Presentation Transcript

1. HETAL DESAI SNIFFEN & SPELLMAN, P.A. FEBRUARY 2014 FLORIDA PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION FMLA:UPDATE AND ISSUES
2. The BERMUDA TRIANGLE Interaction of the ADA, FMLA, and Workers’ Compensation Laws It is important to recognize and analyze the interaction of these laws because: The majority of unscheduled and scheduled absences are related to the illness of employees or their family members. One, both, or all three of these laws may be involved. Violations of these laws may result in lost wages, back pay, reinstatement, retroactive benefits, compensatory damages, and punitive damages. Other than the legal responsibilities, employers have moral and ethical responsibilities to assure that employees receive the benefits and protections these laws provide. DON’T FORGET TO LOOK AT THE BARGAINING AGREEMENT
3. Family Medical Leave Act TOP 10 THINGS YOU NEED TO KNOW Employee Eligibility - an employee who has worked at least 12 months and 1250 hours prior to the start of the leave. Employer Coverage – 50 or more employees within a 75-mile radius for at least 20 weeks during current or preceding calendar year. Length of Leave - 12 weeks in the 12 month period as defined by the employer. Medical Documentation – Medical certification of the need for the leave not to exceed what is requested in the Department of Labor (DOL) Medical Certification Form.
4. Family Medical Leave Act TOP 10 THINGS YOU NEED TO KNOW cont. Restricted or Light Duty – Cannot be required Fitness-to-Return-to-Work Certification – Only if allowed under a policy or practice that requires employees who have been on a similar type of leave of absence Reinstatement – Required reinstatement to the same or an equivalent job. NO undue hardship exception. Benefits While on Leave – Health coverage must be continued at same level as prior to the leave. Other Leave determined by Written Policy. Enforcement – U.S. Department of Labor Damages - Back Pay, Front Pay, Liquidated 2x; NO COMPENSATORY
5. FMLA’s Military Leave Military Caregiver Leave for Serious Injury or Illness Current service member Covered veterans Leave may be taken to provide care for mental health conditions (for example, PTSD, effects of traumatic brain injury) Includes leave to take the service member to treatment and to provide care during periods of incapacity (short or long - up to 26 weeks in a single 12-month period) Taken from Department of Labor: The Family and Medical Leave Act (FMLA) and Mental Health Issues by Diane Dawson - U.S. Department of Labor, Branch Chief
6. Interference Claims Elements of a prima facie case: 1. Claimant was an eligible employee under the FMLA; 2. Defendant is an employer as defined under the FMLA; 3. Claimant was entitled to leave for a reason covered by the FMLA ; 4. Notice of Claimant’s intention to take leave was given the employer; and 5.Claimant was denied a benefit to which he or she was entitled under the FMLA.
7. Employer Coverage50 or more employees INTEGRATED EMPLOYER Multiple Entities treated as Single Entity under the totality of circumstances: Common Management Interrelation between Operations Centralized Control of Labor Relations Degree of Common ownership/financial control 29 C.F.R. sec.825.104
8. Retaliation Claims Engaged in Protected Activity – Asking for FMLA Leave Adverse Employment Action Causally Related
9. Public Sector Employees State and Counties have Sovereign Immunity from Self-Care FMLA suits Can Still Be Sued for Family Care Provision
10. Qualifying Conditions Serious Health Condition (for employee’s own or if needed to care for employee’s spouse, parent, son or daughter) Serious Injury or Illness (to care for a covered servicemember who is the employee’s spouse, parent, son, daughter or next of kin)
11. Field Operations Handbook section on the FMLA states: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the State where the employee resides, including common law marriage and same sex marriage. UnitedStates v. Windsor 133S.Ct.2675 (2013)
12. States that Recognize Same Sex Marriage
13. Serious Health Condition FMLA defines “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). 3 - 2 - 1
14. “continuing treatment” 3 days of Incapacity + subsequent treatment 2 treatments under orders by a health care provider 1 Occasion of treatment resulting in a regimen of treatment under the supervision of a health care provider
15. FMLA Medical Documentation Employer’s Duty to Request and Alert of Deficiencies Does not Require Diagnosis or Exam from Health Care Provider Should not Need to Follow Up if Form is Properly Filled Out – Only Can Request for follow up to verify or clarify Cannot ask for notes more than once every 30 days Unless End Date changes Policy and Practice Must be Explicit; otherwise 15 days is “General Guideline”
16. Defenses 29 C.F.R. § 825.216(a) “An employee lawfully may be dismissed . . . if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave” An employee who takes FMLA leave has no greater rights than an employee who remains at work. The FMLA does not insulate an employee who has requested medical leave from being terminated if the employer would have taken the same action it did regardless of the request for leave.
17. Top Ten Legitimate Reasons 10. Failing to Return to Work Weeks after FMLA expired 9. Caught Cruising while on FMLA leave 8. Calling a customer crazy 7. RIF- Reduction in Force 6. Inability to Perform Duties/ Losing Certification 5. Sexual Harassment 4. Errors in Work/ Failing to meet Goals (even if related to SHC) 3. “Going Rather Fast” 2. Attending Oktoberfest Party 1. Failed to submit FMLA paperwork for subordinates
18. RELIEF Available Damages Reduction to Damages BackPay(including value of benefits) Liquidated damages double total amount of compensation awarded, including pre-judgment interest. Reinstatement primary form of relief ; caps damages After-Acquired Evidence limits damages and prevents reinstatement Good Faith prevents liquidated damages
19. YES NO Don’t Give Ultimatums Don’t Focus on Diagnosis Don’t let Supervisors Call Doctors Be empathetic Focus on Treatment Recognize Mental Health Symptoms Can Be Serious Health Condition Centralize Health Info
20. HETAL DESAI SNIFFEN & SPELLMAN, P.A. FEBRUARY 2014 FLORIDA PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION hdesai@sniffenlaw.com THANK YOU THANK YOU