Un-“PAID” Is a Better Option

Last week the U.S. Department of Labor’s Wage and Hour Division (WHD) unveiled its new Payroll Audit Independent Determination (PAID) program to facilitate resolution of potential overtime and minimum wage violations under the Fair Labor Standard Act (FLSA). Below you will find the highlights of the program and our advice and recommendations on compliance.

WHD will implement this “self-audit pilot program nationwide for approximately six months” to begin in April. At the end of the six month pilot period, WHD will determine whether to make the program permanent. In the meantime, as your team contemplates this opportunity, we recommend you keep WHD’s stated goal in mind: “To ensure that more employees receive the back wages they are owed – faster.”

All FLSA-covered employers are eligible to participate in the program on a voluntary basis. The program covers potential violations of the FLSA’s overtime and minimum wage requirements including, for example, violations based on alleged “off-the-clock” work; failures to pay overtime at one-and-one-half times the regular rate of pay;  misclassification of employees as exempt from the FLSA’s minimum wage; and overtime requirements.

There are some attractive elements to the program. It enables employers to expeditiously resolve inadvertent minimum wage and overtime violations without litigation (perhaps—see below), without the payment of liquidated damages, and without civil monetary penalties. That certainly sounds attractive but there is a catch or two or three… .

For many employers, the downside of this program will outweigh the upside. For example:

  • This program does not require employees to surrender any rights.
  • If an employee chooses not to accept back payment, the employee will not release any private right of action.
  • If the employee chooses to accept the back payment, the employee will not grant a broad release of potential claims under the FLSA.
  • By allowing employers to participate in the program, WHD does not waive its right to conduct any future investigations of the employer.
  • The participating employer must pay 100% of the calculated back wages immediately, no exceptions.
  • An employer’s DOL-supervised settlement under this program does not necessarily prevent state law wage claims.

All FLSA-covered employers nationwide confront the same critical question: Does the PAID program reduce risk or increase exposure for your company? Our experience tells us that many employers will be better off conducting their own Audit outside the PAID program and under the attorney/client protection. Certainly, it would be prudent for all employers to conduct an Audit of pay practices to assess compliance under the FLSA and state wage and hour laws. Our employment law crystal ball identified these issues a few years back and led us to develop our very popular FLSA Wage and Hour and Timekeeping Audit Service and our Exempt or Non-Exempt Positions Classification Service. You can achieve compliance without the PAID program pitfalls. Please let us know how we can help. www.foleylawpractice.com or call 508.548.4888

 

In some jurisdictions this blog post is regarded as Attorney advertisement.

WWYLD – 03/16/18 – Time Off Under FMLA to Care for an Adult Child

Question:  An employee is requesting time off to be with her adult daughter who is having a procedure done at the hospital.  Could the employee be entitled to FMLA leave?

This employee could be entitled to FMLA leave, but the employer may request additional information to definitively determine entitlement.  The employee’s eligibility for FMLA leave will depend on the following factors:  1) whether the employee’s adult child has “serious health condition” 2) whether the employee’s adult child is “incapable of self-care;” and 3) whether the employee is “needed to care for” the child.

To be eligible for FMLA leave, an employee must work for a covered employer and:

  • have worked for that employer for at least 12 months; and
  • have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
  • work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

1)  Serious Health Condition

An eligible employee is entitled to up to a total of 12 workweeks of unpaid leave in a 12-month period:

  • for the birth of a son or daughter, and to care for the newborn child;
  • for the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
  • to care for an immediate family member (spouse, child, or parent — but not a parent “in-law”) with a serious health condition; and
  • when the employee is unable to work because of a serious health condition.

A “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves:

  • any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility; or
  • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily activities that also involves continuing treatment by (or under the supervision of) a health care provider; or
  • any period of incapacity due to pregnancy, or for prenatal care; or
  • any period of incapacity (or treatment therefore) due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.); or
  • a period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal diseases, etc.); or,
  • any absences to receive multiple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).

2)  Incapable of Self Care

A “child” is defined as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or is 18 years of age or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence.

An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living or instrumental activities of daily living.

