Spotting – and Stopping – FMLA Abuse

It’s one of the biggest challenges for HR – FMLA abuse. You don’t want to run afoul of the law and not grand leave when it’s warranted, so most times HR just grants the leave and that’s it.

But what about the times you’re pretty sure this leave is being abused?

It’s particularly difficult when the leave is taken intermittently. How can you tell if a day here or a day there is valid?

There are red flags you can look out for. To start with, track the leave to see if there’s a pattern – long weekends, around vacation days, etc. Typically, a true illness doesn’t only flare up on Fridays.

For extreme cases, you may need surveillance. This will prove the employee is engaging in behaviors while on leave that they said they couldn’t do at work.

Corporate Counsel recommends the following investigative techniques:

• interviews with the employee
• consulting with a private investigator and an outside medical professiona
• requiring employees provide medical certification (like a doctor’s note) for FMLA leave.

Certifications are a key tool in managing leave and preventing abuse. But using these effectively – and legally – is a skill in and of itself. Learn how with FMLA Medical Certification: Employer’s Guide to FMLA Trouble Spots.

This is an area every HR pro will encounter at some point in their career. Make sure you’re prepared – attend C4CM’s upcoming online event on FMLA Intermittent Leave: How to Track, Administer and Prevent Employee Abuses on February 5 at 2:00 PM ET. Can’t make it? Get the CD and stay up to date!

This Is a Freaking Great Deal!

Seriously – this IS a freaking great deal!

The DOL is coming!  The DOL is coming!  So tighten up your Family and Medical Leave Act (FMLA) compliance efforts.

DOL Branch Chief for FMLA, Diane Dawson, recently announced the DOL is increasing the frequency of its on-site FMLA investigations. Employers should take note. The DOL recommends that employers be proactive in their approach to FMLA compliance before the DOL even knocks on the door.   That’s good advice – so take it, and clean up your FMLA compliance today.

Sign up for C4CM’s webinar on FMLA Compliance Self-Audit: Prevent and Prepare for Lawsuits and On-Site Investigations, held on Wednesday, October 23, 2013 at 2:00 PM ET, and your registration will also include the top-selling Family Medical Leave Act (FMLA) Compliance Manual – a no-fluff, plain-English report you can use to create or update your policies, train your entire staff and ensure FMLA compliance – a $349 value absolutely FREE!

Register and get your spot now for this freaking great deal! We’re so excited about it over here we can’t believe it!

Changes Proposed For Family Medical Leave Act

Everyone needs a little help for personal issues now and then. It may be a family member with a medical problem. It may also be issues related with pregnancy.  Sometimes issues become too much to deal with that people need to take time from work to deal with their problems.

The Federal Family Medical Leave Act helps with these areas. This federal law established in 1993 requires covered employers to provide employees job-protected unpaid leave for qualified medical and family reasons. These reasons range from personal or family illness including military service, family military leave, pregnancy and adoption.

Provisions OF The Law

According to the U.S. Department of Labor website, employees that meet requirements are entitled to 12 weeks of leave in a twelve month period for:

the birth of a child and to care for the newborn child within one year of birth

the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement

to care for the employee’s spouse, child, or parent who has a serious health condition

a serious health condition that makes the employee unable to perform the essential functions of his or her job

any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;”

Proposed Changes

The Department of Labor has proposed changes to the law. Companies would be required to track FMLA leave in the smallest increments their payroll systems use to track work time. There is also the proposal to change the rule that allowed employers to delay a workers’ reinstatement from FMLA when it was physically impossible for the employee to return to work in the middle of his or her shift. Changes are also proposed for military families including:

Expanding caregiver leave so it can be taken to care for veterans discharged within the past five years

Allowing caregiver leave to be taken for a pre-existing injury or illness that was aggravated in the line of duty

Extending exigency leave to family members of the Regular Armed forces

Requiring that service members be deployed to a foreign country in order for their family members to qualify for exigency leave  

Does Your Company Offer Paid Maternity Leave?

A recent Infographic published at Mindflash demonstrates a major problem at American companies: a lack of maternity leave. Based on the Infographic, the U.S. is lagging behind the majority of other countries in the benefits offered to new moms and dads. In fact, of the 190 countries surveyed, America is one of the only three that does not provide any guarantee of paid benefits to moms. Needless to say, America also doesn’t offer paid time off for new dad’s either- although 50 out of the 190 countries who responded to the survey do. 

