FMLA/CFRA Certifications: How to Effectively – and Legally – Use This Weapon of Choice for Combating Abuse Friday, December 3, 2010 Presented by the Employer

FMLA/CFRA Certifications: How to Effectively – and Legally – Use This

Weapon of Choice for Combating Abuse

Friday, December 3, 2010Presented by the Employer Resource Institute

© 2010 Employer Resource Institute. All rights reserved. These materials may not be reproduced in part or in whole by any process

without written permission.

© 2010 Employer Resource Institute. All Rights Reserved

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About Our Speaker

Mark J. Jacobs, Esq. is a partner in the Irvine office of Fisher & Phillips, LLP. His practice is focused on defending employment related lawsuits and administrative complaints on a variety of issues, including harassment, retaliation, and discrimination. Jacobs represents employers in both state and federal courts as well as before state and federal agencies, such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the Division of Labor Standards Enforcement and has expertise in handling complex, multi-plaintiff harassment and discrimination matters, wage & hour and other administrative matters. A significant portion of his practice is devoted to preventive employee relations programs that include supervisory training and the development and administration of effective human resources policies and practices.

66Atlanta • Charlotte • Chicago • Columbia • Dallas • Denver • Fort Lauderdale • Houston • Irvine • Kansas City • Las Vegas • LouisvilleNew Jersey • New Orleans • Orlando • Philadelphia • Phoenix • Portland, ME • Portland, OR • San Diego • San Francisco • Tampa

Presented by Mark J. Jacobs

Neal A. Fisher Jr.

Fisher & Phillips LLPAttorneys at Law

www.laborlawyers.com

Solutions at Work

Managing Leaves of AbsenceManaging Leaves of Absence

Managing Leave Managing Leave Laws SuccessfullyLaws Successfully

88

Overview of PresentationOverview of Presentation

The Nuts and Bolts of Relevant Federal and State Laws

Managing Return-To Work Issues Keeping Leave Law Fraud To a Minimum Disciplining and Terminating For

Absenteeism Without Inviting A Lawsuit Emerging issues

99

Why Is This So Important?Why Is This So Important?

What is your number one priority in administering leaves of absence?

** Protect The Company **

The best defense is a good offense

Actively administer each claim from start to finish

Learn to recognize interplay between various federal and state laws

1010

Different Laws Involving Leaves Different Laws Involving Leaves of Absenceof Absence

Family and Medical Leave Act (FMLA) California Family Rights Act (CFRA) CA Pregnancy Disability Leave Act (PDL) California Fair Employment & Housing Act

(FEHA) Americans With Disabilities Act (ADA) Workers’ Compensation Paid Family Leave (FTDI)

1111

Each Law Focuses On A Each Law Focuses On A Different Element Of The Different Element Of The

Disability ProcessDisability Process

You always want to be conscious of which law is

governing at that particular point in time.

1212

Each Law Focuses On A Each Law Focuses On A Different Element Of The Different Element Of The

Disability ProcessDisability Process

FMLA

FTDI

FEHA

CAL PDL

CFRA

Workers’

Comp ADA

1313

Figure Out Which Laws Apply And Figure Out Which Laws Apply And Stay Focused On Each Law Until It Stay Focused On Each Law Until It

No Longer AppliesNo Longer Applies

CAL PDL

FMLA

FTDI

CFRA

1414

Overview of FMLA/CFRAOverview of FMLA/CFRA

FMLA

CFRA

1515

FMLA/CFRA Is Concerned With:FMLA/CFRA Is Concerned With:

Providing a minimum level of unpaid, job-protected leave to eligible employees;

Covering those who suffer from a serious health condition;

Cover those providing Military Caregiver Leave or Exigency Leave; and

Protecting those employees from adverse treatment because of the need for leave.

1616

ADA/FEHA Attempts To Eliminate ADA/FEHA Attempts To Eliminate Workplace Disability Workplace Disability Discrimination By:Discrimination By:

Emphasizing on what an employee can do as opposed to focusing on employee’s limitations;

Requiring employers to evaluate an individual’s fitness to perform the essential functions of the job on a case-by-case basis; and

Considering any reasonable accommodation in the process.

1717

Definitions May OverlapDefinitions May Overlap

Not all “disabilities” under ADA/FEHA are “serious health conditions” under FMLA/CFRA. E.g. an employee with a glass eye

Not all “serious health conditions” under FMLA/CFRA are “disabilities” under ADA/FEHA E.g. an employee with a broken leg

1818

FMLA/CFRAFMLA/CFRA vs. ADA/FEHA vs. ADA/FEHA LeavesLeaves

FMLA available for family members

FMLA limited to 12 weeks

FMLA has length of service requirements

FMLA has no “undue hardship” defense

ADA is available for employees only

ADA is open ended as “reasonable accommodation”

ADA has no length of service requirements

ADA has undue hardship defense

Both have different re-instatement rights.Transfer requirements also vary.

