A Day Here and a Day There: Positioning Your Company To Manage Intermittent Leave

1. Presented by: Teresa Burke Wright | Jackson Lewis | Reston, VA Darryl Franklin | Marriott International | Bethesda, MD June 6, 2012 A Day Here and a Day There: Positioning Your Company To Manage Intermittent Leave

2. Overview • FMLA Basics. • Intermittent Leave Basics and “Triggers.” • Common Intermittent Leave Challenges. • Strategies for Managing Intermittent Leave.

3. Family and MedicalLeave Act (FMLA) Basics

4. The Family and MedicalLeave Act (FMLA) • The Family and Medical Leave Act (FMLA) of 1993 allows employees to take job-protected leave for certain family and medical reasons. • It also allows leave in conjunction with the military service of family members.

5. The Family and MedicalLeave Act (FMLA) • “Eligible” employees may take 12 weeks of unpaid leave in a 12-month period. • Continuation of health insurance benefits for the employee during the leave period. • Restoration of the employee to the same or equivalent position upon timely return from the leave. • State Law equivalents (e.g. District of Columbia FMLA).

6. Is the Employee Eligible? • An employee must be employed by a covered employer: • For at least 12 months (can include prior service); • For at least 1,250 hours in the 12 months immediately preceding the leave; • At a worksite having 50 or more employees within 75 miles of that worksite. • Special rules for joint employers.

7. Reasons for FMLA • The birth of a child and in order to care for such child. • The placement of a child with the employee for adoption or foster care and to care for the newly placed child.

8. Reasons for FMLA • To care for a spouse, son, daughter, or parent with a serious health condition. • Employee’s own serious health condition which renders the employee unable to perform the functions of his/her job.

9. FMLA Leave Triggers • Employees must request or put employer on notice of need for leave, but need not say “magic words,” such as “FMLA.” • Situations that may indicate a need for FMLA leave include: • Time off due to surgery or hospitalization; • Any absence due to pregnancy, including morning sickness, prenatal visits; • Frequent absences or tardiness due to employee’s or family member’s health issues; • Absences due to a family-member’s call-up to active duty or service-related injury; and • Any health-related absence lasting more than three calendar days.

10. Intermittent Leave: Basics • Medical leave need not be taken in a large or continuous block. • FMLA can be taken intermittently in days, hourly increments or fractions of hours. • FMLA can also be taken on a “reduced schedule” basis. • Frequent absenteeism for medical reasons can be legally protected. • Intermittent leave may be taken for a serious health condition of the employee or for care of a family member.

11. Intermittent Leave: An Unanticipated Problem “A central defining theme in the comments involves an area that may not have been fully anticipated:  the prevalence with which unscheduled intermittent FMLA leave would be taken in certain workplaces or work settings by individuals who have chronic health conditions.  This is the single most serious area of friction between employers and employees seeking to use FMLA leave.” Family and Medical Leave Act Regulations:  A Report on the Department of Labor’s Request for Information -- 2007 Update

12. Related ADA Issues • Obligations Also May Exist under the Americans with Disabilities Act (ADA) even if FMLA is Unavailable or Exhausted. • Under the ADA, leave, medical leave, flexible schedules and part-time work arrangements may be a reasonable accommodation (if they do not pose undue hardship). • Use “interactive process” to explore potential accommodations. • The ADA Amendments Act (ADAAA) dramatically expanded the ADA’s definition of “disability.” Many temporary conditions will now trigger accommodation obligations.

13. Intermittent FMLA: Employer Notice Requirements • General notice: Poster, handbook policy. • Specific notice: send “Eligibility and Notice of Rights and Responsibilities” form within five business days of learning of the need for leave.

14. Medical Certification • Employees must provide medical information to support ADA or FMLA medical leave within fifteen calendar days of an employer’s request. • The information that can be requested is strictly limited. Use the DOL’s forms. • When the information provided is incomplete, the law provides strict protocols for obtaining complete, unambiguous medical information.

15. Medical Certification • Review medical certifications carefully. • Insist on complete and sufficient medical certifications. • Request clarification and authentication if necessary. • Request second or third opinions if necessary. • Send written notice to employee, communicating what employee must do to obtain FMLA protections, as well as consequences for failing to timely comply. • Extend time reasonably for employee to return complete and sufficient medical certifications. • Deny FMLA leave if medical certifications are not returned without sufficient reason for delay.

