FMLA/CFRA Certifications: How to Effectively – and Legally – Use This Weapon of Choice for Combating Abuse

Friday, December 3, 2010 Presented by the Employer Resource Institute

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Recertification Credit

This program, ORG-PROGRAM-

78752

, has been approved for 1.5 recertification credit hours toward PHR® and SPHR® recertification through the Human Resource Certification Institute (HRCI). Please be sure to note the program ID number on your recertification application form. For more information about certification or recertification, please visit the HRCI home page at www.hrci.org.

The use of the above seal is not an endorsement by HRCI of the quality of the program. It means that this program has met HRCI’s criteria to be pre-approved for recertification.

© 2010 Employer Resource Institute. All Rights Reserved

About Our Speaker Mark J. Jacobs, Esq.

is a partner in the Irvine office of Fisher & Phillips, LLP. His practice is focused on defending employment related lawsuits and administrative complaints on a variety of issues, including harassment, retaliation, and discrimination. Jacobs represents employers in both state and federal courts as well as before state and federal agencies, such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the Division of Labor Standards Enforcement and has expertise in handling complex, multi-plaintiff harassment and discrimination matters, wage & hour and other administrative matters. A significant portion of his practice is devoted to preventive employee relations programs that include supervisory training and the development and administration of effective human resources policies and practices.

© 2010 Employer Resource Institute. All Rights Reserved

Solutions at Work

Managing Leaves of Absence

Presented by Mark J. Jacobs Neal A. Fisher Jr.

Fisher & Phillips LLP Attorneys at Law www.laborlawyers.com

Atlanta • Charlotte • Chicago • Columbia • Dallas • Denver • Fort Lauderdale • Houston • Irvine • Kansas City • Las Vegas • Louisville New Jersey • New Orleans • Orlando • Philadelphia • Phoenix • Portland, ME • Portland, OR • San Diego • San Francisco • Tampa 6

Managing Leave Laws Successfully

Overview of Presentation

     The Nuts and Bolts of Relevant Federal and State Laws Managing Return-To Work Issues Keeping Leave Law Fraud To a Minimum Disciplining and Terminating For Absenteeism Without Inviting A Lawsuit Emerging issues 8

Why Is This So Important?

What is your number one priority in administering leaves of absence?

** Protect The Company **

 The best defense is a good offense  Actively administer each claim from start to finish  Learn to recognize interplay between various federal and state laws 9

Different Laws Involving Leaves of Absence

       Family and Medical Leave Act (FMLA) California Family Rights Act (CFRA) CA Pregnancy Disability Leave Act (PDL) California Fair Employment & Housing Act (FEHA) Americans With Disabilities Act (ADA) Workers’ Compensation Paid Family Leave (FTDI) 10

Each Law Focuses On A Different Element Of The Disability Process

You always want to be conscious of which law is governing at that particular point in time.

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Each Law Focuses On A Different Element Of The Disability Process

CFRA FMLA Workers’ Comp FTDI FEHA ADA CAL PDL

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Figure Out Which Laws Apply And Stay Focused On Each Law Until It No Longer Applies

CFRA FMLA FTDI

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Overview of FMLA/CFRA

FMLA CFRA

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FMLA/CFRA Is Concerned With:  Providing a minimum level of unpaid, job-protected leave to eligible employees;  Covering those who suffer from a serious health condition;  Cover those providing Military Caregiver Leave or Exigency Leave; and  Protecting those employees from adverse treatment because of the need for leave.

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ADA/FEHA Attempts To Eliminate Workplace Disability Discrimination By:  Emphasizing on what an employee can do as opposed to focusing on employee ’ s limitations;  Requiring employers to evaluate an individual job on a case-by-case basis; and ’ s fitness to perform the essential functions of the  Considering any reasonable accommodation in the process.

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Definitions May Overlap

 Not all “ disabilities ” under ADA/FEHA are “ serious health conditions ” under FMLA/CFRA.

