Managing Leave Under the FMLA Presented by Kimberly

Managing Leave Under the FMLA Presented by Kimberly D. Bartman © Williams Mullen 2010

Good Old Days » No regulation governing employee absences. » Absent employee subject to the employer’s grace. © Williams Mullen 2010

Initial Regulation » States enacted workers’ compensation laws. » Exclusive remedy for workplace accidents. » Benefits paid for injuries and illness arising out of and in the course of employment. » No reinstatement right; prohibition against discrimination and retaliation. © Williams Mullen 2010

Federal Laws » The Rehabilitation Act of 1974. » The Americans with Disabilities Act of 1990. » The Family and Medical Leave Act of 1993. © Williams Mullen 2010

State Laws » Little ADAs, like North Carolina’s “Handicapped” Persons Protection Act. » Little FMLAs, like North Carolina’s school leave law. © Williams Mullen 2010

Private Leave Benefits » Vacation » Personal Leave of Absence/Sick Days/Personal Time Off » Short-term Disability » Long-term Disability © Williams Mullen 2010

Essential Components to Managing Leave » Working knowledge of applicable laws. » Mesh these legal obligations into your policies. » Identify partners in leave management. » Assign specific responsibilities. » Create templates and checklists. » Train and educate all stakeholders. © Williams Mullen 2010

Step 1 in administering FMLA leave » Is your company a “covered employer? ” › A covered employer employs 50+ employees. © Williams Mullen 2010

Step 2 » Has a request for leave been made? › 30 -day advance notice if need for leave is foreseeable. › Notice “as soon as practicable” when need to take FMLA leave is not foreseeable (generally within 1 -2 business days of learning of need to take leave). › Employee must provide sufficient information for employer to understand that employee needs FMLA leave. © Williams Mullen 2010

Step 2, continued » Train supervisors to recognize FMLAqualifying situations. › Employee need not mention the FMLA when requesting leave, but need only explain why the leave is requested. » Create a request form and require its completion. © Williams Mullen 2010

Step 3 » Is the employee eligible for leave? › Have you employed her for at least 12 months and has she worked for you for at least 1250 hours in the preceding 12 months? › Does she work at a facility where you employ 50 or more workers within 75 miles? © Williams Mullen 2010

Step 4 » Does the employee need the leave for a reason that qualifies under the FMLA? › birth and/or care of her new child (includes child of same sex partner) › the placement of a child with her for adoption or foster care › care for her spouse, child or parent who has a serious health condition › recovery from her own serious health condition © Williams Mullen 2010

Step 4, continued » Does the employee need the leave for a reason that qualifies under the FMLA? › Family member of a covered service member with a serious illness or injury incurred in the line of duty while on active duty. › Employee whose family member is a covered military member serving in the National Guard or Reserve may take FMLA leave for “any qualifying exigency. ” © Williams Mullen 2010

Step 4, continued » What is a “qualifying exigency” for military caregivers? › › › › Short notice deployment Military events and related activities Childcare and school activities Financial and legal arrangements Counseling Rest and recuperation Post-deployment activities © Williams Mullen 2010

Step 4, continued » What is a “serious health condition” under the FMLA? › Leave for inpatient care and any absence in connection with that inpatient care › Continuing treatment by a health care provider that includes: › a period of incapacity of more than three calendar days and any subsequent treatment or period of incapacity related to that same condition that also involves: › Treatment two or more times by a health care provider › Treatment at least once by a health care provider that results in a regimen of continuing treatment under the supervision of the health care provider › Any period of incapacity due to pregnancy, or for prenatal care © Williams Mullen 2010

Step 4, continued » What is a “serious health condition” under the FMLA? › Any period of incapacity due to a chronic serious health condition that: › requires periodic visits or treatment by a health care provider › “periodic” is at least two per year › continues over an extended period of time › may cause episodic rather than a continuing period of incapacity, such as asthma or diabetes © Williams Mullen 2010

