NAVIGATING THE FMLA HIGHWAY

The Family and Medical Leave Act of 1993 (FMLA or Act) allows ‘‘ eligible ’’ employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months for qualifying reasons.

THINK YOU WILL NEED TO DEAL WITH FMLA?

The Department of Labor estimates that: There were an estimated 95.8

million workers in establishments covered by the FMLA regulations,

• There were approximately 77.1million workers in covered establishments who met the FMLA ’ srequirements for eligibility, and about 7.0 million covered and eligible workers took FMLA leave in 2005. About 1.7 million covered and eligible employees who took FMLAleave took at least some of it intermittently —and may have taken that intermittent leave multiple times overthe course of the year.

73 FR 7877

DEFINITIONS

Eligible Employee. An Eligible Employee is an Employee who has been employed for at least: 12 months by the Employer with respect to whom leave is requested; and who had 1,250 hours of service with such Employer during the 12-month period immediately preceding the commencement of the leave.

Counting the required hours the 1, 250 hours necessary to qualify for FLMA leave includes only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included .

Eligible Employee does not include an employee of an employer who is employed at a worksite at which the employer employs less than 50 employees, and the total number of employees employed by that employer within 75 miles of that worksite is less than 50 employees. 26 U.S.C. § 2611(2).

DEFINING WHAT CONSTITUTES 12 MONTHS

BREAKS IN SERVICE: The 12 months of employment need not be consecutive in order for the employee to qualify for FMLA leave.

Employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months; BUT

Employment periods preceding a break in service of more than seven years must be counted in determining whether the employee has been employed by the employer for at least twelve months where: 1. Break due to National Guard or Reserve military obligation 2. Written agreement including collective bargaining or other written agreement.

Response to Rucker v. Lee Holding, Co., 471 F.3d 6 (1st Cir. 2006).

WHO IS A COVERED EMPLOYER?

FMLA applies to all: Public agencies, including local, State and Federal employers and local education agencies (schools).

Private sector employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 26 U.S.C. § 2611(4). This includes joint employers and successors of covered employers.

QUALIFYING REASONS FOR LEAVE Who Can You Care For?

QUESTION An Employee requests FMLA leave for a serious health care condition of Employee ’ s brother-in-law. Is Employee entitled to leave?

Employers covered by FMLA are required to grant leave to eligible employees: (1) For birth of a son or daughter, and to care for the newborn child (see § 825.120); (2) For placement with the employee of a son or daughter for adoption or foster care (see § 825.121);

(3) To care for the employee ’ s spouse,son, daughter, or parent with a serioushealth condition ; and (4) Because of a serious healthcondition that makes the employee unable to perform the functions of the employee ’ s job.

(5) For qualifying exigencies arising out of the fact that the employee ’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserve, or regular Armed Forces.

Bonding with a newborn child

• FMLA leave is appropriate for bonding with a newborn child or newly placed adopted or foster child but the FMLA leave must conclude within 12 months after the birth or placement.

ESSENTIAL FUNCTIONS “ An employee is ‘‘ unable to perform the functions of the position ’’ where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee ’ s position within the meaning of the Americans with Disabilities Act (ADA), 42 U.S.C.

12101 et seq., . . . An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

”

Equal application. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption or foster care of a child.

29 CFR Section 825.112

WHAT IS A “ SERIOUS HEALTH CONDITION?

”

FMLA Definition of a “ Serious Health Condition ” For purposes of FMLA, ‘‘ serious health condition ’’ entitling an employee to FMLA leave means an illness, injury,impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115.

29 CFR Section 825.113

Inpatient care.

Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in § 825.113(b), or any subsequent treatment in connection with such inpatient care.

29 CFR 825.114

Continuing treatment by a health care provider requires incapacity to work due to a serious healthcondition “ of more than three consecutive calendar days ” .

29 C.F.R. § 825.114(a)(2).

SERIOUS HEALTH CONDITION (CONT.) (1) Treatment two or more times by a healthcare provider, or(2) Treatment one time by a health careprovider resulting in a regimen ofcontinuing treatment under the health careprovider ’ s supervision.

INCAPACITY 29 CFR 825.13 provides that “ [t]he term “ incapacity ” means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.

”

CLARIFICATION OF CONTINUING TREATMENT Incapacity and treatment. A period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (1) Treatment two or more times, within a 30-day period unless extenuating circumstances exist, OR (2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.73 FR 7966

The term ‘‘ treatment ’’ includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition.

Treatment does not include routine physical examinations, eye examinations, or dental examinations.

