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It has been two decades since Congress enacted FMLA. What are the most challenging aspects of complying with the law as encountered by employers? What trends have become apparent? Will the FMLA be …

It has been two decades since Congress enacted FMLA. What are the most challenging aspects of complying with the law as encountered by employers? What trends have become apparent? Will the FMLA be expanded in the future? This presentation examines these questions and provides practical advice on best practices to continue compliance with the FMLA.

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  • 1. 20 Years of FMLA:Where We Have Beenand Where We are GoingNicole Griffin FarrellAlan S. MouritsenApril 9, 2013Salt Lake City25th ANNUAL EMPLOYMENT LAW
  • 2.  Prior to 1993, U.S. had no national family andmedical leave legislation FMLA was passed by Congress and signedby President Clinton on February 5, 1993 Workers have used FMLA more than 100million times since its enactmentHistory of the FMLA2
  • 3.  FMLA entitles eligible employees of coveredemployers to take unpaid, job-protected leavefor specified family and medical reasons withcontinuation of group health insurancecoverage under the same terms andconditions as if the employee had not takenleaveBasics of the FMLA3
  • 4.  Covered employer is all public employersand private sector employers who employ 50or more employees for at least 20workweeks, including joint employers andsuccessors of covered employersBasics of the FMLA4
  • 5.  Eligible employees are those who work fora covered employer and– Have worked for that employer for at least 12months; and– Have worked at least 1,250 hours during the 12months prior to the start of FMLA leave; and– Work at a location where at least 50 employeesare employed at the location or within 75 miles ofthe locationBasics of the FMLA5
  • 6.  Eligible employees are entitled to 12workweeks of leave in a 12-month period for:– The birth of a child– Adoption– To care for spouse, child or parent who has aserious health condition– Employee’s own serious health condition thatmakes employee unable to performBasics of the FMLA6
  • 7.  Eligible employees are entitled to 12workweeks of leave in a 12-month period for:– Any qualifying exigency arising out of fact that employee’sspouse, daughter, or parent is a covered military memberon “covered active duty” OR– Eligible employees may take 26 workweeks of leaveduring a single 12-month period to care for a coveredservicemember with a serious injury if the eligibleemployee is the servicemember’s spouse, son, daughter,parent, or next of kin (military caregiver leave)Basics of the FMLA7
  • 8.  Intermittent/Reduced Schedule Leave– FMLA permits employees to take intermittent/reducedschedule leave when medically necessary to care fora seriously ill family member, or because of theemployee’s serious health condition– Intermittent/reduced schedule leave may be taken tocare for a newborn or adopted child with employer’sapproval– Only amount of actual leave taken may be charged asFMLA leave, and employees may not be required totake more leave than necessaryBasics of the FMLA8
  • 9.  In 2012, in anticipation of the 20th anniversaryof enactment of FMLA, Abt Associates, onbehalf of Department of Labor and Wage andHour Division, surveyed 1,812 worksites and2,852 employees about their experiences This 2012 survey updated surveys done byDOL in 1995 and 2000Department of Labor Survey Results9
  • 10.  Employers are Happy with FMLA– 91% of employers report that complying withFMLA has had either a positive effect or noeffect on employee absenteeism, turnover, ormorale– 85% of employers report that complying withFMLA is very easy, somewhat easy, or has nonoticeable effectDepartment of Labor Survey Results10
  • 11. – Fewer than 3% of covered worksites reportedsuspicion of FMLA misuse– 13% of all employees reported taking leavefor an FMLA reason in the past 12 months– Fewer than 2% of employees who takeintermittent leave are off for a day or lessDepartment of Labor Survey Results11
  • 12. – Reasons for Taking Leave in the 18 MonthsBefore the Survey was Taken• 51% - The worker’s own serious health condition• 36.9% - Parent’s, spouse’s, or child’s condition• 13.3% - New child• 1.5% - All other reasons (0% - domestic partner’shealth condition; 0.7% - military member’sdeployment; 0.6% - other relative’s healthcondition; 1.1% - refused to answer)Department of Labor Survey Results12
  • 13. – Reasons for Deciding Not to Take Leave• 44.2% - Could not afford to take unpaid leave• 18.5% - Worried about losing job• 5.3% - Request denied• 5.2% - Work is too important• 3.2% - Save leave time• 2.7% - IneligibleDepartment of Labor Survey Results13
  • 14. – Population Demographics of Those TakingLeave• 44.1% Male; 55.9% Female• Women take leave evenly across all educationlevels• Only 8.4% of Men with a college or graduatedegree take leave• Married employees, employees in the West, andemployees with children take more leave than theirunmarried and geographical counterpartsDepartment of Labor Survey Results14
  • 15.  Mixed Results– Advance Notice• On average, employees gave 61 days of advancenotice for maternity or the birth or adoption of achild• On average, employees gave less than 7 daysadvance notice for a serious health condition as aresult of a catastrophic event or an episodicconditionSHRM 2007 Survey Results15
  • 16. – Challenges• More than half of HR professionals reportedchallenges with:– tracking intermittent leave (73%)– chronic abuse of intermittent leave (66%)– morale problems with employees asked to cover (63%)– costs associated with loss or productivity (60%)– vague documentation of medical leave certification (57%)– uncertainty about legitimacy of leave requests (57%)SHRM 2007 Survey Results16
  • 17. • HR Professionals also expressed concernregarding:– determining whether a health condition is a serioushealth condition for purposes of FMLA, and– administering FMLA’s notification, designation, andcertification requirementsSHRM 2007 Survey Results17
  • 18.  What has your experience been?Survey Results18
  • 19.  In celebration of 20th anniversary, DOL alsoimplemented new FMLA regulations Side-by-side comparison of 2008 versus2013 regulations are available at: Amendments to FMLA19
