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TRANSCRIPT
COMMON FMLA MISTAKES ON INTERMITTENT LEAVE AND HOW TO AVOID THEM
Presented By:
Steven J. Luckner, Esq.
October 24, 2018
© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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ELIGIBILITY
Who is Covered Under the FMLA?
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WHAT DOES THE FMLA PROVIDE?
The FMLA provides for 12 weeks of unpaid job protected leave in a 12 month period where:
- The employee has a “serious health condition” that renders him/her unable to perform the essential functions of their job; or
- The employee needs to care for a child, spouse or parent that suffers from a “serious health condition”; or
- The employee is involved with the birth, adoption or foster care placement of a child and to care for such child within the first 12 months after birth.
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WHAT IS A “SERIOUS HEALTH CONDITION?”
A “serious health condition” includes an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
This includes care for a “chronic serious health condition”.
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WHAT IS A “CHRONIC SERIOUS HEALTH CONDITION?”
Requires periodic visits for treatment by a health care provider; and
Continues over an extended period of time; and
May cause episodic rather than a continuing period of incapacity.
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WHAT IS “INTERMITTENT LEAVE” UNDER THE FMLA?
Leave taken in separate blocks of time due to a single illness or injury.
Must still be for a “serious health condition.”
Includes a reduced leave schedule.
Must be “medically necessary.”
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WHEN CAN AN EMPLOYEE TAKE INTERMITTENT LEAVE?
Doctor’s appointments;
Chemotherapy or other treatment regimens;
Serious health condition of a newborn.
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WHAT ARE THE EMPLOYEE’S OBLIGATIONS FOR INTERMITTENT FMLA LEAVE?
• Must provide at least 30 days notice if foreseeable.
• Must advise employer of why intermittent leave or a reduced workweek is necessary and the schedule for treatments.
• Employee must work with employer to work out a schedule that meets employee’s needs without unduly disrupting the employer’s operations.
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HOW DOES AN EMPLOYER CALCULATE LEAVE TIME FOR INTERMITTENT FMLA LEAVE?
• Employer must account for intermittent or reduced schedule leave in increments to the shortest period of time that the employer’s payroll system uses to account for absences or use of leave, provided that it is one hour or less.
• An employee’s workweek consists of the amount of hours he or she usually works.
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WHAT CAN EMPLOYERS DO TO CURB FMLA LEAVE ABUSE?
Require employees to provide detailed information when requesting FMLA leave.
• What is the diagnosis?
• What is the prognosis?
• What is the treatment schedule?
• What is the name of the doctor?
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WHAT CAN EMPLOYERS DO TO CURB FMLA LEAVE ABUSE?
Require employees to call in whenever they are going to be absent.
• Find out what the problem is.
• Find out how long the problem will last.
• Find out if the employee will be seeing the doctor.
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WHAT CAN EMPLOYERS DO TO CURB FMLA LEAVE ABUSE?
Require that the employee furnish a medical certification and/or re-certification for the leave.
• Insist that the medical information be complete
• Treat the absence as non-FMLA, subject to the employer’s attendance policy if not fully furnished
• Seek second or third opinions on medical certification if information appears suspect
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WHAT CAN EMPLOYERS DO TO CURB FMLA LEAVE ABUSE?
If requested leave is foreseeable, require employee to complete a written request for FMLA leave.
• Reasons for leave
• Expected duration of leave
• Anticipated start of leave
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WHAT CAN EMPLOYERS DO TO CURB FMLA LEAVE ABUSE?
Require employees to use accrued paid time off while on FMLA leave.
• Cannot do this if also on workers comp
• Need to be consistent with handbook
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WHAT CAN EMPLOYERS DO TO CURB FMLA LEAVE ABUSE?
Discipline/terminate employees who have engaged in FMLA leave fraud
• Egregious patterns of absence on certain days of the week
• Information from witnesses that employee was engaged in other activities
• Admissions by employee to co-workers about activities inconsistent with FMLA leave
• Surveillance of employees
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WHAT THE COURTS ARE SAYING ABOUTINTERMITTENT FMLA LEAVE
Employee who takes trip following surgery while on FMLA leave is subject to discipline up to and including termination.
• No employee is entitled to a right, benefit or position to which they would not have been entitled had they not taken FMLA leave
• There is no right in the FMLA to be left alone and nothing in the FMLA to prevent employers from ensuring that employees do not abuse leave
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WHAT THE COURTS ARE SAYING ABOUTINTERMITTENT FMLA LEAVE
Patterns of FMLA leave around holidays to extend vacation time is an abuse of FMLA leave that can subject an employee to discipline up to and including termination.
• Investigation of FMLA abuse relating to previously scheduled time off is appropriate
• An honest belief of FMLA abuse by an employer will justify a decision to terminate in some Circuits
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WHAT THE COURTS ARE SAYING ABOUTINTERMITTENT FMLA LEAVE
• An “honest belief” that an employee is abusing FMLA intermittent leave based upon surveillance will justify a termination in certain Circuits.
• In some Circuits, an “honest belief plus” standard will be used.
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WHAT THE COURTS ARE SAYING ABOUTINTERMITTENT FMLA LEAVE
• Trips to the drug store to fill a prescription are not covered by the FMLA
• Visits to a physician where no treatment is received is not covered by the FMLA
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POINTS TO REMEMBER
1. Make sure that the employee is entitled to intermittent FMLA leave.
2. Properly document classification of FMLA leave and calculate leave time.
3. Always require fully completed medical certifications and re-certifications.
4. Monitor employee leave patterns for suspicious leave activity and abuse.
5. Do not be afraid to discipline or even terminate employees for clear and documented FMLA abuse.
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Thank you!
Steven J. LucknerOgletree Deakins, Nash,
Smoak & Stewart, P.C.
10 Madison Avenue
Morristown, NJ 07960
Tel: (973) 656-1600 [email protected]