EMPLOYER MISSTEPS WITH FMLA Employers must remember that: (1) incapacity for more than three consecutive days is not a prerequisite for leave if there is an overnight hospitalization, pregnancy, or chronic serious health condition, and (2) treatment alone —even without “ incapacity ” —is a sufficient basis for FMLA leave in cases of overnight hospitalization, prenatal care, chronic serious health conditions, or conditions that would likely result in more than three consecutive days of incapacity.

Beware, several conditions which individually would not constitute serious health conditions can, when taken together, rise to the level of a serious health condition.

Price v. City of Fort Wayne,

117 F.3d 1022 (7th Cir. 1997)

WHAT IS NOT A SERIOUS HEALTH CONDITION?

Ordinarily, unless complications arise, these are not “ Serious Health Conditions ” : common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., They do not qualify for FMLA leave.

DO NOT BECOME THE DOCTOR Failure to Grant FMLA Leave Because of a Misunderstanding of What Qualifies as a “ Serious Health Condition ” [29 C.F.R. 825.114] Must be left entirely to health care professionals.

Incapacity to perform the essential functions of the position the employee applies at the time the employee misses work

Serious Health Conditions Decisions

2005 WL 1607045 (6th Cir. Jul. 7, 2005) Employee ’ s sinusitis, bronchitis, and ear infection did not constitute a “ serious health condition ” under the FMLA because “ [t]he legislative history of the FMLA makes it clear that routine, commonplace illnesses of short duration are not covered by the statute.

” S. Rep. No. 103-3 (1993): Minor illnesses lasting only a few days and outpatient surgical procedures requiring a brief recovery period are

BUT WAIT . . . . . . . . . . . Caldwell v. Holland of Texas, Inc., 208 F3d 671 (8th Cir. 200) An employee ’ s 3 year old son, who had an ear infection that required emergency room treatment, continuing treatment with antibiotics and would ultimately require surgery, could be subject to a “ serious health condition ” for purposes of FMLA.

Russell v. North Broward Hosp. 346 F.3d 1335 (11th Cir. 2003) When defining a “ serious health condition, ” the phrase “ more than three consecutive calendar days ” means a continuous period of incapacity extending more than 72 hours, and therefore, a hospital employee who was absent from work for seven consecutive partial days of incapacity after she slipped and fell at work did not have a “ serious health condition ” covered by the FMLA.

Perry v. Jaguar of Troy 353 F.3d 510 (6th Cir. 2003) The fact that an employee ’ s child has ADD and/or ADHD does not necessarily qualify as a “ serious health condition ” under the FMLA. In this case, plaintiff ’ s son ’ s conditions were not “ incapacitating.

” He could attend school and engage in the same daily activities in which most children engage.

Brenneman v. MedCentral Health Sys.

366 F.3d 412 (6th Cir. 2004) Employee did not receive continuing treatment under physician ’ s supervision for his intestinal flu, as required for such illness to constitute FMLA-qualifying serious health condition based upon one visit to physician, where FMLA certification document indicated that treatment regimen involved only leave from work, rest, and fluids.

Conrad v. Eaton Corp.

303 F.Supp. 2d 987 (N.D. Iowa 2004) The fact that employee can perform his or her job functions at some hypothetical, non-existent workplace is irrelevant; the inquiry is focused on whether employee is able to perform the requisite job functions at his or her current place of employment.

Intermittent and

Reduced

Schedule Leave

FMLA Definition of Intermittent/ Reduced Schedule Leave Intermittent: Leave taken in separate blocks of time due to to a single qualifying reason.

Reduced: Leave schedule that reduces an employee ’ s usual number of working hours per workweek, or hours per workday. A change in employee ’ s schedule for a period of time, normally from full-time to part-time.

29 C.F.R. § 825.203(a)

When Intermittent/Reduced Schedule Leave is Permitted

(1) “ for planned and/or unanticipated medical treatment of a related serious health condition . . .; ” (2) “ for recovery from treatment or recovery from a serious health condition; ” (3) “ for prenatal examinations or for [a pregnant employee ’ s] own condition; ”

When Intermittent/Reduced Schedule Leave is Permitted (4)

“

to provide care or psychological comfort to

an immediate family member with a serious health condition; ” and even (5) “ for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition . . . .

” 29 C.F.R. § 825.203(b)

Intermittent leave is not available for the birth or placement of a child.

Length of Intermittent Leave Employer may limit leave increments to the shortest period of time that employer uses to account for absences of leave under its payroll system.

