SUHRA PRESENTATION -HANDLING INTERMITTENT FMLA OCT 2015

Editor's Notes

• #2: Few aspects of the job give human resources professionals a larger headache than administering intermittent Family and Medical Leave Act leave, but failure to properly designate and account for the time off can leave employees free to abuse the benefit. While Upstate has not yet solved the problem of minimizing intermittent FMLA, we have recently begun a coordinate effort in our Nursing dept. that has enhanced communications between the employee’s manager, Payroll and the HR Benefits Leave Office when it comes to tracking intermittent absences. I will share more information on this best practice a bit later in the presentation.
• #3: See You Tube Video Rights under FMLA (1:36): Rather than for one continuous period of time, intermittent leaves may include leave of periods equal to the smallest increment that an employer tracks time (i.e. .25 hr.) which cannot exceed a 1 hr. minimum (§825.205 Increments of FMLA leave for intermittent or reduced schedule leave). Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, periodic treatment, therapy (such as for chemotherapy.) etc. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not yet able to work a full-time schedule (i.e. light duty assignment). Best practice under such reduced hours, is to count any remaining 12 weeks of FMLA entitlement against absences resulting in the reduced schedule.
• #4: Such conditions lends itself to abuse because it is very difficult to refute medical and harder to track. Leave taken in separate (intermittent) blocks due to a single qualifying reason, from migraine headaches to panic attacks, requires employers to deal with highly unpredictable attendance. According to data from the Society for Human Resource Management, two-thirds (66 percent) of 610 surveyed HR professionals have reported challenges resulting from chronic abuse of intermittent leave, including morale issues for employees who have to cover for their absent co-workers. Additionally, 80 percent cited the tracking and administration of intermittent leave as the most difficult activity. Compound that with suspicious absences, such as Mondays and Fridays call-ins, and you have a full blown T&A issue. When an ee calls in for such conditions, have your manager prepare a list of questions to ask the employee that can include: The reason for the absence. (may not be for est. FMLA absence) The duties they are unable to perform. The employee's expected return date.
• #5: When an employee requests FMLA leave, the very first step is to confirm whether or not they are eligible to take it. The employee must have been employed by NYS (not just SUNY or your campus) for at least 12 months (need not be consecutive), and must have at least 1,250 hours worked in the preceding 12 months. NOTE: ee does not need to re-qualify (work hrs) every time he/she call-ins or requests additional/new intermittent leave during the calendar year. Also be aware of ees who have already exhausted their 12 weeks of FMLA entitlement based on a prior FMLA designated leave earlier in the year. Be sure to give the employee written notice if they’re eligible or not eligible. The FMLA provides employers with the ability of requiring medical certifications (WH-380E or F). Failure to provide timely adequate medical will result in denial or delay of FMLA designation. If the form is incomplete, ambiguous, or does not adequately explain the need for the leave, the employer can require the completion or further explanation. Managers should contact HR when frequency/amt. of leave exceeds estimated time in original medical…this would result in re-certification and failure to provide results in voiding of previously approved FMLA intermittent leave. Employers can also seek recertification every 6 months. Recertification can be sought sooner if the employer reasonably questions the actual use of FMLA leave, such as when the employee’s intermittent absences do not align with the anticipated frequency or duration on the original certification. EEs may use FMLA based on the smallest increment allowed for leave (1/4 hr for classified service ees and min. of 1 hr for UUP represented ees).
• #8: Two entries required – One for Leave of Absence and Second to note which type of FMLA is being used.
• #15: Remember these facts as we go though this case as they will be relevant.
• #16: Satisfies the 7 day waiting period with SIF and is paid by them for the 2nd week of leave and future w/c related absences. Harry met the 1,250 work hours requirement under FMLA and once he is deemed eligible, he need not “re-qualify” that same calendar year for that illness nor is he required to provide a new health care provider certification for each PT appointment…we will speak about an exception to this re-cert. requirement.
• #17: Medical leave may not necessarily require the ee stay in bed all day long, or leave the house, but Harry’s outside activities may lead to questions on the need to his extensive leave. More extreme situation of “fraud” may be working at another job while they are suppose to be on leave, or who are seen playing 3rd. Base for their softball team.
• #18: Require re-certification after the expected end date of leave or when circumstances change (i.e. an employee's need for leave exceed doctor's expected frequency of intermittent leave). Re-certified medical is available if circumstances change, or the employer has a legitimate reason to think the employee's call-ins are suspicious. According to a Department of Labor Opinion Letter, a pattern of Monday/Friday absences is enough to warrant recertification. Prior to FMLA designation, after you get Harry's medical certification, you can ask for a second opinion to verify he really needs leave. If second medical opinion differs, then a third independent and binding medical opinion must be secured.
• #20: The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same. And, of course, Harry must be given his old job – or its equivalent – when the intermittent leave period’s over. A few restrictions: The move can’t be made if the transfer “adversely affects” the individual. Example: The new position would lengthen or increase the cost of the employee’s commute. Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so. *NOTE: Since Harry's FMLA is w/c related, all his time absent (after he has satisfied the 1st week waiting period), should be compensated for by the SIF, therefore his regular pay from the campus is reduced and his accruals should not be charged. Also note that if Harry is scheduled or it is his turn to work mandatory OT and he claims his FMLA intermittent leave prevents him from accepting such an assignment, require he provide update medical stipulating such and advise/count such hrs against his 12 weeks of FMLA designation (regardless of the fact he is not being paid for such OT or charging accruals).
• #21: He could be sent for a fitness of duty exam through AEH which means he remains out on leave until exam results are provided. Additionally, you can request the SIF complete a Additionally, you can request the SIF complete a surveillance on Harry to verify that he is not performing physical activities that question his claim/leave. on Harry to verify that he is not performing physical activities that question his claim/leave.
