Let The Challenge Begin!<br />
And the Secret Ingredient is …<br />PERSERVERENCE<br />
Meet Scott, Head Chef<br />During annual review, Scott claims migraines caused all ‘alleged’ problems<br />Also tells you…...
        The Challenge is On …<br />Mind racing, you search your memory for ‘buzz’ words & dig out your seminar notes<br />...
What Now?<br />Is Scott covered by FMLA?<br />12 months // 1250 hours<br />If so, do we have notice?<br />Specific conditi...
     15 Days Later …<br />3. …Is the employee unable to perform any of his job functions due to the condition: ____ No __x...
     15 Days Later …<br />(7)Is it medically necessary for the employee to be absent from work during the flare-ups? __x__...
Notice of Deficiency<br />New tool – Insufficient or Incomplete<br />3: which job functions cannot be performed<br />7: is...
     7 Days Later …<br />3. …If so, identify the job functions the employee is unable to perform:All<br />7. Is it medical...
 Cross-Roads<br />Deny certification as not supporting leave<br />Second Notice of Deficiency <br />Within 5 business days...
  Second Opinion?<br />Only opportunity to request (WH-382)<br />Genuine concern about legitimacy?<br />At employer cost<b...
Fit for Duty Certification<br />Every occurrence, unless less than 30 days from last one<br />Significant safety risk<br /...
Fast Forward …<br />Scott misses 3 Friday & 4 Saturday shifts in 2 months<br />Called right before, claiming he wants FML ...
      What Questions Can We Ask<br />Does Scott qualify for leave?<br />Which essential function can’t Scott perform<br />...
  What Tools Can We Use<br />Normal & Customary attendance procedure<br />Call-In Policy: Who, How, When, What Shared Cons...
Periodic Reports<br />Can require employee to initiate contact<br />Purpose is to confirm …<br />Still has need for leave<...
Personal Certification Policy<br />I, _____, certify that my absence on ______ was due to the reason stated in the Medical...
Moonlighting Policy<br />Consider limited policy focused on  misuse of leave<br />Be clear about prohibition against worki...
Recertification<br />Every 6 months for continuing/open-ended condition or sooner if duration finite<br />Also available w...
  Bonus & Financial Motivators<br />If based on attendance goal and consistent with all types of leave, counting permissib...
Sick Leave Limitation<br />Employer can require paid leave run concurrently<br />Requiring use of vacation time/PTO is det...
1 Hour Minimum<br />Regulations allow counting of leave in units up to 1 hour<br />Must use same unit for all leave progra...
Lessons Learned<br />Thoughtful Procedure is Key<br />Review certification and identify deficiencies<br />Consider clarifi...
Lessons Learned<br />Adopt Call-In Policy<br />Require Reasonable, Periodic Reports<br />Personal Certification Upon Retur...
Home Team – 1<br />Challenger – 0 <br />
About That Behavior Problem …<br />You pick up the paper and see this picture on the front of the Food & Lifestyle Section...
 Do We Ignore or Discipline<br />Can we discipline for off-duty conduct?<br />Is there a policy that has been violated?<br...
Is Scott Disabled?<br />Three pronged definition of disability:<br />Physical / mental impairment (including episodic) tha...
Coverage Questions<br />Is Scott qualified individual …<br />Can he meet the regular and dependable attendance standard th...
  Accommodation Steps<br />Identify EJF that require accommodation<br />Identify accommodations to reduce and/or remove ba...
  In the Case of Migraines<br />Reduce migraine triggers …<br />Lighting changes<br />Noise reduction strategy<br />Fragra...
 What is Not Required<br />Changes to Qualitative or Quantitative Standards<br />Elimination of Essential Functions<br />C...
The Choice<br />Reasonable Options<br />Explore reducing stress triggers<br />Allow time off so long as call-in rules, etc...
No Matter What, No More of This!<br />
Documentation<br />Identify what assistance Scott may receive<br />Clarify process for obtaining help or leave<br />Docume...
Lessons Learned<br />Ensure job descriptions have behavior- & attendance-focused essential functions<br />Provide clarity ...
