Free FMLA Leave Calculator App Available

Fisher & Phillips has recently released a Family Medical & Leave Act (FMLA) Calculator App. This free, award-winning app is available for smartphones and tablets. There’s even a version you can use in your web browser. Please visit www.laborlawyers.com/FMLALeaveApp for links to download the Android and iOS versions, or to launch the web browser version on your computer.

The app helps employers calculate leaves of absence under FMLA. Anyone managing people can use the app to calculate leave requests (other than intermittent and reduced schedule) and determine how much FMLA leave an employee has available. The user-friendly interface works very simply. In seconds a manager is able to see how much FMLA leave an employee has available, when an employee should return to work after the current leave request, and how much FMLA leave is remaining, if any. 

The app features include:

• a choice of the four FMLA measuring periods: Rolling Backward, Rolling Forward (from the start of leave), Calendar Year, Fixed 12 Month Leave Year;
• ability to factor in work stoppage periods during leave requests;
• ability to factor in the number of hours per week and the days each week that the employee works; and
• a calculation of any accumulated leave that accrues during a leave period

The app reports the number of days of leave available, when the employee should return to work based on the new leave request, and how much leave, if any, the employee has remaining after the current leave request is completed.

Human Resources or any other manager using the app can email the information directly to the employee who requested the leave. Of course, further documentation to the employee should be provided as required by the FMLA. 

Please note: The FMLA Leave App should not be construed as or relied upon for legal advice. The Family and Medical Leave Act is a complicated law and it is difficult to anticipate the various circumstances that may arise in handling requests for leave. The contents are intended for general information purposes only and are only able to calculate leaves in limited circumstances. 

Obama Administration Announces Proposed Rule Extending FMLA Leave Rights for Same-Sex Couples

The Department of Labor announced on June 20th a proposed rule that would allow an employee to take FMLA leave to care for their same-sex spouse, regardless of whether the employee lives in a state that recognizes their marital status.  As expected, the DOL has adopted a “state of celebration” rule, in which a spousal status for purposes of FMLA is determined not on the state in which the employee currently resides (as currently stated in the FMLA regulations), but based on the law of the state where the employee was married.  For example, if the employee was married in New York, but now resides with his same-sex spouse in Indiana, the employee will enjoy FMLA rights to care for his spouse as if he had resided in New York.

DOL’s Interpretation of FMLA after U.S. v. Windsor

The FMLA allows employees to take leave from work to care for a family member with a serious health condition.  Before U.S. v. Windsor abolished certain portions of the Defense of Marriage Act (DOMA), same-sex couples were not allowed to take FMLA leave to care for a same-sex spouse, since DOMA did not recognize the relationship. After the Windsor decision but before the recent announcement, employees were eligible to take FMLA leave to care for a same-sex spouse only if they have resided in a state in which same-sex marriage is legal.

According to the DOL’s notification, the proposed new FMLA regulation includes the following highlights:

• The Department is proposing to move from a “state of residence” rule to a rule based on where the marriage was entered into (sometimes referred to as “place of celebration”).
• The proposed definition of spouse expressly references the inclusion of same-sex marriages in addition to common law marriages, and will encompass same-sex marriages entered into abroad that could have been entered into in at least one State.
•  The Department proposes to define spouse as follows:
• Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife 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.

The proposed rule would mean that eligible employees, regardless of where they live, would be able to:

• Take FMLA leave to care for their same-sex spouse with a serious health condition
• Take qualifying exigency leave due to their same sex spouse’s covered military service
• Take military caregiver leave for their same-sex spouse

The DOL announced the proposed changes on Friday in a press release, stating, ”The basic promise of the FMLA is that no one should have to choose between succeeding at work and being a loving family caregiver … Under the proposed revisions, the FMLA will be applied to all families equally, enabling individuals in same-sex marriages to fully exercise their rights and fulfill their responsibilities to their families.”

