Navigating the Top FMLA Concerns for Employers

1. A Division of Thompson Media Group Navigating the Top FMLA Concerns for Employers Dana Connell, Esq. Michael Congiu, Esq.Littler Mendelson, PC 321 N. Clark Street Suite 1000 Chicago, IL 60640

2. Overview • Policy-Related Issues • Intermittent Leave • Extended Leave Scenarios

3. Policy-Related Issues

4. Enforcing the 50 Employee/75 Mile Requirement • There are risks associated with being too generous • May have to give more leave than intended • “Generous” leave does not count as FMLA • May lead to unintended FLSA Issues

5. Enforcing the 50 Employee/75 Mile Requirement • The “promissory estoppel” problem • Does your handbook address this requirement? • Peters v. Gilead Sciences, 533 F.3d 594 (7th Cir. 2008) • The “Penal Transfer” • Different branches/offices with different rules

6. The Broader “Estoppel” Problem • Gaps in FMLA Policy May Lead to Inadvertent Grant of FMLA • Some Key Provisions: • The selected 12-month leave period; • That FMLA leave must be completed within 12 months of birth, adoption or placement in foster care; • That leave may be shared in certain circumstances when spouses are employed by the same employer; • That an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances, which could include written notice; and • The need to consult with employer to avoid operational disruptions when arranging intermittent leave for planned medical treatment.

7. “FMLA” for Domestic Partners • Is such leave required by state law? • If not, have same “generous” risks and issues: • Leave does not count as FMLA • Leave is not protected • FLSA consequences

8. DOL Forms Expiration • The federal Office of Management and Budget’s must approve the forms • The DOL has sought renewal of the approval, and companies are permitted to use the forms pending that renewal • http://www.dol.gov/whd/forms/

9. GINA and the DOL Forms • Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E) • The following should be added right after the first paragraph of instructions to the health care provider in Section III: • Important Notice to Health Care Provider: • The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

10. GINA and the DOL Forms • Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F) • Add the following right after the first paragraph of instructions to the health care provider in section III:   • Important Notice to Health Care Provider: • The Genetic Information Nondiscrimination Act of 2008 (GINA) generally prohibits employers and other entities covered by GINA Title II from requesting genetic information of an individual or family member of the individual, except as specifically permitted by this law.  GINA permits employers to request an employee’s family medical history, which is one form of genetic information, when an employee requests leave to care for the serious health condition of  a family member.  "Family medical history" includes information about the manifestation of disease or disorder in the family member who is the subject of this certification.  Accordingly, you may provide us with such information to the extent necessary for you to complete this certification.  However, you should not provide any other type of genetic information as defined by GINA, which would include the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

11. GINA and the DOL Forms • Designation Notice (WH-382) • This language can either be added into the middle of the first page of the form, where the information on the fitness-for-duty certificate is referenced, or can be a separate page to be used with an attached list of essential functions: • Important Notice to Employee: • The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to any request for a fitness-for-duty certificate referenced in the attached Designation Notice. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

12. Pre-Eligibility FMLA Requests • This may protect the requesting employee • Pereda v. Brookdale (11th Cir., 2012)

13. Intermittent Leave

14. The Terminology • Intermittent leave: FMLA leave taken in separate blocks of time due to a single qualifying reason. • Reduced schedule leave: a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday.

15. Must be “Medically Necessary” • Periodic appointments • Several days for treatments or incapacity (e.g. chemotherapy) • Prenatal examinations, morning sickness • Flare-ups of a chronic condition

16. Managing Intermittent Leave at the Approval Stage • Ensure the employee is eligible for intermittent leave • Is intermittent leave “medically necessary” • Make sure the employee’s doctor provides sufficient information • You may “disagree” with providing intermittent leave in certain circumstances