 E.g. an employee with a glass eye  Not all “ serious health conditions ” FMLA/CFRA are “ disabilities ” ADA/FEHA under under  E.g. an employee with a broken leg 17

FMLA/CFRA vs. ADA/FEHA Leaves

    FMLA available for family members FMLA limited to 12 weeks FMLA has length of service requirements FMLA has no “undue hardship” defense     ADA is available for employees only ADA is open ended as “reasonable accommodation” ADA has no length of service requirements ADA has undue hardship defense Both have different re-instatement rights.

Transfer requirements also vary.

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FMLA/CFRA vs. ADA/FEHA Leaves

   ADA/FEHA requires accommodation if employee cannot perform prior job without accommodation but FMLA/CFRA does not consider accommodation ADA/FEHA accommodations must be reasonable and do not necessarily have to be the employee ’ s first choice of accommodation ADA/FEHA obligates an employer to engage in the interactive process 19

Definitions May Differ

 Pregnancy, childbirth and related medical conditions are considered serious health conditions under the FMLA  Pregnancy is not a covered qualifying event under California ’ s Family Rights Act  Disabilities arising from a female employee ’ s pregnancy, childbirth or related medical condition are covered under California ’ s Pregnancy Disability Act 20

Workers’ Compensation Laws Emphasize . . .

 What employee cannot do by focusing on the nature and percentage of disability;  So as to provide suitable compensation for lost earnings;  Resulting from a work-related injury. 21

FMLA/CFRA vs. Workers’ Compensation Leaves Covered by both FMLA/CFRA and WC     If work-related injury that keeps employee from working Employers frequently forget to designate the leave as FMLA/CFRA qualifying If unsure, at least preliminarily designate as FMLA/CFRA and provide Employee FMLA paperwork Allows time to count against 12 week entitlement 22

FMLA/CFRA vs. Workers’ Compensation  If the employee has been on a workers’ compensation leave of absence during which FMLA has been taken concurrently, and the employee exhausts all 12-weeks of FMLA leave and is still unable to return to work, the employee no longer has the protections of the FMLA.

 However, employer MUST look to workers’ compensation laws, as well as ADA/FEHA 23

Defining Employer Rights & Responsibilities Under State & Federal Disability, Leave & Absence Laws The Nuts and Bolts of Various Federal and State Leave Laws 24

Keys to Managing Leaves of Absence      Focus on which leave of absence the leave of absence currently applies to Analyze each leave of absence independently Communicate with the employee regarding his/her rights and responsibilities during the leave Evaluate other potential laws governing leave of absence either concurrently or at the end of the previous coverage Consistency – treat all employee leaves the same 25

Federal Family and Medical Leave, California’s Family Rights Act, and California’s Pregnancy Disability Leave 26

Family And Medical Leave Acts

  The federal Family and Medical Leave Act (“FMLA”) and the California (Moore-Brown Roberti) Family Rights Act (“CFRA”) entitle eligible employees to take an unpaid, job protected leave of absence up to 12 workweeks in a 12-month period for certain qualifying reasons.

Both laws prohibit companies from interfering with or retaliating against employees for exercising their right to FMLA/CFRA leave.

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Key Differences Between Leave Duration Under FMLA & CFRA  Pregnancy Disability Leave Law (PDL)    The FMLA includes disabilities related to pregnancy as a serious health condition The CFRA expressly excludes disabilities related to pregnancy In California, the PDL governs a female employee’s right to a leave of absence for disabilities due to the pregnancy, childbirth or related medical conditions.