  • The FMLA regulations include the following as examples of “activities of daily living”:
    • Caring appropriately for one’s grooming and hygiene
    • Bathing
    • Dressing
    • Eating
  • The FMLA regulations provide the following examples of “instrumental activities of daily living”:
    • Cooking
    • Cleaning
    • Shopping
    • Taking public transportation
    • Paying bills
    • Maintaining a residence
    • Using telephones and directories
    • Using a post office

3)  Needed to Care For

To be eligible for leave, the employee will be “needed to care for” her daughter.  The employee would be considered “needed to care for” her daughter if the daughter is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or unable to transport herself to the doctor/treatments, because of a serious health condition. “Needed to care for” also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient care or home care.

Suggested Steps

With regard to #1 and #2, the employer can ask that the employee obtain documentation from the daughter’s medical provider that answers the following:

  • Dates associated with the care the daughter requires;
  • Appropriate medical facts about the condition;
  • A statement of the care the daughter requires

With regard to #3, it is permissible to ask the employee for a brief explanation of why the employee is needed to care for her daughter.  This information would come from the employee herself and does not need to be supported by a request/recommendation from a medical provider.  If this information was shared in previous communications, those communications between the employee and the employer could be adequate to support #3.

Questions about FMLA?  We can help.

When A Salary History Ban Includes More Than Just Salary…

As salary history bans continue to be enacted throughout the U.S., our clients are expressing increased anxiety over how exactly they should comply with this aspect of the pay equity trend sweeping the states.

The reason for the confusion? Most of the laws prohibit employers from requesting compensation information without specifically defining what that means.

For example, California’s version of the law prohibits employers from requesting and relying on salary history information, unless disclosed voluntarily by the applicant (without prompting), including questions about past “compensation and benefits.” In the absence of legislative guidance or regulations defining “compensation and benefits,” to avoid risk, employers should consider stock options and deferred and variable compensation as part of the broad category of salary history information.

In fact, while equal pay laws vary by state, employers looking to create a national practice or policy related to salary history should avoid questions about any form of compensation or benefits history.

In fact, while equal pay laws vary by state, employers looking to create a national practice or policy related to salary history should avoid questions related to any form of compensation or benefits history.  And, unless or until further guidance is issued to the contrary, the list below should be considered part of compensation history:

  • Salary
  • Commissions
  • Bonus
  • Equity
  • 401(k)
  • Benefits
  • Deferred and variable compensation.

Returning to California, while California’s laws now prohibits employers from asking about or relying on prior salary information in deciding whether to offer a job and setting pay, the law does permit employers to consider salary history information if an applicant, “voluntarily and without prompting,” discloses the information.

However, we caution all employers who choose to base starting salary on voluntarily disclosed information to keep in mind that the California Fair Pay Act (Lab. Code § 1197.5(a)(2)) precludes employers from relying on prior salary, by itself, to justify any gender, ethnicity or race-based disparities in pay.

 

 

 

 

Equal Pay Is Coming Your Way

Less than a handful of states do not have laws that prohibit gender-based compensation discrimination, and the federal pay equity laws have been on the books for years. California, New York and Massachusetts seem to be competing to have the most aggressive pay equity laws, with other states in the race. While this alert focuses on Massachusetts, we are happy to answer questions about your state’s equal pay laws or the federal law.

Is your company covered by the new Massachusetts pay equity law? Yes, all employers in Massachusetts with the noted exception of the federal government are covered by the new law: for-profit; not-for-profit; large and small; in all industry sectors. Unlike most employment laws, the number of individuals employed is not relevant – your company is covered.

The assessment of gender-based pay inequity in Massachusetts has changed significantly. The standard is different. The definitions are different. Exposure is different. Potential corrective measures are different. Defenses are different. The conversation about salary history and employee wages will be significantly different.

Many find that the guidance recently issued by the Massachusetts Attorney General raised as many questions as it answered. The good news is that the Attorney General’s guidance includes a basic self-evaluation tool for employers. We recommend using outside counsel as part of this process to protect your findings under the attorney-client privilege. Think of our Pay Equity Audit as a protective cloak: it shields any pay inequities you may discover, and will allow your team to make reasonable progress eliminating pay disparities without creating other distractions.

