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FMLA: Military caregiver leave expands

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Dear HR Executive,

It was a big change in the FMLA when, two years ago, the government started requiring employers to approve leave for caregivers to family members injured while on military service.

Now, those caregiver leave rights have been expanded. President Obama just signed into law a bill that makes caregiver leave available to employees whose service members were injured for up to five years after their departure from the military. 

That's a big shift. Previously, injured service members had to be on active duty with the armed forces, National Guard or reserves before their relatives could take FMLA leave from their jobs to care for them.

Exigency leave

Another change: Originally, employees couldn't take FMLA leave when a family member's pre-existing health condition was aggravated by military service. But now they will be able to do so.

Remember, military caregiver leave provides up to 26 weeks of leave, compared with the usual limit of 12 weeks for non-military FMLA leave.

The new law also liberalizes the other type of FMLA military leave: so-called "qualifying exigency" leave. That's the 12 weeks of leave you have to grant eligible employees when a family member is called to active duty in the Guard or reserves.

Now, employers must also authorize exigency leave when a family member in the regular armed forces is deployed outside the U.S.

DOL will be issuing regulations implementing the new leave provisions, and we'll keep you posted on them when they come out.

Dave Clemens

Editor-in-Chief

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FMLA and Performance Improvement Plans (PIPs)

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Dear HR Executive,

Does it feel sometimes as if the Family and Medical Leave Act affects every personnel action you take? It's easy to see why.

Look at this interesting legal case, for example:

A school district employee in Florida was put on a performance improvement plan (PIP) because he wasn't meeting expectations in two important performance categories. He had six weeks to demonstrate improvement in these areas.

Less than two weeks after the inception of the PIP, he asked for FMLA leave to care for an infant. The employer granted the leave, but when he came back from it, refused to renew his contract because he hadn't completed the PIP.

Reasonable or not?
Sound reasonable? In a way. The employee failed to demonstrate the competence the employer expected of him.

But when he sued for FMLA interference and retaliation, a federal appeals court said his case was strong enough to go to trial. Such a ruling is always bad news for employers, and many settle out of court to avoid further legal expenses.

What did the employer do wrong? Under the circumstances, the school district had no choice: It had to extend the PIP period to give the employee a chance to complete the plan successfully.

The key issue: You can fire an employee while he or she is on FMLA leave if you do so for reasons unrelated to the FMLA. But the employer here couldn't prove it would have let the employee go, FMLA or not. The court pointed out that it was impossible to guess whether he would have completed his PIP if he'd had the full six weeks.

What do we learn from this case? If an employee asks for FMLA leave in the middle of a PIP or a progressive disciplinary procedure, it's a good idea to "stop the clock" during the leave. Otherwise you risk breaking the law.

Dave Clemens
Editor in Chief
Human Resources 21       

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Aspirin for that intermittent FMLA headache

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Dear HR Executive,

FMLA reform is in the air -- the Department of Labor just issued its long-awaited revisions to the FMLA regs.

And there are some helpful changes in there for employers -- like obliging employees to follow your usual call-in procedures to report an absence, and allowing you to contact an employee’s health care provider for the sole purpose of clarifying a medical certification.

But the new regs don't provide much relief from employers' biggest FMLA bugaboo -- intermittent FMLA leave, especially for unforeseen reasons. You know, where the employee gets certified with a condition like migraine headaches or asthma, and has a right to take four hours off here, eight hours off there, giving you little if any advance warning.

There are, however, some things you can do to minimize the pain of intermittent FMLA leave. The article summarizes them. We hope you find it useful.

FMLA intermittent leave: Six tough questions

Got a headache? If you’re like many HR managers, the cause could be yet another FMLA intermittent-leave request.

Whether it’s deciding how to handle chronic migraines or docking pay for exempt workers, many HR managers are left scratching their heads. To provide some relief, we posed the toughest questions we’ve received to FMLA-law expert Steve Teplinsky, a partner in the Chicago-based law firm of Michael Best Friedrich.