Maternity Benefits in America

New parents are guaranteed some leave if their employers are covered under the Family and Medical Leave Act (FMLA) and if the employee meets FMLA requirements such as having worked for a sufficient length of time. This means that, at a minimum, employees can take off up to 12 weeks for the birth of a baby without risk of losing their jobs. However, the FMLA only applies to private employers with 50 or more employees, meaning that other companies aren’t obligated to provide benefits at all. FMLA leave is also unpaid so many parents cannot afford to take it. 

Despite the fact that you aren’t required to offer paid maternity leave, providing only the minimum FMLA leave (or no leave at all) may not be in the best interests of your employees or your company. Offering no paid leave can be a major disservice to mothers, not only by making it more difficult for them to balance work and family but also by increasing the likelihood of postpartum depression  according to data collected by the National Bureau of Economic Research.  Failing to offer paid benefits to moms can also affect your ability to hire and retain female workers who may be concerned with the lack of options available to them if they have a baby. 

Mindflash also argues that there are other benefits to companies for offering paid maternity leaves to moms, besides just improving employee well-being and making it easier for women to stay on the career track after having kids. Among the benefits they cite is the fact that offering leave allows you to get a better idea of how competent other workers are.

The Takeaway

According to data provided on the infographic by Mindflash, only 16 percent of companies in the U.S. offer paid maternity leave. By offering such leave, you can become more competitive in hiring and you can help employees to be happier and healthier- and thus more loyal and productive to your company. This can have a major payoff in the end as you enjoy less turnover and more dedicated and effective workers. 

FMLA Actions: Can a Supervisor’s Harassment Make Employees Sick?

The Family and Medical Leave Act provides covered employees with the right to up to 12 weeks per year of unpaid leave to deal with qualifying medical conditions, with the birth of a child or with the needs of a family member who is in the military. The FMLA also protects an employee from retaliation for taking leave. According to a case earlier this year, however, the FMLA does not provide protection if your boss allegedly acted in some way that worsened your illness.

The Allegations: My Boss Made My Illness Worse

The case, Breneisen v. Motorola, Inc.was brought by a man who had taken his twelve weeks of leave due to a gastrointestinal problem. After returning from leave, he was reassigned to a different job. This, in and of itself, is not considered FMLA retaliation since the company alleged that his position had been eliminated when he was gone and since he did not suffer a decline in salary. However, he felt he had been demoted with the change in position.

Shortly after his return to work, Breneisen needed another leave, although he had already used up his 12 weeks. This time, he took off five months and then returned, working only for a few months before taking leave again. He never returned from the final leave and his employer ultimately fired him.

When he was terminated, he sued his employer, alleging that the badgering that he experienced from the supervisor in his new position raised his blood pressure and caused stress and acid reflux, which worsened his gastrointestinal problems.

The Ruling

The court did not buy the plaintiff’s story. The court ruling stipulated that FMLA actions are limited to actual retaliation claims and cases where leave is improperly denied. The question of whether your boss made you sick or not is not relevant to FMLA litigation. The court also ruled that Breneisen had already exhausted his twelve weeks of leave with the first surgery, so he was no longer eligible for subsequent leaves and the FMLA did not protect him from being terminated on the basis of those further absences.

The Takeaway

While this case is good news for employers as FMLA rights aren’t expanded to involve looking at whether a boss contributes to an illness, this doesn’t mean employers can harass employees at will. Any behavior considered retaliatory will still give rise to an FMLA cause of action, and any harassing behavior that violates civil rights or employment laws can still give rise to a tort claim. Employers, therefore, still need to exercise caution in how they treat employees and in avoiding any behavior that could potentially be seen as harassing.