• Under the 2008 regulations, the employer could limit Leave increments to the shortest period of time allowed for any absence.

• 2013 regulations clarified that an employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave. Employers must track FMLA leave using the smallest increment of time used for other forms of leave, subject to the a one hour maximum.

Employee Requests for Intermittent Leave Intermittent leave need only be requested and approved one time during any given FMLA 12-month period.

29 C.F.R. § 825.302(a)

Pay for Intermittent Leave

• • Employee ’ s pay may be docked for any day or part of a day taken pursuant to FMLA leave without affecting employee ’ s status as exempt under the FLSA.

• Pay may be docked only for the time actually taken for leave.

29 C.F.R. §§ 825.206(a), 825.205(a).

Scheduling of Intermittent Leave •Employees seeking intermittent leave

“

must

attempt to schedule their leave so as not to disrupt the employer ’ s operations . . . Subject to the approval of the health care provider.

” •Section 825.302(e) effectively puts the burden on the employer to “ initiate discussions with the employee and require the employee to attempt to make such arrangements, subject to the approval of the health care provider.

”

An employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee ’ s intermittent or reduced leave schedule. 29 C.F.R. § 825.117

The employer may not, however, retaliate against the employee ’ s taking intermittent leave by requiring the employee to complete all of the tasks of her full-time position while she was working part-time under FMLA.

Lewis v. School District #70,

No. 06-4435, 2008 U.S. App. LEXIS 8248 (7th Cir. April 17, 2008)

Minimizing Employer Mistakes Controlling Abuse of Intermittent Leave

(1) Consider requiring a new certification.

(2) Require an initial certification no less than every 12 months.

(3) Work to obtain from the employee ’ s certifying physician concrete information concerning the need for and frequency of the leave.

Minimizing Employer Mistakes Controlling Abuse of Intermittent Leave

(4) Require the employee to provide written verification whenever the employee ’ s intermittent leave is based on the need to be present at some location.

(5) Look for any suspicious patterns of unscheduled absence and consider seeking recertification based on “ changed circumstances.

”

Minimizing Employer Mistakes Controlling Abuse of Intermittent Leav

e (6) Consider requiring the physician to provide verification on a verification form that the absence does not require a new certification.

(7) Make use of temporary transfers to deal with intermittent absences that cause dislocations.

Notice Requirements

Foreseeable Leave: At least 30 days notice is required by employee for situations such as expected birth, placement for adoption, or foster care, or planned medical treatment; or when 30 days notice is not possible, at least a verbal notification to employer within 1 or 2 business days of when leave becomes known.

Unforeseeable Leave: In extraordinary circumstances where advanced not is not feasible, notice should be provided to employer as soon as practicable, considering the exigencies of the situation.

29 C.F.R. §§ 825.302, 825.303

The employer can require an employee to follow normal call in procedures when taking FMLA leave.

SAY WHAT? ? ? ?

Employees need not mention the FMLA by name when requesting leave.

Employees must provide a reason(s) for the absence to allow employer to determine whether leave is FMLA qualifying.

29 C.F.R. § 825.303(b)

To perfect the right to FMLA leave an eligible employee must provide his or her employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA. In providing notice, the employee need not use any magic words. The employee does not have to expressly assert rights under the FMLA or even mention the FMLA. The critical question is how the information conveyed to the employer is reasonably interpreted.

TOUGH CALLS

Rask v. Fresenius Medical Care North American

, No. 06-3923, 2007 U.S. App. LEXIS 28198 (8th Cir. Dec. 6, 2007). Elizabeth Rask was terminated from her job when she failed to come to work. Prior to that, she had received a series of disciplinary actions for attendance problems. Rask sued, alleging that her termination violated the FMLA. She claimed that she should not have received discipline for some of her depression-related absences as they should have been covered by the FMLA.

Rask v. Fresenius Medical Care North American

, (Cont.) Rask argued that her supervisor's had prior notice that she suffered from depression and the side effects of medications for same which required periodic absences. With prior notice, her last request for leave "for help with my medication still, I'm still having a lot of side effects from what they put me on," was sufficient notice of her need for FMLA leave. The court disagreed finding depression to be a broad condition which can include a state of feeling sad.

BUT WAIT . . .

Spangler v. Federal Home Loan Bank of Des Moines

, 278 F.3d 847, 852 (8th Cir. 2002). In that case, the Eighth Circuit found that a genuine issue of material fact existed as to whether a bank employee with depression put the bank on notice that she needed FMLA leave by telling them she would be absent for "depression again." The court noted that in Spangler the employee's supervisors knew that the employee had been diagnosed with depression and had taken two formal leaves of absence for treatment of her depression.

designating leave, paid or unpaid as FLMA leave.

