July 2018

4 pitfalls of managing family and medical leave in the workplace

Managing the Family and Medical Leave Act (FMLA) can be challenging for law firms, human resources departments or their third-party administrators, but it is manageable. That was the theme of the recent ABA webinar, "Managing FMLA in the Workplace," which brought together attorneys and industry experts to discuss four areas of confusion when managing a typical FMLA case.

Brianna Primozic Rapp, a partner at Rosen Marsili Rapp LLP in Los Angeles, moderated the panel discussion. She says the four issues most often present themselves in FMLA cases are:

Medical certification and recertification

An employer can request a medical certification before granting an employee FMLA. The medical certification is typically filled out by the health-care provider, says Joan G. Hill, senior technician/attorney, Education and Membership Development Department for the United Steelworkers International Union in Pittsburgh. Employees have 15 days from the employer’s request to provide certification before leave begins. If the certification is incomplete or insufficient, the employer must tell the employee in writing and allow seven days to “cure any deficiency.” The certification should include the type of care the employee will be providing to their family member, such as direct care, indirect care and psychological care. “Doctors are often hesitant to foresee what type of care the employee will need to provide and the information is sometimes missing from the form or limited,” Hill says.

However, Christine Schott, a senior adviser with the U.S. Department of Labor, Wage and Hour Division, FMLA and OLS Branch in Washington, D.C., says the health-care provider is not required to report on the exact care the employee would be providing the family member. “What the health-care provider is asked to certify is that care is medically necessary,” she says. “Also, the health-care provider is reporting the approximate date that a serious health condition commenced, the probable duration of the condition and a best estimate of incapacity and future care needed.”

Employers have the option to get a second and third medical opinion. The second opinion is the employer’s option – the employee uses a health-care provider of the employer’s choosing, but not a company doctor. The employer pays for it, and the diagnosis is not final and binding. The employer can also opt for a third opinion when the first two disagree. Again, the employer pays for it, and it may be from the company doctor, but only if the employee agrees. Both the employer and employee must act in good faith to agree on the doctor, and the third opinion is final and binding.

Recertification, Hill says, is when the employer exercises their right to recertify for pregnancy, chronic or permanent long-term conditions every 30 days in connection with the absence.  In all cases, an employer can seek recertification at least every six months for lifetime conditions; but no more often than every 30 days, unless there is a specific cause to question the leave. The employer pays the cost of recertification.

FMLA leave, performance issues and disciplinary actions

Jeff Nowak, a partner at Franczek Radelet PC in Chicago and author of “FMLA Insights,” says underlying issues such as depression and stress can be at the root of employee performance and discipline issues, which must be balanced in the context of FMLA. “If that is the case, then it veers into the Americans with Disabilities Act, particularly when dealing with mental health conditions,’’ he says.

Nowak says employers must be supportive and empathetic, “but you are not a counselor and you’re not there to fix them.”

If an employee has ongoing performance issues, treat it as a two-part conversation about performance:

  • Reference any previous conversation and the concerns discussed in that conversation.

  • Discuss what you have observed most recently.

  • Express concern about how work does not meet your expectations and review your expectations.

Then transition to the interactive process:

  • Invite conversation by asking if there is anything you can do to help the employee improve in these areas.

  • Suggest a leave of absence as an option.

  • Give the employee time to talk, be empathetic when necessary and remain focused on the performance issue itself.

If the problem persists, “then you have to recognize that this is a potential FMLA case and discuss maybe taking some time off,” Nowak says.

Intermittent and reduced-schedule FMLA leave

FMLA can be taken in various allotments, two of which are intermittent and reduced-scheduled leave, according to Valerie A. LeFevere, a senior associate with Kalijarvi, Chuzi, Newman & Fitch PC in Washington, D.C. Although employees can take 12 weeks of FMLA every six months, she says there may be situations in which the employee may need to take smaller increments of leave rather than the maximum.

Intermittent leave is taken in separate blocks of time. It may include leave periods ranging from one hour to several weeks, or leave taken several days at a time spread over a period of months. This type of leave is appropriate when treatment by a health-care provider is required periodically, rather than continuously, such as for a patient who requires weekly chemotherapy treatments over a period of six months.

Reduced-schedule leave decreases an employee’s usual number of work hours per week or hours per workday and is tantamount to temporary, part-time employment. Reduced leave is appropriate when an employee is recovering from a serious health condition and is not able to work a full-time schedule.

The FMLA regulations set forth a number of circumstances under which an employee can take intermittent or reduced-schedule leave and the rights employers have in granting leave. Some of those include:

  • Medical need. The employee is not required to receive treatment from a health-care provider to receive intermittent or reduced-schedule leave if the employee is unable to perform the essential functions of the position due to a serious health condition. The leave can be taken intermittently or on a reduced-leave schedule when medically necessary for planned treatment.

  • Birth or placement. The employee may take intermittent or reduced leave after the birth of a child or arrival of a child in the home due to adoption or foster care, but must first receive the employer’s agreement to do so. The leave must conclude within 12 months after birth or placement. However, if either the employee or the child has a serious health condition, the employer’s agreement is not required.

  • The employer may require the employee to temporarily transfer to an alternative position for which she is qualified, if the alternative position better accommodates recurring periods of leave. The position must have equivalent pay and benefits but does not have to have equivalent duties; and it must not create a hardship on the employee, i.e., a white-collar employee may not be assigned to perform laborer’s work or a day worker reassigned to the graveyard shift.

FMLA abuse and how to curb it

Nowak says that because of social media, employers are sometimes faced with situations where there appears to be abuse of FMLA leave, often receiving new information (via Facebook or Instagram posts) about an employee who is off engaging in activities not related to their FMLA leave.

He gave the example of a woman who took leave to be with her ailing mother in Mexico and two weeks into the leave was seen in a Facebook post with friends visiting Germany.  “Courts are increasingly having to deal with these kinds of cases and they are not hesitant to dismiss FMLA claims where the employer has had an honest belief/suspicion that the employee was abusing leave,” he says.

Nowak says an honest belief defense is largely fact-intensive. He offered these best practices:

  • Courts look for a complete investigation.
  • Employers lose when there is no sense of due process or there is a rush to judgment.
  • A complete investigation of the facts includes:
    • Gathering facts and information and being mindful of state laws.
    • Meeting with the employee to:
      • Confirm the request for a continuous leave of absence.
      • Confirm the need to care for her mother during the requested period.
      • Confirm the understanding of how seriously fraud is taken.
      • Ask if the woman stayed in Mexico the entire time; inquire whether she left the country.
      • Disclose that you have received info about her whereabouts.
      • Show Facebook entries.
    • Decide whether to call in the employee immediately or wait until the completion of the leave. “My approach is to wait until after the employee returns to work,” Nowak says.

Section of Civil Rights and Social Justice, Section of Labor & Employment Law, Government and Public Sector Lawyers Division, Law Practice Division, Commission on Law and Aging and the Center for Professional Development.

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