Managing FMLA: Tips & Tricks

Managing FMLA: Tips & Tricks Presented By: Lara Donlon, Esq., SPHR, SHRM-SCP Torcivia, Donlon, Goddeau & Ansay, P.A.

FMLA Basics • Purpose • Employee Eligibility • Covered Employers • Required Notices • The Process • Qualifying Conditions/Events • Recent Cases • Complaint/Litigation Trends

FMLA Purpose • “…balance…work and family life by taking reasonable unpaid leave” for certain qualifying reasons • “…balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity” • Intended to benefit employers as well as employees – “A direct correlation exists between stability in the family and productivity in the workplace” • Important for all of us to keep these worthy goals in mind when dealing with challenging FMLA issues and FMLA abuse

FMLA • Eligible employees are granted up to 12 weeks of unpaid family, medical, or exigency leave during a 12-month period. • Eligible employees are granted up to 26 workweeks of unpaid leave to care for a covered veteran or member of the Armed Forces, including a member of the National Guard or Reserves , who is a family member or next of kin, during a single 12-month period.

Who is Eligible? • Employees who have worked for a covered employer for at least 12 months (need not be consecutive); • Employees who have worked at least 1,250 hours during the 12 months immediately preceding the start of the FMLA leave; and • Employees who work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

Are you a Covered Employer? • Yes—public agencies are covered employers regardless of the number of employees. • Public Agency: the government of a State or political subdivision of a State; or an agency of the United States, a State, or a political subdivision of a State, or any interstate governmental agency. • The determination of whether an entity is a public agency, as distinguished from a private employer, is determined by whether the agency has taxing authority, or whether the chief administrative officer or board, etc., is elected by the voters-at-large or their appointment is subject to approval by an elected official. • Employees of public agencies must meet all eligibility requirements, including requirement that employer employ 50 employees at the worksite or within 75 miles.

Employer Notice • General notice: post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division. • Must be posted prominently to be readily seen by employees and applicants. The poster and text must be large enough to be easily read and contain fully legible text. Electronic posting is sufficient as long as it otherwise meets these requirements. • Willful violation of the posting requirement may be assessed civil money penalty by the Wage and Hour Division not to exceed $173 for each separate offense. • Covered employers must post this general notice even if no employees are eligible for FMLA leave. • If covered employer has eligible employees, must also provide General Notice to each employee by including in Employee Handbooks or other written guidance to employees about employee benefits or leave rights, if such written materials exist, or by distributing a copy of the General Notice to each new employee upon hiring. Distribution may be electronic.

Employer Notice https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf

Employee Notice • Employee must provide at least verbal notice sufficient to make employer aware that employee needs FMLA-qualifying leave, and anticipated timing and duration of leave; • Employee does not have to expressly assert rights under FMLA or say the words FMLA; • Employer has duty to further inquire. • Supervisors/Managers must advise HR that employee may need FMLA leave as soon as possible. • HR has obligation to provide employee with “Eligibility Notice” within 5 business days of employer learning employee might require FMLA leave.

Employee Notice • Employer may require that employee must give at least 30-day’s notice of the need for leave, or if the leave is unforeseeable, give notice as soon as the need for leave arises; • If an employee was absent due to a FMLA reason that was unforeseeable, employee be required to follow the Sick Leave unforeseeable use of sick time procedures to notify employer of the need for leave, and explicitly state that the need for leave is related to a previously approved FMLA condition. Upon returning to work, employee should be required to submit document confirming the time to be designated as FMLA. In the absence of such timely notification by the employee (if required by employer), the employee may not subsequently assert FMLA protections for the absence.

The Process 15 7 0

Tips & Tricks • Carefully check eligibility requirements before sending Eligibility Notice • Send Eligibility Notice within 5 business days of learning of possible FMLA qualifying absence; include appropriate Certification of Health Care Provider Form • Ensure managers/supervisors aware of qualifying conditions

Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3rd Cir. 2014) • Instructor suffered from depression and supervisor suggested she take a personal leave. • She originally requested 17 days, but when her supervisor suggested she apply for STD, she scheduled appointment with physician and received the DOL Certification of Health Care Provider for a mental health condition. • HR determined she was eligible for FMLA leave instead of personal leave.

Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3rd Cir. 2014) • On 12/19/2007, administration met with Lupyan and instructed her to initial the “Family Medical Leave” box on her request form. Administration changed return date to 4/1/2008 based on physician certification. • Lupyan’s FMLA rights were never discussed during this meeting (undisputed by parties). • College mailed her letter advising the designation of FMLA later that day, explaining her rights under FMLA.

Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3rd Cir. 2014) • Lupyan denies ever receiving the letter and denies having knowledge that she was on FMLA leave until she attempted to return to work. • On 3/13/08, Lupyan advised she was cleared to return to work with certain restrictions. The Company advised she needed no restrictions. Shortly thereafter, she provided a full release to duty. • On 4/9/08, company terminated her due to low student enrollment and because she did not return to work within the 12 weeks of FMLA. • She sued for FMLA interference and retaliation.

Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314 (3rd Cir. 2014) • Company moved for summary judgment, which included affidavits from company employees who testified the FMLA Letter was properly mailed to Lupyan. • Trial court relied on evidentiary presumption that arises under the “mailbox rule” and found that Lupyan received the letter. • Trial court ruled in favor of company. • Appellate court held that whether Lupyan received letter was a fact issue precluding summary judgment—requiring case to go to trial.

Tips & Tricks • Incur the cost of confirming receipt of FMLA correspondence by, for example, overnight delivery service, certified mail/return receipt requested, or courier

Leave Must Be For One of the Following Reasons: • Birth of a son or daughter and to care for the newborn child; • The placement with the employee of a child for adoption or foster care, and to care for the newly placed child; • To care for an immediate family member (spouse, child or parent--but not parent-in-law) with a serious health condition;

Leave Must Be For One of the Following Reasons: • When employee is unable to work because of his or her own serious health condition; • To care for an injured or ill covered service member or covered veteran; or • To address any qualifying exigency arising out of the fact that a spouse, child, or parent who is also a covered military member in the National Guard or Reserves or of a regular component of the Armed Forces and is on covered active duty or called to covered active duty status with foreign deployment.

Birth, Adoption or Foster Care of a Child • Applies to mothers and fathers, but if both employed by company, aggregate total of 12 weeks for both; • Entitlement to leave expires after 12 months from date of birth or placement of child; • Can require employee to take vacation leave before taking unpaid FMLA leave; • Employees may request to take accrued sick leave to cover the remaining unpaid FMLA leave but cannot be required to do so; But, employees meeting the requirements of the Sick Leave policy may be required to use their sick leave concurrently with FMLA before the leave becomes unpaid (e.g. cesarean section) • Do not have to allow employees to take this leave intermittently.

Tips & Tricks • FMLA policy can be drafted to include maximum restrictions allowed by law: • Concurrent use of paid leave • Not allowing intermittent leave for birth or placement of child

Serious Health Condition Who is a spouse? • Spouse means a husband or wife and refers to the other person with whom an individual entered into marriage as defined or recognized under state law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either: • (1) Was entered into in a State that recognizes such marriages; or • (2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

Serious Health Condition Who is a son or daughter? • Son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either: • under age 18, or • age 18 or older and“incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence • Incapable of self-care means the adult child requires active assistance or supervision to provide daily self-care in several of the “activities of daily living” (ADLs) or “instrumental activities of daily living” (IADLs). • Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. • Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

Tips & Tricks • Certification of Health Care Provider for care of family member requests date of birth if care is for son or daughter. • Check the birth date before assuming FMLA is applicable. • Seeing more requests by employees to take FMLA for birth of grandchild.

