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Complying with the Family and Medical Leave Act
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Complying with the Family and Medical Leave Act


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  • 1. Complying with the Family and Medical Leave Act Nicole Griffin Farrell June 12, 2014 Salt Lake City
  • 2.  Prior to 1993, U.S. had no national family and medical leave legislation  FMLA was passed by Congress and signed by President Clinton on February 5, 1993  Workers have used FMLA more than 100 million times since its enactment History of the FMLA 2
  • 3.  FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave Basics of the FMLA 3
  • 4.  Covered employer is all public employers and private sector employers who employ 50 or more employees for at least 20 workweeks, including joint employers and successors of covered employers Basics of the FMLA 4
  • 5.  Eligible employees are those who work for a covered employer and – Have worked for that employer for at least 12 months; and – Have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave; and – Work at a location where at least 50 employees are employed at the location or within 75 miles of the location Basics of the FMLA 5
  • 6.  Eligible employees are entitled to 12 workweeks of leave in a 12-month period for: – The birth of a child – Adoption – To care for spouse, child or parent who has a serious health condition – Employee’s own serious health condition that makes employee unable to perform Basics of the FMLA 6
  • 7.  Eligible employees are entitled to 12 workweeks of leave in a 12-month period for: – Any qualifying exigency arising out of fact that employee’s spouse, daughter, or parent is a covered military member on “covered active duty” OR – Eligible employees may take 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave) Basics of the FMLA 7
  • 8.  Intermittent/Reduced Schedule Leave – FMLA permits employees to take intermittent/reduced schedule leave when medically necessary to care for a seriously ill family member, or because of the employee’s serious health condition – Intermittent/reduced schedule leave may be taken to care for a newborn or adopted child with employer’s approval – Only amount of actual leave taken may be charged as FMLA leave, and employees may not be required to take more leave than necessary Basics of the FMLA 8
  • 9.  In 2012, in anticipation of the 20th anniversary of enactment of FMLA, Abt Associates, on behalf of Department of Labor and Wage and Hour Division, surveyed 1,812 worksites and 2,852 employees about their experiences  This 2012 survey updated surveys done by DOL in 1995 and 2000 Department of Labor Survey Results 9
  • 10.  Employers are Happy with FMLA – 91% of employers report that complying with FMLA has had either a positive effect or no effect on employee absenteeism, turnover, or morale – 85% of employers report that complying with FMLA is very easy, somewhat easy, or has no noticeable effect Department of Labor Survey Results 10
  • 11. – Fewer than 3% of covered worksites reported suspicion of FMLA misuse – 13% of all employees reported taking leave for an FMLA reason in the past 12 months – Fewer than 2% of employees who take intermittent leave are off for a day or less Department of Labor Survey Results 11
  • 12. – Reasons for Taking Leave in the 18 Months Before 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’s health condition; 0.7% - military member’s deployment; 0.6% - other relative’s health condition; 1.1% - refused to answer) Department of Labor Survey Results 12
  • 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% - Ineligible Department of Labor Survey Results 13
  • 14. – Population Demographics of Those Taking Leave • 44.1% Male; 55.9% Female • Women take leave evenly across all education levels • Only 8.4% of Men with a college or graduate degree take leave • Married employees, employees in the West, and employees with children take more leave than their unmarried and geographical counterparts Department of Labor Survey Results 14
  • 15.  Mixed Results – Advance Notice • On average, employees gave 61 days of advance notice for maternity or the birth or adoption of a child • On average, employees gave less than 7 days advance notice for a serious health condition as a result of a catastrophic event or an episodic condition  SHRM 2007 Survey Results 15
  • 16. – Challenges • More than half of HR professionals reported challenges 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 Results 16
  • 17. • HR Professionals also expressed concern regarding: – determining whether a health condition is a serious health condition for purposes of FMLA, and – administering FMLA’s notification, designation, and certification requirements SHRM 2007 Survey Results 17
  • 18.  In celebration of 20th anniversary, DOL also implemented new FMLA regulations  Side-by-side comparison of 2008 versus 2013 regulations are available at: 2013 Amendments to FMLA 18
  • 19.  Intermittent and reduced schedule leave must be tracked in smallest increments employer allows for other types of leave (but cannot exceed one hour) 2013 Amendments to FMLA 19