The Family and Medical Leave Act of 1993 (FMLA) has long required employers to grant employees up to 12 weeks of unpaid leave for family situations. Employers covered under the FMLA include companies who employ over 50 people, all public agencies, and private and public schools (excluding colleges). To be covered under the current rules, employees must have worked for the company for at least one year with 1,250 hours completed during that year. Employees also must need the leave for a specific reason, such as the birth and/or care of a child (birth, foster, or adoptive), pregnancy complications, to care for a family member with medical issues, or for personal medical reasons. In January 2009 the FMLA also added leave for new military families. While the FMLA is fairly comprehensive already, some proposed new changes may require you to allow employees leave in even more situations. 

The Domestic Violence Leave Act

On October 11th, 2011 a bill was introduced to the house called H.R. 3151: Domestic Violence Leave Act as an amendment to the FMLA. The new bill seeks to make leave available for employees who need to address domestic violence issues, either for themselves or a family member. Domestic violence that would entitle an employee to leave is identified as:

 

• Anything to do with Domestic Violence
• Sexual Assault,
• and/or Stalking

as defined in the Violence Against Women Act of 1994. 

The definition of “address” includes:

 

• The receiving of medical attention, 
• Anything to do with legal matters such as meetings with police/lawyers, 
• Going to a support group, 
• Attending counseling, 
• Anything related to ensuring future safety, or 
• Participating in any type of activity that was necessary as a result of a domestic violence incident.

In cases where leave is requested as a result of domestic violence, the Act imposes a confidentiality amendment that would require employer confidentiality in relation to an employee addressing a case of domestic violence. Employees, on the other hand, would need to provide written documentation of the domestic violence incident if requested by the employer.

Other Amendments

The new bill also requests amendments for subsections of the FMLA. These include:

• Allowing employees to take leave intermittently or on a reduced schedule, 
• Allow employees to elect to use any accumulated vacation, sick, personal, family, or medical leave for the intermittent time.

Employees would be required, however, to provide the employer with reasonable notice if they are aware ahead of time that they need to miss work,.   It also wants the term “domestic partner” added as a family member of an employee, including same-sex partners and children of domestic partners. 

Keeping up with FMLA Rules

While these rules have merely been proposed as of October 2011, it is important to keep abreast of your obligations under the FMLA. Failure to grant required leave or any discrimination or mistreatment of employees on FMLA leave can subject your company to lawsuits, so knowing the current rules is key to protecting yourself legally. 

Respecting Your Employee’s FMLA Rights

Under the Family and Medical Leave Act (FMLA), qualified employees are permitted to take up to 12 weeks of unpaid leave annually due to a medical emergency or other qualifying incident, such as the birth of a child or the need to care for an active duty military family member. Employers may not take any adverse action against employees who utilize their FMLA benefits. Recently, a Pennsylvania court ruled that a manager failing to return telephone calls of an employee on FMLA leave can be viewed as evidence of an employer’s FMLA violation.

Returning Phone Calls as an FMLA Violation

In a recent Pennsylvania case entitled Hofferica v. St. Mary Medical Center, Hofferica, a registered nurse, had to take FMLA leave due to an ear problem. While she was on leave, she regularly contacted her supervisor to provide him with details on her condition. Her employer did not return Hofferica’s phone calls, despite her repeated efforts at contact.

Shortly before Hofferica was scheduled to return to work, she submitted a certification signifying that she was cleared to resume her duties but that she would need an extension of one week.  Again, her supervisor did not call her back.

Hofferica subsequently received a letter indicating that her job had been terminated because she exceeded the permissible amount of FMLA leave that had been agreed-upon. Hofferica subsequently filed suit alleging that her employer had retaliated against her for taking the leave that the law permits her.

The Court’s Ruling

The court determined that the supervisor’s persistent failure to return Hofferica’s telephone calls could be seen as clear evidence of an antagonistic attitude toward the employee on leave, especially since the pattern of behavior did not begin until after Hofferica had already taken her leave.

Because the manager’s actions could indicate retaliatory action in violation of FMLA laws, the court declined the company’s motion to dismiss and said Hofferica’s case can proceed.

The Takeaway

While it is unclear at this time whether Hofferica will eventually prevail or not, it is clear that the company will either have to endure the expense of a settlement or will need to endure the expense and costs associated with a trial.

To avoid these problems, it is essential that all employees, including managers, understand and respect the rights and obligations granted by the Family and Medical Leave Act. No actions should be taken against employees on leave, including failing to communicate or return telephone calls, that could potentially be seen as a violation of these worker protections.

