Intermittent FMLA – You Are Not Alone

We work with HR departments all over the country, answering compliance questions everyday. Over time, we have come to recognize patterns and issues that seem to plague HR universally.  One frequently raised issue: The incredibly painful intermittent FMLA. The DOL defines intermittent FMLA as leave taken in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule.

Unfortunately, for many employers, intermittent leave can become a nightmare – often abused and difficult to manage. Fortunately, the FMLA regulations offer some tools for employers to discourage abuse and better monitor leave. Here are our top 5 strategies for curbing the misuse of intermittent FMLA.

1. Question the Original Certification.

If the employee’s use of intermittent FMLA is inconsistent with the certification, this gives you a good starting point for curbing the abuse, or stopping misuse of FMLA before it starts.

It is always worth double-checking that the employee was actually eligible for FMLA in the first place.  Did he or she actually work 1250 hours in the last 12 months?  Was the original certification sufficient to establish a serious health condition?  Intermittent FMLA is often needed for chronic conditions that cause episodic rather than continuing incapacity.  Check the certification: if the employee (or the employee’s spouse or child) was not seen or was not scheduled to be seen by a healthcare provider at least twice within 12 months, the leave may not qualify as FMLA.

2. Monitor Compliance with the Certification

The certification will set forth the frequency and expected duration of the “flare-ups” and you have a right to track intermittent leave to ensure that the employee’s use is consistent with the certification.  If the employee’s use of leave exceeds what is outlined in the certification, let the employee know.  If the employee feels that he or she needs additional leave, you can provide him/her with a new certification for the healthcare provider to complete.  If the employee was using intermittent FMLA to fix his or her car, this will set the record straight.

The FMLA allows employers to insure that a certification calling for intermittent health-related absences is sufficient, valid and supports the need for intermittent leave. If you notice a pattern of absences that seem to occur at suspicious times like weekends and holidays, you should document it. Because evidence of a pattern of abuse is circumstantial, don’t jump the gun – document absences over a long enough period to be able to show a definite pattern.

3. Request Recertification.

The FMLA regulations offer a number of opportunities to seek recertification of the need for FMLA leave, including intermittent leave.  Employees may be asked for recertification:

  • Any time they seek to extend an existing FMLA leave;
  • For long-term conditions or conditions that may require sporadic absences, an employer may request recertification every 30 days in connection with an absence;
  • If the employee is taking a solid block of leave for more than 30 days, the employer may ask for recertification if the leave extends beyond the requested leave;
  • If the employee is out on a leave that has been certified to extend for more than six months, the employer may seek recertification every six months; and finally,
  • Employers may ask for a new certification at the beginning of each leave year.

If you are looking to request a recertification at the start of a new FMLA year, check first to make sure the employee actually worked 1250 hours in the previous year.

4. Follow up on changed or suspicious circumstances.

The FMLA regulations also allow employers to seek recertification more frequently than 30 days if:

  • The circumstances described by the existing certification have changed; or
  • The employer receives information that casts doubt on the employee’s stated reason for the absence or on the continuing validity of the certification.

“Changed circumstances” include a different frequency of duration of absences, increased severity, or complications from the illness. The regulations allow employers to provide information to the health care provider about the employee’s absence pattern and ask the provider if the absences are consistent with the health condition. Changed circumstances are the scenarios where you’ve noticed the employee’s FMLA call-ins are exceeding the absences noticed in the certification, and the employee indicates a need for additional leave.  To mitigate risk, send the employee an email or letter first notifying him/her that the use of FMLA is exceeding the certification and that if more time is needed a new certification should be executed.

Information you receive about activities the employee is engaging in while on FMLA leave that are inconsistent with the employee’s health condition may cast doubt on absences. An example provided in the regulations is an employee playing in the company softball game while on leave for knee surgery.  Again, it is important to look at the certification.  It may be that the employee has a job that is precluded due to something like epilepsy, but other activities are allowed.

5. Make Sure the Employee Provides Appropriate Notice

The DOL regulations spell out that an employee is supposed to give the employer at least 30 days advance notice before using FMLA leave if the need for leave is foreseeable. If that is not practical because of a lack of knowledge or uncertainty about when the leave will need to begin or due to a change in circumstances or a medical emergency, notice is supposed to be given “as soon as practicable.” That means both as soon as possible and practical, taking into account all of the facts and circumstances in the individual case.  At the very least, the employee is expected to comply with the employer’s call out procedure absent extenuating circumstances.

That’s our top 5.  So, the next time you receive a request for intermittent FMLA leave, or have intermittent leave questions, ask yourself the following before you start banging your head on the wall repeatedly:

√    Is the certification complete and valid? When a certification has entries missing or is vague or ambiguous, you may ask the employee to provide complete and sufficient information. The request must be in writing and must specify the reason the certification was considered incomplete or insufficient. The employee then must provide the additional information within seven days. If the employee fails to provide the information, leave may be delayed or denied.