After notice is received, employer must inform employee (within 2 business days) that the leave has been designated FMLA leave. Notice can be given orally or in writing, but verbal notice must be confirmed in writing by the following payday.

Retroactive designation is highly disfavored but may be available where the employer did not learn of the facts until after the leave, confirmation has been delayed or no harm done.

29 C.F.R. § 825.208

USE CAUTION AND ASK It is better to ask than to pretend it doesn ’ t exist. “ Don ’ t ask don ’ t tell ” doesn ’ t work.

Ask an employee who is requesting sick leave about FMLA if: 1. You know there is a chronic or recurring medical condition such as migraines, diabetes, asthma, etc.

2. If the employee is out more than 3 days.

3. If the employee suggests the illness or injury to themselves or their child parent or spouse is of greater severity than typical seasonal illnesses.

4. If the employee states they are going to a doctor for this condition.

CERTIFICATION OF FMLA STATUS —LOOK BUT DON ’ T TOUCH

EMPLOYER REQUEST FOR REQUEST FOR CERTIFICATION Request can be oral.

Request should be made at the time of request for foreseeable leave; or Within 2 days (may be changed to 5 days) of the commencement of leave.

Employee has 15 days to comply or leave can be denied except if the delay is not the employee ’ s fault or the employee is not aware of the need.

Certification is deemed sufficient if it states: (1) the date the serious health condition commence (2) the probable duration of the condition;(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; 4)(A) for purposes of leave under section 102(a)(1)(C), a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse, or parent; and (B) for purposes of leave under section 102(a)(1)(D), a statement that the employee is unable to perform the functions of the position of the employee;

(6) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 102(a)(1)(D), a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and (7) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 102(a)(1)(C), a statement that the employee's intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.

Under current FMLA regulations, no right to contact employee ’ s health care provider except to clarify certification, but only through the employer ’ s health care provider.

This is directly contrary to ADA and Workers ’ Compensation

If an employee is on workers ’ compensation or paid disability leave and it is running concurrently with the FMLA leave, an employer can contact the employee ’ s provider directly if the applicable workers ’ compensation laws or disability policy provide for such contact.

PROPOSED 29 CFR Section 825.307: If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the employee ’ s health care provider.

However, the employer may contact the employee ’ s health care provider for purposes of clarification and authentication of the medical certification after the employer has given the employee an opportunity to cure any deficiencies.

SECOND OPINION If the employer has reasonable cause to doubt the validity of the certification presented, the employer may require the employee to obtain a second certification, at employer cost.

26 USC Section 103(c)

When May An Employer Request Re-certification?

(1) Employee requests an extension of leave.

(2) Circumstances described by the previous certification have changed significantly.

(3) Employer receives information that casts doubt upon the continuing validity of the certification.

leave administrator, or a management official. In no case may the employee ’s direct supervisor contact the employees health care provider.

•For the employee’s HIPPA-covered health care provider to provide an employer with individually identifiable health information an employee will need to provide written authorization allowing the health care provider to disclose such information to the employer. Employer ’s may not ask the health care provider for additional information beyond that contained on the medical certification form.

•Proposed regulations, have a good faith reason to doubt. Even then, tread lightly.

ENDS JUSTIFY THE MEANS?

Smith v. The Hope School,

No. 06-3244, 2008 U.S. Dist. LEXIS 29544 (C.D.Ill. April 10, 2008). Employee improperly altered physician certification form to add “ depression ” to health condition and faxed to employer. Employer improperly contacted doctor, and verified alteration and fired the employee. Court acknowledged violation of FMLA by employer for contact without employee consent (29 CFR 825.307). The violation, the court went on to find, was without a remedy because it did not interfere with, restrain or deny Smith's FMLA rights.

• Can an employee be forced to sign a medical release? No. Completing a release or waiver of information is at the employee ’s discretion. HOWEVER, whenever an employee requests a medical certification, it is the employee ’s responsibility to provide the employer with a complete and sufficient certification. If the employee does not provide either a complete and sufficient certification or an authorization allowing the health care provider to provide a complete and sufficient certification to the employer, the employee ’s request for FMLA leave may be denied.

POST IT OR YOU ARE TOAST Notice of employees ’ FMLA rights MUST be posted!

29 C.F.R. § 825.300(a)

SO THE ROAD LEADS TO FMLA, WHAT DO THEY GET?