In less than four months, the Massachusetts law goes into effect and your company must be in compliance. We have been advising our clients for over a year to conduct gender-based pay equity audits to protect their organization against the new exposure and litigation from this law: Several have used our innovative Pay Equity Audit already. The Attorney General’s guidance has made it very clear that there are very few clear answers implementing this law– and that all employers should make compliance a top priority.

Our Pay Equity Audit is designed to help your Massachusetts team achieve compliance with the new law and create a rolling affirmative defense to a gender-based pay equity claim. No worries, if you are not located in Massachusetts, we have other state specific Pay Equity Audits. We stand ready to help and can be reached at questions@foleylawpractice.com or 508-548-4888.

What International Women’s Day Means for Your Business

March 8, 2018, is International Women’s Day and this year it is getting a lot of attention. Does anyone remember what went on last year? Or the prior 109 years it was celebrated? Thought not.

McDonalds is turning its Golden Arches upside down. Google is trading its logo to one highlighting 12 women artists and their stories, while also encouraging stories from other women–quite a platform. mcdonalds

Your employees are watching, listening and reading. It is time to be proactive. We have found that a combination of the traditional and non traditional approaches work best. Two examples are our firm’s Equal Pay Audit Service and our Sexual Harassment Prevention Toolkit.

International Women’s Day is a good time to examine workplace issues affecting women. We stand ready to help.

We are proud of the fact our law firm is over 50% women. Call 508-548-4888 or email us at questions@foleylawpractice.com

www.foleylawpractice.com

 

 

 

Has your Massachusetts business misclassified employees as independent contractors? It could be a costly error…

Courts in Massachusetts continue to strictly interpret and apply the state’s independent contractor law: the state favors employment status.  On February 27, 2018, the Appeals Court of Massachusetts (AC) ruled that GateHouse Media Massachusetts I, the publisher of the Patriot Ledger, misclassified David King, a newspaper delivery driver, as an independent contractor (2018 WL 1058352). The AC ruled that King was an employee and thereby affirmed a Norfolk Superior Court judgment against GateHouse.
As with most Court decisions in this area of Massachusetts law, the Appeals Court cited to the second prong of the independent contractor test – GateHouse was required to prove that the service furnished by King was “performed outside the usual course of the business of the employer” (M.G.L.A. 149, § 148B). GateHouse failed in that regard, as is often the case. The Court assessed Gatehouse’s evidence by looking at: (1) its own previous description of its business; and also (2) evidence of whether or not the service was necessary (not just incidental) to GateHouse’s business. As GateHouse had previously held itself out as a distributor of the newspaper, and given that the delivery drivers play a big role in distribution, the AC concluded that King was an employee.
Mr. King is one of many who have delivered the Patriot Ledger by automobile to some of the paper’s subscribers. GateHouse now faces the possibility of paying damages to other similarly situated drivers through a related class action. The newspaper is in the unfortunate spot of being the story–do not let it happen to your business.
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Foley & Foley, PC offers an Positions Classification Audit service to identify potential pitfalls of independent contractors and wage and hour issues. It is an efficient and easy way to protect your business. If you would like more information about this service or any other questions, please contact (508) 548-4888 or info@foleylawpractice.com

WWYLD – 3/6/18 – Accommodations for Nursing Mothers

Question:  Can you clarify the law regarding break time for nursing mothers?  What is meant by “reasonable break time?”  Does this mean employees can take the break anytime they want, even if the department is particularly busy?

The Federal Affordable Care Act (“ACA”) created employer obligations with regard to break time for nursing mothers.  Under the ACA, an employer is required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

This section of the ACA is implemented through the Fair Labor Standards Act (“FLSA”), and applies only to “non-exempt” employees, unless state law requires otherwise.  Therefore, if you operate in a state that does not have a specific law addressing lactation or pregnancy-related accommodations, you are only legally obligated to provide break time for nursing to your non-exempt employees.  The Department of Labor “encourages employers to provide breaks to all nursing mothers regardless of their status under the FLSA.”  And, we recommend, as a best practice, that employers provide break time to all nursing mothers, regardless of whether the employee is exempt or non-exempt.