 Child care leave under CFRA may be taken in increments of two weeks and twice in increments of less than two weeks  Under the FMLA, “bonding time” with the child must be taken all at once unless the employer agrees to the contrary 28

California’s Pregnancy Disability Leave Law (“PDL”)   PDL is for any period(s) of pregnancy actual disability caused by the employee’s pregnancy, childbirth or related medical condition up to 4 months per  4 months = 88 days for full-time employee PDL covers time off for:  Prenatal care     Severe morning sickness Doctor-ordered bed rest Childbirth Recovery from childbirth 29

California’s Pregnancy Disability Leave Law (“PDL”)      There is no eligibility requirement  Employee can request PDL time off work on her first day of work Provides up to 4 months of unpaid, job protected leave as needed Does not need to be continuous; as needed Temporary transfers are permissible Only applies if employee is actually disabled due to pregnancy or related medical conditions 30

California’s Pregnancy Disability Leave Law      All three laws interact Up to first 12 weeks will be BOTH FMLA and Pregnancy Disability Leave At end of disability – then 12 weeks of leave under CFRA  Remember CFRA does not apply to pregnancy related disabilities Total of up to 7 months job protected leave Never forget the duty to accommodate a disability under ADA/FEHA 31

What are an employer’s obligations prior to and during an employee’s leave?

 An employer’s primary obligation is to provide proper notification of an employee’s rights and responsibilities during an FMLA/CFRA leave.

 Notification obligations occur prior to a leave, during a leave and upon conclusion of the leave.

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What are an employer’s obligations prior to and during an employee’s leave?

 How does an employer satisfy these obligations?

     Employee Handbook FMLA Pre-Designation Form FMLA Medical Certification Form FMLA Designation Form FMLA Status Letters 33

Analyze Each Claim From Beginning To End

Step 1

Does The FMLA Apply To Your Company?

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Analyze Each Claim From Beginning To End

Step 1 Step 2

Does The FMLA Apply To Your Company?

Is the employee eligible for FMLA leave?

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Is The Employee Entitled To FMLA/CFRA Leave?

  Only employees who meet certain requirements are entitled to job protected leave under the FMLA/CFRA 2 part test:  (1) Does the employee satisfy the eligibility requirements under the FMLA?

 (2) If yes, does the employee have FMLA leave available or has the employee previously exhausted his/her FMLA leave rights? 36

Analyze Each Claim From Beginning To End

Step 1 Step 2

Does The FMLA Apply To Your Company?

Part 1

Does the employee meet the FMLA eligibility requirements?

Part 2

Does the employee have available FMLA leave?

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Part 1 – Is the Employee Eligible For Leave Under The FMLA/CFRA?

  Whenever an employee requests a leave of absence, the first question to ask is whether the employee meets the three requirements.

What are the 3 eligibility criteria: 1._________________________________

2._________________________________

3._________________________________

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Employee Eligibility Requirement #1

1. Employee has worked for the Company for at least 12 months (e.g. 52 weeks)    12 months do not have to be consecutive Look at employee’s entire employment history with the Company Count any week in which the employee is maintained on the payroll 39

Employee Eligibility Requirement #2

2. Employee has worked for the Company for at least 1,250 hours during the 12 consecutive months preceding the start of the leave (not the date of the requests the leave) For example, if an employee notifies you on June 15th that they will be having surgery on August 1, you determine the number of hours worked as of August 1 – not June 15 th

AND…

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Employee Eligibility Requirement #3

3. Employee works at a work site where there are at least 50 employees within a 75-mile radius    Test can be met either when leave is requested or when taken Salespeople are deemed to work at their “home base” worksite (where work assignments originate or where they report for work). Temporary employees count for calculating the 50 employee coverage threshold if they have a “continuing employment relationship” (DOL August 5, 2004 Opinion Letter) 41

Analyze Each Claim From Beginning To End

Step 1 Step 2

Does The FMLA Apply To Your Company?

Part 1

Does the employee meet the FMLA eligibility requirements?

Part 2

Does the employee have available FMLA leave?