29 C.F.R. § 825.117

(1)The calendar year; A certification may be required only for the employee ’s own serious health condition.

(2) Return to work certifications can only be required if it is a uniformly applied policy or practice that requires all similarly situated employees who take leave for such conditions to submit a certification.

(3) An employer may require that the fitness for duty certification address the employee ’s ability to perform the essential functions of the position if the employer has appropriately notified the employee that this

CALCULATING THE 12 (CONT.) (3) The 12-month period measured forward from the date any employee ’ s first FMLA leave begins; or, (4) A ‘‘ rolling ’’ 12-month periodmeasured backward from the date anemployee uses any FMLA leave.

Must be applied consistently by policy.

26 CFR Section 825.200

SENIORITY An employee does not have the right to continue to accrue seniority, but does accrue longevity and vesting rights for pensions and benefits..

HEALTH CARE BENEFITS An employee on FMLA leave is also entitled to have health benefits maintained while on leave as if the employee had continued to work instead of taking the leave. If an employee was paying all or part of the premium payments prior to leave, the employee would continue to pay his or her share during the leave period.

BUT IF THEY QUIT . . .

The employer may recover its share only ifthe employee does not return to workfor a reason other than the serioushealth condition of the employee or theemployee ’ s covered family member, oranother reason beyond the employee ’ scontrol.

PAY AND LEAVE Leave is without pay and the employer can require, by policy, that all leave be utilized during the FMLA period.

THEY ’ RE BAAACCCK

WHAT JOB DOES THE EMPLOYEE COME BACK TO?

An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave. The taking of FMLA leave cannot result in the loss of any benefit that accrued prior to the start of the leave.

26 CFR SECTION 825.100

RETURN TO WORK CERTIFICATION 1. As a policy, employer can require return-to-work certification. (A simple statement) 2. Employer ’ s health care provider can, with employee ’ s approval, authenticate or clarify certification. 29 CFR 825.310(c) 3. Employer can require fitness for duty examination under ADA if it is “ job-related and consistent with business necessity.

” It cannot be required under FMLA.

I NEED MORE TIME!

1. No FMLA obligation to extend leave past the 12 week threshold. That does not mean that you do not need to reasonably accommodate under the ADA 2. Make sure FMLA notification is solid.

3. Recheck everything!!

DO NOT STOP AT THE FMLA Always keep in mind your responsibilities to provide reasonable accommodation under the ADA.

The Iowa Court of Appeals has held that the responsibility continues past FMLA.

Adams v. Zucker Enterprises, Inc. Iowa Ct. of Appeals 2005.

The court found that when an employee exhausts her 12 week leave under the FMLA but has a condition which could be classified as a “ disability ” under Iowa and federal statutes, the duty of reasonable accommodation would apply. In this case, however, the employee was terminated for violation of policy.

Revisions to FMLA Law

AMENDMENT BY SECTION 585 OF THE NATIONAL DEFENSE AUTHORIZATION ACTO FOR FY 2008 In response to issues presented by activation of reserve troops for duty in Iraq, Afghanistan and other theaters of war, Congress enacted an amendment to the Family Medical Leave Act of 1993 which was effective January 28 of 2008.

Under the new law, an employee is entitled to leave “ because of any qualifying exigency (as the Secretary shall by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the armed forces in support of a contingency operation.

” 26 U.S.C. § 2612(a)(1)(E). As a result of the change in the law, an eligible employee who is the spouse, son, daughter, parent or next of kin of a covered serviceman, shall be entitled to a total of 26 work weeks of leave during a 12-month period to care for the serviceman.

”

The combined leave of 26 weeks during a single 12 month period also applies to the care of sons, daughters, parents, with serious health conditions.

WHY SUCH A BIG DEAL?

Lore v. Chase Manhattan Mortgage Corp.

, No. 1-04 cv-0204 On March 17, 2008, a federal jury awarded a Chase Manhattan regional manager more than $2.2 million for violations of the FMLA. The complaint alleged, and the jury found, that the employee was shown the door after making several requests for FMLA leave due to a serious health condition the company was aware of. Chase disputed the claim, alleging that the manager voluntarily resigned.

With pre-judgement interest, attorney fees, double (liquidated) damages for willful violation and costs, the total award could run $8.8 Million.

For questions or a copy of the presentation, contact: Douglas A. Fulton Brick Gentry PC 6701 Westown Parkway, Suite 100 West Des Moines, Iowa 50266 Telephone (515)274-1450 e-mail [email protected]