Gary R. Wheeler July 23, 2016

1. Accommodating and Managing Leave Gary R. Wheeler July 23, 2016

2. Purpose of FMLA • Noble intent • Allow employees to attend to important personal needs without fear of losing their jobs • Vast majority of the time, we want to give employees the leave they need • Most of the time, employees are very grateful for having the time they need, and overall morale is better

3. When do supervisors get frustrated? • FMLA abuse – working the system • When the employee isn’t that great in the first place • Especially when the temp replacement is better or you can get along without the original employee • When the department suffers no matter how much you want to help the employee • When the situation goes on “too long”

4. Why Train on FMLA?

5. Legal Costs • FMLA • Actual Damages (Back Pay, Front Pay, Medical Costs) • Double Damages For Liquidated Damages • Attorneys’ Fees • State FMLA Laws • ADA • Actual And Compensatory Damages • Punitive Damages • Attorneys Fees • ($300,000 Cap For Compensatory And Punitives) • State Disability Laws • Rehabilitation Act Damages • Workers’ Compensation Injuries • Workers’ Compensation Retaliation • Unnecessary Errors And Inefficiencies Increase Legal Costs And Risks

6. Business Costs • Lost Productivity • Employees on leave who are not entitled to leave; • Employees on leave longer than necessary; • Departments duplicating efforts, spinning wheels, or cleaning up messes; • Unhappy Employees – Those in need of leave; those covering for employees on leave; • Increased WC, Health and Disability Insurance premiums; • Tail wagging the dog – employees in control due to errors by supervisor; maintaining employees who should have been terminated; • Unnecessary errors and inefficiencies increase business costs (and supervisor/co-worker frustration)

7. FMLA Basics • Entitlement to FMLA • Employed for 1 year • Worked 1250 hours in last 12 months • 50 employees in a 75 mile radius • Protected need for leave

8. How Much Leave? • 12 Weeks • 26 Weeks

9. FMLA leave is unpaid unless - • The employee has accrued paid leave available. • The employee is receiving workers’ compensation benefits for the injury that necessitates leave. • The employee is also receiving disability benefits for the condition that necessitates leave.

10. When do you need to think about the FMLA? • An employee requests a leave of absence • An employee advises that he or she will need periodic time off for medical reasons • You learn that an employee needs to be absent, or has been absent related to his or a family member’s serious illness or injury

11. When do you need to think about the FMLA? • An employee has been sick for more than 3 consecutive calendar days (including days off) and has visited a health care provider for a medical condition. In some cases, even common conditions such as severe colds or flu may qualify for protected leave

12. When do you need to think about the FMLA? • You learn that an employee requires leave related the employee’s or family member’s health condition requiring continuing or long-term medical treatment or supervision. Such conditions may be episodic rather than continuous. Examples of conditions which may qualify for leave include migraine headaches, asthma, ongoing back problems, diabetes, heart conditions, ulcers, and cancer. In such cases, protected leave may be for periods of incapacity, treatment, or doctor’s appointments

13. When do you need to think about the FMLA? • An employee or family member is hospitalized overnight or longer • An employee has a recurring absenteeism problem and the absences may be related to a medical condition

14. When do you need to think about the FMLA? • An employee is absent for prenatal care, reasons related to pregnancy or childbirth (including severe morning sickness), postnatal care • An employee needs time off for issues related to the placement of a foster child with the employee, or adoption of a child by the employee

15. When do you need to think about the FMLA? • An employee has an absence that appears to be in connection with a family member in the military, including the national guard, reservists or retired military, who is deployed to a foreign country on active duty. Leave may be for such needs as attending military deployment or return ceremonies, attending to child care or financial arrangements, time for counseling, and the military member’s time off for rest and recuperation

16. When do you need to think about the FMLA? • An employee’s family member or “next of kin” is a servicemember or a veteran who was active in the military any time within the preceding 5 years, and is experiencing a serious illness or injury incurred or aggravated in the line of duty and the employee seeks leave to care for the family member • One time leave of up to 26 weeks in 1 year per servicemember and per injury

17. How does an employee request FMLA leave? • By completing an FMLA Leave Request form • By asking a supervisor for FMLA leave • By putting the employer on notice of the need for leave • Through a friend, co-worker or family member • Advance notice required?