1. Should we allow intermittent leave for migraine headaches? Yes. While, chronic migraines are debilitating, they’re also near the top of the list of intermittent-leave abuse. The key to abuse-prevention: Remember that your company approves the intermittent-leave certification, not the doctor, Teplinsky said. Get good, detailed info. Don’t let the doctor get by with checking off the cryptic boxes on the DOL Internet form: “no duration,” “intermittent,” and “as needed.” Instead, ask for details on the severity, the duration of the illness, the limitations, the effects on the job, and when leave will be needed. Then you can evaluate if people can work, how much, and when they can’t. These details will help you weed out abusers. Note: You can ask for recertifications every 30 days at the employee’s expense, and even more often if medical circumstances change or you have a good reason to suspect abuse. Good reasons would include a pattern of taking leave on Fridays and Mondays. Be wary of singling people out, however: That can look like retaliation. The key is to have a policy that’s consistently enforced.

2. Can we dock the pay of an exempt worker? Yes. Just as you’d dock the pay if they took FMLA leave, you can dock pay for intermittent leave, too. Just remember that the leave doesn’t affect someone’s exempt status. You may also change how you calculate certain benefits, such as accruing vacation time at a reduced rate. You may not touch medical insurance benefits, however.

3. Can we ask exempt workers to surrender vacation time? If your company has a policy that someone must first use up all paid time off before using FMLA intermittent leave, then HR may require workers to surrender vacation time first. If you don’t have such a policy, then under the FMLA it’s up to the employee how to count the time.

4. If workers come back early, how do we count the time? Say a worker asks for three hours of intermittent leave, but only takes two and comes back an hour early. Can you count all three hours as leave? No, you can’t require someone to take more FMLA leave time than they need. Teplinsky also says as a practical matter, it’s probably not a good idea to discourage workers from returning to work early.

5. Is a doctor’s care required? Yes. Here is a “tough-luck” scenario that illustrates the point. Two parents stay home with sick children. One child has a cold. The other child has an ear infection and is taking prescribed medicine. The first parent is ineligible for FMLA leave and the second one is eligible. Reason: The second child is under a doctor’s care.

6. What happens if we don’t ask for recertifications? Your problems could snowball. Case in point: HR managers at a Chicago business found 250 of 500 dock workers had certifications for intermittent leave, mostly for hard-to-disprove conditions: chronic migraines, back pain and soft-tissue injuries. Not only was the number of workers suspiciously high, but the certifications came from two doctors. The calendar told a story, too: Scheduling was a nightmare on Fridays, Mondays, and before or after holidays. HR saw the problem as temptation. By approving so many intermittent-leave requests and not managing the certifications closely, HR had sent the wrong message. The solution: Recertifications every 30 days. The union had to pay for the certifications, and the doctor’s bills took their toll. Most requests stopped, except for the few with legitimate medical issues.

           Dave Clemens
           Editor-in-Chief

Source: Teplinsky, www.michaelbest.com

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Intermittent FMLA leave isn't forever

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Dear HR Executive,

Managing intermittent FMLA leave ranks high on the annoyance scale for HR pros. People can get doctors to vouch for the darndest things, and you never know when so-and-so is going to come down with yet another migraine and call out at the last minute -- without there being anything you can do except nod your head.

Recently, an employee in Michigan tried to raise the stakes and knock an important weapon for controlling intermittent FMLA abuse out of employers' hands.

In a lawsuit against her employer for FMLA interference, she argued that intermittent leave eligibility could carry over from one year to the next. Think about it: If she had won, employees who want to take intermittent FMLA leave would have to establish their eligibility ONLY ONCE in order to enjoy 12 weeks of leave per year ad infinitum.

In the case, Davis v. Michigan Bell Telephone Co., the employee took a number of days of intermittent leave due to depression. When the new calendar year arrived, she missed a couple more weeks of work and tried to cover them with FMLA leave. The employer refused, saying that because it calculated FMLA eligibility on a calendar-year basis, and she didn't work 1,250 hours in the 12 months preceding the new absence, she wasn't eligible. And she was fired for excessive absences.

Fortunately for employers, the court backed up the company's position.

Court didn't bite
The court said the idea of a lifetime eligibility determination went against the law and also against DOL's regs. "Congress cannot have intended this absurd result," the court said.

