FMLA: COMMONLY-ASKED QUESTIONS AND ANSWERS

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1 FMLA: COMMONLY-ASKED QUESTIONS AND ANSWERS Despite the fact that the Family and Medical Leave Act (FMLA) has been on the lawbooks for several years, it continues to cause legal trouble for employers. Companies continue to make mistakes enforcing the Act, which cost them considerably in court. To help you avoid a similar FMLA fate, here are some commonly-asked questions and answers on the areas of the law that trip up employers the most. SERIOUS HEALTH CONDITION Q. What illnesses or injuries qualify as serious health conditions? A. A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves: inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider. Continuing treatment by a health care provider includes the following. 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: treatment two or more times by a health care provider; or treatment by a health care provider on at least one occasion that results in a regimen of continued treatment. A period of incapacity due to pregnancy, or for prenatal care. A period of incapacity or treatment for a "chronic" serious health condition that requires periodic visits for treatment by a health care provider, continues over an extended period, and may cause episodic, rather than a continuing, period of incapacity (e.g., asthma, diabetes, epilepsy). Case in point: While driving a truck for a delivery service, an employee was rear-ended and suffered a neck injury. X-rays ruled out any fractures, but confirmed the existence of scar tissue from a pre-existing injury. Over the next 10 months, the employee attended 20 to 30 physical therapy sessions, but was never admitted to any hospital or other health care facility. When the employee was absent from work at least 32 days over the next eight months and his performance suffered as a result, his employer disciplined and eventually fired him for excessive absenteeism. The employee filed a lawsuit, arguing that his termination violated the FMLA. His claim: The company terminated him because of absences directly related to a serious health condition.

2 Court: The employee failed to prove that he suffered from a serious health condition that rendered him unable to perform the functions of his position. According to the court, the employee failed to show that his injury involved continuing treatment for "a chronic or long-term health condition." Despite his doctor visits and physical therapy sessions, he submitted no medical evidence to demonstrate the necessity of the treatment he received. (Haefling v. United Parcel Service, Inc., 7th Cir., No , 1999) According to FMLA regs, illnesses that do not count as serious health conditions include the common cold, earaches, stomachaches, etc. However, a Department of Labor (DOL) opinion letter revised the way it defines a serious health condition. According to the DOL, an absence counts under the FMLA if it consists of an incapacitation of three consecutive calendar days that also involves treatment two or more times by a health care provider. So now even minor illnesses may qualify. Case in point: An employee left work on a Wednesday with diarrhea and stomach cramps. She was absent from work for two days, and returned the following Monday with a doctor's note. She worked only a few hours before leaving for the doctor, who diagnosed her as having either a peptic ulcer or gallbladder disease. The employee missed another week of work and returned the following Monday with another doctor's note, but was fired for excessive absenteeism. The employee claimed she was entitled to FMLA leave for her absences and sued the company. A trial court dismissed her case, ruling that the employee could not prove that she had a serious health condition. However, on appeal, a court ruled that the employee met the "continuing treatment" part of the definition of a "serious health condition" under the FMLA. Court: Even though the ultimate diagnosis - a minor ulcer - is on the list of conditions that ordinarily do not qualify for FMLA leave, the employee saw a physician twice while she was absent from work due to illness, which is all the plain language of the final rules requires for "continuing treatment." (Thorson v. Gemini, Inc., 8th Cir., No , 2000) MEDICAL CERTIFICATION Q. Under what circumstances can an employer request medical certification? A. FMLA regulations allow, but do not require, employers to ask for medical certification when employees seek leave for their own serious health condition or the serious health condition of an immediate family member. An employer may not, however, require medical certification when employees take FMLA leave for the birth, adoption, or foster placement of a child. The following information may be included in the medical certification. The date the serious health condition began. The probable duration of the condition. Appropriate medical facts regarding the condition.