  • 20.  Intermittent and reduced schedule leave mustbe tracked in smallest increments employerallows for other types of leave (but cannotexceed one hour)Recent Amendments to FMLA20
  • 21.  Military caregiver leave expanded so a coveredservicemember now includes veteransundergoing medical treatment, recuperation, ortherapy for a serious injury or illness Definition of serious injury or illness incurred bycurrent servicemember expanded to includeinjuries or illnesses that existed prior tomember’s active duty but were aggravated inline of active dutyRecent Amendments to FMLA21
  • 22.  Exigency leave expanded to include familymembers of Regular Armed Forces;previously limited to family members ofNational Guard and Reserve DOL updated its optional use forms and themandated poster Poster available at: Amendments to FMLA22
  • 23.  Employer Advocates– Define and Limit “serious health condition”• The common cold and the flu do not qualify– The DOL flip-flopped on whether colds and flusqualify as serious health conditions• Continuing treatment should be defined as twovisits to a health care provider in 30 daysNext Steps for FMLA23
  • 24. – Intermittent Leave• Require half-day or full-day leave increments– The DOL recently confirmed that FMLA leave canbe taken in tiny increments• Better solutions for indefinite, unpredictableabsences• More information in the medical certificationNext Steps . . . Continued24
  • 25.  Employee Advocates– Lower the Threshold for Eligibility• Some advocates are seeking to amend the FMLAto cover more employees– Paid Sick Leave• One House Member has drafted legislation calledthe Healthy Families Act, which would requireEmployers to provide paid sick leave for theiremployeesNext Steps . . . Continued25
  • 26.  Drew v. Quest Diagnostics, Inc., 2012 WL2341690– Female employee tells Boss that she needs leave to have ahysterectomy– Boss is frustrated, gives employee a book entitled “No MoreHysterectomies.”– While on leave, employee finds out her Domestic Partner has cancer– The employee is terminated as part of a RIF– HR Rep tells employee that the termination is a “blessing in disguise”because it will give her more time to care for her partner, and that shewouldn’t be able to give 100% to her job anyway.– FMLA claims for retaliation and interference survive summary judgmentBasic Dos and Don’ts26
  • 27.  Pereda v. Brookdale Senior Living Communities,Inc., 666 F.3d 1269 (11th Cir. 2012)– Plaintiff employed at a senior living facility operated by Defendant– Before she is eligible for FMLA leave, she tells employer she ispregnant and plans to take FMLA leave after her child was born (bywhich time she would be eligible)– After indicating her plan to take leave, she is harassed, unfairlycriticized, and punished for taking prenatal doctor visits (for which shetook accrued sick and personal leave)– She was fired before she had her baby and before she was eligible forFMLA leave– The Court held that the FMLA protects from interference and retaliationemployees who make a pre-eligibility request for post-eligibility leaveBasic Dos and Don’ts27
  • 28.  Wright v. Stark Truss Co., 2012 WL 3039092(D.S.C. July 24, 2012)– Man has nervous breakdown at home and threatens to kill himself– Wife takes him to the hospital and calls employer (who is also heremployer) to say that both will need leave– The employer approved the FMLA leave, but told Wife not to informsupervisor of reason for leave– Upon return to work, Husband and Wife were fired– Employer said that while Husband and Wife were gone, employerrealized Husband and Wife were unnecessary– Court denied summary judgment, holding that a jury could find that theemployer’s reason for terminating Husband and Wife was pretextualBasic Dos and Don’ts28
  • 29.  Jones v. C&D Techs, Inc., 684 F.3d 673 (7th Cir.2012)– A machine operator visited a physician every few months with back andleg pain and bouts of anxiety– Granted FMLA leave for a doctor’s appointment in the afternoon– Took off the whole day instead of a half day. In the morning he pickedup his paycheck from work, swung by the doctor’s office for aprescription refill, and then had his prescription filled at Walgreen’s– Employer docked him half an attendance point because he was notreceiving “treatment” in the morning and terminated him– The Seventh Circuit affirmed summary judgment for the employer,holding that the employee was not receiving “treatment” and wastherefore not incapacitatedBasic Dos and Don’ts29
  • 30.  Provide written notice of approval or disapproval ofFMLA leave to the employee Have a specific, formal policy to request leave, andadopt and enforce a call-in policy. Be reasonableabout enforcing the policy. For example, cutemployees some slack if they call in to theirsupervisors, instead of HR, even if the policyprovides that they call HR.Basic Dos and Don’ts . . . Continued30
  • 31.  Be extremely cautious about terminating employeeson FMLA leave Do a thorough FMLA check before each termination.Check attendance records and confirm with themanager whether the person up for termination is onFMLA leave currently or has been on it recently.Review recent performance evaluations or warningsto see if any absence that might be FMLA leave ismentioned as a reason for termination or discipline.Ensure the termination is lawful.Basic Dos and Don’ts . . . Continued31
  • 32.  Train managers on FMLA basics. Uninformedmanagers may complain that they don’t want toreturn a difficult employee to his or her job or anequivalent position. Don’t even bother with the option to reinstate areturning employee to an “equivalent position.”Return an employee to the same job if it still exists.Basic Dos and Don’ts . . . Continued32
  • 33.  Don’t forget about the FMLA’s prohibition onretaliating against those exercising their rights underthe law Do not fire workers employed just shy of a year totry to avoid giving them FMLA leave. An 11th Circuitdecision held that a pre-eligible FMLA request forpost-eligible maternity leave is protected activity.Basic Dos and Don’ts . . . Continued33
  • 34.  Nicole Griffin Farrelldirect: (801) 536.6729email: Alan S. Mouritsendirect: (801) 536.6927email: amouritsen@parsonsbehle.comThank You34