Even if the certification was initially complete, has the time period it covered expired?  If you have concerns that the certification is not legitimate, HR may contact the health care provider to insure that he or she actually prepared the certification, and to clarify handwriting or the meaning of a response, but the employee’s direct supervisor may not be the one to make that contact. During this process be careful not to request more information than what is required to authenticate or clarify the form.  This process can also be used at the recertification stage as well as with an initial certification.

√    Is the employee’s use of FMLA consistent with the certification?  If not, address it immediately with the employee reminding the employee of the certification, and letting the employee know that if something about the health condition has changed and additional leave is needed, you will want to go ahead and obtain a new certification from the doctor.

√    Do you suspect abuse?  If so – document and watch for patterns.

√    Are you enforcing your absence notification policy consistently?  When an employee on intermittent FMLA is absent, don’t assume it is for an FMLA qualifying reason.  Make sure they are following your call-in procedures and are not just leaving work whenever they feel like it.  On the other hand, if no one else is expected to call-in, don’t just enforce these policies for those on FMLA.

√   Have you considered the American’s with Disabilities Act (ADA)?  Any time an employee seeks FMLA leave for his or her serious health condition and indicates a need for ongoing treatment, it is important to consider whether the employee also qualifies as disabled under the American’s with Disabilities Act (ADA), and whether you may have an obligation to engage in the interactive dialogue and grant ongoing accommodations.  As a reminder, the ADA requires employers to provide qualified disabled employees with accommodation absent undue hardship.

√   Do you need a gut-check? Call us. We can save you headaches and time, cutting through the confusion quickly.  508-548-4888 or questions@foleylawpractice.com

 

 

 

Is Your Organization Prepared for the New Pay Equity Law?

Pay equity laws are not new. Federal law has prohibited pay discrimination for decades. However, current media attention to sex-based discrimination, including sexual harassment and pay inequities, has placed these issues in the spotlight. This focus creates new challenges—and opportunities—for compliance-minded employers to face this issue head-on, rather than waiting to defend a claim. Pay equity claims can cause an expensive distraction, but it doesn’t have to be that way. By understanding the law, and your obligations, you can rest assured you are protecting your organization, and your employees.

Understand The Law.

As we mentioned here, one of the strongest state laws in the country addressing equal pay for comparable work will take effect in Massachusetts on July 1, 2018. The sweeping Act makes many changes to existing law, including definitions of how to determine comparable work, and prohibiting organizations from requesting salary history before hire, to name a few. Additionally, employees will not be required to file a claim with the MCAD prior to filing a lawsuit, making this an expensive proposition for unprepared employers. The silver lining in these new obligations is the Act provides an affirmative defense to employers who perform a good-faith evaluation of pay practices, and create a plan for addressing identified disparities. Below is an overview of how that process can work to your organization’s advantage. And, if you are interested in getting in on that attorney client privilege, we’ve got you covered.

Perform a Pay Equity Evaluation.

In addition to the affirmative defense the Massachusetts Act provides employers, a pay equity assessment or audit is arguably the most efficient way to address the risk of a pay equity claim. The focus and depth of the analysis can vary depending on the size and needs of your organization, but there are three common goals:

  • Determine whether pay disparities exist that cannot be explained by other factors (remember, these are not factors that could explain the disparity, but factors that actually influenced the pay decision);
  • Identify weaknesses or gaps in compensation policies and practices that contribute to such disparities; and
  • Create a plan for addressing the disparities.

Exercise Attorney-Client Privilege. 

Any time you internally audit or review your internal policies and procedures that review may be subject to disclosure, either during a government agency investigation or during discovery in litigation. By using an attorney, that same audit or review becomes protected by the attorney client privilege. When we are talking about an audit that may reveal evidence of pay inequity, using an attorney becomes a key risk management tool. You won’t know beforehand what the audit will reveal, so the conservative approach is to take appropriate steps to protect the audit and its results to the greatest extent possible.

Make Appropriate Comparisons.

At its core, a pay equity assessment analyzes your organization’s pay data to determine whether there are disparities. A typical analysis compares the average pay of men to the average pay of women (or other protected groups) within relevant job classifications to determine whether disparities exist. Under the federal Equal Pay Act, for example, this means comparing employees who perform jobs that require equal skill, effort and responsibility and are performed within the same establishment under similar working conditions.

Under the new Massachusetts law, this comparison is extended to include “comparable work,” defined as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” In other words, employers need to use more than job titles to make an appropriate comparison.

Disparities Require a Deeper Dive.

If your pay equity analysis reveals pay disparities within certain jobs, it will be necessary to more closely examine the affected groups to identify whether other relevant factors explain the pay differences. These factors can be objective or subjective and are usually unique to the particular job or industry. For instance, compensation for some jobs is based on the quantity or quality of achievements, such as sales revenues, patents filed, degrees achieved or publications made. Differences may also be attributed to market data or difficulties in filling the position that required paying a higher salary.

Review Compensation Practices.