3 If the employee is needed to care for a family member, a statement to that effect and an estimate of how long the employee will be needed. If the employee has a serious health condition, a statement that it renders him/her unable to perform the functions of the job. In the case of intermittent leave for planned medical treatment, the dates when treatment is expected to be given and the treatment's duration. In the case of intermittent or reduced schedule leave, the medical necessity for that type of leave. In the case of intermittent or reduced schedule leave for family members, a statement that this type of leave is necessary for the care of the family member, or will assist in their recovery, and the expected duration and schedule of the leave. If an employee fails to provide timely certification (where possible) and the need for leave was foreseeable, leave may be denied until the required certification is provided. If the need for leave is not foreseeable, the employee must still attempt to provide the certification as soon as possible under the circumstances. Q. When it comes to recertification, what can an employer legally require from an employee on leave? A. Recertification allows employers to make certain that employees continue to require and qualify for leave and are not abusing the system. The final FMLA regs provide that where a certification establishes an employee's need for leave of more than 30 days, the employer may not ask for recertification until that minimum period has passed unless certain circumstances are present. Recertification can be required sooner than 30 days under the following circumstances. If the employee requests an extension of the leave. If circumstances in the initial certification have changed. If you have reason to doubt the validity of the certification. Case in point: An employee gave his supervisor a doctor's note to explain a two-day absence. The supervisor thought the note looked "doctored," so she called his physician, who told her that the employee's daughter had been treated, not the employee. The supervisor then terminated the employee for fraudulently attempting to collect sick pay. Even though company policy only permitted sick leave for an employee's own illness, the employee alleged that his termination violated the FMLA since he should have been at home taking care of his daughter. A court disagreed, and held that he had been properly discharged for his fraudulent ways. (Baltuskonis v. US Airways, Inc., D.C.PA, WL635746, 1999)

4 INTERMITTENT AND REDUCED LEAVE Q. Under what circumstances may an employee take intermittent or reduced leave? A. Intermittent leave is taken in separate blocks of time due to a single illness or injury, rather than in one continuous period of time. Periods of leave may range from an hour to several days. A reduced leave schedule reduces the usual number of hours worked per week or day. The FMLA allows the use of intermittent leave and reduced schedule leave for only two of the four qualifying reasons for leave. It is allowed for employees with a serious health condition or when the employee is needed to care for a family member with a serious health condition. Leave for adoption, foster care, or birth of a child may not be taken intermittently or on a reduced schedule unless the employer and employee agree on such an arrangement. When an intermittent or reduced leave is required for a serious health condition with planned medical treatment, the employee is required to make a reasonable effort to schedule treatment so that disruption to the employer's operations is minimal. If an employee requests intermittent leave or a reduced work schedule for planned medical treatment, the employer may temporarily transfer the employee to an available alternative position under the following conditions. The position has equivalent pay and benefits. Employers may increase the pay and benefits of an existing alternative position to make them equivalent to the employee's regular job, or transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary. The employee is qualified to perform the job. The alternative position accommodates recurring periods of leave better than the employee's regular job. Case in point: When a factory worker was terminated for violating her company's absenteeism policy, she sued under the FMLA. The employee was assessed her first unexcused absence when she left work early to join her son, who had kidney failure, in the hospital. She was terminated a year later when she accumulated seven other unexcused absences. A court ruled that the employer violated the FMLA when it counted the employee's short trip to the hospital to visit her son as an unexcused absence, since an employee may take FMLA leave intermittently. When the employer disallowed FMLA leave for this short period of time, it violated the law. (Bryant v. Delbar Products, Inc., M.D. TN, No. 2: , 1999) ELIGIBILITY Q. Do employees need to mention FMLA when requesting leave to be eligible for protection?