16. Contact with an Employee’s Doctor Managers should have little or no contact with an employee’s physician’s office. This should be handled by HR. All communications should be in writing, except in extraordinary circumstances.

17. Medical Certification • Intermittent leave must be medically necessary. • Initial medical certifications should support the medical necessity of intermittent FMLA leave. • Verify that the anticipated frequency and duration of the episodes of incapacity also are medically necessary.

18. Designation of FMLA Leave • Once appropriate medical certification is received, the leave must be “designated” as FMLA leave within five business days. • Failing to properly designate the leave as FMLA leave can result in the employee taking more leave than he/she is entitled to.

19. Guiding Principles in Aggressive Leave Management • Objectives: • Administer FMLA leave with precision while respecting FMLA rights. • Curb potential abuses, BUT • Do not discourage individuals from exercising FMLA rights. • All communications and interactions should be professional, respectful. Avoid hostility, frustration. • To administer FMLA leave aggressively, we must be error-free in fulfilling the employer’s FMLA requirements.

20. Efforts to Curb Intermittent Leave Abuse • Carefully Review Eligibility—Be sure the employee: • Has worked for at least one year (including non-consecutive periods of employment occurring within the past seven years); • Has worked 1250 hours during the previous 12 months, and • Works at a location where 50 or more employees are employed within a 75-mile radius.

21. Efforts to Curb Intermittent Leave Abuse • Consider retroactive designation: • Permissible if no harm or injury to employee, or if it was not employer’s “fault;” • Employer and employee also can mutually agree to retroactive designation; • Employer’s failure to comply with the notice requirements could support an interference claim.

22. Efforts to Curb Intermittent Leave Abuse • Properly record all FMLA leave: • Ask reasons for leave and record all FMLA leave against the employee’s 12-week entitlement; • “Dock” paid leave bank as appropriate; • “Dock” pay if paid leave is exhausted. During FMLA leave, partial-day docking is ok for exempt employees.

23. Efforts to Curb Intermittent Leave Abuse • Consider shifting employee’s hours: • Consider whether the employee’s hours might be shifted to minimize the amount of FMLA intermittent absences needed. • This issue should always be approached diplomatically – an employee should never feel forced, intimidated, or coerced to take more or less FMLA leave than he/she needs.

24. Efforts to Curb Intermittent Leave Abuse • Consider whether to allow “make up” time: • Employers need not allow an employee taking FMLA  intermittent leave to "make up" the time if this does not serve the organization’s needs.  • Treat the employee the same as others. • If you have allowed employees to make up time in the past, any change in this practice could be viewed as retaliatory.

25. Efforts to Curb Intermittent Leave Abuse • Usual and Customary Notice Requirements; Scheduling: • An employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. • An employee absent for doctor's appointments or other treatment is required, whenever possible, to schedule these treatments in a manner so as not to unduly disrupt the employer's operations.

26. Efforts to Curb Intermittent Leave Abuse • Enforce Paid Leave Requirements: • Employer can place restrictions on use of paid leave, including notice, certification, increments. • Employees can be required to comply with these requirements if they want the benefit of paid leave.

27. Efforts to Curb Intermittent Leave Abuse • Transfer to Alternative Position that Better Accommodates Need for Leave: • For planned medical treatment only.  • Same hourly pay and benefits (including health benefits) • The position can have different duties.  • The employee must be restored to his or her original position when the need for intermittent leave is over.  • An employee cannot be transferred to another position in order to discourage the employee from taking FMLA or to work a hardship on the employee.

28. Efforts to Curb Intermittent Leave Abuse • Adopt effective call-in procedures: • Require employees to confirm the reasons they are absent, and document/memorialize those statements. • Compare the reasons and anticipated leave frequency/duration with leave documentation on file. • Request new certification and/or recertification if intermittent leave requests are not supported by existing leave certifications. • It is no longer a best practice not to ask why employees are absent from work.

29. Efforts to Curb Intermittent Leave Abuse • Consider New Technologies: • Most leave management systems focus on whether leave is paid or unpaid. • Consider integrated systems showing whether leave is protected or unprotected to track FMLA. • More vendors are offering leave administration using new technologies.

30. Questions? Teresa Burke WrightJackson Lewis LLPPartner – Washington, D.C. Region Office(703) 483-8310WrightT@jacksonewis.com Darryl FranklinMarriott InternationalVice President and Senior Counsel(301) 380-3023darryl.franklin@marriott.com

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