FMLA Intermittent Leave: How to Track, Administer and Prevent Employee Abuses

FMLA Intermittent Leave: How to Track, Administer and
Prevent Employee Abuses
FEATURED FACULTY:
Patrick L. Lail - Of Counsel, Elarbee, Thompson, Sapp & Wilson, LLP
(404) 582-8428
lail@elarbeethompson.com
Patrick frequently provides preventive advice about, and litigates issues
involving, disability and leave law under the Americans with Disabilities Act, the
Employee Retirement Income Security Act, and the Family and Medical Leave
Act. He works with many of the firm’s healthcare and insurance clients.
Patrick successfully defended a 10-plaintiff disability and age discrimination case
against a major paper manufacturer, obtaining summary judgment on all claims.
Patrick has also litigated multiple class action discrimination lawsuits.
Patrick has obtained summary judgment and negotiated favorable settlements in
short-term disability and long-term disability benefits litigation.
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FMLA Intermittent Leave: How
t Track,
to
T k Administer,
Ad i i t and
d
Prevent Employee Abuse
Presented by Patrick Lail
on behalf of
Center for Competitive Management
Elarbee, Thompson, Sapp & Wilson, LLP
800 International Tower
229 Peachtree St., NE
Atlanta, GA 30303
lail@elarbeethompson.com
(404) 582-8428
Overview
•
•
•
•
Basic FMLA Standards
Basic Intermittent Leave Standards
Ways
y to Limit Abuse
Scenarios illustrating application of
principles
1
FMLA Eligibility
g
y
• 12 months of employment
• 1250 hours worked in previous 12
month period
• At worksite with 50 or more
employees in 75 miles
FMLA Coverage
g
• Grants 12 weeks of leave in a 12 month
period for a qualifying reason:
– For the birth of a child;
– For the adoption of a child or the placement of a
foster child;;
– To care for a spouse, child, or parent with a
serious health condition; or
– Due to the employee’s own serious health
condition.
2
FMLA Serious Health Condition
Illness, injury, impairment, or physical or mental
condition that involves:
a. In-patient care;
b. Absence from work, school, or other regular
activities, of more than three consecutive calendar
days and either:
1
1.
2.
Treatment two or more times by a health care provider
(both within 30 days of the incapacity); or
Treatment by a health care provider at least once (within
7 days after the incapacity) that results in continuing
treatment under supervision of a health care provider;
FMLA Serious Health Condition
Continued:
c.
d.
e.
Any period of incapacity due to pregnancy, or for
prenatal care;
Any period of incapacity or treatment due to a
chronic serious health condition (asthma,
diabetes, epilepsy, etc.) - for which the individual
must see a health care provider at least twice per
year;
A period of incapacity which is permanent or longterm due to a condition for which treatment may
not be effective (Alzheimer’s, a severe stroke,
terminal stages of a disease, etc.); or
3
FMLA Serious Health Condition
Continued:
f.
Any period of absence to receive multiple
treatments or for restorative surgery after
an accident or other injury or for a condition
that would likely result in a period of
incapacity of more than three consecutive
calendar days in the absence of medical
intervention or treatment.
Intermittent Leave Requirements
•Intermittent leave must be medically
necessary.
•The medical necessity must best be met
through an intermittent or reduced leave
schedule.
4
Medical Certification Issues
• The employee and family member certification
forms call for the following information:
– Is the medical condition pregnancy?
– Will the employee/family member need
intermittent leave?
– Is
I it medically
di ll necessary?
?
– Estimate the treatment schedule, including any
recovery period.
– Estimate the part-time or reduced work schedule.
Medical Certification Issues
• The employee and family member
certification forms call for the following
information (con’t):
– Will the condition cause episodic flare ups?
– Is it medically necessary for the employee to
be absent during flare ups?
– Estimate the frequency of flare ups and the
duration of related incapacity over the next 6
months.
5
Medical Certification
Deficiencies
• If an employee’s certification is incomplete:
– The employer must notify the employee in writing of
the deficiency and what is needed to make the
certification complete and sufficient.
– The employee has 7 calendar days to provide the
additional information
information.
– With each request for a certification, the employer
must notify the employee of the anticipated
consequences of failing to provide adequate
certification.
Medical Certification
Deficiencies
• If an employee’s certification is vague:
An employer may contact the employee’s
health care p
provider directly
y for clarification
of the medical certification form, but the
employee’s supervisor may not be the
contact person.
6
Recertification
• An employer may request recertification each leave
year or every six months in conjunction with an
absence.