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Part 2 Of Employee Eligibility Analysis   FMLA/CFRA leave does not necessarily mean that they are entitled to take FMLA/CFRA leave  An employee may have already exhausted leave rights or part of his/her leave rights You have to determine whether the employee has any available FMLA leave available  If the employee has previously taken leave, determine if the employee has exhausted all 12 weeks of leave or how much time the employee has remaining  You want to manage the employee’s expectations of how much job-protected leave he/she can take 43

Ensure Compliance with the Family and Medical Leave Act   12 Workweeks in a 12-month period   “Workweek” = the employee’s normally scheduled week Examples – Alternative Workweek Schedules; Part-time employees 12-Month period must be defined in the Company’s policy (e.g. handbook)  If Company fails to specify which method it uses to calculate the 12-month period, the employee is entitled to the most beneficial method 44

Calculating FMLA leave

1) “Rolling” Method. The best method of calculating the 12-week leave period is the “rolling” method by which the employer looks back in time to the last FMLA leave and calculates one year from that time. This is the only method that avoids employees’ stacking. 2) Calendar Year. The employer may also use the calendar-year method by which the employer provides up to 12 workweeks of leave to each eligible employee each calendar year.

3)

Twelve-Month Period. The employer may also institute a policy that provides up to 12 weeks of FMLA leave in any 12-month period.

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Example Of Rolling Method

Scenario #1: Employee takes 4 weeks off starting February 1, 2009; then 4 more weeks off beginning June 1, 2009; then 4 more weeks off beginning December 1, 2009. Then the employee requests additional leave beginning January 1, 2010.

# weeks taken Calendar Year 2009 Calendar Year 2010 Jan Feb Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Jan Feb Mar. Apr. May June 4 4 4  12 11 10 9 8 7 6 5 4 3 2 1 Employee requests additional leave Jan. 1 Step #1: Step #2: Step #3: Step #4: Look backwards at the preceeding 12 months from the date the employee requests the leave Take the sum of the # weeks used in preceeding 12 months (e.g. 4 weeks in Feb. + 4 weeks in June + 4 weeks in December = 12 weeks) Subtract the # of weeks used in preceeding 12 months from the 12 weeks of FMLA entitled leave (e.g. FMLA 12 weeks - 12 weeks used = 0) Determine the # of remaining weeks the employee is entitled to use (e.g. in this scenario, zero b/c the employee has exhausted all 12 weeks in the preceeding 12 months as of the date of the employee's request for additional leave) 46

Example Of Rolling Method

# weeks taken Calendar Year 2009 Calendar Year 2010 Jan Feb Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Jan Feb Mar. Apr. May June 4 4 4  12 11 10 9 8 7 6 5 4 3 2 1 Employee requests additional leave Mar. 1 Step #1: Step #2: Step #3: Step #4: Look backwards at the preceeding 12 months from the date the employee requests the leave Take the sum of the # weeks used in preceeding 12 months (e.g. 4 weeks in June + 4 weeks in December = 8 weeks) Subtract the # of weeks used in preceeding 12 months from the 12 weeks of FMLA entitled leave (e.g. FMLA 12 weeks - 8 weeks used = 4) Determine the # of remaining weeks the employee is entitled to use (e.g. in this scenario, 4 weeks b/c the employee has only used 8 weeks in the preceeding 12 months as of the date of the employee's request for additional leave) 47

Example Of Rolling Method

Scenario #3: Employee takes 6 weeks off starting May 1, 2009; then 1 week off beginning July 1, 2009; then 1 more week off beginning Sept. 1, 2009; then 1 more week off beginning Nov. 1, 2009. Then the employee requests additional leave beginning May 1, 2010.

Calendar Year 2009 Calendar Year 2010 Jan Feb Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Jan Feb Mar. Apr. May June # weeks taken 2 2 2 6 1 1 1  Step #1: Step #2: Step #3: Step #4: 12 11 10 9 8 7 6 5 4 3 2 1 Employee requests additional leave May. 1 Look backwards at the preceeding 12 months from the date the employee requests the leave Take the sum of the # weeks used in preceeding 12 months (e.g. 6 weeks in May + 1 week in July + 1 week in Sept. + 1 week in Nov. = 9 weeks) Subtract the # of weeks used in preceeding 12 months from the 12 weeks of FMLA entitled leave (e.g. FMLA 12 weeks - 9 weeks used = 3) Determine the # of remaining weeks the employee is entitled to use (e.g. in this scenario, 3 weeks b/c the employee has only used 9 weeks in the preceeding 12 months as of the date of the employee's request for additional leave) 48

Analyze Each Claim From Beginning To End

Step 1 Step 2 Step 3

Does The FMLA Apply To Your Company?

