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FMLA Self-Audits: Find and Fix Problems with Your Leave Practices Before the Feds Do

Wednesday, January 11, 2017 1:30 p.m. to 3:00 p.m. Eastern

12:30 p.m. to 2:00 p.m. Central 11:30 a.m. to 1:00 p.m. Mountain 10:30 a.m. to 12:00 p.m. Pacific

Presented by:

Todd Ewan, Esq. Partner

Fisher Phillips LLP

This program has been approved for 1.5 credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI). For more information about certification or recertification, please visit the HRCI website at www.hrci.org.

FMLA Self-Audits: Find and Fix Problems with Your Leave Practices Before the Feds Do

Presented by:Todd Ewan, Esq.

Partner Fisher Phillips LLP

January 12, 2017

www.laborlawyers.com

Overview

• FMLA Basics• What is the DOL Doing?• Common Organizational Difficulties with

FMLA Administration• FMLA Self-Audits• Common Mistakes Seen in Practice


FMLA Basics

• Presentation’s assumption: You know “the basics”– Eligible employee– Covered employer– 12 weeks (480 hours) of unpaid leave– During a 12-month period– “Serious health condition” of self or family member– Job Protection – Benefit Continuation


What is the DOL Doing?

• Seeking to identify systemic issues during investigation of employer’s FMLA practices

• Moving beyond single complainant to multiple -possibly entire department, employer location, or multiple employer locations

• “Top Priority” for the DOL in 2016



• DOL Investigations Focus on Three (3) Types of Information:– Statistical

• Leave trends• Leave requests• Trends in approvals and responses to requests by Supervisor

and Group/Department– Anecdotal

• Interviews with employees, supervisors, administrators, managers

– Documents• Records of requests, notices, determinations, medical

certifications and e-certifications• Employer’s FMLA Policy and Handbook



• What to Expect from the DOL– Broad, burdensome, and intrusive requests for information and data

• Spanning multiple years• Covering multiple locations/facilities• Covering range of personnel actions – leave denials, requests for

certification and re-certification, terminations, etc.

• Common problems found by the DOL – straight from the mouth of the DOL Branch Chief for FMLA– Employer’s failure to recognize employee need for FMLA and

disciplining employee for absence that should have been covered by FMLA

– Failing to meet statutorily-defined notice deadlines– Failing to administer properly forms such as medical certifications,

and too frequently administering requests for re-certification



• Takeaways– If the DOL focuses on a particular issue, then employers

need to focus on that issue

– Self-audit your FMLA practices BEFORE the DOL starts snooping around your records and facilities

– Make an FMLA Self-Audit a priority• Include in your company’s HR/legal annual, quarterly,

or fiscal budget• Spend the time and money NOW so you can

decrease your exposure if there are agency audits, and save time, money, and headaches LATER.


Common Organizational Difficulties with FMLA Administration

• Tracking– Tracking intermittent leave– Difficult to ensure employees initially request FMLA and

complete paperwork correctly• Overall compliance

– Understanding and communicating proper administration and process of FMLA leave

– Lack of managerial training– Lack of guidance for dealing with unique FMLA-requests– Meeting paperwork timeframes

• Curbing FMLA abuse– Exaggeration to satisfy “serious health condition”

• Determining overall absence-associated costs– Administrative costs– Continued provision of benefits to employee on leave– Overtime payment to employees tackling extra workload


FMLA Self-Audit - OVERVIEW

• (1) Review your FMLA Policy– If you do not have one in your handbook – add one

immediately!• (2) Review your FMLA Written Forms

– Ensure March 2013 updates incorporated in forms• (3) Adhere to Posting Requirements• (4) Review your FMLA correspondence• (5) FMLA practices and procedures• (6) Recordkeeping/Maintaining Data• (7) Training managers and supervisors


FMLA Self-Audit(1) Review Your FMLA Policy

• FMLA Policy– Eligibility Requirements– Qualifying Reasons for FMLA Leave– Definition of 12-Month FMLA Leave Year– Employer’s Obligations– Employee’s Obligations and Certifications– Intermittent v. Consecutive– Benefits Rights During Leave– Fitness for Duty Requirements– Prohibition of Outside Employment During Leave– Substitution of Paid Leave– Incorporate Absence Call-In Procedures?



