One of the biggest employer complaints about the Family and Medical Leave Act (FMLA) has long concerned the productivity problems caused by employees’ use—and abuse—of intermittent leave, according to a U.S. Department of Labor (DOL) report.
The problem: Employees with chronic health problems often take FMLA leave in short increments of an hour or less. That can cause a productivity, scheduling and cost predicament, especially in time-sensitive industries like health care, public safety and transportation. These unscheduled, intermittent leaves, the DOL report said, are “the most serious area of friction between employers and employees seeking to use FMLA leave ... no other FMLA issue even comes close.”
In light of the revised FMLA regulations, including the recent legislation passed in response to the COVID-19 pandemic, make sure your organization’s policiesand employee handbook are up to date, and revisit how you track FMLA intermittent leave.
CORONAVIRUS ALERT: COMPLY WITH NEW LEAVE REGULATIONS NOW
Families First Coronavirus Response Act (FFCRA) offers new paid leave options to certain U.S. employees
Congress jumped into the coronavirus fight with a series of efforts toprotect the economy and the American worker.
The first big action by Congress was the Families First Coronavirus Response Act (FFCRA) signed into law on March 18, 2020. It says employees affected by the coronavirus pandemic will be eligible for paid sick leave and many will be able to take paid FMLA leave.
The law says many employers will be required to provide up to 80 hours of paid sick leave to some workers. Paid family leave will be available to many employees who cannot work because their children’s school or day-care facilities has been shut down because of coronavirus.
The law, which took effect immediately, also provided federal funds for enhanced unemployment insurance and free coronavirus testing.
Generally, the law applies to employers with fewer than 500 employees. Employers with 50 or fewer employees would not have to provide emergency sick leave or paid FMLA leave if they apply for an exemption.
Ultimately, the federal government will pick up the tab for the cost of providing leave benefits mandated by the law. However, employers will have to pay those costs up front and then recoup them through a system of tax credits.
Emergency paid sick leave
Employees are now eligible for 80 hours of paid sick leave if:
- They have symptoms of COVID-19 (the illness caused by coronavirus) and are seeking a medical diagnosis
- A health-care provider has recommended quarantine or self-isolation because of COVID-19 or exposure to the virus
- They need to care for a relative who has been quarantined or is self-isolating
- Their child’s school or childcare service is closed because of the public health emergency
- The government has ordered them to quarantine or isolate themselves because they might have been exposed to the virus.
Employees who take paid emergency sick leave are eligible to receive up to $511 per day if they miss work because of their own illness. There is a $200-per-day cap if they need time off to care for someone else. Employees who are telecommuting do not qualify for paid sick leave.
Paid FMLA leave
Passage of the Families First act marks the first time the federal government has authorized paid FMLA leave.
Employees can receive two-thirds of their regular rates of pay (with a cap of $200 per day) for up to 10 weeks. However, paid FMLA leave is available only to employees who need leave so they can stay home with children whose schools or care facilities are closed due to coronavirus.
Employees must have been on the payroll for 30 days to be eligible for paid FMLA benefits.
FMLA INTERMITTENT LEAVE GUIDELINE #1
Revised FMLA regulations: 9 changes you must comply with
Since 1993, complying with the FMLA had always been complex, but at least the law (once you figured it out) stayed the same. But that all changed on Jan. 16, 2009 when the first major overhaul of the FMLA took effect.
The regulation update came after two years during which the DOL received more than 20,000 suggestions on changes from employers and employee groups.
“The new rules drastically changed the way much of the FMLA works,” said Matthew Effland, an employment law attorney with Ogletree Deakins in Indianapolis. “Some changes favor employers by offering greater flexibility in administering leave. But it’s imperative that HR professionals … have updated their policies so they don’t inadvertently violate the law.”
Here are the most important changes in the updated FMLA regulations:
1. Military caregiver leave. Employees are allowed to take up to 26 weeks of unpaid FMLA leave in each 12-month period to care for family members who suffered a serious injury or illness related to military service.
2. Leave for families of National Guard and Reserve members. Families of National Guard and Reserve personnel on active duty are allowed to take up to 12 weeks of job-protected FMLA leave per year to manage their affairs. The FMLA leave of the employee (a spouse, son, daughter or parent of the military member) must be related to certain qualifying circumstances related to the military service. The rules define a qualifying situation as one involving: (1) shortnotice deployment; (2) military events and related activities; (3) child care and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (7) post-deployment activities; and (8) additional activities in which the employer and employee agree to the leave.