18. What if it is unclear if the employee is requesting, or is using FMLA leave?

19. What are a supervisor’s responsibilities under the FMLA? • Permit eligible employees to take covered leave • Reinstate employees to the same position • Do not interfere with FMLA leave entitlement • Do not retaliate for exercising FMLA leave • Legal definition of retaliation: Actions that are likely to dissuade a reasonable worker from exercising rights under FMLA

20. What are a supervisor’s responsibilities under the FMLA? • Contact HR as soon as FMLA may be involved • Ask questions • Don’t forget the ADA • Enforce policies, including call-in procedures • Meticulously track FMLA use • Maintain compassion

21. What if we learn that leave qualifies as FMLA leave after it is taken? • Can we backdate or retroactively count it as FMLA leave?

22. FMLA • Leave can be continuous, intermittent, or reduced schedule. • An employer is required to place an employee on FMLA leave if the leave qualifies and the employee is eligible. • An employer cannot require an employee to take more leave than is necessary. • Benefits during leave • Employee must be returned to the same or substantially similar position if able to return to work within 12 weeks of leave.

23. The FMLA Process • Medical Certification • Employees must be given at least 15 calendar days to return the completed form • Authentication and clarification • Supervisors and managers should NOT call the health care provider directly • What if the leave pattern is inconsistent with the Medical Certification?

24. The FMLA process • FMLA re-certifications • DOL regulations • No more often than every 30 days unless – • The minimum duration of the condition is more than 30 days, then that minimum duration must expire • But at least once every 6 months • Less than 30 days if the employee requests an extension of leave, circumstances described by the previous certification have changed significantly, or the employer receives information that casts doubt upon the stated reason for the absence or the continuing validity of the certification • An employee must be provided at least 15 calendar days for the employee to return the completed form

25. The FMLA return-to-work process Return to work/fitness-for-duty certificate

26. Americans with Disabilities Act, As Amended • ADAAA • No discrimination • Who is disabled? • What are key differences between the FMLA and the ADAAA? • Reasonable accommodation unless an undue hardship or direct threat • Reduced hours • Work area modification • Light duty • Leave of absence – including additional time when an employee cannot return at the conclusion of FMLA leave • Must engage in interactive process (speak with employee, make decision based on employee’s input and employer’s needs)

27. When is it appropriate for a supervisor, manager, or director to be provided knowledge of an employee’s health condition?

28. Scenarios and Discussion

29. Scenario Questions: • Are Lindsay’s absences protected by the FMLA even though she did not complete the FMLA paperwork as her supervisor directed? • If Lindsay’s leave is approved for FMLA intermittent leave, does Lindsay’s employer have to accommodate Lindsay’s work restrictions even if her supervisor finds them to be unreasonable and highly disruptive to the needs of the department? • Can Lindsay’s supervisor transfer Lindsay to another position which could better accommodate her absences if Lindsay does not want to be transferred?

30. Scenario Questions: • If Lindsay’s leave is not covered by the FMLA because she has only been employed for 9 months, is her employer obligated to consider her request for reduced work hours? • Can Lindsay’s supervisor require Lindsay to go out on full time FMLA leave until she can return to work full time without restrictions because her department does not have light duty? Assuming Lindsay's leave is covered by the FMLA: • Can Lindsay’s supervisor discipline her for missing the mandatory department meeting? • Can Lindsay’s supervisor discipline her for not giving proper notice of her need to be absent for the department meeting?

31. Scenario Questions: • Can Lindsay be terminated for working a second job during the time she was taking an FMLA leave of absence? • Assume Lindsay wants to take two weeks of leave for liposuction surgery starting on December 15 because she believes that feeling better about herself will reduce her stress and anxiety. According to her doctor, she will need to stay in the hospital overnight after her surgery due to other health conditions. Does her employer have to grant her leave starting on December 15 under the FMLA? • Lindsay has an anxiety attack and goes out on full FMLA leave with an expected duration of 4 weeks. Her available FMLA leave expires at the end of week 3. Can she be terminated for exhausting her available leave?

32. Avoiding FMLA Abuse • FMLA and ADA – complex and often frustrating laws • Nevertheless, supervisors need to understand and support compliance • Need for good communication with HR/Employee Health • Need for good communication with employees • Pay attention to patterns and signs of abuse and discuss with HR/Employee Health • Don’t wait until you are frustrated • Don’t let difficult, or even abusive employees get the better of you • Be aware; no ostrich syndrome • The time to address problems with employees is at the time the problems occur – not after they need leave or an accommodation.

33. Conclusion