The truth, the court said, is that intermittent FMLA leave can't extend beyond the 12-month period in which it begins. So employers can re-evaluate at least annually whether an intermittent leave-taker has worked enough hours. (Of course, you can also run the standard certification procedures that oblige employees to get their doctor to periodically back up their need for leave.)

Of course, you may choose to run your FMLA record-keeping on either a calendar year or a rolling year. Both are legal.  But whichever way you go, don't hesitate to review employee eligibility status as often as the law allows -- whenever the employee asks for a new period of intermittent leave, and at least annually.

Remember, too, to review your company's status where appropriate. If your workforce dips below 50 and stays there for more than 32 weeks in a given 12-month period, you may be able to deny FMLA leave -- intermittent or otherwise -- to everyone on the basis that employers with fewer than 50 employees aren't covered by the law.

Dave Clemens

Editor in Chief

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FMLA Intermittent Leave

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Dear HR Subscriber:

Since we conducted an audio conference recently about FMLA mistakes even smart HR executives make, I thought it would be useful to share an interesting -- and pretty tough -- question about FMLA intermittent leave posed by a subscriber to our newsletter.

We've all heard that one of our best weapons to fight intermittent leave abuse is asking that employees get medical certification every 30 days. This tactic works because only those who really need intermittent leave will likely go through the trouble of recertifying.

But here's the subscriber's question:

If you ask one employee who's taking intermittent FMLA leave to recertify, don't you have to ask them all?

The answer is yes. If you don't, you've left yourself wide open to a discrimination lawsuit. Imagine yourself in court facing a hostile attorney who says, "You required my client, who's a member of a protected class, to go through the hassle of re-certification. But you didn't require it of several other employees who aren't in protected classes. Please explain why you did that?"

There is no good answer to that question.

What you should do: State in your FMLA policy that all employees who take intermittent leave MUST renew their medical certifications every 30 days.

But that's not enough: You have to make sure you actually get those recertifications. Again, if you have a policy and enforce it inconsistently, you've left yourself wide open for a discrimination lawsuit.

Stephen Meyer
B21 Publisher

B21 Survey Results: Paid FMLA leave

Dear HR Executive:

The defining quality of the HR function is that it's stuck in the middle. You represent the company's interests. But you also advocate for employees. The best HR execs shrewdly navigate the gray zone where employer/employee interests collide.

You've no doubt heard about recent attempts to legislate paid family and medical leave. This issue has the potential to illuminate that gray zone like none other. And HR people are going to find themselves forced to take sides. It's a tough choice. On the one hand, paid FMLA leave will cut into corporate profits. On the other, it's an immensely appealing benefit for employees -- one that raises issues of corporate and social responsibility, fairness, decency, public welfare, gender discrimination, even morality.

B21 conducted a survey to see how HR executives felt about paid FMLA leave. Are they for it? Or against it? Below is an article from B21's newsletter Human Resources 21 that lays out the poll results, discusses efforts in Congress to mandate paid FML, and includes comments in which respondents explain why they answered as they did. Read on. (And feel free to share your own thoughts adding a "comment" at the bottom of this post.)

Stephen Meyer
B21 Publisher

Exclusive B21 Survey: Is Paid Family and Medical Leave a good idea? Or a bad one?

Despite the potentially staggering cost, nearly 4 in 10 HR executives surveyed by B21 are either in favor of it or “torn” by the notion that companies should be obligated to pay for family and medical leave.

In B21's survey of 170 HR professionals, only 9.5% of those responding said they thought paid FMLA leave was a good idea that employers should have to pay for. A bill that would provide such leave is to come before Congress soon.

But 29% said they were “torn” over paid FMLA leave. Respondents who commented on the issue raised both the benefits such leave would offer for employees, and the cost and potential for abuse with which it would saddle employers.

The remaining 62% of respondents said paid FMLA leave was a bad idea and firms should not have to pay for it. Here's a summary of the results:

Q. Which best describes your feelings about paid FMLA leave?

• It's a good idea and companies should be obligated to pay it -- 9.5%
• It's a bad idea and companies should not pay for it -- 61.9%
• I'm torn -- 28.6%

Six weeks with pay
Senator Chris Dodd of Connecticut, who is seeking the Democratic nomination for president, says he’ll introduce the paid leave bill this session.