The Notice is Not Unexpected

It was only a matter of time before this regulatory announcement became reality.  In fact, the DOL foreshadowed the move when it issued Technical Release 2013-04 in September 2013, at which time the agency took the position that — at least with respect to employee benefit plans — the terms “spouse” and “marriage” in Title I of ERISA and its implementing regulations “should be read to include same-sex couples legally married in any state or foreign jurisdiction that recognizes such marriages, regardless of where they currently live.”

Next Steps

As with other proposed regulatory changes, the public will be given the chance to provide comment directly to the DOL on the proposed change before the agency issues a final rule on the issue. After the final rule is adopted, employers should review and amend their FMLA policy and procedures, as well as all FMLA-related forms and notices.  

New (& Free) FMLA App Released

Fisher & Phillips LLP announced that it has developed a Smartphone and Tablet app to help employers calculate certain Family & Medical Leave Act (FMLA) leaves of absence. The best news is that the app is free!

The leave calculator app allows human resource and benefit managers the ability to calculate basic leave requests and determine how much FMLA leave an employee has available. This new Beta version of the iPhone and Android app will be introduced during the SHRM Annual Conference in mid-June.

The Beta version will cover requests for leave for employees working a standard 40 hour work week and the next version of the app will cover more complicated situations such as employees working reduced work weeks.

The app is able to report the number of FMLA leave days still available for that employee, when the employee should return to work based on the new leave request, and how much leave the employee will have remaining after the current leave request is completed. The app even has a feature where you can then email the information directly to the employee who requested the leave.

This app is available for download at the Apple App Store or Google Play. Use “Fisher & Phillips” to search for the app for download or visit www.laborlawyers.com/FMLALeaveApp to get the app.

Controlling Intermittent FMLA Leave Abuse

The Family Medical Leave Act (FMLA) allows employees to take 12 weeks of leave to care for their own or a family member’s serious health condition and up to 26 weeks for military caregiver leave. An employee can take this leave in one block, over several stretches of time or intermittently. For an employee to take intermittent leave, they need to provide a certification that there is a medical need for such leave.

While longer FMLA leaves are typically straightforward, the ability of an employee to take small increments of FMLA leave periodically can generate administrative headaches for employers and raises concerns about employee abuse of intermittent leave. The FMLA offers a number of tools (many of which are not employed) that employers can use to discourage abuse of intermittent leave. Below are eight of the best strategies for helping to get a handle on the problem.

Tip #1- Question the Original Certification

There are a number of opportunities to ensure that a certification calling for intermittent health related absences is sufficient, valid, and supports the need for intermittent leave. When an employee submits a certification for a chronic condition that will flare up and require intermittent leave (such as asthma or migraines), the HR professional reviewing the certification should consider these options:

Incomplete or insufficient certification

When a certification has missing entries or is vague, you may ask the employee the provide complete and sufficient information. The request must be made in writing and must specify the reason the certification was considered incomplete or insufficient. The employee must then provide the additional information within 7 days. If the employee fails to provide this information, leave may be delayed or denied.

Authentication and Clarification

You may contact the health care provider to ensure that they actually prepared the certification or to clarify the meaning of a response, but an HR professional, health care provider, leave administrator or management official to make the contact. The employee’s direct supervisor may not be the one who contacts the health care provider. During this process, be careful not to request more info than what is required to authenticate or clarify the form. This can be used at the recertification stage as well as the initial certification.

Tip #2- Ask for a Second Opinion

Employers who have reason to doubt the validity of an initial certification may ask for a second opinion. The physician may be one of the employer’s choosing, but it can not be one the employer uses on a regular basis. It is the employer’s responsibility to pay for the second opinion. If the first and second opinions differ, the employer may require a third health care provider certification, again at the expense of the employer. The third provider’s opinion is binding. Although there are a number of opportunities to ask for recertification of an employee’s serious health condition, you may not seek second or third opinions on recertification.

Tip #3-Ensure That All Absences Related To The Condition Are Counted

The job of managing intermittent leave is not over after an employee submits a certification that calls for sporadic health related absences. Employers must be certain that all absences related to the condition are counted against the employee’s FMLA entitlement, while at the same time ensuring that they are not counted against the employee under a no-fault attendance policy.