• Defining the 12-month FMLA leave year:– (1) Calendar year– (2) Any fixed 12-months

• Exs. Fiscal year or Year starting on anniversary date– (3) 12-month period measured forward

• From first date employee takes FMLA leave– (4) “Rolling” 12-month period measured backward

• Measured backward from first date employees uses FMLA leave• Each time employee takes leave, remaining leave entitlement would be the

balance of the 12 weeks which has not been used during the immediately preceding 12 months

• Best option BUT most costly and complicated to administer• Only way an employer can ensure employee does not take a block of FMLA

leave for more than 12 consecutive weeks



• Considerations regarding your 12-Month FMLA leave year:

– Chosen calculation method applies to all employees uniformly

– Beware of compliance with state and local laws

– If employer wants to change calculation methods, then must first give employees 60 days notice of intended change

– If you fail to select calculation method in your policy, then employer must use the 12-month period calculation that is most beneficial to the employee



• If concerned with limiting FMLA abuse, consider these provisions in your FMLA policy:– All leave requests must be in writing– FMLA leave runs concurrently with other types of unpaid

leave, and require employees to substitute paid leave for unpaid leave, unless prohibited by state or local law

– Inform employees that medical certifications and re-certifications will be required

– Mandate strict compliance with absence reporting call-in/call-out procedures

– Prohibit outside employment while on leave– Require employees to sign certification regarding their

absences– Inform employees that second or third opinions may be

required


FMLA Self-Audit(2) Review Your FMLA Written Forms

• March 2013 amendments to FMLA regulations• Forms can be found here:

– http://www.dol.gov/whd/fmla/


FMLA Self-Audit(2) Review Your FMLA Written Forms

• Forms– Certification of Health Care Provider for Employee’s Serious

Health Condition– Certification of Health Care Provider for Family Member’s

Serious Health Condition– Notice of Eligibility of Rights and Responsibilities– Designation Notice– Certification of Qualifying Exigency for Military Family Leave– Certification for Serious Injury or Illness of Covered

Servicemember – For Military Family Leave– Certification for Serious Injury or Illness of a Veteran for Military

Caregiver Leave


FMLA Self-Audit(3) Adhere to Posting Requirements

• Prominently display poster where it can be seen by all employees and job applicants

• Find it here: http://www.dol.gov/whd/regs/compliance/posters/fmla.htm


FMLA Self-Audit(4) Review FMLA Correspondence

• FMLA correspondence is as important as written policies and forms

• Ensure compliance with regulations– Certification– Re-certification– Return to work

• Very clearly indicate:– approved leave dates– return to work date– benefits and other rights while on leave– reason for denial if denied – ex. ineligible or exhausted 12 weeks


FMLA Self-Audit(5) FMLA Practices and Procedures

• This may be the most critical aspect of FMLA self-audit:

– Will uncover at least a few areas that need to be updated

– May uncover area(s) where you indeed made mistakes• Address/rectify immediately, if possible

– Will identify areas on which to focus and monitor going forward



• Critical items to cover in your FMLA Practices and Procedures:

– What should a manager or supervisor do when a worker reports an absence that may trigger FMLA?

• Establish a clear and simple reporting procedure• Train managers and supervisors on FMLA “serious health conditions” and

other statutorily-defined items, to be able to more easily identify these “triggers”

• MAKE SURE FMLA REQUESTS OR POTENTIAL FMLA ABSENCES ARE REACHING THE PROPER MANAGER OR HR REPRESENTATIVE

– Calculating increments of intermittent leave• Consistent with time increments used in other attendance and leave

policies• If different increments in different policies, FMLA increments must be

smallest used– Ex. Absence determined by 15 minute blocks, annual leave 60 minute

blocks = FMLA increments must be calculated by 15 minute blocks



• Critical items to cover in your FMLA Practices and Procedures (Cont’d):

– Seeking medical certifications and re-certifications• Use proper forms• Avoid seeking re-certification too frequently• Seek second and third opinions when applicable

– Allowing employees to cure certifications• Employee has fifteen (15) days to provide certification• Employee must provide “complete” and “sufficient” certification

• Incomplete = One or more entries missing.

• Insufficient = Information provided is vague, ambiguous and non-responsive.

– If certification is incomplete or insufficient, employer must notify employee in writing and allow employee seven (7) calendar days to correct



– Checking-in with employees while on FMLA leave

– Fitness for duty certifications

– Keep discussions of employee FMLA issues amongst only those employees that “need to know”

• Attempt to curb stray comments from co-workers who don’t utilize leave or whose workloads increase when others go out on leave

• “I was not aware that Mr. X had a serious health condition/was disabled/exercised FMLA leave . . . .”