Is the employee eligible for FMLA leave?

Does the reason for the leave qualify under FMLA?

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Step #3

The next step in the analysis is to determine whether the reason for the employee’s leave of absence is covered under the FMLA/CFRA 50

Six Qualified FMLA Requests

1) 2) For employee’s own “serious health condition” that makes him/her unable to perform job. To provide care for employee’s immediate family member with “serious health condition.”    Spouse   Includes common law marriage if recognized by state, domestic partner Child   Child must be under 18 or incapable of self-care due to disability Includes child of a domestic partner in CA Employee’s parent (not spouse’s parent).

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Six Qualified FMLA Requests

3) 4) • For the birth of a child, and to care for the newborn child.

Remember, pregnancy disabilities and leaves for the birth of a child are not covered under California’s Family Rights Act; they are covered exclusively under California’s PDL For the placement of a child with the employee for adoption or foster care.

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Six Qualified FMLA Requests

5) • • • • To provide care for a covered service member with a serious injury or illness related to certain types of military service. • Spouse, son, daughter, parent of “next of kin” can take 26 workweeks “Next of kin”= nearest blood relative “Serious illness or injury”= results in recuperation, therapy, medical treatment, is in outpatient status or is on the temporary disability retired list in the Armed Forces Can require certification but not recertification/second opinions Intermittent leave available 53

Six Qualified FMLA Requests

6) • • • Exigent Circumstances Military Leave • • • • • • • Spouse, son, daughter or parent is on active duty or notified of an impending call to active duty Qualifying exigencies: short notice deployment, military events, childcare and school activities, financial and life arrangements, counseling, rest and recuperation, and post-deployment activities Can request copy of active duty orders/certification 54

Hypothetical

 Employee requests leave of absence to care for her mother in law while she is undergoing chemotherapy. The doctor submits a proper certification form in support of the employee’s leave.

 Is the employee entitled to FMLA leave?

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Analyze Each Claim From Beginning To End

Step 1 Step 2 Step 3 Step 4

Does The FMLA Apply To Your Company?

Is the employee eligible for FMLA leave?

Does the reason for the leave qualify under FMLA?

Is there a serious health condition?

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To Qualify For FMLA Leave There Must Be A Serious Health Condition  To qualify for protection under the FMLA the employee, or the employee’s immediate family member must have a “serious health condition.” 57

What Counts as a Serious Health Condition?

An illness, injury, impairment, or physical or mental condition of the care recipient that involves: (a) Hospital / Inpatient care; or (b) Continuing treatment by a physician or practitioner

The “continuing treatment” category includes many different types of treatment and is the basis for leaves that you might not otherwise consider to be “serious health conditions.”

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Continuing Treatment Includes…

  Continuing Treatment   A period of incapacity of more than three days: full consecutive calendar Treatment two or more times by a HCP must occur within 30-day period (unless extenuating circumstances exist); or  Treatment once, plus continuing regimen of treatment  First treatment must occur within seven days of first day of incapacity Chronic conditions: visits for treatment must occur at least 2 times a year 59

Step 5

What type of leave must be provided?

Analyze Each Claim From Beginning To End 60

 Leave is frequently taken for significant periods of time such as one month or even the full twelve weeks, but employees are entitled to take FMLA leave in day long and/or hour long increments.

 Intermittent leave must be granted if it is medically necessary (i.e. for periodic appointments, flare-ups of a chronic condition and a pre-natal condition).

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Analyze Each Claim From Beginning To End

Step 5 Step 6

What type of leave must be provided?

How does the process get started?

Employee Notification 62

When has an employee sufficiently requested a leave of absence from the Company to trigger your obligations to send FMLA/CFRA information to the employee?

Is it enough for the employee to tell the Company that he/she is feeling sick or needs time off work?