As we pointed out when we first wrote about the bill (March 12 issue), the legislation would pay employees for half of the FMLA leave to which they’re already entitled. That adds up to six weeks of paid leave for someone with the full 12-week FMLA entitlement.

Dodd is a serious player in this arena. He introduced the legislation that eventually gave birth to the FMLA. His party now controls Congress. And he has a conservative Republican co-sponsor for his bill, Ted Stevens of Alaska.

What HR execs said
Here are some comments from survey respondents, by category:

Bad for our country
"Employers in other developed countries provide (or are required to provide) these and/or similar benefits so from that point of view we should always be aiming to improve our standard. However the global economy we now live in creates a strong downward pressure on these types of benefits. The average American worker is now paid approximately $9.30+/hr., Mexican $1.50/hr. and Chinese $0.30/hr. Do the math....we can't compete. So even if we want to provide it (and many other benefits as well) the reality is we'd likely hurt our ability to compete in the longer term if we do it. And, sadly, it's not very long."

A moral necessity
"We are the only industrialized country without paid leave for maternity/paternity leave. I think it's time to change considering more than half of U.S. workers are parents. Not to mention the sandwich generation who take care of ailing parents. WE NEED SOME FORM OF PAID LEAVE! (And not just Short Term Disability for a workers illness)."

Increased potential for abuse
“Abuse with FMLA leave is rampant now. If we pay the employees, the abuse will increase 10-fold.”

"The original intent of the FMLA is a very good thing, but unfortunately, the intermittent leave' and definition of 'serious medical condition' have been interpreted in such a way that the FML opportunity is easy to be taken advantage of which often makes it difficult for the company to carry on with it's work and mission."

Burden for small companies
“To comply with FMLA requirements employers must shuffle and delegate job duties of individuals claiming this leave. Such disruption is costly. Requiring employers to compensate employees who claim this leave would be an additional burden that employers should not have to bear.”

"All small companies and most that aren't small will have a tremendously difficult time meeting any requirement to pay for 12 weeks of leave per year. If you consider industries that are predominantly staffed by women of child-bearing years, it could force a company into bankruptcy."

"I am concerned that there are already many obligations on an employer and one like this would put smaller companies like ours under a good amount of financial stress. In addition, there are many people abusing FMLA, paying for it will only add to the number of people who are abusing the system."

"Great for the Employee, hard on companies unless there will be some type of break. Industries are dealing with budget cuts, and more with less as it is."

"As an employee it would be wonderful not to worry about how to pay the bills that accumulate while I am unable to work. But as the employer, I am not sure that, a) I could afford to pay someone on leave AND their temporary replacement; and b) some employees won't see paid FMLA as a nice long paid vacation."

Compromise?
“Many times an employee needs to be away to take care of family members or their own needs. Often they are already financially strapped and can ill afford to take the time without pay. However, paying the full freight would be cost-prohibitive and might encourage employees to take more time off than needed. A compromise – perhaps half-pay – might keep employer costs under control while allowing employees to have at least some income relief.”

"Paid FMLA leave shouldn't be mandated, but companies may want to offer paid leave (FMLA and/or non-FMLA) as an added benefit."

Smart business
"Dealing with a serious health condition is devastating whether it is you or a loved one. Having an employer who is more interested in how to get rid of you because you are using FMLA instead of looking for ways to help and support you is just one more reason there is such a turn over of good employees. Loyalty is what keeps good employees and that loyalty works both ways."

Opposed philosophically
"A company cannot be responsible for every aspect of an employee's life! Many companies including ours already offer at no cost to the employee, short and long term disability. To expect us to now cover family members' illnesses is just ridiculous."

"I'm fearful that we'd be endorsing an entitlement mentality."

"As a nation, we need to allow individuals to take ownership for their own situation rather than expecting private business to constantly fund more and more 'extras' while less and less is expected of employees."

Again, tell us what YOU think by adding a "comment" below.

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FMLA law revision

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Dear HR Executive:

Happy New Year. We hope that 2007 will be a prosperous one for your company, and that your HR initiatives will bring you recognition and reward.