Often, pay disparities are not the result of intentional discrimination, but a variety of factors ranging from salary history to lack of clarity in the organization’s pay policies and practices. Even after the pay analysis is complete, it is important to consider whether modifications must be made to existing compensation policies, procedures and practices in order to help prevent unexplained disparities from continuing to occur. Failure to take this step could create an ongoing risk of future pay disparities. The following questions will help identify whether policies and practices should be examined:

 

  • Are there written guidelines that define the factors to be considered when making pay decisions?
  • Are decision makers held accountable for complying with compensation related policies and guidelines?
  • Do different departments or teams within the organization operate independently and without oversight when making compensation related decisions, rather than a cohesive approach within the organization?
  • Do the organization’s pay practices require evidence to support the factors that are used to make pay decisions, such as written performance evaluations or objective market data?
  • Is there documentation recording the reasons for pay decisions, particularly where those decisions deviate from expectations?

Update Job Descriptions and Performance Evaluations.

Job descriptions alone are not sufficient to show that jobs are equal. However, they can provide the foundation for demonstrating that certain jobs are either comparable or should be differentiated for purposes of salary comparison. Conversely, poorly drafted job descriptions can adversely impact an organization’s ability to defend themselves when confronted with pay equity claims. Additionally, because performance reviews generally impact salary directly, a flaw in the performance evaluation process may affect the legitimacy of pay decisions (and other employment decisions) that are tied to those results. For this reason, it is important that managers and any personnel responsible for setting salary levels are trained and understand the importance of accurately documenting performance issues and achievements.

Create a Plan.

The final step in any pay equity assessment is to make a plan for addressing pay disparities that are identified. Employers cannot lower the pay for some employees in order to equalize pay, so the righting of identified inequities can take time.

Don’t Wait.

With the renewed focus on pay equity—whether across gender, race or other protected lines—employers can expect increased scrutiny of their pay decisions. Conducting an effective pay analysis will help ensure legal compliance and provide useful insight into the effectiveness of existing compensation practices. In Massachusetts, it will also provide an affirmative defense in the event of a pay equity complaint. And finally, to protect the process and your findings, strongly consider the use of an outside attorney. This will give you the benefit of the affirmative defense coupled with the protection of the attorney-client privilege.  We are here to help.

 

Time to Think About Interns

As second semester begins, many undergraduates are considering their summer employment options, and many are looking for internships.  In the past, this has been an area fraught with risk for unwary employers, particularly in labor friendly states like California and Massachusetts.  The DOL is making a new push for the use of unpaid interns in the private sector, which is a major departure from its position during the Obama administration.  Below is an overview of the DOL’s new intern guidance (located here), as well as ongoing risks for employers to consider.

When determining whether an intern is properly classified under the Fair Labor Standards Act (FLSA), courts have identified the following seven factor test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The test is a flexible one, and no single factor is determinative, which means a court will look at the unique circumstances of each case.

Think you may be ready to take the plunge?  Before you do, consider the risks inherent in using unpaid interns.

  1. Employers must also comply with state law.  
Under Massachusetts law, most for-profit companies must pay interns at least minimum wage.  The Massachusetts Minimum Fair Wage Law and Regulations (the “Wage Act”) specifically states that the following five types of work are the only occupations permitted to be performed by unpaid interns):
  1. Professional service;
  2. Agricultural and farm work;
  3. Work by persons being rehabilitated or trained under rehabilitation or training programs in charitable, educational or religious institutions;
  4. Work by members of religious orders; or
  5. Outside sales work regularly performed by outside salesmen who regularly sell a product or products away from their employer’s place of business and who do not make daily reports or visits to the office or plant of their employer.  (M.G.L. c. 151, § 2).
Unlike the FLSA, as outlined above, the training exception to the Wage Act is limited to only charitable, educational or religious institutions, removing the possibility that a for-profit company could utilize the exception for an unpaid internship program structure.   Additionally, “professional service” is a restricted group, limited to such professions as a doctor, lawyer or engineer and not the more commonly sought undergraduate internships.
In short, in Massachusetts, unless the organization is charitable, educational or religious, or the internship is for a professional service (as defined above), interns must be paid at least minimum wage.
2.  The DOL does not determine whether your interns should be paid, the courts do.
Over the past several years, a number of high profile cases involving interns have made their way through the courts.  Companies like Fox Searchlight and GM have been sued for failing to pay interns.  While the specific factors a court will examine will vary depending on jurisdiction, there are a few major factors the courts will be looking at.
Is the training similar to that the intern would receive at a vocation school?
In other words, is the intern learning the skills of the trade for which he or she is interning?  If your accounting intern is running errands, buying coffee, and answering phones, you may face an issue.

Is the training for the benefits of the intern, or does the employer derive an immediate advantage from the activities of the interns?

In addition to the intern benefiting from the internship, the company must also show that it received no immediate advantage from the intern’s work.  While it is acceptable for the performance of tasks by interns to have some benefit, this limited benefit should be counter-balanced by impediments to the employer’s operations in both time and economic costs in teaching the intern the activities, reviewing any work performed as well as economic costs to the business of participating in the program.

Do the interns displace regular employees?

If the intern is filling a position that would otherwise be filled by a paid employee, the intern should be paid at least minimum wage.
Unsure about interns?  We can help.