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Employee Notice Obligations

     Provide sufficient information to indicate need for leave (but no need to mention FMLA by name) Calling in “sick” without more not enough Employer continues to have duty to inquire further Employee must follow employer’s normal and customary call-in procedures to request FMLA leave Employer may deny or delay FMLA leave should customary procedures not be followed • However, an employer may not deny leave if an employee provides timely verbal or written notice under FMLA rules 64

When does the employee have to say it?

  If foreseeable event 30 days notice If not foreseeable - as soon as practicable under the facts and circumstances 65

Analyze Each Claim From Beginning To End

Step 5 Step 6 Step 7

What type of leave must be provided?

How does the process get started?

Employee Notification Conditionally Designate the leave and send materials to employee.

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Notification: Employer Must Provide 4 Notices

1) General Notice   Provide upon hire of employee. Explain FMLA provisions and procedures for filing complaint.

2) Eligibility Notice   Provide within 5 days of request for FMLA leave, or when you acquire knowledge that leave may be for a FMLA reason.

If employee is not eligible, must state at least one reason why employee is not eligible (i.e., months employed, hours worked, eligible worksite).

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Notification: Employer Must Provide 4 Notices

3) Rights and Responsibilities Notice     Provide if the employee is eligible to take FMLA leave.

Inform employee of any requirements to provide medical certification, the right/requirement to substitute paid leave, the process for paying any premiums for continuation of health care coverage during leave, and job restoration rights. Include consequences for failure to meet obligations.

Key employee designation. The employer must designate employees as key employees and follow other procedures, if the employer intends to use the key employee exception.

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Notification: Employer Must Provide 4 Notices

4) Designation Notice     Provide within 5 days of receipt of information sufficient to make designation determination. Advise if required to use paid leave and any fitness for duty requirement.

Notify of amount of leave that will be counted against FMLA, if known.

Retroactive designation allowed if no harm or injury caused to the employee or if mutual agreement between employer and employee 69

What is the process for designating leave?

  It is the employer's responsibility to designate leave as FMLA-qualifying, and to give notice of the designation to the employee The employer's designation decision must be based only on information received from the employee or the employee's spokesperson  The employer is expected to inquire further of the employee if additional information is needed 70

When does the leave administration process begin?

  Once an employee makes a request for a leave of absence, preliminarily designate the leave of absence.   If the reason for the leave is not an FMLA-qualifying reason, notify the employee that he/she is not eligible & explain why.

If the employee does not meet the FMLA eligibility requirements, send the employee written notification to demonstrate that you went through the analysis.

If an employee is eligible for FMLA, send the employee an initial designation packet that notifies the employee that he/she may be eligible for FMLA leave and provides the employee with all the necessary paperwork to support a FMLA/CFRA leave of absence.



Must be done within 5 days

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Retroactive Designation

  An employer may not designate leave as FMLA-qualifying after an employee has returned to work, unless:   The employer did not learn of the FMLA reason for the absence until after the employee’s return The employer knew of the reason but was unable to confirm that it was FMLA qualifying Consult with legal counsel prior to making a retroactive designation 72

Key Employee Designation    A request for leave from a “ Key Employee ” denied, but this exception is rarely used.

may be Only applies to “ exempt salaried ”     employees Highest paid 10% within 75 mile radius Substantial and grievous economic injury would result Up Front designation Must be allowed to take leave, but no right to reinstatement Employer must give written notice to the employee, at the time employee gives notice of the need for FMLA leave that s/he is key employee 73

Analyze Each Claim From Beginning To End

Step 5 Step 6 Step 7 Step 8

What type of leave must be provided?

How does the process get started?

Employee Notification Conditionally Designate the leave and send materials to employee.