In this first post of 2007, we wanted to update you DOL's recent announcement that it's going to revise the FMLA for the first time in 12 years. Lots of HR people will tell you FMLA is their biggest headache. The reason is that certain provisions of the law are too vague, making it easy for ill-intentioned employees to take advantage of employers. What's the DOL thinking about? Here's an article that discusses the three key areas of revision that could affect us all. Read on.

Finally: Relief from the 3 big FMLA headaches
DOL looking to revise the regulations

Breathe a sigh of relief regarding the FMLA: The Department of Labor finally recognizes HR’s pain and is doing something about it.

The feds are looking at the first revision of the FMLA in almost 12 years. During that time, courts have struck down some provisions and experience has shown others to be nearly unworkable.

DOL isn’t making promises. But it’s strongly suggesting it will revise the regs. Officials recently held a series of “stakeholder meetings,” where groups affected by the FMLA – both employers and employees – suggested areas that need a fresh look.

Where to look for fixes
Here are some FMLA provisions the DOL is taking a second look at to see if they could be made more workable.

1. Administering intermittent leave. Three cheers! In its official Request for Information from the public, DOL admits that “the regulations and the administrative details required ... may work in combination to allow certain employees to attempt to evade legitimate absence control policies.” In plain English, DOL is saying it knows people are cheating – claiming intermittent leave for hard-to-pin-down migraines or depression, for example. That’s quite a concession. And this comes despite employee groups who told DOL that administering FMLA intermittent leave is “easy.”
2. Defining “serious health condition.” DOL admits that confusion over what this really means has put employers in a bad position. Companies have to guess what DOL and the courts consider serious, or designate all medical absences as FMLA. The problem: two clashing definitions. The regs say colds, flu, upset stomachs, etc. aren’t usually serious. But DOL opinion letters say a condition is serious if it makes someone miss three days of work and see a doctor. Right now, if a cold makes someone miss three days and see a doctor, it’s FMLA-protected leave.
3. Handling medical certification. The combination of FMLA regs with the more recent medical privacy rules under HIPAA has turned into a witches’ brew for employers. Before HIPAA, an employee getting certification from a doctor could have the doctor send the completed form directly to you. Now, the employees have to ask for a copy of the completed form from the doctor and bring it to you themselves. As you might expect, employees don’t always understand this distinction, or care. There’s also the fact that the certification form itself confuses some doctors so that they complete it improperly or vaguely. And when an employer needs to contact the employee’s healthcare provider for clarification, the requirement that you do so only through your own doctor and with the employee’s permission adds massively to cost and delay. Some employers we’ve talked to pinpoint certification as the place where the FMLA shoe pinches worst.

What to do now

Unfortunately, nobody can promise comprehensive or quick relief from some of the heaviest FMLA burdens.  But in the meantime, there are a couple of things you can do to make administering the FMLA a little easier on yourself:

• Shift some burden on employees. Ask for recertification every 30 days in case of a long-term condition requiring intermittent leave. And you can ask more often if you have any good reason to think the employee’s condition has changed. This may “smoke out” some fakers.
• Turn the screws on uncooperative doctors. Physicians must complete the certification forms properly, or the person can’t have FMLA leave. Make sure employees understand where the problem lies, so they’ll have an incentive to press their doctors.

        Stephen Meyer
        B21 Publisher

HR Scenario: FMLA leave

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Dear HR Executive:

One not-so-often-discussed aspect of managing companies is the fact that employees who achieve high levels of responsibility become indispensible. Top performing bosses are often people who are two to five times as productive as average employees. And they're able to squeeze exceptional levels of productivity out of entire departments.

When such employees take leaves of absence, it hurts. It can slow time-to-market on new products. Temporarily, it can cause shoddy customer service or product delivery. And it might result in retention problems.

Here's an interesting B21 scenario about how to handle a leave request from a top performer when you're not legally obligated to grant any leave at all. This one is a real tester.

Scenario: Key employee asks for FMLA leave to care for his 'companion'

Bill Clark rolled a pencil back and forth in his fingers as he spoke. HR Director Susan Lewiston could see how nervous he was.

“I came to talk to you about Barbara,” said Bill. “She’s not getting better.”

Susan was genuinely concerned. Bill, an invaluable manager at the company, had taken a month off back in the spring when his companion had her first chemotherapy treatments. Now her condition was even more serious.

