASICONLINE.COM (800) 444 -192271
to Intermittent FMLA Leave Sarah K. Willey. BASICONLINE.COM (800) 444 -1922 2 HR Solutions Come Full Circle HR solutions should be simple. Keep it BASIC. . Provide a copy of the initial certification, letter explaining why the employer doubts the validity of the certification and any other relevant documentation (e.g., attendance .
