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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:
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.
All covered employers are required to display a Department of Labor poster summarizing the major provisions of The Family and Medical Leave Act (FMLA). The poster must be displayed in a conspicuous place where all employees and applicants for employment can see it and must be displayed at all locations even if there are no eligible employees.
Changes have been made to the FMLA regulations including military caregiver leave for a veteran, qualifying exigency leave for parental care, and the special leave calculation method for flight crew employees. These changes will go into effect March 8, 2013.
You may start using the new poster immediately or you may use your current FMLA poster until March 7th.
Please contact our office if you need a copy of the new poster.
In the last ten years, we have seen the largest armed forces deployment since WWII. Soldiers have returned from Iraq, and thousands more are scheduled to return from Afghanistan over the course of 2013. It is expected that by the end of 2014, nearly 1.5 million will have returned from combat operations in those two countries alone. Many will apply for reemployment with physical or mental impairments that can oftentimes trigger a host of statutory obligations, varying from the Uniformed Services Employment and Reemployment Rights Act (USERRA) to the Americans with Disabilities Amendments Act (ADAAA).
It is essential to reconsider the legal and practical ramifications for reintegrating them into your workplace. Effective reintegration calls for a commitment from upper management, with an focus on appropriate training and education for supervisors and managers alike.
Any such program must start with a review of the legal obligations required by laws such as USERRA, which establishes rigid timetables for reemploying our returning reservists, veterans and other uniformed service members, along with the accommodation requirements imposed by the ADAAA. If you employ the spouse or close family relative of a returning veteran (as opposed to the veteran him or herself), the Family and Medical Leave Act (FMLA) may also apply.
USERRA
USERRA is the primary federal statute governing the reemployment rights of returning veterans. Returning employees need to only submit a timely reemployment application (typically within 14 or 90 days, depending on their length of service) and otherwise establish that they were discharged from duty under honorable circumstances.
Upon receipt of the application, an employer must reinstate uniformed service members (typically within two weeks) to the position they would have held if they had never taken military leave (their “escalator” position) in the first place. Before you decide whether or not they are qualified to return to their escalator position, you must provide refresher as well as any other training that would have been furnished during their leave of absence.
Exemptions from this reemployment obligation are few and far between. An example would be where the circumstances have changed so significantly, such as an intervening reduction in force, that reemployment would be impossible or unreasonable under the circumstances. Following reemployment, the returning veteran can only be terminated “for just cause” for 180 days (if their deployment was for more than 30 but less than 180 days), or for one year following reemployment (if the length of deployment exceeded 180 days). USERRA also restricts employers from discriminating against employees on the basis of military service, or from retaliating against those who pursue enforcement assistance.
FMLA
The FMLA was recently revised to provide both “military caregiver” and “qualifying exigency” leave to close family members (i.e., the spouse, child, parent or “next of kin”) of covered servicemembers. Military caregiver leave allows eligible employees to take up to 26 workweeks of unpaid leave during a 12-month period to care for close family members who have sustained serious injuries or illnesses in the line of active duty. FMLA also allows eligible employees to take up to 12 workweeks of qualifying exigency leave each year to tend to certain “exigencies” (i.e. attending military ceremonies, arranging for alternative childcare arrangements, etc.) brought about by their close family member’s federal active duty commitment.
In other words, FMLA applies only in those circumstances where your employee is affected by virtue of their relationship to a uniformed servicemember. When the employee actually is a uniformed servicemember, USERRA will outline your legal rights and obligations.
ADAAA
USERRA outlines a bottomline for employer’s legal responsibilities to returning veterans. You may also be operating under additional obligations imposed by laws such as the ADAAA (and any state law counterparts). The ADAAA prohibits employers from discriminating against qualified employees who are known, regarded as, or have a history of being disabled.
Full compliance with USERRA will not eliminate the need for additional obligations in the form of reasonable accommodation for any known, service-connected physical or mental impairments that significantly restrict the ability to perform one or more major life activities.
Excluding undue hardship, employers must provide reasonable accommodation to disabled veterans to aid them in performing the essential functions of their pre-duty positions, and to allow them to enjoy equivalent benefits and privileges of employment (including access to sponsored training programs, break areas, social events, etc.).
With recent amendments widening the extent of the term, “disability,” the ADAAA has cast a wide net around this concept, covering millions of Americans in statutory protection. As a result, it is more important than ever to properly engage in the process with regard to service-connected injuries such as mobility, cognitive, sensory, and psychiatric impairments.
Unique Challenges Presented By Mental Impairments
Around 25% of all veterans serving in the middle east conflict have returned home from active duty with physical disabilities. Due to the nature of the conflict, nearly 20% of them are returning with diagnoses consistent with Post-Traumatic Stress Disorder (PTSD) or depression as well as traumatic brain injuries.
It is also fair to assume that a significant number of veterans are returning with symptoms that have yet to be formally diagnosed, perhaps due to an unwillingness to acknowledge or disclose the disorder. While most will return fit to immediately undertake the essential functions of their positions, others may require a period of adjustment that calls for a gradual reintegration.
Public Resources Are Available
A number of public resources are available to assist in the readjustment process, including the ESGR, a federal ombudsman service devoted to Employer Support for the Guard and Reserve, the Disability Management Employer Coalition, the Veterans Administration, and a host of private third-party programs. The Society for Human Resource Management has even recently partnered with the U.S. Army to provide additional resources to facilitate the reemployment process.
The ADAAA suggests evaluating each reintegration on a case-by-case basis when it comes to accommodating returning veterans and other disabled employees. Accommodating for those afflicted with impairments such as PTSD can often be implemented for a relatively small expense. However, in other cases, enhanced supervisory training may be required to help ensure that the return-to-work transition is a smooth one.
Every veteran who returns for reemployment potentially triggers a broad range of practical and legal factors, and every situation must be evaluated on a case-by-case basis. In many cases, challenging obstacles await those who encounter these considerations. But with a sufficient amount of investment in planning, supervisory training and legal analysis, there are rewards for employers and employees alike.
The Department of Labor’s (DOL) prior set of forms for the Family and Medical Leave Act (FMLA) expired at the end of 2011. Most employers expected that the DOL’s newer forms, which can be found here, would comply with the applicable laws. Unfortunately, the DOL’s new FMLA forms, which state that they are valid through February 28, 2015, do not comply with the Genetic Information Nondiscrimination Act (GINA).
Although GINA generally prohibits employers with 15 or more employees from requesting or requiring “genetic information” from an applicant or employee, there is a safe harbor for employers who inadvertently recieve genetic information in response to a lawful request for for medical information, such as for FMLA purposes.
Employers who lawfully request medical information from a health care provider for FMLA certification purposes should include the following recommended “safe harbor” language found in the GINA regulations when making a request:
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 employees and their family members. In order 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.
Employers who use this language and still recieve genetic information from a health care provider will be deemed to have recieved the information inadvertently.
Employers should realize that they cannot always rely on government forms. Employers should add the GINA “safe harbor” language to any requests for medical information under the FMLA in order to avoid potential liability for GINA discrimination claims. The failure to do so leaves an employer at risk for possible discrimination under GINA, depending upon the type of information recieved in response to such a request.