“The doctors think she’s going to need another round of chemo, something even harsher,” he said. “It’s going to make her really sick for 8-10 weeks.”

“I’m sorry to hear this,” said Susan. “What can we do to make things easier?”

“I was thinking I’d need to take some more time off, but as it’s October, I’m out of vacation and personal days for this year,” Bill said. “How about FMLA leave? I understand I’m entitled to 12 weeks, which should be plenty to see Barbara through this treatment.”

“Hmm,” Susan said. “You two haven’t gotten married, have you?”

“No,” Bill said.

“That’s a problem,” Susan said. “The FMLA allows time off for a spouse’s serious medical condition, but not a companion’s.”

“Can’t you make an exception?” Bill said. “I mean, I’ve been around here for quite a while, and I like to think I’m valuable to the company.”

Precisely the problem, thought Susan. Bill was a key employee. It was hard to imagine how his department would perform without him for an extended period.

If you were in Susan's position, what would you do?

Stephen Meyer
B21 Publisher

Please click on the "comments" button below to share your thoughts.

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FMLA and Headaches

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Dear HR Executive:

This week's B21 audio conference on FMLA intermittent leave was a huge success. People had so many questions that when our speaker ended the event after 90 minutes, there were still nine people in the question queue (they were able to email their questions to the speaker, fortunately).

Here's a Q&A item from our newsletter, Managers Employment Law Advisor, concerning THE SINGLE MOST COMMON leave-related question we get. It regards -- you guessed it -- headaches. Read on.

The kind of headache that counts as a 'serious medical condition'

Question: One of my employees was an hour late for his shift. He already had a lot of “issues” in attendance and that put him over the limit under our progressive discipline policy. But he produced an FMLA certificate from his doctor claiming a headache made him unfit for work that day. Can we go ahead and terminate him? K.F., Reno, NV.

Answer: By all means. The FMLA covers “serious medical conditions” that require absences of at least three days and two or more doctor visits. While migraines qualify and can justify intermittent FMLA leave, an ordinary headache doesn’t pass muster. It sounds like he only missed one day, and the accumulated prior absences were for unrelated reasons.

What to say: “The FMLA doesn’t apply in your case. However, our progressive discipline policy does.”

Stephen Meyer
B21 Publishing

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Intermittent FMLA Leave

Dear HR Executive,

How would you handle FMLA leave requests that seem to always occur on Friday afternoons? A lot of HR executives get frustrated by FMLA abusers and think the company is powerless to stop them. Not so. Here's an article that'll give you hope (and a few pretty good ideas as well. Read on.

Stephen Meyer
B21 Publisher

4 strategies to stay one step ahead of FMLA abusers

How to tell if an employee is ‘faking it’

If you’ve dealt with intermittent FMLA leave abusers, you know they act like it’s free vacation time. Here’s how you can stay one step ahead of chronic FMLA abusers:

1. Create a comprehensive FMLA certification form. Most FMLA certification forms provided by the DOL just have doctors check off some boxes.

But what most companies don’t know is: You can ask for more specific info about the worker’s condition to determine whether they even need leave. The certification form could ask doctors:

• the date the condition started.
• estimated duration of the condition.
• definition of the worker’s condition.
• required treatment.
• whether hospitalization is required.
• whether the condition will incapacitate the worker.

2. Ask for a second opinion. If a doctor says an employee has, say, a back condition, and you notice the employee seems to be fine, ask for a second or even third opinion to verify the diagnosis. Just keep in mind it’s at your expense.

3. Ask for re-certifications. You can do so every 30 days (at employee’s expense). A condition might not be deemed severe enough anymore after 30, 60, or 90 days.

4. Attach a letter to the certification along with the worker’s attendance record. In the letter, ask the doctor whether the worker’s condition is incapacitating enough to warrant the days she was absent.

That’ll accomplish a couple of things: (1) The employee who’s milking the leave will get embarrassed and perhaps think twice about abusing it again. (2) The doctor might be more truthful in designating leave for the worker.

Based on Steven Teplinsky’s Audio Conference entitled: Stop Intermittent FMLA Leave Abuse Now, 5/24/06.

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