The FMLA, employee leaves, and related issues Presented by Greg Wiley, Esq. General Counsel –Civil Division
Other issues We will discuss some ADA issues that overlap and sometimes seem to (and do) conflict Also, there are some overlapping workers’ comp issues that complicate matters - we’ll touch on those
Most of those sticky issues are case-by-case evaluations
About 2+ hours worth of stuff… That can be, well, considered dry. Sprinkle in 3, 3 question quizzes We’ll tabulate the results and see how, collectively, the group does (but act fast, only first 30 votes count)
For this game show, some of the questions will be easy, some will be hard, and some, well, we might not know the real answer to…
Here is how the Gameshow works When I prompt you, text in your response If all is working properly, the site tabulates the response and we’ll see the responses
It’ll be anonymous, but feel free to tell your neighbor when you got it right.
ROUND 1 All government forms are confusing, hard to understand, and make my job harder: Can Employers consider whether providing an eligible employee FMLA leave is unduly disruptive to its operations?
There are some limited circumstances where and employer must pay salary in addition to benefits of an employee on FMLA leave.
Answers coming throughout presentation
A wily trick to keep your attention…
Step back . . . Before diving in to all the legal niceties, I find it helpful to step back and consider why these laws get passed in the first place Why we have these tricky laws….
The FMLA was passed to try and balance employees’ need for time off to get healthy (or help a family member get healthy) against employers’ need to have an employee doing the work, without costing the employer too much.
At the time it was passed in 1993, there were many more parents entering the workforce (now commonplace)
Other leave laws in Minnesota essentially try to find a similar balance based on other employee needs (voting, kids’ school time, etc.)
Goals You will recognize FMLA issues that you can handle, and learn when you need to consult other resources to help navigate through your issues
That you will have a comfort level with some of the new DOL tools and forms and use them effectively
CAVEAT #1 Know your entity’s policy You leave rules may be more employee-friendly than the concepts I discuss here today
They should not, however, be less favorable to the employee – if they are, you are likely violating part of the FMLA or other laws
General Rules When competing contracts, collective bargaining agreements, and employer policies and procedures are at play, the employee gets the benefit of the most favorable rule Employees in the military get the greatest benefits
Leave is not discretionary if conditions are met; employers must provide it
There are only two real protections offered by the FMLA Job protection/restoration Anti-retaliation is part of this Only if employee is already benefit eligible
And only to the extent employer already provides a benefit (employee must cover her normal share)
Types of Leave MN sick and injured child leave School conference and activities leave Bone Marrow leave; Organ donation leave Leave to Deal with Domestic Abuse issues; Court leave Military and Civil Air Patrol Service Leave Leave under the workers’ compensation act Leave as a reasonable accommodation under ADA or MHRA
Nursing mother’s breaks, etc…
FMLA Most significant leave law; Only provides 3 things Job restoration protection Benefit continuation requirements
Does not require paid leave under any circumstance
Employer required to give notice of FMLA rights Post a DOL approved notice of FMLA rights (WH publication 1420) Include information about FMLA rights in handbooks, CBAs, and other written materials If no other notice provided, use DOL FMLA Fact Sheet No. 28 at dol.gov
Other notice and communication requirements discussed herein
Eligibility In order to be covered by the FMLA, an employee must have been employed for 12 months AND worked at least 1,250 hours in the previous calendar year The one-year requirement need not be consecutive 1,250 hours is hours ACTUALLY worked - not vacation, sick leave, PTO, comp time, etc.)
Note: employee may be eligible one year (2007), but not next (2008), because they did not work required number of hours year before
For public employers, size does not matter All public employers required to comply with the FMLA
In private practice, FMLA only covers employers with 50 or more employees within 75 miles at a worksite
What about temp/seasonal employees? If they can meet the one year, and 1,250 hours requirement, they are eligible for a pro rata share of FMLA leave
They only get benefit continuation, however, if they are benefit eligible– many part-time employees are not
What triggers a right to FMLA leave? It is NOT there just for the taking, but it is fairly easy to show entitlement Leave must be for an FMLA reason: when the employee is unable to work because of a serious health condition; for the birth and care of a newborn child of an employee; for placement with the employee of a child for adoption or foster care; to care for an immediate family member (spouse, child, or parent) with a serious health condition (not in-laws); or
For certain types of military related leave (new as of 2009)
Serious health condition
Leave must be for a “serious health condition” that makes the employee unable to perform one or more of the essential functions of the employee’s job
A serious health condition is NOT Regular headaches (migraines might be if other conditions met) Common flu is not (but swine flu, if other conditions met) Chiropractic treatment (but if an X-ray show a subluxation– will be covered) Routine doctor visits – dental visits Time to grieve for a loved one (unless more is shown)
These are all meant to be covered under employer’s PTO or sick leave policy, not FMLA
Serious Health Condition: illness, injury, impairment that involves… Inpatient care- overnight stay in medical care facility and any period of subsequent treatment in connection with stay (so the non-covered conditions become covered if this is met– migraines, swine flu)
Continuing treatment of health care provider: incapacity of three consecutive calendar days and subsequent treatment related to the same condition (sick leave policy no longer effective)
Cont. Treatment two or more times by a healthcare provider OR
Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under medical supervision
Chronic Condition Incapacity due to a condition that requires Periodic visits for treatment by a health care provider (at least 2x a year) Continues over an extended period of time, AND May cause episodic rather than continuing periods of incapacity Like asthma, diabetes, epilepsy, etc.