Home Team – 2<br />Challenger – 0 <br />
Questions?<br />Tamsen Leachman | 503.417.5513 |tll@dunn-carney.com<br />
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Solving FMLA Leave Abuse - Let the Challenge Begin

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Solving FMLA Leave Abuse - Let the Challenge Begin

  1. 1. Let The Challenge Begin!<br />
  2. 2. And the Secret Ingredient is …<br />PERSERVERENCE<br />
  3. 3. Meet Scott, Head Chef<br />During annual review, Scott claims migraines caused all ‘alleged’ problems<br />Also tells you… <br />Onset unpredictable, triggered by stress <br />Results in yelling and rudeness<br />More likely at end of the week<br />Duration varies, generally 6 hrs<br />Medication makes him anxious and unpredictable<br />
  4. 4. The Challenge is On …<br />Mind racing, you search your memory for ‘buzz’ words & dig out your seminar notes<br />FMLA – Serious Health Condition (SHC)<br />Chronic condition<br />Intermittent leave <br />ADA – can he perform Essential Functions<br />Substantially limited in major life activity<br />Interactive process and realistic options<br />Direct threat<br />
  5. 5. What Now?<br />Is Scott covered by FMLA?<br />12 months // 1250 hours<br />If so, do we have notice?<br />Specific condition, chronic nature, current problem, will cause need for leave when occurs<br />Within 5 business days of notification of need <br />Rights & Responsibilities and Eligibility Notice (WH-381) and Medical Certification (WH-380-E)<br />
  6. 6. 15 Days Later …<br />3. …Is the employee unable to perform any of his job functions due to the condition: ____ No __x__ Yes. If so, identify the job functions the employee is unable to perform:Can’t work<br />7. Will the condition cause episodic flare-ups periodically preventing the employee from performing his/her job functions? ____ No <br /> __x__ Yes.<br />
  7. 7. 15 Days Later …<br />(7)Is it medically necessary for the employee to be absent from work during the flare-ups? __x__ No __x__ Yes. If so, explain:Depends onseverity.<br />(7)Based upon medical history and the medical condition, estimate frequency of flare-ups and duration of incapacity over the next 6 months: Frequency: _1_ times per _x_ week(s) month(s) _x_. Duration: _2-12_ hours or ___ day(s) per episode. <br />
  8. 8. Notice of Deficiency<br />New tool – Insufficient or Incomplete<br />3: which job functions cannot be performed<br />7: is time off medically necessary during flare-up*<br />7: frequency unclear due to conflicting information<br />Must provide written notice or use WH-382<br />7 calendar days to cure<br />Leave can be denied if not cured<br />
  9. 9. 7 Days Later …<br />3. …If so, identify the job functions the employee is unable to perform:All<br />7. Is it medically necessary … absent from work during the flare-ups? __ No _x_ Yes. If so, explain:Severe migraines cause personality changes and medication causes drowsiness making it unsafe for Scott to work.<br />Based upon medical history and the medical condition, estimate frequency of flare-ups and duration of incapacity over the next 6 months: Frequency: _ times per _from 1 day perweek(s)to once permonth(s) __. Duration: _2-12_ hours or __ day(s) per episode. <br />
  10. 10. Cross-Roads<br />Deny certification as not supporting leave<br />Second Notice of Deficiency <br />Within 5 business days, accept Certification and designate leave (WH-382)<br />Accept and initiate direct contact to HCP to authenticate and clarify<br />
  11. 11. Second Opinion?<br />Only opportunity to request (WH-382)<br />Genuine concern about legitimacy?<br />At employer cost<br />If not, time to designate (WH-382)<br />Consider Fit for Duty due to safety concern<br />
  12. 12. Fit for Duty Certification<br />Every occurrence, unless less than 30 days from last one<br />Significant safety risk<br />Doctor’s clarifying words <br />Scott’s statement during review<br />Like ADA Direct Threat standard<br />Consider using form for physician and job description as tools<br />
  13. 13. Fast Forward …<br />Scott misses 3 Friday & 4 Saturday shifts in 2 months<br />Called right before, claiming he wants FML for his headache<br />You scramble to find coverage and end<br /> up cooking <br />Rumor has it that Scott is also working <br /> at another restaurant that pays more<br />
  14. 14. What Questions Can We Ask<br />Does Scott qualify for leave?<br />Which essential function can’t Scott perform<br />Why does he needs entire shift off<br />What is the medical necessity justifying absence<br />Was notice given as soon as practicable<br />How long will Scott be on leave<br />
  15. 15. What Tools Can We Use<br />Normal & Customary attendance procedure<br />Call-In Policy: Who, How, When, What Shared Consequences for non-compliance<br />FML may be denied for inadequate notice<br />Disciplined for failure to follow policy<br />
  16. 16. Periodic Reports<br />Can require employee to initiate contact<br />Purpose is to confirm …<br />Still has need for leave<br />Still has intent to return<br />Reasonable intervals<br />
  17. 17. Personal Certification Policy<br />I, _____, certify that my absence on ______ was due to the reason stated in the Medical Certification I submitted to the Company on ___ in connection with my Family Medical leave. I understand that absence taken due to the serious health condition set forth in the Certification will be counted against my leave entitlement under the FMLA and Company policies. I also understand that providing false or misleading information about my absence will result in disciplinary action, up to and including immediate termination.<br />
