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Employers cannot permit employees to use PTO or other paid leave prior to using unpaid FMLA leave for an FMLA qualifying condition, according to a new Department of Labor Opinion Letter. The Opinion Letter also provides that employers cannot designate more than 12 weeks of leave per year as FMLA (or 26 weeks per year if leave qualifies as FMLA military caregiver leave).
Under the FMLA, covered employers must provide eligible employees up to 12 weeks of unpaid, job and benefit-protected leave per year for qualifying medical or family reasons (or up to 26 weeks per year for qualifying military caregiver leave). The Opinion Letter addresses the situation where an employee anticipates a leave of absence for an FMLA-qualifying reason and the employee wants to take off more than the 12 weeks allotted under the FMLA by using other available paid leave policies (such as vacation, sick pay, PTO, etc.) at their disposal. Under this scenario, the employee notifies the employer that he or she plans to exhaust an available paid leave policy first for an FMLA-qualifying reason, and then after that time has run out, he or she desires to take the 12 weeks of FMLA leave.
It doesn’t usually sit well with employees, but they can be required to use their accrued paid time off (PTO) during inclement weather events, wage and hour attorneys say.
“Unless there is a state law restriction or a written policy to the contrary, employers may require employees to use their PTO to cover absences,” said Paul DeCamp, an attorney with Jackson Lewis in Reston, Va., and a former administrator of the Department of Labor’s Wage and Hour Division.
It’s important for an employer to have an inclement weather policy spelling out the rules that apply to exempt and nonexempt employees when the employer is open during inclement weather vs. when it is closed.
The rules for nonexempt employees are straightforward—they are paid only for the time worked. If the employer closes for some of a workweek due to inclement weather, it must pay an exempt worker their usual salary if the employee performs any work during the workweek, even if remotely.
A PTO policy might specifically reference the employer’s ability to require the use of PTO by employees to cover weather-related absences. If an employer closes the office and requires the use of PTO to cover the day, the impact on morale is likely to be negative—more so than if the office is open but the employer allows employees who can’t make it in to use a PTO day. If the employer decides in advance to shut down and it turns out that the expected inclement weather does not materialize, employees who are forced to use PTO on a day they could have made it in will almost certainly react negatively.
It is important that employees understand the expectations about working away from work ahead of time, along with employees being required to accurately report all time worked. Employers should also have policies about how employees can challenge the accuracy of paychecks and the consequences for not making timely challenges.
Courts have held that employees who claim to have worked off-the-clock but who have not notified the employer about that worked time are not entitled to pay for that time.
If an employer stays open despite inclement weather and an exempt employee chooses not to work, that is a personal decision and the day may be docked without jeopardizing the exempt status.
A written policy is an opportunity for an employer to underscore the importance of employees’ safety when determining closures or whether employees should attempt to report to work in inclement conditions.
Employers sometimes ask whether they may discipline employees for choosing to stay home during inclement weather. The employer does not want to allow employees to hinder operations or to force a closure, but the last thing an employer wants to see is a situation where a supervisor orders an employee to come to work in a snowstorm and the employee gets into a car accident. Employers should think very carefully before disciplining in this situation and to err on the side of employee and public safety.
One of the most common questions employers have during inclement weather is if they can force employees with insufficient PTO balances to go into a negative balance situation, or, in other words, whether they can advance the employee extra PTO and then recoup that advance over time.
Generally, an employer can do that, assuming the practice complies with state law and the employer’s written policies.
Another frequent issue that arises is how to treat PTO deficits upon an employee’s separation from employment. State law will dictate whether and when employers may deduct the negative PTO balance from the final pay of nonexempt employees.
For salaried exempt employees, whether the employer can deduct that balance from final pay depends on whether the employer could have deducted it from the employee’s pay at the time of the absence—the missed time that gave rise to the PTO deficit.
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.