3. Revised definition of a “serious condition.” The updated regulations tinker with the definition of an FMLA-qualifying “serious health condition.” The law says a serious condition must involve more than three full, consecutive calendar days of incapacity plus “two visits to a health care provider.” The updated rules clarify that those two visits must occur within 30 days of the period of incapacity
4. Direct contact with doctor allowed. Good news: The regulations allow employers to directly contact an employee’s health care provider to seek clarification about information on an employee’s FMLA certification form.
Note: An employee’s “direct supervisor” is prohibited from making such inquiries. The rules give this right only to a “health care provider, a human resources professional, a leave administrator (including third-party administrators) or a management official.” Also, employers can’t ask doctors for information beyond what is required by the certification form.
5. Employer notice obligations. In addition to conspicuously posting a notice about your FMLA and complaint-filing procedures, you must provide the same notice in your employee handbooks (or distribute a copy of your FMLA policy upon hire).
Employers now have five business days—instead of two—to send out FMLA eligibility and designation notices to employees.
6. Less leeway for employees’ notice. Previously, the law was interpreted to allow employees to give notice of their need for FMLA leave up to two business days after being out on FMLA leave, even if they could have given notice earlier.
But the updated rules say that, in most cases, employees who take intermittent FMLA leave must follow the employer’s regular call-in procedures for reporting an absence, unless there are unusual circumstances.
7. Settlement of past FMLA claims allowed. The rules clarify that employees can retroactively (typically as part of a severance or settlement agreement) volunteer to settle their FMLA claims with their employers without getting court or DOL approval. Prospective waivers of FMLA rights will continue to be prohibited.
8. Light duty doesn’t count as FMLA leave. The rules make clear that the time employees spend performing “light-duty” work does not count toward their 12 weeks of FMLA entitlement. (This was included because at least two courts had ruled that employees used up their 12 weeks of FMLA leave while on light-duty assignments after FMLA leave.)
9. Perfect-attendance awards can be denied. Employers can deny perfectattendance awards to employees who take FMLA leave (and thus are absent) as long as they treat employees taking non-FMLA leave the same way.
FMLA INTERMITTENT LEAVE GUIDELINE #3
Sniff out suspicious FMLA requests: An 11-step plan
Use of the medical certification process is the biggest weapon employers have in combating FMLA abuse. It gives you the right to obtain information from the employee’s physician about the ailment and, at least for the first certification, to obtain a second or third opinion from an independent physician.
The following steps are important parts of an effective anti-fraud program:
1. Obtain a medical certification for each request for leave due to a serious health condition. It’s important that your sick leave or attendance policy requires a doctor’s certification for all absences of three or more days for the leave to be excused. If there’s no such requirement and you intend to require paid leave to run concurrent with FMLA leave, you might not be able to require a medical certification, which is the first step in an anti-fraud program.
2. Enforce a policy denying the leave request if an employee fails to submit certification within 15 days. In each instance, assess any appropriate penalties for failure to be at work.
3. Examine the certification closely to ensure it’s been properly and fully completed. Many doctors will complete the form in a hurried fashion. In some cases, they’ll intentionally leave some sections incomplete in order to remain “truthful” while accommodating the desires of the patient/employee for leave.
If the medical certification is incomplete, specify in writing what information is lacking and allow the employee at least seven days to cure the deficiency. If the employee fails to do so, deny the leave request. Of course, if the medical certification doesn’t support the existence of a serious health condition, you should deny the request.
4. Require a second opinion if the circumstances are even slightly suspicious and it’s an original certification.
5. Once the certification is approved, make a limited inquiry each time the employee requests more leave, particularly in the case of intermittent leave. The goal is to determine whether the leave is for the same qualifying reason.
6. Watch the schedule of absences closely in cases of intermittent leave to determine whether a suspicious pattern develops (e.g., immediately before and after weekends or days off) or whether there’s a change in the frequency or timing. Such actions could suggest a change in condition that enables you to request a recertification.
7. Request recertifications as often as the law allows. The frequency of recertification permitted will differ depending on the type of leave and the type of serious health condition.
8. Require accrued leave to run concurrently with FMLA leave when allowed by law. When an employee realizes that taking leave today will affect future vacation time, he or she is more likely to take FMLA only when the need is legitimate.
9. Ask the physician to verify that the medical certification is exactly as he or she signed it and has not been altered.
10. Inquire about the intended method of transportation if an employee requests to leave work early because of his or her own serious health condition. If the employee can’t work, perhaps an ambulance is needed.
11. Aggressively pursue potential fraud, and if concrete evidence of fraud is discovered, take appropriate disciplinary action. Always follow up on reports from fellow employees or other sources that the employee does not, in fact, need leave.
Final note: Even if these actions uncover no fraud, your efforts will still reap dividends. Once employees become aware that you intend to use these tools to detect fraud, employees otherwise inclined to take advantage of the FMLA will wait until a legitimate need arises.