5 A. Several courts have disagreed about whether the words "Family and Medical Leave Act" must cross an employee's lips in order for leave to qualify under the Act. However, according to the final FMLA rules, employees don't need to mention the Act when telling you that they need leave. It is an employer's responsibility to determine employees' eligibility. Case in point: The same day an employee called in sick, she was diagnosed with hepatitis. The next day, she told her employer that she would be unable to work for the remainder of the week because of her condition. The company did not ask for further information or certification from her doctor. Shortly thereafter, the employee received a termination letter signed by the head of Human Resources, stating that she was fired because of her "frequent absences." So she sued under the FMLA. A court ruled that the company had violated the FMLA when it fired her for her illnessrelated absences. Court: The FMLA allows employees to take up to 12 weeks of leave during a 12-month period because of a serious health condition. In order to trigger FMLA-authorized leave, an employee must provide the employer with notice, but "need not expressly invoke her FMLA rights." The company admitted that the employee suffered from a serious health condition; that she provided notice of her need for leave; and that it did not request further information. (Carpenter v. Refrigeration Sales Corp., N.D. OH, No. 1:98-CV -940, 1999) Q. How are hours counted for purposes of determining whether or not an employee has satisfied the FMLA leave eligibility test of working 1,250 hours during the previous 12 months? A. In addition to the requirement that employees be employed by their employer for at least 12 months, employees must have worked for at least 1,250 hours with their employer during the previous 12-month period. A determination of whether employees have worked for their employer for at least 1,250 hours in the past 12 months must be made as of the date leave begins. Case in point: An employee who acquired 12 points under her employer's absenteeism policy in a one-year period was placed on probation. Her employer informed her that if she were absent for anything other than a hospital admission during that time, she would be fired. When she called in sick that same afternoon, the company terminated her immediately. The employee sued, claiming that her probation and termination violated the FMLA. Her claim: She had been eligible for protected medical leave three times during the one-year period before she was terminated, but was improperly assessed points that led to her probation and termination. The company admitted that when the employee took the three leaves, she was covered by the Act because she had not put in 1,250 hours in the previous 12 months. Reversing a lower court s decision, a court of appeals ruled that an employee must have worked for 1,250 hours in the 12 months before the starting date of FMLA leave, not for 1,250 hours in the 12 months before the date of the firing for excessive absenteeism. (Butler v. Owens- Brockway Plastic Products, Inc., 6 th Cir., No , 1999) REINSTATEMENT Q. What are an employee s job restoration rights when returning from FMLA leave?

6 A. The FMLA requires that employees returning from leave are reinstated to the position held when leave began, or an equivalent position, with equivalent employment benefits, pay, and other terms or conditions of employment. The FMLA limits the entitlement of any restored employee to no greater right of employment than if FMLA had not been taken. An employer may deny reinstatement if it can show the employee would not have remained employed even if the leave had not been taken. An employee s right to continued leave, health benefits, and job restoration ends, if and when the employment relationship would otherwise have ended, e.g., layoff. The FMLA does not extend any special protection to employees who are on leave at the time of a layoff. Case in point: During an employee s 12-week FMLA leave for the birth of a child, her employer laid off 190 employees in a reduction-in-force because of financial concerns. The employee learned that her job had been eliminated on the day of her return from leave, so she filed an FMLA lawsuit. Her claim: Her employer had denied her the benefit of reinstatement upon her return from leave in violation of the FMLA. A court of appeals ruled that the company had not violated the FMLA and dismissed her case. Court: An employee on FMLA leave has no greater right to reinstatement than if the worker had been continuously employed during the leave period. (O Connor v. PCA Family Health Plan, Inc., 11 th Cir., Nos & , 2000) SUBSTITUTING PAID LEAVE Q. Can an employer require an employee to substitute paid leave for FMLA leave? A. An employer may legally require employees to substitute accrued paid vacation, personal, and family leave for FMLA leave for: the birth of a child; adoption or foster placement of a child with the employee; the employee's own serious health condition; or to care for a family member with a serious health condition. The only restriction on substituting paid leave applies to accrued sick time - an employer cannot compel an employee to substitute accrued sick time for any reason other than a serious health condition. Whether you require an employee to substitute paid vacation for FMLA is at your discretion. The benefit of compelling substitution of paid time off for unpaid leave is that employees can't extend the amount of time they remain out of work. Otherwise, an employee with four weeks of accrued vacation could tack those four weeks on to the end of a 12-week FMLA leave. Case in point: One month after being promoted to manager, an employee took 15 weeks of leave due to pregnancy. When she returned to work, she was demoted. That's an FMLA violation, the employee claimed in court. Despite a handbook provision that specifically stated that paid disability leave ran con- currently with FMLA leave, the employee claimed that she was entitled to use her 13 weeks of company time first and then start her 12 weeks of FMLA leave because the company never notified her that her paid disability leave was being substituted for her FMLA leave. This would mean that she had 25 weeks of leave, and had returned in time

7 to qualify for job protection under the FMLA. A court of appeals dismissed her case, ruling that nothing in the original FMLA requires written notice. It simply states that an employer may substitute paid leave for any part of the 12- week FMLA leave. (McGregor v. Autozone, 11thCir., 180F.3d1305, 1999) Note: This ruling runs counter to DOL regulations that state that an employer must clearly identify how many weeks of leave an employee has and how it will be counted, as well as a pro-employee ruling on employer notification. (Plant v. Morton International, Inc., 6th Cir., No , 2000) Watch the Supreme Court to get the final word on this discrepancy. Alexander Hamilton Institute 2000

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