  18. 18. Moonlighting Policy<br />Consider limited policy focused on misuse of leave<br />Be clear about prohibition against working second job while on FMLA leave<br />Gather evidence of violation if taking disciplinary action - consider using 3rd party or photos, as standard is honest belief of misuse <br />
  19. 19. Recertification<br />Every 6 months for continuing/open-ended condition or sooner if duration finite<br />Also available when information/events cast doubt on employee’s stated reason for leave<br />Pattern of absence<br />Working second job (if confirmed)<br />Contact health care provider to describe possible inconsistent conduct concern<br />
  20. 20. Bonus & Financial Motivators<br />If based on attendance goal and consistent with all types of leave, counting permissible<br />OFLA counting is NOT permissible<br />Can also focus on hitting key objective targets<br />Labor costs<br />Gross profit<br />Number of customers, positive reviews, etc.<br />
  21. 21. Sick Leave Limitation<br />Employer can require paid leave run concurrently<br />Requiring use of vacation time/PTO is deterrent<br />Narrow scope of sick leave to ‘employee only’ <br />Consider requiring employee to stay at home during sick leave unless otherwise approved<br />Requiring medical support for sick leave pay<br />Beware of Doctor’s Excuses! or similar companies<br />
  22. 22. 1 Hour Minimum<br />Regulations allow counting of leave in units up to 1 hour<br />Must use same unit for all leave programs<br />Does not impact obligation to pay for time worked if less than 1 hour of leave used<br />
  23. 23. Lessons Learned<br />Thoughtful Procedure is Key<br />Review certification and identify deficiencies<br />Consider clarification if questions still exist<br />If question legitimacy, second opinion option<br />In designation process, remember fit for duty<br />Ensure employee’s notice fits certification<br />
  24. 24. Lessons Learned<br />Adopt Call-In Policy<br />Require Reasonable, Periodic Reports<br />Personal Certification Upon Return<br />Recertification if Questionable Use<br />Bonus Incentive – Attendance/Performance<br />Consider Limited Sick Leave Benefit<br />Count in 1 Hour Minimum Blocks<br />Designate Every Time<br />
  25. 25. Home Team – 1<br />Challenger – 0 <br />
  26. 26. About That Behavior Problem …<br />You pick up the paper and see this picture on the front of the Food & Lifestyle Section<br />Scott tracked down a food critic at home, and gave a review of his own<br />Scott claims his migraine made him do it and it was off-work behavior<br />
  27. 27. Do We Ignore or Discipline<br />Can we discipline for off-duty conduct?<br />Is there a policy that has been violated?<br />Is Scott covered by the ADA?<br />Do we need to ignore conduct as a reasonable accommodation?<br />
  28. 28. Is Scott Disabled?<br />Three pronged definition of disability:<br />Physical / mental impairment (including episodic) that substantially limits 1 or more Major Life Activities*<br />Record of such impairment<br />Regarded as having such<br />
  29. 29. Coverage Questions<br />Is Scott qualified individual …<br />Can he meet the regular and dependable attendance standard that is an essential function<br />What is/are the major life activities …<br />Working<br />Thinking<br />Interacting with others<br />Is Scott substantially limited when condition active...<br />Maybe, No, Probably<br />
  30. 30. Accommodation Steps<br />Identify EJF that require accommodation<br />Identify accommodations to reduce and/or remove barriers and increase productivity<br />Determine cost and effectiveness of accommodations identified <br />Implement accommodation that is most appropriate with least economic hardship<br />
  31. 31. In the Case of Migraines<br />Reduce migraine triggers …<br />Lighting changes<br />Noise reduction strategy<br />Fragrance elimination<br />Consistency <br />Allow recovery from episode … <br />Time off or quiet, dark place to rest<br />Telework<br />JAN is excellent source for exploring options<br />
  32. 32. What is Not Required<br />Changes to Qualitative or Quantitative Standards<br />Elimination of Essential Functions<br />Changes that Create Undue Hardship<br />Expensive<br />Disruptive<br />Eliminates reasonable conduct rules<br />
  33. 33. The Choice<br />Reasonable Options<br />Explore reducing stress triggers<br />Allow time off so long as call-in rules, etc. are followed<br />Suspend some non-essential functions and re-evaluate periodically<br />Unreasonable Options<br />Telework<br />Allow any requested scheduling change without notice<br />Eliminate Essential Functions or provide assistant<br />Overlook rule violations<br />
  34. 34. No Matter What, No More of This!<br />
  35. 35. Documentation<br />Identify what assistance Scott may receive<br />Clarify process for obtaining help or leave<br />Document interactive process and Scott’s agreement to conclusion<br />Confirm accuracy of current job description<br />Obtain agreement to conduct and performance standards going forward, status of disciplinary process, and consequences for non-compliance<br />
  36. 36. Lessons Learned<br />Ensure job descriptions have behavior- & attendance-focused essential functions<br />Provide clarity about quantitative and qualitative standards and expectations<br />Identify appropriate accommodations to assist with removal of barriers<br />Documents agreements, current status, and expectations going forward<br />
  37. 37. Home Team – 2<br />Challenger – 0 <br />
  38. 38. Questions?<br />Tamsen Leachman | 503.417.5513 |tll@dunn-carney.com<br />

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