FMLA Intermittent Leave: How to Track, Administer and Prevent Employee Abuses FEATURED FACULTY: Patrick L. Lail - Of Counsel, Elarbee, Thompson, Sapp & Wilson, LLP (404) 582-8428 [email protected] Patrick frequently provides preventive advice about, and litigates issues involving, disability and leave law under the Americans with Disabilities Act, the Employee Retirement Income Security Act, and the Family and Medical Leave Act. He works with many of the firm’s healthcare and insurance clients. Patrick successfully defended a 10-plaintiff disability and age discrimination case against a major paper manufacturer, obtaining summary judgment on all claims. Patrick has also litigated multiple class action discrimination lawsuits. Patrick has obtained summary judgment and negotiated favorable settlements in short-term disability and long-term disability benefits litigation. **Certificates of attendance and CEUs, when available, must be requested through the online evaluation.** Evaluation for Live Event: We’d like to hear what you thought about the audio conference. Please take a moment to fill in the survey located here: http://www.c4cm.com/handouts/FMLA-intermittent-leave.htm Requests for continuing education credits and certificates of attendance must be submitted within 10 days of the live event. Evaluation for CD Recording: Please use the following link to submit your evaluation of the recorded event: http://www.c4cm.com/handouts/CDEval.htm Please note: All links are case sensitive HRCI - Receive 1.25 recertification credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI homepage at www.hrci.org. "The use of this seal is not an endorsement by the HR Certification Institute of the quality of the program. It means that this program has met the HR Certification Institute’s criteria to be pre-approved for recertification credit." FMLA Intermittent Leave: How t Track, to T k Administer, Ad i i t and d Prevent Employee Abuse Presented by Patrick Lail on behalf of Center for Competitive Management Elarbee, Thompson, Sapp & Wilson, LLP 800 International Tower 229 Peachtree St., NE Atlanta, GA 30303 [email protected] (404) 582-8428 Overview • • • • Basic FMLA Standards Basic Intermittent Leave Standards Ways y to Limit Abuse Scenarios illustrating application of principles 1 FMLA Eligibility g y • 12 months of employment • 1250 hours worked in previous 12 month period • At worksite with 50 or more employees in 75 miles FMLA Coverage g • Grants 12 weeks of leave in a 12 month period for a qualifying reason: – For the birth of a child; – For the adoption of a child or the placement of a foster child;; – To care for a spouse, child, or parent with a serious health condition; or – Due to the employee’s own serious health condition. 2 FMLA Serious Health Condition Illness, injury, impairment, or physical or mental condition that involves: a. In-patient care; b. Absence from work, school, or other regular activities, of more than three consecutive calendar days and either: 1 1. 2. Treatment two or more times by a health care provider (both within 30 days of the incapacity); or Treatment by a health care provider at least once (within 7 days after the incapacity) that results in continuing treatment under supervision of a health care provider; FMLA Serious Health Condition Continued: c. d. e. Any period of incapacity due to pregnancy, or for prenatal care; Any period of incapacity or treatment due to a chronic serious health condition (asthma, diabetes, epilepsy, etc.) - for which the individual must see a health care provider at least twice per year; A period of incapacity which is permanent or longterm due to a condition for which treatment may not be effective (Alzheimer’s, a severe stroke, terminal stages of a disease, etc.); or 3 FMLA Serious Health Condition Continued: f. Any period of absence to receive multiple treatments or for restorative surgery after an accident or other injury or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment. Intermittent Leave Requirements •Intermittent leave must be medically necessary. •The medical necessity must best be met through an intermittent or reduced leave schedule. 4 Medical Certification Issues • The employee and family member certification forms call for the following information: – Is the medical condition pregnancy? – Will the employee/family member need intermittent leave? – Is I it medically di ll necessary? ? – Estimate the treatment schedule, including any recovery period. – Estimate the part-time or reduced work schedule. Medical Certification Issues • The employee and family member certification forms call for the following information (con’t): – Will the condition cause episodic flare ups? – Is it medically necessary for the employee to be absent during flare ups? – Estimate the frequency of flare ups and the duration of related incapacity over the next 6 months. 5 Medical Certification Deficiencies • If an employee’s certification is incomplete: – The employer must notify the employee in writing of the deficiency and what is needed to make the certification complete and sufficient. – The employee has 7 calendar days to provide the additional information information. – With each request for a certification, the employer must notify the employee of the anticipated consequences of failing to provide adequate certification. Medical Certification Deficiencies • If an employee’s certification is vague: An employer may contact the employee’s health care p provider directly y for clarification of the medical certification form, but the employee’s supervisor may not be the contact person. 