Often mental health issues fall in this category
Permanent or long-term condition A condition that requires continuing supervision, but not necessarily continuing treatment, by a health care provider
Like Alzheimer’s, severe stroke, terminal stages of a disease
Period of absence to receive multiple treatments by a health care provider for a condition that would likely result in a period of incapacity of more that three consecutive calendar days
Forms Weave DOL Website has useful forms The FMLA forms are a great example of thoughtful government
Safe harbors– if you follow the directions, you will comply!
Mechanics Employee requests FMLA leave Employee requests time off for something that employer knows or suspects is FMLA qualifying
Fitness for duty evaluation
Birth and Adoption Leave due to birth or adoption or foster care must be taken within 12 month period beginning on the date of birth or adoption
Employer is not required to grant intermittent leave or a part time schedule under this provision (but can if it wants)
Pregnancy or Childbirth Employees may take leave during pregnancy or for the birth of a child. Husband may take time off to care for incapacitated spouse Now, applies to unmarried couple standing in loco parentis That does not mean crazy parent
We’ll talk more about the expanded definition of that later
Married employees If both husband and wife are employees of the same employer, they may take only a combined total of 12 weeks of FMLA qualifying leave under the following situations: a) For the birth of a son or daughter and to care for the newborn child; b) For placement of a child with the employee for adoption or foster care; or
c) To care for the employee’s parent who has a serious health condition.
Round #2 of Gameshow A partner in a same-sex adoption may take FMLA leave for the adoption. Is an employee’s notice to the employer sufficient if the employee states that she needs to be out “to take care of some personal things.”
The maximum amount of leave under an FMLA provision and scenario is 12 weeks.
NEW DOL interpretation
Effectively expands the coverage of the FMLA to include same-sex couples
Leave to care for disabled adult child Child must be incapable of self-care because of a disability at the time leave is to commence (825.122(c))
Must be an actual disability, rather than just a broken leg…
Care for family member Employee needs leave to care for family member with serious health condition (825.124)
Need not be the only family member available
New Military Qualifying Exigency Leave Under certain circumstances, 26 weeks leave
I will leave some of this detail out…address case by case
Leave Entitlement Military Caregiver Leave. An eligible employee shall be entitled to up to 26 work weeks of leave during the applicable twelve month period as defined by the employer in order to care for an eligible service member with a serious injury or illness; 1) The employee must be the spouse, son or daughter, parent, or next of kin of the eligible service member.
2) The eligible service member must have an injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his/her office.
Cont. Qualifying Exigency Leave. An eligible employee shall be entitled to up to 12 work weeks of leave during the applicable twelve month period as defined by the employer while the employee’s son, daughter, or parent is on active duty or call to active duty status for a qualifying exigency. 1) To qualify for this leave, the service member must be a member of the National Guard, Reserve , or a retired member of the regular armed forces or reserve. There is no leave entitlement for employees with family members in the regular Armed Forces.
2) Qualifying exigencies include : short notice deployment, military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and related exigencies.
Leave Characteristics The employer may be required to maintain health benefits as in FMLA leave Employer may require that employee use PTO during FMLA leave Employee is entitled to be reinstated to same or equivalent position (some limited exceptions).
Holidays do not count toward leave if leave is one week or less; they do count against leave allotment if leave is longer than one week
Rolling calculation method – most common
The twelve month period during which an employee may take FMLA leave is calculated as a “rolling” twelve-month period measured backward from the date an employee uses any FMLA leave. Each time an employee takes FMLA leave, the remaining leave entitlement period will consist of any of the balance of the 12 weeks which has not been used during the immediately preceding twelve months.