Depending on the states in which it operates, an employer may have state-specific obligations.  For example, as of April 1, 2018, Massachusetts employers must comply with the Pregnant Workers Fairness Act, which requires that employers provide reasonable accommodations for an employee’s “pregnancy or any condition related to the employee’s pregnancy,” including the need to express breast milk.  The Act indicates that accommodations may include:  a) more frequent or longer paid or unpaid breaks; and b) a private non-bathroom space for expressing breast milk.  (The Act provides a longer list of example accommodations; I’ve simply highlighted two here.)

State-specific employee protections are certainly not limited to Massachusetts.  Arkansas, California, Colorado, Connecticut, D.C., Hawaii, Illinois, Maine, Mississippi, Montana, New Mexico, New York, Rhode Island, Vermont, Virginia, and Oregon all have laws that protect workplace lactation.  (This interactive MAP provides a nice summary.)

So, how many breaks are reasonable?  For how long?  The ACA does not define “reasonable” break time and the guidance is limited.  The DOL indicates that break time should be provided “as frequently as needed by the nursing mother” and that “the frequency of breaks needed to express breast milk as well as the duration of each break will likely vary.”

While we can’t rely on this as official guidance, the US Department of Health and Human Services provides an “Employees’ Guide to Breastfeeding and Working” that indicates the following in the “When to Express Milk” section:  “Express milk for 10-15 minutes approximately 2-3 times during a typical 8-hour work period. Remember that in the first months of life babies need to breastfeed 8-12 times in 24 hours. So you need to express and store milk during those usual feeding times when you are away from your baby. This will maintain a sufficient amount of milk for your childcare provider to feed your baby while you are at work. The number of times you need to express milk at work should be equal to the number of feedings your baby will need while you are away. As the baby gets older, the number of feeding times may decrease. When babies are around 6 months old and begin solid foods, they often need to feed less often. Many women take their regular breaks and lunch period to pump.  Others talk to their supervisor about coming in early and/or staying late to make up the time needed to express milk. It usually takes 15 minutes to express milk, plus time to get to and from the lactation room.” (https://www.womenshealth.gov/files/assets/docs/breastfeeding/business-case/employee’s-guide-to-breastfeeding-and-working.pdf)

Because the frequency and duration are dictated by the needs of the employee/nursing mother, you, as the employer, are somewhat limited in what you can do.  However, there are some things to consider:

  • Minimize unnecessary breaks by requiring the use of PTO or by making them unpaid (to the extent permitted).  The law does not require that the breaks be paid, unless the employer provides paid breaks.  Even then, the employer is not required to pay for all breaks, only the number stated in the employer’s policy.  If you provide two paid breaks to your employees, nursing mothers would be allowed to take two of her nursing breaks as paid, but any beyond that could be unpaid/use PTO.  Remember, you can’t dock an exempt employee’s pay based on the quantity of work performed.  But, you can deduct from a PTO bank.
  • Talk to the employee(s).  Nothing in the law prohibits or limits an employer’s right to talk to the employee about how to most effectively schedule the breaks.  You are well within your rights to meet with this employee (or any/all employees who request additional break time) and discuss different ideas for accommodating the employee’s needs while also causing the least amount of disruption to the company.

Second Circuit Holds Sexual Orientation is Covered by Title VII

When the Supreme Court legalized gay marriage, it was clear that the tide had shifted, and employers altered their benefits and leave practices to comply with the new definition of spouse.  However, there is no Federal statute that protects against discrimination on the basis of sexual orientation or gender identity.  Over the past several years, many states have created these statutory protections, but efforts to amend Title VII to specifically protect these groups at the federal level have failed.

Instead, the courts have stepped in and found protection for discrimination against sexual orientation under the basis of Title VII’s prohibition on sex-based discrimination.  Until last year, these findings had been limited to discrimination based on sex-based stereotypes or nonconformity to gender norms (e.g. a woman did not dress in an feminine enough manner).