Serious Health Condition An illness, injury, impairment, or physical condition that involves: • Any period of incapacity or subsequent treatment connected with inpatient (overnight) care in a hospital, hospice, or residential medical care facility; or • Any period of incapacity due to pregnancy, or for prenatal care; or • A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective such as Alzheimer’s, stroke, or terminal diseases; or

Serious Health Condition An illness, injury, impairment, or physical condition that involves: • A period of incapacity requiring absence of > 3 consecutive, full calendar days from work, school, or other regular daily activities and any subsequent treatment or period of incapacity relating to the same condition that also involves: • Treatment 2 or more times within 30 days of incapacity, unless extenuating circumstances exist, by (or under supervision of) a health care provider; or • Treatment by a health care provider on at least 1 occasion that results in a regimen of continuing treatment under supervision of a health care provider. • The first, or only, treatment visit must take place in person within 7 days of the first day of incapacity.

Serious Health Condition An illness, injury, impairment, or physical condition that involves: • Any period of incapacity (or treatment therefore) due to a chronic serious health condition, which is defined as: • A condition that requires visits at least two (2) times per year for treatment by (or under the supervision of) a health care provider; • Continues over an extended period of time, including episodes of a single underlying condition; and • May cause episodic rather than a continuing period of incapacity such as asthma, diabetes and epilepsy.

Serious Health Condition An illness, injury, impairment, or physical condition that involves: • Any absences for restorative surgery after an accident or injury or to receive multiple treatments (including any period of recovery there from) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three (3) consecutive days if left untreated, such as chemotherapy, physical therapy, or dialysis. • May require employee to exhaust sick leave then vacation leave before FMLA leave becomes unpaid.

Serious Health Condition • Are these serious health conditions? • common cold • minor ulcers • Flu • non-migraine headaches • ear ache • routine dental procedure • upset stomach

Serious Health Condition • Usually they are not. • However, if complications arise, they could become serious health conditions.

Serious Health Condition • What about elective cosmetic surgery?

Serious Health Condition • What about elective cosmetic surgery? • Usually not.

Serious Health Condition • What about substance abuse?

Serious Health Condition • What about substance abuse? • Maybe. • However, abuses due to the effects of substance abuse, during which no treatment is obtained, is not.

Example • Employee was granted FMLA to care for the serious health condition of his mother. After 2 weeks on FMLA leave, Employee informs you that his mother just died. • What do you do?

Answer • HR should inform Employee that the FMLA period is over and advise him as to the bereavement benefits available under the agency’s policies. • FMLA can only be used to care for someone who is alive. • UNLESS…

Answer • But, the death of a covered military member while on covered active duty status is considered a qualifying exigency that is covered under FMLA.

Tips & Tricks • Read the Certification of Health Care Provider • Require employee to correct it within 7 days if it is incomplete, insufficient or vague • Do not make a decision before you have a complete certification • Require re-certification as often as allowed under regulations • Maintain privacy of information obtained

Serious Injury/Illness of Family Member or Next of Kin who is a Covered Service Member or Covered Veteran • Covered Service Member is a member of the Armed Forces, including the National Guard or Reserves, who is: • undergoing medical treatment, recuperation or therapy • is otherwise in outpatient status, or • is otherwise on the temporary disability retired list • for an injury or illness incurred in the line of duty on active duty in the Armed Forces (or existed before the beginning of the active duty and was aggravated by service in the line of duty on active duty)

Serious Injury/Illness of Family Member or Next of Kin who is a Covered Service Member or Covered Veteran • Covered Veteran means an individual undergoing medical treatment, recuperation or therapy for an injury or illness incurred by the veteran in the line of duty on active duty in the Armed Forces (or existed before the beginning of the member's active duty and was aggravated by service in the line of duty on active duty in the Armed Forces) and manifested itself before or after the member became a veteran, and is: • (i) a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duties of the servicemember's office, grade, rank, or rating; or • (ii) a physical or mental condition for which the covered veteran has received a U.S. Department of Veterans Affairs Service-Related Disability Rating (VASRD) of 50 percent or greater, and such VASRD rating is based, in whole or in part, on the condition necessitating military caregiver leave; or • (iii) a physical or mental condition that substantially impairs the covered veteran's ability to secure or follow a substantially gainful occupation by reason of a disability or disabilities related to military service, or would do so absent treatment; or • (iv) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers. • The Covered Veteran must be a member of the Armed Forces (including the National Guard or Reserves) who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. An eligible employee must commence leave to care for a covered veteran within five years of the veteran's active duty service, but the single 12-month period may extend beyond the five-year period.