Other Methods Any fixed 12-month period as designated by the employer (fiscal year, employee’s anniversary date. . .)
The 12 month period measure forward from the date any employee’s first FMLA leave begins
Health care maintenance Employers must maintain an employee’s coverage under a group health plan as if the employee was continuously employed for the entire time
BUT employee required to pay their own portion
Employees that use all leave Are not entitled to any more FMLA leave If employee has already taken 12 work weeks of FMLA leave in a 12-month period, the employee is not entitled to any more FMLA leave Protections of this statute fall out
Protections for other statutes may apply
Employee Notice When need for leave is foreseeable, and employee must provide at least 30 days notice of need for leave (825.303) Employee need not specify that the leave is FMLA leave, but must provide the employer sufficient information so it can determine the leave is FMLA qualifying
In all cases employer should inquire further if it may be FMLA qualifying.
Notice continued If impractical, employee notice must be given as soon as practicable Defined as soon as possible or practical (no bright line, DOL says within one or two days) This is one of those standards that is not a standard If an employee is using paid leave, employee must only follow notice required for leave plan If employee fails to provide proper notice, employer may delay leave until after the 30 day time has lapsed
The employee must have actual notice of the requirement
2010 case shows thin line here
Employer designation and certification Employer must designate the leave as FMLA leave and provide notice to the employee, generally within 5 days of the notice of the need for the leave (825.300(b)) DOL form WH-381 If designation not properly done by employer, it may not count against the FMLA leave allotment if the employee can show harm or injury as a result (825.301) -- effectively extends 12 weeks Employer and employee may agree to retroactive application
Employer must provide notice of specific obligations and expectations of employees on leave; Form WH 382. Note that if the employer will seek fitness for duty (discussed later) that intent and essential job functions must be on this form
Medical Certifications Employer does not have right to get medical records Form does not require records, but does provide enough information for employer to determine if leave is FMLA qualifying (if properly filled out)
If form incomplete, employer must specify deficiency and employee gets 7 days to cure deficiency
Certifications Cont. All employer contacts to an employee health care provider must comply with HIPAA Contact must be by another health care provider, HR professional, leave administrator, or management official (NOT a supervisor ) Employee needs to provide authorization to health care provider for certification (not for records)
Information sought is limited by the medical certification form– cannot ask for more.
More certification issues Employer may not require a release or waiver of medical records But this answer may change in ADA context It is employee’s responsibility to provide the employer with a complete certification (if doc charges for form, employee pays)
If employer does not provide either a complete certification or an authorization allowing the health care provider to do so, FMLA leave may be denied
Recertification If expected duration unknown, employer may seek recertification every 30 days If condition is known to be longer than 30 days at the outset, that specified duration must lapse before recertification is sought In all cases employer may seek recertification every 6 months
May seek recertification in less than 30 days if there is specific reason to suspect fraud, and other specified reasons
2d and 3d opinions Employer may seek second opinion by own health care provider at its own expense If two opinions conflict, employer may seek and pay for a third opinion Third health care provider must be agreed upon by employer and employee
Third’s opinion will be binding and final
Interesting Ruling 2010 The employer may challenge the validity of the certification even if it did not seek second and third opinions; in other words the employer does not waive its right to challenge
Language in statute is permissive
Fitness for duty Employer may have uniformly applied policy that requires employee’s health care provider to certify that the employer is able to return to work Fitness for duty should specify the essential job functions
If employee in on intermittent or reduced schedule leave, employer may seek fitness for duty certifications every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform duties
Great Fitness for duty case Employers have always felt stuck here—limits of FMLA and ADA certification This case shows that at time, law is sensible. Wisbey v. City of Lincoln Particularly good for law enforcement
ADA/FMLA differences highlighted
Records Maintenance Pointer FMLA Certification Forms shall be maintained in the employee’s private medical data personnel file.
If disabled, keep those records separate from FMLA records
If certification not provided FMLA leave may be delayed or denied
Similarly, if fitness for duty is not provided, job restoration may be denied.
Round #3 of the now Super Exciting Gameshow Employee returns from FMLA leave and employer offers a position with same pay, prestige and benefits, but different hours or shift. Is that permissible? What about a different position with same pay, benefits, hours, but not as much qualification (not as much education required)?
An employee earns seniority while on FMLA leave.