Review Medical Certification and determine qualification 74

Verify Leave Qualifies Under FMLA

Obtain Proper Medical Certification From The Employee Requesting Leave Of Absence And Make Sure You Actually Get The Certification Documents Back 75

Medical Certification

  Employer may require an employee’s leave of absence to be verified by a medical certification signed by the health care provider Employer may require a certification in 2 situations:  Initially for a leave based on a serious health condition (of the employee or a family member)  Subsequently if the employee fails to return to work because the condition continues, recurs or a new condition starts 76

FMLA Medical Certification Requirements

 To require certification, the employer must:    Tell the employee they have to provide a certification Allow at least 15 calendar days for the employee to provide the certification Tell the employee what will happen if he or she fails to provide notice 77

Employee’s Certification Responsibilities  When the leave is foreseeable and employee has given at least 30 days notice, the employee should provide the medical certification before the leave begins  When this is not possible, the employee must provide the certification to the employer within the time frame requested by the employer, (allowing at least 15 calendar days), unless it is not practicable under the circumstances to do so despite the employee's good faith efforts 78

Under CFRA, Company Is Limited In Information It May Receive  Under CFRA, the certification may only include:    The date the serious health condition commenced The probable duration of the condition A statement that the employee is unable to perform an essential function of the job due to the serious health condition.

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Certification Requirements Under the CFRA

  Leave for family member: under the CFRA, the health care provider need not identify the serious health condition of the employee’s family member Leave for employee’s own serious health condition:  The health care provider need not identify the underlying diagnosis of the serious health condition, but may with the employee’s consent  Company is entitled to the timing and during of the leave 80

Evaluation of Certification from Health Care Provider   Make sure employee submits the certification form within the required 15 days  If employee fails to, immediately send notification letter to employee and give another 15 days to submit the certification Once the employee submits the certification form review it in its entirety 81

Evaluation of Certification from Health Care Provider  If there are deficiencies with the certification, prepare a letter to the employee that specifically describes each of the problems and how the employee should cure the problem   Employer must given written notice of what additional information is necessary to make certification complete or sufficient Employer must provide any deficiencies (employee may have more time if not practicable despite employee’s diligent good faith efforts)

seven

calendar days to cure 82

Evaluation of Certification from Health Care Provider     Only if employee fails to timely cure deficiencies may Employer contact HCP for verification and clarification (cannot seek additional information) Only health care professional, human resources, leave administrator, or management official may contact HCP (NOT direct supervisor) Must still obtain employee’s permission for clarification of “individually-identifiable” health information under HIPAA If employee fails or refuses to cure deficiencies or does not give permission to contact HCP to clarify, may deny leave 83

Evaluation of Certification from Health Care Provider  Leave requests should only be denied where:    The employee is clearly not eligible for leave  Doesn’t meet eligibility requirements   Previously exhausted leave rights Reason for leave is not covered (e.g. sick sibling) The health care provider states that the reason for the leave is not a serious health condition The claim appears on its face fraudulent 84

Broad Definition Of Health Care Provider Under The FMLA     A health care provider can be a state-authorized:    doctor of medicine or osteopathy podiatrists, dentists, clinical psychologists, optometrists and chiropractors nurse practitioners, nurse midwives and clinical social workers Christian Science practitioner listed with the First Church of Christ, Scientists in Boston, MA Any health care provider from whom an employer, or the employer’s group health plan will accept certification to substantiate a claim for benefits A health care provider listed above who practices in a country other than the US 85

Handling Doubts of the Validity of Employee’s Certification

  An employer may require a second and even third opinion at the expense of the employer  If the second opinion is consistent with the initial certification, the employer must accept that determination  If the second opinion is inconsistent, the employer may require a third opinion at the employer’s expense which will be final and binding The employee is entitled to FMLA benefits pending resolution of the certification issues 86

Risks of Not Obtaining a Second Opinion

 If the Company does not challenge an improper certification at the time it is made, the Company may waive its right to assert subsequent challenges and may also be limited in its discovery of medical records 87

Recertification

 Recertification (only for non-military leave)    Generally cannot require more often than 30 days If minimum leave > 30 days, must wait until period ends May request if leave < 30 days (or longer) employee requests extension, or circumstances have changed, or receive information that and “casts doubt” upon employee’s stated reason 88

Distinguish - Return To Work Medical Certification

      Employer can uniformly require the certification Must be job related; Consistent with business necessity; Should not exceed essential functions of the job; and Can only ask for one if it was for the employee ’ s own serious health condition.