17. Managing Intermittent Leave at the Approval Stage • Authenticate / Verify Certification • Only once “complete and sufficient” • No employee authorization required • ‘‘ ‘Authentication’ ’’ means providing the health care provider with a copy of the certification and requesting certification that the information contained on the certification form was completed and/or authorized by the health care provider.” 29 CFR §825.307(a) • “Verification” of military exigency active duty orders and certification also permitted. 29 CFR §825.309(d)

18. Managing Intermittent Leave at the Approval Stage • Scrutinize the Certification • Must be “complete and sufficient [i.e., clear].” • First step: Designation Notice explaining specific portions that are incomplete or unclear. • 7-day time limit, unless not practicable despite employee’s “diligent good faith efforts.” • Second step: Option to seek authorization to speak to medical provider re: clarification. • Be careful regarding medical provider claims of inability to estimate duration and/or frequency.

19. Managing Intermittent Leave After Approval • Is the employee satisfying notice his or her requirements? • Does your policy specify these obligations? • Is temporary reassignment an option? • Careful – available only with regard to intermittent/reduced-schedule leave for planned medical treatment. 29 CFR §825.204(a) • Is the employee making a “reasonable effort” to schedule his or her intermittent leave? • Are periodic fitness-for-duty certifications appropriate?

20. Managing The Real Gamesplayers • Recertification where appropriate • Do you have information that “casts doubt” on need for leave? • FMLA generally should not insulate employees with legitimate performance issues • Require annual review • Surveillance?

21. Extended Leave Scenarios

22. What Are The Employee’s Reinstatement Rights? • Reinstatement to the Same or “Equivalent” Position... “even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence” • 29 CFR 825.214

23. What Limitations Exist On An Employer’s Obligation To Reinstate? • Under the FMLA, an employer does not have an obligation to reinstate an employee to another position if “the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition or an injury or illness also covered by workers’ compensation.” 29 C.F.R. § 825.216(c) . . . BUT: • The FMLA also provides that an “employer’s obligations may, however, be governed by the Americans with Disabilities Act (ADA) . . . state leave laws, or workers’ compensation laws.” 29 C.F.R. § 825.216(c).

24. Can Companies Use Bright-Line “No-Fault” Leave Policies? • The relevant EEOC Enforcement Guidance states as follows: • May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period? • No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. • Modifying workplace policies, including leave policies, is a form of reasonable accommodation.

25. Can Companies Use Bright-Line “No-Fault” Leave Policies? • Since this Enforcement Guidance, the EEOC has brought a series of class action cases against the following employers for utilizing “no-fault” policies: • Sears, N.D. Illinois, Case No. 04-c-7282 (involving “inflexible” one year workers’ compensation leave policy which did not provide for reasonable accommodation); • Denny’s, D. Maryland, Case No. 1:06-cv-02527-WDQ; • SuperValu, N.D. Illinois, Case No. 1:09-cv-05637; • United Parcel Service, N.D. Illinois, Case No. 1:09-cv-05291 (“inflexible 12-month leave policy which did not provide for reasonable accommodation and which instead provided for termination of employment.”).

26. The ADA & Leave Requests • Practical Points: • Finding a balance between providing allowances that are fair and reasonable without going too far . . . • The more leave that is granted the harder it may be to later claim that granting such leave causes an undue burden • Where the leave is sought as an accommodation, the company can seek medical information to support that request but must be careful to avoid a “regarded as” claim by asking for specific medical documentation to support isolated absences • These are extremely fact-sensitive issues: • Legal counsel should be consulted to best understand your risks and options

27. What If the Employee Is Not Able To Return at the Conclusion of the 12 Week FMLA Entitlement? • Before terminating or permanently replacing employee consider... • Do additional leave rights exist under state law? • Is the employee entitled to additional leave as an accommodation under the ADA? • Is there a return to work date specified? • Could the employee return to work if a reasonable accommodation was provided “on the job” if covered by the ADA?

28. Questions? .

29. THANK YOU Dana Connell, Esq. Michael Congiu, Esq.Littler Mendelson, PCdconnell@littler.com mcongiu@littler.com

30. This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney-client relationship with the presenter(s). You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.