Hurricane Irene and Employer FMLA Responsibilities

In the wake of Hurricane Irene, many employees are being forced to take time off of work to deal with injuries or property damage caused by the hurricane. Employers, in general, may be required to accommodate these requests for leave. Some businesses are or were forced to close temporarily due to the storm as well. The Wage and Hour Division of the U.S. Department of Labor outlines employer obligations in the wake of a national disaster like Hurricane Irene, providing background on the rules that apply to this and other natural disasters.

The FLSA and Natural Disasters

The Fair Labor Standards Act is one federal act implicated after a natural disaster. Under the FLSA, employers must be paid for all hours worked and must be paid time and a half for any hours over 40 hours worked in a single week. When a national disaster occurs, several different questions can arise as to what the FLSA requires of employers. The Wage and Hour Division outlines employer obligations in Fact Sheet #72 and specifies:

• Employers who have records destroyed or who are closed in a natural disaster are still required to pay no less than the full minimum wage and overtime earned prior to the disaster. 
• Employers are obligated only to pay for hours actually worked for employees who are not considered exempt employees. If a business closes due to a disaster, employers are not required to pay the hours that the employee would have worked had the disaster not occurred. Employees may be able to obtain unemployment or disaster unemployment assistance. 
• For those employees considered exempt (salaried employees), they generally must be paid as normal if they are absent for less than one full week due to weather or other natural disasters forcing a business to close. When an employee keeps its business open during bad weather and an employee is absent, his salary should not be reduced due to this absence. 
• No individual who volunteers to provide services after an emergency is considered an employee, whether the volunteer offers his time to a public agency or a private entity.

Family Medical Leave Act (FMLA)

The Family Medical Leave Act (FMLA) is another federal act that may be important in the event of an emergency o r natural disaster. Under the FMLA, employees are permitted to take as long as 12 weeks of unpaid leave for medical reasons, family reasons or because of a “qualifying emergency. The employee’s job must be protected during this time.

Handling Hurricane Irene

In the aftermath of Hurricane Irene or any other natural disaster, it is essential you comply with FMLA and FLSA laws and make sure employees are paid on time and given the leave they need.

Whenever possible, employers should also try to be understanding of the family and other obligations that arise in the event of a hurricane in order to foster employer/employee good will. This may mean making accommodations to allow employees to work more flexible schedules, to work from home or to make up missed time at a later date. Whenever accommodations can be made without great cost to your business, it is always best to exercise caution and show understanding.

FMLA Disputes Require a Third Opinion

The result of a new Family Medical Leave ACT (FMLA) shows that a second opinion may not be enough to reject employee leave.  

When the accused employer did so, the Minnesota court ruled in favor of the employee, stating that the company had violated the employee’s FMLA rights and unlawfully terminated the employee over the dispute.  

According to attorney Francine Breckenridge from the firm Strasburger & Price, “employers cannot use a second opinion alone to reject a workers’ FMLA leave request.”  

In addition, Breckenridge explains that employers are required to pay for the second and third medical opinions — and the medical providers rendering the opinions cannot be connected to the employers.

Read the HR Morning news article

Image: renjith krishnan / FreeDigitalPhotos.net

New FMLA Bill Seeks to Broaden Rules for Employees

On Monday, U.S. House Democrats introduced a piece of legislation that would enhance the Family and Medical Leave Act for employees. H.R. 1440 seeks to require companies with 25 or more employees to follow the 1993 law, whereas in the past, the rules only applied to companies with 50 or more.  

Another big stride to help employees in the aftermath of the recession, it broadens the scope of what is considered appropriate leave reasons. At a time when multigenerational households grew in size due to financial difficulties, it comes as no surprise that we are entering a time of redefining family and medical leave.  

In particular, the enhanced family/medical leave rules would include up to four hours a month and no more than 24 hours a year. It also would require employers to allow parents to:  

• Attend educational and/or extracurricular activities attended by a son, daughter, or grandchild
• Take leave for routine family medical care needs for children and grandchildren
• Use medical leave related to assisting elderly relatives (including visits to group/nursing homes)  

Read The Hill news story  

Image: renjith krishnan / FreeDigitalPhotos.net