Serious Injury/Illness of Family Member or Next of Kin who is a Covered Service Member or Covered Veteran • The injury/illness must render the service member medically unfit to perform the duties of the service member’s office, grade, rank or rating. • Outpatient status means the service member is presently assigned to a military treatment facility as an outpatient or is assigned to a unit established for the purpose of providing command and control of service members receiving medical care as outpatients.

Serious Injury/Illness of Family Member or Next of Kin who is a Covered Service Member or Covered Veteran • Eligible employees can take up to 26 weeks of leave during a single 12-month period measured forward from the first date service member leave is used to care for the covered service member who is a family member or next of kin. • May be taken intermittently or on a reduced leave schedule when medically necessary; • May require employee to exhaust their sick leave then vacation leave balance before FMLA leave becomes unpaid.

Qualifying Exigency Leave • The “qualifying exigency” must arise out of the fact that a spouse, child (of any age) or parent, who is also a National Guard or Reserve or a retired service member of a regular component of the Armed Forces, is on covered active duty or called to covered active duty status and deployed to a foreign country.

Qualifying Exigency Leave • Short-notice deployment: • Leave may be used for 7 calendar days beginning on the date the covered military member is notified of an impending call or order to covered active duty. • Leave is used to address issues that may arise from the fact that a covered military member is notified of an impending call or order to covered active duty 7 or less calendar days prior to deployment.

Qualifying Exigency Leave • Military events and related activities: • To attend any official ceremony, program, or event sponsored by the military; and • To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross.

Qualifying Exigency Leave • Childcare and school activities: • To arrange for alternative childcare when the active duty or call to covered active duty status of a covered military member necessitates a change in the existing childcare arrangement for a child of a covered military member at the time FMLA leave is to begin; • To provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis); • To enroll in or transfer to a new school or day care facility a child of the covered military member when enrollment or transfer is necessitated by the active duty or call to covered active duty status of a covered military member. • To attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors, for a child of the covered military member.

Qualifying Exigency Leave • Financial and legal arrangements: • To make or update financial/legal arrangements to address the covered military member’s absence while on covered active duty or call to covered active duty status, (e.g., preparing/executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust. • To act as the covered military member’s representative before a federal, state, or local agency for purposes of arranging or appealing military service benefits while the covered military member is on covered active duty or call to covered active duty status, and for a period of ninety (90) days following the termination of the covered military member’s covered active duty status.

Qualifying Exigency Leave • Counseling: • To attend counseling provided by someone other than a healthcare provider for: • The employee; • The covered military member; or • The child of the covered military member. • Rest and recuperation: • Leave may be taken for up to 15 calendar days for each instance of rest and recuperation, beginning on the date the R&R commences. • To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.

Qualifying Exigency Leave • Post-deployment activities; • To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the active duty status • To address issues that arise from the death of a covered military member while on covered active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements.

Qualifying Exigency Leave • Parental Care; • To arrange for alternative care for a parent of the military member when the parent is incapable of self-care and the call to duty necessitates a change in the existing care arrangements for the parent. • To provide care for a parent of the military member on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the parent is incapable of self-care and the need arises from the call to covered active duty status • To admit or transfer parent to a care facility when necessitated by the call to covered active duty • To attend meetings with staff at care facility for parent due to call to active duty (but not for routine or regular meetings)

Managing FMLA: Tips & Tricks