Step 4, continued » What is a “serious health condition” under the FMLA? › A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. › Any period of incapacity to receive multiple treatments by a health care provider. © Williams Mullen 2010

Step 5 » Request that the employee return a completed Certification of Health Care Provider (“HCP”). › Must allow employee 15 days to obtain medical certification. » Review it to determine whether it has been filled out completely. » Determine whether the certification is acceptable or whether a second opinion will be required. © Williams Mullen 2010

Step 5, continued » Employer guidelines in determining sufficiency of certification from a HCP. › Employer representative contacting the HCP should be a HCP, management, or human resources. › Employer representative contacting the HCP cannot be the employee’s direct supervisor. › Cannot ask questions of HCP beyond what is listed on the certification form. © Williams Mullen 2010

Step 5, continued » Employer guidelines in determining sufficiency of certification from HCP. › If medical certification appears insufficient or incomplete, employer must specify in writing what information is lacking and give employee 7 days to cure deficiency. › Requests for recertification should be made no more than every 30 days and only in conjunction with an absence. › Can request recertification of an ongoing condition every 6 months and only in conjunction with an absence. © Williams Mullen 2010

Step 6 » Decide whether to grant, “preliminarily” designate, or deny the leave as being covered by the FMLA. » Set baseline and track absence. › Who is on FMLA leave? › How much FMLA leave has she used? › When does her FMLA leave expire? › When are periodic reports due? » Stack paid leave during unpaid FMLA leave. » Inform employee of decision, its consequences, and her responsibilities. © Williams Mullen 2010

Step 6, continued » When is intermittent leave appropriate? › When medically necessary to care for an employee’s serious health condition or a seriously ill family member. › With the employer’s permission, to care for a newborn or newly-placed adopted or foster child. © Williams Mullen 2010

Step 6, continued » Managing intermittent leave › Can’t require employee on intermittent leave to take more leave than necessary to address circumstances that cause need for leave. › Employee requiring intermittent leave foreseeable medical treatment must work with the employer to schedule leave so as to not unduly disrupt the employer’s operations. © Williams Mullen 2010

Step 7 » Arrange for the employee’s group health insurance benefits to be continued during the leave. » Address affect of leave on other benefits. © Williams Mullen 2010

Step 8 » If an employee is ready to return to work at or before exhausting his FMLA leave entitlement, then reinstate him to the same or a substantially equivalent job. » Condition return to work on a fitness-for-duty certificate. » Can require the fitness-for-duty certificate to specifically address the employee’s ability to perform the essential functions of his/her job. » Where reasonable job safety concerns exist, can require a fitness-for-duty certificate before the employee may return to work after taking intermittent leave. © Williams Mullen 2010

Reinstatement » May you discharge an employee while he is on FMLA leave or when he is ready to be reinstated? › Yes if you would discharge other employees for the same misconduct even if they were not using FMLA leave. › Yes if you eliminate the job through a RIF or other organizational change while the employee is on FMLA leave. The employee has no greater right to reinstatement than if he had been continuously employed during the FMLA leave period. © Williams Mullen 2010

Decision Tree » Eligibility » Length of Leave » Qualifications/conditions of leave » Return to work © Williams Mullen 2010

Employer Notice Requirements » General notice (through poster and handbook) » Eligibility notice » Rights and responsibilities notice » Designation notice › 5 business days to notify employee that leave request is designated as FMLA leave. © Williams Mullen 2010

Strategies for avoiding FMLA abuse » Monitor all use of leave, especially FMLA leave closely. › Use a rolling calendar instead of a calendar-year basis. › Track heavy users. » Carefully decide on when to agree to intermittent leave. › Prepare to justify rejections with solid business necessity. » For employees with long-term or chronic conditions, insist on periodic re-certification from their physicians of the need for FMLA leave. © Williams Mullen 2010

QUESTIONS? If you have FMLA questions, please follow up with your in-house counsel and Human Resources Department and they can follow-up with us. © Williams Mullen 2010