  • 20.  Military caregiver leave expanded so a covered servicemember now includes veterans undergoing medical treatment, recuperation, or therapy for a serious injury or illness  Definition of serious injury or illness incurred by current servicemember expanded to include injuries or illnesses that existed prior to member’s active duty but were aggravated in line of active duty 2013 Amendments to FMLA 20
  • 21.  Exigency leave expanded to include family members of Regular Armed Forces; previously limited to family members of National Guard and Reserve  DOL updated its optional use forms and the mandated poster  Poster available at: 2013 Amendments to FMLA 21
  • 22.  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 flus qualify as serious health conditions • Continuing treatment should be defined as two visits to a health care provider in 30 days Next Steps for FMLA? 22
  • 23. – Intermittent Leave • Require half-day or full-day leave increments – The DOL recently confirmed that FMLA leave can be taken in tiny increments • Better solutions for indefinite, unpredictable absences • More information in the medical certification Next Steps . . . Continued 23
  • 24.  Employee Advocates – Lower the Threshold for Eligibility • Some advocates are seeking to amend the FMLA to cover more employees – Paid Sick Leave • One House Member has drafted legislation called the Healthy Families Act, which would require Employers to provide paid sick leave for their employees Next Steps . . . Continued 24
  • 25.  Intermittent Leave  Mental health issues  Emotional issues Challenges in Complying with FMLA 25
  • 26.  Drew v. Quest Diagnostics, Inc., 2012 WL 2341690 – Female employee tells Boss that she needs leave to have a hysterectomy – Boss is frustrated, gives employee a book entitled “No More Hysterectomies.” – 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 she wouldn’t be able to give 100% to her job anyway. – FMLA claims for retaliation and interference survive summary judgment Basic Dos and Don’ts 26
  • 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 is pregnant and plans to take FMLA leave after her child was born (by which time she would be eligible) – After indicating her plan to take leave, she is harassed, unfairly criticized, and punished for taking prenatal doctor visits (for which she took accrued sick and personal leave) – She was fired before she had her baby and before she was eligible for FMLA leave – The Court held that the FMLA protects from interference and retaliation employees who make a pre-eligibility request for post-eligibility leave Basic Dos and Don’ts 27
  • 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 her employer) to say that both will need leave – The employer approved the FMLA leave, but told Wife not to inform supervisor of reason for leave – Upon return to work, Husband and Wife were fired – Employer said that while Husband and Wife were gone, employer realized Husband and Wife were unnecessary – Court denied summary judgment, holding that a jury could find that the employer’s reason for terminating Husband and Wife was pretextual Basic Dos and Don’ts 28
  • 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 and leg 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 picked up his paycheck from work, swung by the doctor’s office for a prescription refill, and then had his prescription filled at Walgreen’s – Employer docked him half an attendance point because he was not receiving “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 was therefore not incapacitated Basic Dos and Don’ts 29
  • 30.  Provide written notice of approval or disapproval of FMLA leave to the employee  Have a specific, formal policy to request leave, and adopt and enforce a call-in policy. Be reasonable about enforcing the policy. For example, cut employees some slack if they call in to their supervisors, instead of HR, even if the policy provides that they call HR. Basic Dos and Don’ts . . . Continued 30
  • 31.  Be extremely cautious about terminating employees on FMLA leave  Do a thorough FMLA check before each termination. Check attendance records and confirm with the manager whether the person up for termination is on FMLA leave currently or has been on it recently. Review recent performance evaluations or warnings to see if any absence that might be FMLA leave is mentioned as a reason for termination or discipline. Ensure the termination is lawful. Basic Dos and Don’ts . . . Continued 31
  • 32.  Train managers on FMLA basics. Uninformed managers may complain that they don’t want to return a difficult employee to his or her job or an equivalent position.  Don’t even bother with the option to reinstate a returning employee to an “equivalent position.” Return an employee to the same job if it still exists. Basic Dos and Don’ts . . . Continued 32
  • 33.  Don’t forget about the FMLA’s prohibition on retaliating against those exercising their rights under the law  Do not fire workers employed just shy of a year to try to avoid giving them FMLA leave. An 11th Circuit decision held that a pre-eligible FMLA request for post-eligible maternity leave is protected activity. Basic Dos and Don’ts . . . Continued 33
  • 34.  Recent court cases interpreting FMLA FMLA Updates 34
  • 35.  Nicole Griffin Farrell direct: (801) 536.6729 email: Thank You 35