• #22: Some conditions that qualify for FMLA leave are also protected by the Americans with Disabilities Act. (physical/mental impairment that significantly limits one or more major life function, including working). Even after the FMLA ends (expiration of 12 weeks of leave or no longer medically covered), employers still must determine whether the employee’s situation is now covered by the Americans with Disabilities Act, and if there is a need to provide a reasonable accommodation (i.e. part-time schedule, job restructure, additional leave, etc.). Not all FMLA serious health conditions will fall under the ADA and in many respects the FMLA has a lower standard compared to the ADA when it comes to granting leave. In fact an ee can refuse a valid ADA reasonable accommodation offered by the employer until they exhaust their FMLA 12 weeks, and then subsequent to the FMLA can then pursue the previously offered accommodations. If that’s the case, you may need to reasonably accommodate his disability in order to perform the essential functions of he job… unless such would create an undue hardship or result in legitimate health and safety risks. The campus will need to engage in the interactive process to determine whether a reasonable accommodation can be made and if not, can an extension of the w/c leave is a reasonable accommodation. In a recent decision, a court ruled the employer couldn’t deny reinstatement based on an inability to perform nonessential job functions (Cite: Carstetter v. Adams County Transit Authority). But if Harry can’t perform the essential job function of his Janitor position with or without reasonable accommodations, he is NOT protected by the ADA and you will want to pursue other options such as ERS disability/service retirement, NYSHIP retiree health insurance and SSD to remove him from Payroll without having to maintain Section 71 reinstatement rights.
• #23: 1:08 min.
• #24: Campuses need to do a better job when administering leave, so that there is no opportunity to misuse the leave once it is granted. This includes training dept. managers and supervisors to both recognize an ee’s need for FMLA as well as potential misusage. Don’t assume ee on leave is eligible…check employment history and work hours. Campuses should always use and require the DOL medical certification and recertification to their advantage. This makes ee know you are keep track of supporting medical. Such medical must be complete and adequate before accepted. If not HR should follow up with health care provider to authenticate or clarify information. A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous or nonresponsive. The employer must provide the employee seven calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good-faith efforts) to correct any such deficiency, and the employer must inform the employee of the consequences for failure to provide the certification. If the employee fails to provide the certification, the employer (i.e., a health care provider, human resource professional, leave administrator or management official) may contact the employee’s health care provider directly for purposes of clarification and authentication. The employee’s direct supervisor may not, under any circumstance, contact the employee’s health care provider.  If the deficiencies specified by the employer are not corrected in the resubmitted certification, the employer may deny the taking of FMLA leave.   Sometimes an employer may doubt the validity of a medical certification. In this situation, an employer may be able to obtain a second medical opinion at the employer’s expense. An employer may designate the health care provider for the second opinion; however, the health care provider may not be someone who is regularly used or employed by the employer, unless health care is limited in the geographic area. Pending the outcome of the second opinion, an employee is entitled to the protections of the FMLA. If the second opinion does not entitle the employee to FMLA leave or if the employee or family member’s health care provider refuses to release relevant information to the employer’s designated health care provider on request, the FMLA leave may be denied. Employers may request a third opinion, again at the employer’s expense, when the opinions of the employee’s and the employer’s designated health care providers’ differ. An employer and employee must agree on a third health care provider. If the organization fails to reach an agreement on a health care provider, the organization may be bound by the first certification. If the employee fails to reach an agreement on a health care provider, the employee may be bound by the second certification. If a health care provider is agreed on, the third opinion will be final and binding. If the third opinion does not entitle the employee to FMLA leave or if the employee or family member’s health care provider refuses to release relevant information to the employer’s designated health care provider on request, the FMLA leave may be denied. Based on updated or re-certified medical that changes leave parameters or based on absences that exceed expected frequency or a suspicious pattern, request IME through AEH before the ee is allowed to rtw…for w/c cases no 20-day requirement to place back on payroll. Make sure AEH has all the details and background regarding history of ee absences, frequency and pattern. Surveillance with the SIF based on objective reasons. Facebook photos always help if they illustrate contrary activities that don’t comply with medical restrictions. An investigator won’t be peering into employees’ homes or going into their computers, just videotaping employees’ actions while they supposedly are unable to work.
• #25: Does the certification require your employee to take the entire workday off (or even a significant portion of the workday) for doctor’s appt., therapy, etc.? Account for all FMLA (scheduled and unscheduled) instances…including inability to work mandatory OT. If an employee would normally be required (mandatory vs. voluntary) to work overtime, but is unable to do so because of a FMLA-qualifying reason that limits the employee's ability to work overtime, the hours which the employee would have been required to work may be counted against the employee's FMLA entitlement. Call-in policies and procedures are vital when managing an employee's use of intermittent FMLA leave. This includes using leave of absence request/usage forms or time keeping reports to track an ee’s leave/call-in record (frequency and patterns) for a particular employee. Such allows the employer to show the ee that it is keeping track of the leave, which hopefully will curb the behavior. Rarely will an ee exhaust all their 12 weeks of intermittent leave during the calendar year. Require updated medical based on a change in condition or variance from original expected frequency and length of leave or follow up with the health care provider to verify why an ee can be absent from his/her SUNY position but is able to work at another job (nexus between essential job functions and ee’s condition). Cannot require a doctor’s note every time an ee calls-in for an approved intermittent leave (note ELC progressive disciplinary process), and can only re-cert every 6 months unless medical provides for a shorter time frame. An employer may require the employee to transfer if the leave is foreseeable, based on planned medical treatment for the employee or a family member. The transfer must be to an available alternative position for which the employee is qualified and which is better suited for periods of recurring leave. The transfer must comply with any applicable collective bargaining agreement, as well as federal and state laws.