Late last year, in a surprise move, the Seventh Circuit, one of the most conservative courts in the country held that Title VII prohibits discrimination on the basis of sexual orientation.  The Eleventh Circuit reached the opposite conclusion, creating a split, and the Supreme Court declined to take up the Eleventh Circuit case in December.

On Monday, in a divided en banc opinion, the Second Circuit held the prohibition against gender discrimination in Title VII of the Civil Rights Act of 1964 extends to sexual orientation. The EEOC and Department of Justice made opposing arguments in the case, and the Court ultimately sided with the EEOC.  All of this means the Supreme Court may get another chance to make the ultimate determination on the issue.

If you are in a state that does not already prohibit discrimination on the basis of sexual orientation, and you are not currently including sexual orientation as a protected group in your anti-discrimination and EEO policies, it may be time to reconsider your position. The laws are changing quickly, and it is better to be out ahead than caught behind.  Not sure if you are in compliance with state and federal anti-discrimination laws?  Give us a call.

 

WWYLD – 2/27/18 – Sexual Harassment Training

We’re excited to tell you about a new development here on the Foley & Foley blog.  Each week, we’ll be posting a “What Would Your Lawyer Do” article that will present our thoughts on an interesting employment law question.  It may be an answer to a question that arises in your world all the time.  Or, maybe it’s a question you’ve never faced before.   Either way, we hope you’ll find the questions and answers interesting, informative, and – if we’re really on a roll – entertaining.

Question: Which states require sexual harassment training?  Where required, what does training have to look like?  And, how do I know which employees must take the training? 

Three states, California, Connecticut, and Maine, require that private employers conduct sexual harassment training.  Multiple additional states require that public employers provide training.  And, many states do not specifically require training, but strongly recommend it and cite the delivery of training as a way to lower risk and demonstrate adherence to anti-discrimination and anti-harassment laws.

  • California
    • Who must conduct training?  Any employer that operates in the state of California and has at least 50 employees.  The number of employees is based on total employees, not just those in California.  Therefore, if an employer has just one employee in California, but at total of 50 or more, the employer is subject to the California law.
    • Who must participate in training?  Supervisors who themselves are employed in California.  It’s the supervisor’s location that matters.  If a Massachusetts-based supervisor supervises California-based employees, that supervisor is not required to participate in training.  The law broadly defines “supervisor” as someone “with authority to hire, fire, assign, transfer, discipline, or reward other employee” or “anyone with the authority to effectively recommend (but not take) these actions, if exercising that authority requires the use of independent judgment.”
    • What are the specifications of the training?  Training must occur within 6 months of the individual becoming a supervisor and every two years thereafter.  Training must be at least two hours in duration and take place in an interactive setting where questions can be answered by a trainer.  Training must cover specific topics and include methods for assessing comprehension.
  • Connecticut
    • Who must conduct training?  Any employer that operates in the state of Connecticut and has at least 50 employees.  Like California, Connecticut bases the number of employees on total employees, not just those in Connecticut.
    • Who must participate in training?  Unlike California, Connecticut looks at the location of the person being supervised.  To comply with Connecticut law, employers must provide training to any supervisor who supervises a Connecticut employee.  Connecticut defines a supervisor as: “any individual who has the authority, by using her or his independent judgement, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them, or to adjust their grievances or effectively to recommend such actions.”
    • What are the specifications of the training?  Training must occur within 6 months of the individual becoming a supervisor.  Subsequent training is not required, but the state recommends that employers provide training every three years to cover any changes in the law.  Training must be at least two hours in duration and take place in a “classroom like setting” that allows participants to ask questions and receive answers.
  • Maine
    • Who must conduct training?  Any employer that operates in the state of Maine and has at least 15 employees in Maine.  Unlike California and Connecticut, Maine looks only at the number of employees in the state.  If an employer has 15 employees in Maine, but they are quite decentralized, the employer may be exempt from providing the required training.
    • Who must participate in training?  Maine’s requirement is not limited to supervisors – all Maine-based employees must take training within one year of hire.
    • What are the specifications of the training?  Maine doesn’t have a specific required duration or format for the training, but does provide a checklist of content that must be covered.

Have questions on required training?  Need assistance developing training sessions?  Looking to update your sexual harassment policy?  We can help. 

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