Let’s take that one now Seniority does not accrue during employees’ time on FMLA leave
However, check application of CBA and USERRA (Uniformed Services Employment and Reemployment Right Act)
Intermittent Leave Employee may take leave in small increments or part-time leave if there is a medical necessity for that type of leave
The amount of leave actually taken is counted against the 12-week allotment
During such leave, an employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent leave
Tricky intermittent issues Employee must make a reasonable effort to schedule intermittent treatment so as not to unduly disrupt employer’s operations Remember, must be for a serious health conditions (can’t use FMLA leave for routine doc/dental appointments); certifications required
In the past, these were trickiest certification issues--- doctor’s notes frequently vague, and it was unclear whether employer could seek more information
Medically necessary intermittent leave Medical necessity for intermittent (and other leave) includes Planned or anticipated medical treatment For recovery from treatment of a serious health condition For a serious health condition that requires treatment periodically, including prenatal exams
To provide care or psychological comfort to a family member with a serious health condition
Incremental Intermittent-tracking hours Intermittent FMLA leave may be taken in the shortest timeframe that the employer’s payroll system may account for Employer cannot require employee to take more leave than necessary Full-time employees are eligible for a total of 480 hours of intermittent leave (yes, that is 12 weeks of 40 hours a week) Part-time employees get pro-rata share
(if work 28 hours a week, eligible for 336 hours of leave – 28 hrs. x 12 weeks)
Different fitness for duty rights for employers
Employers may require an employee on a reduced schedule or intermittent leave schedule to submit a fitness for duty examination once every 30 days if there is a reasonable safety concern about the employee’s ability to perform his job based on the condition
What can you tell other employees about the affected employee’s leave? Huge concern that legislature does not speak to. Under ADA, you cannot say the employer is accommodating on the basis of a disability And cannot say medical condition As unsatisfactory as the answer is, tell the other employees: That leave is provided to comply with applicable law, or
That leave was provided for a legitimate business reason.
Reinstatement Employee reinstated to equivalent position with equivalent benefits, pay and other terms or conditions of employment Fairly strict interpretation of “equivalent position”
Even same qualifications…
All unconditional pay increases and non-performance bonuses must be applied to employee upon return (can’t count FMLA leave against attendance bonus)
Exceptions to Reinstatement If employer can show that employee would not be able to return regardless of leave (i.e. the employee would have been laid off), employer need not reinstate Better have pretty clear cut evidence Employer need not reinstate a “key employee” under 825.220; top 10% earner and restoration would impose “grievous” and significant injury
If the employee unequivocally tells the employer before or during the leave that the employee does not intend to return to work
2010 8 th Circuit case
Employer was able to prove that it would have terminated the employment without the challenged FMLA absence
Collecting health premiums If employee does not stay employed for at least 30 days after FMLA leave, the employer may collect its share of the health care premiums paid during FMLA leave Unless the reason for failure to return is for a serious health condition or other reason beyond the employee’s control
Again, employer entitled to– doesn’t mean it will or has to
Bonus Question An employer may be required to provide FMLA leave for non-FMLA qualifying events if it mistakenly tells the employee the leave is FMLA covered.
Yes, if some stringent standards are met.
Yes– Estoppel theory.
Enforcement and remedies Individuals may bring suit for FMLA violations, or the Department of Labor may get involved
Damages for the FMLA include liquidated damages (double), injunctive relief, interest, costs and fees.
Retaliation prohibited Larger leave statutes prohibit employers from retaliating against employees for exercising leave rights
Courts would likely imply similar restriction in smaller ones too
Even more leave under ADA? If additional leave would be a reasonable accommodation to the employee under the Americans With Disabilities Act, it must be provided
Employer can try to show it is an undue burden
Minnesota Leaves Based on public policy considerations that our state legislature felt were sufficient to require employees to be provided leave Beware: A number of these are paid leaves
Beware: most are relatively unchallenged and untested, so it may be unclear how it applies in certain cases
Parenting Leave Minn. Stat. 181.940-941 For the birth of adoption of a child For natural or adoptive parent Runs concurrently with FMLA leave (means that it most often overlaps)
Unlike FMLA, 21+ Employees
An employee who is a natural or adoptive parent may request an unpaid leave of absence in conjunction with the birth or adoption of a child. The length of the unpaid leave shall not exceed six weeks under state law and twelve weeks under federal law.