In larger organizations, front line supervisors must be the eyes and ears of the company and must pass along the information about FMLA covered intermittent absences to HR. This, in turn, requires employers to train supervisors to recognize absences that may be covered by FMLA.

Identifying FMLA absences may not be as simple as it may seem, in part because the US Department of Labor and the courts have held that the employee does not have to cite the FMLA in a request. If there is an existing certification, it is enough for the employee to notify the employer that they had a recurrence of the health condition covered by the certification. For first time health related absences, supervisors should be trained to notify HR any time an employee is out for more than three days with an illness, especially if an employee saw a physician during that time.

Tip #4-Require Employees To Follow Your Paid Leave Policy

Employers may require that employees use up paid leave time for their intermittent FMLA absences. In fact, all employers should include such a requirement in their FMLA policies and enforce the practice of using up paid time off during FMLA leave, in order to prevent the situation where an employee can take paid leave after their FMLA leave expires and thereby extend a leave of absence beyond the FMLA entitlement.

The 2008 FMLA regulations made it clear that employers may require employees to abide by your paid-time off policies in order to be paid for FMLA leave time.

Tip #5-Request Recertification

FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave, including intermittent leave. Unless there are changed or suspicious circumstances, these rules of thumb apply:

• employees may be asked for recertification any time they seek to extend an existing FMLA leave

• for long term conditions or conditions that may require sporadic absences, an employer may request recertification every 30 days in connection with an absence

• if the employee is taking a solid block of leave for more than 30 days, the employer may ask for recertification if the leave extends beyond the requested leave period

• if the employee is out on a leave that has been certified to extend for more than 6 months, the employer may seek recertification every 6 months

• employers may ask for a new certification at the beginning of each leave year

As with initial certifications, the employee has 15 days to provide the recertification.

Tip #6-Follow Up On Changed Or Suspicious Circumstances

You should always keep tabs on use of FMLA leave, and may want to pay special attention to patterns of intermittent leave usage. You may seek recertification more frequently than 30 days if: a) the circumstances described by the existing certification have changed, or b) the employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.

“Changed circumstances” include a different frequency or duration of absences or increased severity or complications from the illness. The regulations allow you to provide information to the health care provider about the employee’s absence pattern and ask the provider if the absences are consistent with the health condition.

“Information that casts doubt on the employee’s stated reason for the absence” may be information you receive (possibly from other employees) about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition. An example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.

A note of caution- Employers who receive information from coworkers about an employee’s actions while on leave must be certain the information they receive is credible and that the coworker has no hidden motive against the person on leave. Always attempt to independently verify information received from coworkers before taking action or requesting recertification for suspicious circumstances.

Tip #7-Control The Way That Employees Schedule Planned Treatment

Employees may take intermittent leave for treatment, therapy, and doctor visits for serious health conditions. FMLA regulations specifically require that employees schedule those absences for planned medical treatment in a way that least disrupts the company operations. When you receive a request for this type of intermittent leave, communicate with the employee about the frequency of the treatment, the office hours of the health care provider and way that the employee may be able to alter their schedule to cut down on disruptions.

Tip #8-Consider Temporary Transfers

If the need for intermittent leave is foreseeable, you may transfer the employee during the period of the intermittent leave to an available alternative position for which the employee is qualified and which better accommodates the recurring periods of leave. The alternate position must have equivalent pay and benefits, but does not have to provide equivalent duties. If the employee asks to use leave in order to work a reduced work schedule, you may also transfer the employee to a part time role at the same hourly rate as the employee’s original position, as long as the benefits remain the same.

You may also allow the employee to work in the employee’s original position, but on a part time basis. You may not eliminate benefits that would otherwise not be provided to part time employees, but may proportionately reduce benefits such as vacation leave if it is the employer’s normal practice to base the benefits on the number of hours worked.

These tips will not entirely eliminate the problem of employees trying to take advantage of the intermittent leave regulations, but they will help.