NO Second or Third Opinions 89

Step 9

Follow up with employee as to whether leave qualifies?

Analyze Each Claim From Beginning To End 90

Analyze Each Claim From Beginning To End

Step 9

Follow up with employee as to whether leave qualifies?

Step 10

Manage Leave & Maintain Employee’s Benefits 91

Company Must Maintain Employee’s Health Care Benefits    Company must follow the FMLA rules first; not typical COBRA rules.

Company must continue the same subsidized medical coverage that is provided to active employees.

Employees have 30 days to pay their share of the cost of coverage, measured from first of month or paycheck date.

92

Company Must Maintain Employee’s Health Care Benefits  Company must continue to maintain health care benefits, unless:    Employee’s FMLA rights are exhausted Employee provides Company with unequivocal notice of intent not to return to work Employee’s job is terminated for non-FMLA reasons (e.g. layoff) 93

Company Must Maintain Employee’s Health Care Benefits     What happens if employee pays premiums late or fails to pay premium at all?

Company should continue to maintain benefits and send employee written notification that payment has not been received and benefits will be terminated within 15 days of receipt of letter if payment is not received. Company must give 15-days notice before putting employee on COBRA Company may recover its share of premium payments made on employee’s behalf in most situations 94

Company May Require Employee To Substitute Paid Leave Benefits  Employers may require, or employees may elect, to substitute accrued paid leave benefits (e.g. sick leave, PTO or vacation time) for any part of the leave, but there are rules… 95

Requiring Employees to Use Paid Leave During Leave   Rules and Restrictions  Employer cannot impose any notice or certification requirements more stringent that the employer’s standard notice and certification requirements for the paid leave Short Term Disability   Its up to the employee to choose whether to apply for temporary disability benefits FMLA/CFRA and disability can run concurrently  More stringent requirements of the plan can apply 96

   Can You Require An Employee To Use Accrued Vacation Time While Out On FMLA/CFRA Leave?

YES The Company may require an employee to use some or all of his/her unused accrued vacation benefits while out on FMLA leave   Apply the policy uniformly to all employees Give notice in employee handbook of this requirement  Pay at the beginning of the employee’s leave Employees may elect to apply vacation benefits to leave of absence 97

   Can You Require An Employee To Use Accrued Sick Leave While Out On FMLA/CFRA Leave?

Depends… Company can require the employee to use, or the employee may elect to use any accrued sick leave for  The employee’s own serious health condition  Or any other reason if mutually agreed upon (i.e. in a policy/handbook)  However, employers are required to allow employees to use ½ sick leave to care for family member Conversely, employee cannot request to use sick leave unless policy provides for such use.

98

Benefits During PDL

 Employer’s Rights Can require employee to use any accrued sick leave during the otherwise unpaid portion of her pregnancy  Cannot require use of PTO/vacation  Employee’s Rights Employee may elect to use sick leave benefits during PDL time  Employer must allow employee to use accrued vacation time if employee elects to use 99

Paid Leave Benefits During & After Leave   Employee is not entitled to accrue vacation or sick benefits during the time the employee is out on leave.

 Make sure to communicate with other departments (e.g. payroll) to make sure that the employee does not continue to accrue benefits during LOA Once the employee returns from the leave, the employee is entitled to resume accruing these benefits and is entitled to any accrued benefits that employee did not use during leave.

 Again, communicate with necessary department to ensure there is no delay 100

Communication is Key

 Key Documents to Send to Employee   Letter at commencement of leave confirming leave and possibly predesignating FMLA/CFRA leave.

Health Care Provider Notice For FMLA/CFRA Certification.

    Letter to employee notifying him/her of exhaustion of FMLA/CFRA rights.

Letter to employee requesting update on condition.

Letter to employee prior to return.

Job abandonment letter 101

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