Voting Leave Provides employees the right to be absent the morning of a state or federal election State primary or general election Elections to fill vacancies for US senator or representatives; state senator or rep; presidential primary Violation a misdemeanor conviction
Why? So employees can be good citizens
Shorter leaves required -- School leave MN Kids’ school leave: Minn. Stat. 181.9412: Employers must provide leave for employees to attend school conferences and activities 16 hours in any 12 month period
Employee must give reasonable notice and make effort so as not to be disruptive (i.e. meeting cannot be scheduled outside work hours)
Organ Donation Leave
Employees are entitled to up to 40 hours of paid leave for the purpose of donating an organ
Bone Marrow 20 hours of paid leave for employees to provide bone marrow
Leave does not exceed 40 hours per donation
Court Duty Leave
Employees subpoenaed as witness in connection with employment or called for jury duty shall receive their regular compensation and other benefits less the amount of jury or witness fees. Employees shall notify their supervisor when served with a subpoena or notice of jury duty. Employees shall return to their regular work duties if released from court duty during their scheduled hours of work
MN Military Leave Public employees get 15 days of paid leave Includes reservists and guard duties Employees cannot lose benefits Minn. Stat. 181.967, 948: 10 days leave if immediate family member killed in active service
Also for family members to send off and homecoming ceremonies when employee ordered into service
Workers’ Compensation. Chapter 176 of Minnesota Statutes Applies to work related injury cases
For leave situations, you are usually dealing with Temporary Total Disability (employee unable to work due to injury for 3 consecutive days) or Temporary Partial Disability (employee may work another position, but not yours)
Workers’ comp leave May be concurrent with FMLA leave rights
Employer must inform employee that leave is FMLA leave rights
Interplay for light-duty positions Employers may want to find a light duty position within employee’s restrictions while employee is on WC so they get work and so they do not have to pay 2/3 WC payment
Employees have a cause of action under Minn. Stat. 176.82 if employer fails to offer continued employment to the employee, without good cause, when such employment is available within the employee’s restrictions
Remember, purpose behind worker’s comp is to keep employees working if possible Incentive to keep injured worker working Minn. Stat 176.155– work within restrictions during healing period Worker’s comp does not require job restoration, unlike the FMLA
Under the ADA, job restoration required unless the employer can show that holding a position open would cause an undue hardship
All is not lost Under FMLA, employer may only offer a light duty position; employee need not take it and may opt for leave instead
If, under the WC laws, employer offers a light duty position to an employee, and the employee unreasonably rejects the offer, the employer may suspend WC payments
Under ADA An employer is under no duty to create a light duty position for an employee– employee must be able to perform essential job functions But, employer may be required to eliminate marginal job functions as a reasonable accommodation
Employer may be required to reassign employee to a vacant position as a reasonable accommodation unless it poses and undue hardship on employer; this is seen as an accommodation of last resort
Quirky rule for light duty If employee accepts a light duty assignment, the time the employee spends working that job does not count as FMLA time
But, that time does count against the employer in that it must comply with the job restoration requirements of the FMLA after 12 weeks. 29 CFR 825.220(d)
Scope of medical inquiries allowed quite different under FMLA/ADA/WC An employee seeking worker’s comp has waived her medical privilege and the employer may get all medical records related to the injury Under the ADA a request for medical information must be job related and consistent with a business necessity
Under the FMLA, employer is not entitled to the medical records themselves, but instead to doctor’s information in the certification forms
When seeking medical information under the ADA Confine requests to records relating to: Nature, severity, and duration of impairment Activities that the impairment limits The extent to which the impairment limits such activities Records that substantiate an employee’s reasonable accommodation request
If there is insufficient document of the need for a reasonable accommodation, accommodation may be denied
If situation implicates multiple statutes Determine which statute is the basis for the request Keep separate files for information obtained under FMLA/ADA/WC
Do not let decision-making with respect to one statute be influenced by the information obtained with respect to another
Nursing mothers Must allow breaks for nursing mothers to breast-feed Must provide private space May not be unduly disruptive of employer operations
This is new under the FMLA; had already been required under Minnesota law (with some differences)
Nursing…. Must comply with both state and federal requirements, so Private space must be provided (not a bathroom per federal law) For 1 year after birth, whether unduly disruptive to the employer or not
Employer must make a reasonable effort to make it within close proximity
Leave to deal with Domestic Abuse Employee are provided reasonable time off to obtain TRO or protective order to get relief with respect to domestic disturbances Minn. Stat. 609.748 subdiv. 10(a)
Also Minn. Stat. 518B.01, subdiv. 23(a)
Crime Victim Leave Employee may take time off for criminal proceedings if the employee or certain members of the employee’s family are victims of a crime
Minn. Stat. 611A.01; 611A.036
Thank you for your attention Not the most fun of material, but part of your everyday lives (part of mine)
I’ve seen more FMLA cases in 2010 than in last 5 years out of District of Minnesota and 8 th Circuit– law is alive and well