6 Recertification • An employer may request recertification each leave year or every six months in conjunction with an absence. Ways y to Limit Abuse • Carefully monitor whether the actual leave matches the certification and clarify when necessary: – An employer may advise the certifying physician of the employee’s absence pattern and ask whether the employee’s condition is consistent with such an absence pattern. • Obtain recertification as permitted: – An employee requests an extension of leave; – Significant change in circumstances; or – Information casts doubt on the stated reasons for an absence or the validity of the certification. 7 Andy works the 7am to 3pm shift. He has requested intermittent FMLA leave to help his diabetic mother with grocery shopping, filling insulin syringes, and taking her to medical appointments. Do you grant the intermittent leave? Andy works five eight-hour days per week. He uses four hours per month to take his mom to the doctor. He also uses four hours per week to rehab from a knee injury. How do you calculate his FMLA leave usage? 8 Andy’s leave computations: •12 weeks at 40 hours = 480 hours avail. •4 hours once per month = 4 hours used •4 hours per week in a month = 16 hours •Remaining leave = 460 hours left Beatrice takes intermittent leave when her asthma flares up, but she does not receive medical treatment during her absences. Is this valid use of intermittent leave? 9 Although her certification states that Beatrice should have asthma flare ups 1 or 2 times per month, Beatrice actually has at least 6 flare ups per month and they always occur on a Monday or Friday. What can you do about this? Chandra is pregnant and has a certification that she suffers from severe morning sickness. She arrives late several days per week, sometimes only by five minutes. How do you track how much leave she uses? 10 Chandra has now had her baby and she has 10 weeks of FMLA leave remaining. After taking four straight weeks off, she asks to return to work half-time for the next eight weeks. What are your options? Dave has a minor child who is undergoing chemotherapy. The medical certification form says that Dave is needed to transport and comfort his child at chemotherapy treatments three times a week. What is his obligation to schedule the treatments? 11 Ethan manages a group of customer service representatives in the call center and he is also certified as a trainer. He has provided a certification for intermittent leave to receive chemotherapy treatments. What are your options? Felicia is a flight g attendant and has been released to return to work for four hours per day. How do you handle her request for return to work? 12 Gary is a firefighter who averages working 53 hours per week. He uses intermittent leave of 12 hours per 24-hour shift for three weeks. H How much h FMLA leave l does d h he h have lleft? ft? Gary’s leave computations: •12 weeks at 53 hours = 636 hours avail. •7 shifts of 12 hours = 84 hours used •Remaining g leave = 552 hours left 13 Henry has a medical certification to take intermittent leave for bi-polar disorder. May the Company require recertification after each intermittent absence? What must the Company do to support any such requirement? Hilda has debilitating migraines. She has told her manager that she must completely avoid light when she has a flare up. She called in today with a migraine, for which she takes FMLA leave While running an errand at lunch leave. lunch, her supervisor sees Hilda driving her car far away from her home. What do you do? 14 Ingrid works 30 hours per week as an administrative assistant. She uses intermittent FMLA to be out Tuesday and Thursday for three weeks to do physical therapy. How much leave does she have left? Ingrid’s leave computations: •12 weeks at 30 hours = 360 hours avail. •6 days of 6 hours = 36 hours used •Remaining g leave = 324 hours left 15 Janet is getting squeezed. She is caring for an elderly aunt who has end-stage renal disease and who has asked Janet to stay with her for a five-week period. Janet also has a two-year old child who needs speech therapy during Janet’s work hours one afternoon per week. week How do you explain Janet’s leave rights to her? Kevin’s son was injured in the line of military duty overseas and is recuperating in Kevin’s home. Kevin wants to take intermittent leave every Wednesday to take his son to physical therapy appointments and participate in his rehabilitation rehabilitation. Can Kevin use FMLA leave? 16 On Wednesday afternoon, Lewis is told that he will have a meeting with HR and his supervisor tomorrow to address his performance shortcomings. Lewis calls out on Thursday. When he returns on Friday, he has a medical certification for anxiety anxiety. The note is signed by a D.O. What are your options? Questions? 17 THANK YOU Patrick Lail Elarbee, Thompson, Sapp & Wilson, LLP 800 International Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 404.582.8428 [email protected] C4CM Upcoming Event • For more Human Resources, visit: http://www.c4cm.com/hr/audioconferences.htm • For F more Human H Resources R CD R Recording, di visit: http://www.c4cm.com/hr/recordings.htm 18