Ways
y to Limit Abuse
• Carefully monitor whether the actual leave matches the
certification and clarify when necessary:
– An employer may advise the certifying physician of the
employee’s absence pattern and ask whether the employee’s
condition is consistent with such an absence pattern.
• Obtain recertification as permitted:
– An employee requests an extension of leave;
– Significant change in circumstances; or
– Information casts doubt on the stated reasons for an absence or
the validity of the certification.
7
Andy works the 7am to 3pm shift. He has
requested intermittent FMLA leave to help
his diabetic mother with grocery shopping,
filling insulin syringes, and taking her to
medical appointments.
Do you grant the intermittent leave?
Andy works five eight-hour days per week.
He uses four hours per month to take his
mom to the doctor. He also uses four hours
per week to rehab from a knee injury.
How do you calculate his FMLA leave
usage?
8
Andy’s leave computations:
•12 weeks at 40 hours = 480 hours avail.
•4 hours once per month = 4 hours used
•4 hours per week in a month = 16 hours
•Remaining leave = 460 hours left
Beatrice takes intermittent leave when her
asthma flares up, but she does not receive
medical treatment during her absences.
Is this valid use of intermittent leave?
9
Although her certification states that
Beatrice should have asthma flare ups 1 or
2 times per month, Beatrice actually has at
least 6 flare ups per month and they always
occur on a Monday or Friday.
What can you do about this?
Chandra is pregnant and has a certification
that she suffers from severe morning
sickness. She arrives late several days per
week, sometimes only by five minutes.
How do you track how much leave she
uses?
10
Chandra has now had her baby and she
has 10 weeks of FMLA leave remaining.
After taking four straight weeks off, she
asks to return to work half-time for the next
eight weeks.
What are your options?
Dave has a minor child who is undergoing
chemotherapy. The medical certification
form says that Dave is needed to transport
and comfort his child at chemotherapy
treatments three times a week.
What is his obligation to
schedule the treatments?
11
Ethan manages a group of customer service
representatives in the call center and he is
also certified as a trainer. He has provided
a certification for intermittent leave to
receive chemotherapy treatments.
What are your options?
Felicia is a flight
g attendant and has been
released to return to work for four hours per
day.
How do you handle her request for return to
work?
12
Gary is a firefighter who averages working
53 hours per week. He uses intermittent
leave of 12 hours per 24-hour shift for three
weeks.
H
How
much
h FMLA leave
l
does
d
h
he h
have lleft?
ft?
Gary’s leave computations:
•12 weeks at 53 hours = 636 hours avail.
•7 shifts of 12 hours = 84 hours used
•Remaining
g leave = 552 hours left
13
Henry has a medical certification to take
intermittent leave for bi-polar disorder.
May the Company require recertification
after each intermittent absence?
What must the Company do to support
any such requirement?
Hilda has debilitating migraines. She has
told her manager that she must
completely avoid light when she has a
flare up. She called in today with a
migraine, for which she takes FMLA
leave While running an errand at lunch
leave.
lunch,
her supervisor sees Hilda driving her car
far away from her home.
What do you do?
14
Ingrid works 30 hours per week as an
administrative assistant. She uses
intermittent FMLA to be out Tuesday and
Thursday for three weeks to do physical
therapy.
How much leave does she have left?
Ingrid’s leave computations:
•12 weeks at 30 hours = 360 hours avail.
•6 days of 6 hours = 36 hours used
•Remaining
g leave = 324 hours left
15
Janet is getting squeezed. She is caring for
an elderly aunt who has end-stage renal
disease and who has asked Janet to stay
with her for a five-week period. Janet also
has a two-year old child who needs speech
therapy during Janet’s work hours one
afternoon per week.
week
How do you explain Janet’s leave rights to
her?
Kevin’s son was injured in the line of military
duty overseas and is recuperating in Kevin’s
home. Kevin wants to take intermittent
leave every Wednesday to take his son to
physical therapy appointments and
participate in his rehabilitation
rehabilitation.
Can Kevin use FMLA leave?
16
On Wednesday afternoon, Lewis is told that
he will have a meeting with HR and his
supervisor tomorrow to address his
performance shortcomings. Lewis calls out
on Thursday. When he returns on Friday,
he has a medical certification for anxiety
anxiety.
The note is signed by a D.O.
What are your options?
Questions?
17
THANK YOU
Patrick Lail
Elarbee, Thompson, Sapp & Wilson, LLP
800 International Tower
229 Peachtree Street, N.E.
Atlanta, GA 30303
404.582.8428
lail@elarbeethompson.com
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