– When it comes to litigation, sometimes ignorance is favorable

– Make sure to keep detailed records in accordance with FMLA recordkeeping provisions


FMLA Self-Audit(6) Recordkeeping and Maintaining Data

• Often overlooked element of FMLA compliance (29 CFR § 825.500)

• May be maintained in personnel files

• Required– Copies of employee notices of leave– Copies of all general and specific written notices given to employees– Copies of written statements/correspondence from employer designating

reason for approval/denial of FMLA leave– Employee benefit documents– Employer policies regarding taking of paid and unpaid leave– Records of premium payments of employee benefits

• Includes all written AND electronic records– Don’t delete e-mails– Print out e-mails for paper file that fall under above categories


FMLA Self-Audit(7) Training Managers and Supervisors

• Focus training on these areas:– What the law protects– Indicators an employee may be suffering from a

serious medical condition– Legal questions managers can ask when staffers

request leave to see if it may be FMLA-protected (and questions managers should avoid asking)

– Techniques for dealing with an employee on FMLA leave


Common Mistakes Seen in PracticePaper-Up and Get Everything in Writing

• Always communicate in writing

• Document in writing when forms are provided to employees

• Document in writing when forms are returned/submitted by employees

• Communicate/document in writing requests to employees for additional information

• If meet with employee in-person, memorialize meeting with follow-up e-mail to employee or memo to file drafted immediately thereafter

• Dates and timing are CRITICAL


Common Mistakes Seen in PracticeEmployee Certification Issues

Employer may directly contact physician to authenticate or obtain clarification of a certification.– Authenticate = Provide HCP with certification

and ask if the HCP provided.

– Clarify = Contact HCP to understand handwriting or meaning of a response.

• No additional medical information may be requested. Employee still has 15 days to provide.


Common Mistakes Seen in PracticeCall-Out Policy v. Unforeseeable Intermittent Leave

• Employee Notice Requirements:

– Foreseeable: Require 30-days advance notice and, if not given

– Require employee to explain why such notice could not be given

– Absent unusual circumstances, employer may delay or deny FMLA leave if employee fails to follow employer’s call in policy

– Unforeseeable: Utilize notice requirements of attendance policy

– “As soon as practicable” but . . .– Employee must comply with employer’s usual and

customary call in procedure, absent unusual circumstances


Common Mistakes Seen in PracticeManaging Intermittent Leave

• How to address issues with intermittent leave:

– Identify the Problem Child/Children– Track patterns of absences– Use re-certification as appropriate– Handling extreme situations

• Investigator• Consult with counsel before terminating a

frequent user/abuser of intermittent leave


Common Mistakes Seen in PracticeManaging Job Restoration

• Give written notice of leave expiring– Correspond with employee that FMLA is going to

expire and set expectations on follow-up– Do not automatically terminate at the end of FMLA

leave if employee is out for own serious health condition

• Seek input on whether employee will require any additional leave, and if so, set expectations on follow-up and needed support for continued leave

– This could be where your employee’s FMLA issue transitions into an ADA issue


Common Mistakes Seen in PracticeManaging Job Restoration

• If employee returning from FMLA leave:– Return to same or equivalent position– Ensure all pay and benefits restored to same level

• If FMLA leave is exhausted and employee remains out on leave pursuant to ADA “reasonable accommodation”:– Return employee to same or equivalent position as

“reasonable accommodation” assuming no “undue hardship” in doing so

– Consider returning employee to different position in lieu of termination

– Communicate in writing and confer in-person if possible


Common Mistakes Seen in PracticeNEVER:

• Deny a properly submitted and certified request for FMLA leave when that employee has available FMLA leave remaining in 12-month period

• Terminate an employee because you are annoyed/angry/burdened by his or her use of intermittent FMLA leave

• Encourage an employee seeking FMLA-protected consecutive or intermittent leave to “just quit!”

• Terminate an employee for failure to return to work after exhausting FMLA leave without first…– Issuing the proper notices– Reaching out/attempting to reach out to employee to determine

intent to return– Checking with HR/disability management regarding possible

ADA issues


Common Mistakes Seen in PracticeALWAYS:

…When tackling an FMLA issue

fisherphillips.com

THANK YOU!

Presented by:Todd Alan Ewan

[email protected]

Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Todd Ewan is a partner in the firm's Philadelphia office. Mr. Ewan's practice focuses on defending employment related claims in federal, state, and administrative venues as well as advising clients on statutory compliance issues. He is routinely involved in

cases in which discrimination based on race, gender, age, disability, national origin, and/or religion have been alleged as well as cases in which former employees have claimed sexual harassment, breach of employment contract, defamation, and wrongful termination.

Additionally, Mr. Ewan provides training and guidance to employers with respect to complying with employment statutes including the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), Title VII, the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA). Clients also ask him to prepare employee handbooks, personnel policies and procedures, employee contracts and separation agreements, and to provide seminars to employees regarding statutes and/or policies with which they need to be familiar.

Mr. Ewan frequently speaks about topics related to labor and employment laws. He was recognized in Pennsylvania Super Lawyers – Rising Stars in 2006 and 2007. He was also selected for inclusion in The Best Lawyers in America in 2017.

Todd Ewan, Esq.