1919

FMLA/CFRAFMLA/CFRA vs. ADA/FEHA vs. ADA/FEHA LeavesLeaves

ADA/FEHA requires accommodation if employee cannot perform prior job without accommodation but FMLA/CFRA does not consider accommodation

ADA/FEHA accommodations must be reasonable and do not necessarily have to be the employee’s first choice of accommodation

ADA/FEHA obligates an employer to engage in the interactive process

2020

Definitions May DifferDefinitions May Differ

Pregnancy, childbirth and related medical conditions are considered serious health conditions under the FMLA

Pregnancy is not a covered qualifying event under California’s Family Rights Act Disabilities arising from a female employee’s

pregnancy, childbirth or related medical condition are covered under California’s Pregnancy Disability Act

2121

Workers’ Compensation Laws Workers’ Compensation Laws Emphasize . . .Emphasize . . .

What employee cannot do by focusing on the nature and percentage of disability;

So as to provide suitable compensation for lost earnings;

Resulting from a work-related injury.

2222

FMLA/CFRA vs. Workers’ FMLA/CFRA vs. Workers’ CompensationCompensation

Leaves Covered by both FMLA/CFRA and WC

If work-related injury that keeps employee from working

Employers frequently forget to designate the leave as FMLA/CFRA qualifying

If unsure, at least preliminarily designate as FMLA/CFRA and provide Employee FMLA paperwork

Allows time to count against 12 week entitlement

2323

FMLA/CFRA vs. Workers’ FMLA/CFRA vs. Workers’ CompensationCompensation

If the employee has been on a workers’ compensation leave of absence during which FMLA has been taken concurrently, and the employee exhausts all 12-weeks of FMLA leave and is still unable to return to work, the employee no longer has the protections of the FMLA.

However, employer MUST look to workers’ compensation laws, as well as ADA/FEHA

2424

Defining Employer Rights & Defining Employer Rights & Responsibilities Under State & Responsibilities Under State &

Federal Disability, Leave & Federal Disability, Leave & Absence LawsAbsence Laws

The Nuts and Bolts of Various Federal and State Leave Laws

2525

Keys to Managing Leaves of Keys to Managing Leaves of AbsenceAbsence

Focus on which leave of absence currently applies to the leave of absence

Analyze each leave of absence independently Communicate with the employee regarding

his/her rights and responsibilities during the leave

Evaluate other potential laws governing leave of absence either concurrently or at the end of the previous coverage

Consistency – treat all employee leaves the same

2626

Federal Family and Medical Leave,

California’s Family Rights Act, andCalifornia’s Pregnancy

Disability Leave

2727

Family And Medical Leave ActsFamily And Medical Leave Acts

The federal Family and Medical Leave Act (“FMLA”) and the California (Moore-Brown-Roberti) Family Rights Act (“CFRA”) entitle eligible employees to take an unpaid, job-protected leave of absence up to 12 workweeks in a 12-month period for certain qualifying reasons.

Both laws prohibit companies from interfering with or retaliating against employees for exercising their right to FMLA/CFRA leave.

2828

Key Differences Between Leave Key Differences Between Leave Duration Under FMLA & CFRADuration Under FMLA & CFRA

Pregnancy Disability Leave Law (PDL) The FMLA includes disabilities related to pregnancy as a

serious health condition The CFRA expressly excludes disabilities related to pregnancy In California, the PDL governs a female employee’s right to a

leave of absence for disabilities due to the pregnancy, childbirth or related medical conditions.

Child care leave under CFRA may be taken in increments of two weeks and twice in increments of less than two weeks

Under the FMLA, “bonding time” with the child must be taken all at once unless the employer agrees to the contrary

2929

California’s Pregnancy California’s Pregnancy Disability Leave Law (“PDL”)Disability Leave Law (“PDL”)

PDL is for any period(s) of actual disability caused by the employee’s pregnancy, childbirth or related medical condition up to 4 months per pregnancy 4 months = 88 days for full-time employee

PDL covers time off for: Prenatal care Severe morning sickness Doctor-ordered bed rest Childbirth Recovery from childbirth

3030

California’s Pregnancy California’s Pregnancy Disability Leave Law (“PDL”)Disability Leave Law (“PDL”)

There is no eligibility requirement Employee can request PDL time off work on her

first day of work Provides up to 4 months of unpaid, job-

protected leave as needed Does not need to be continuous; as needed Temporary transfers are permissible Only applies if employee is actually disabled

due to pregnancy or related medical conditions

3131

California’s Pregnancy DisabilityCalifornia’s Pregnancy DisabilityLeave LawLeave Law

All three laws interact Up to first 12 weeks will be BOTH FMLA

and Pregnancy Disability Leave At end of disability – then 12 weeks of

leave under CFRA Remember CFRA does not apply to pregnancy

related disabilities Total of up to 7 months job protected

leave Never forget the duty to accommodate a

disability under ADA/FEHA

3232

What are an employer’s obligations What are an employer’s obligations prior to and during an employee’s prior to and during an employee’s

leave?leave?

An employer’s primary obligation is to provide proper notification of an employee’s rights and responsibilities during an FMLA/CFRA leave. Notification obligations occur prior to

a leave, during a leave and upon conclusion of the leave.

3333

How does an employer satisfy these obligations? Employee Handbook FMLA Pre-Designation Form FMLA Medical Certification Form FMLA Designation Form FMLA Status Letters

What are an employer’s What are an employer’s obligations prior to and obligations prior to and

during an employee’s leave?during an employee’s leave?

What are an employer’s obligations What are an employer’s obligations prior to and during an employee’s prior to and during an employee’s

leave?leave?

3434

Analyze Each Claim From Analyze Each Claim From Beginning To EndBeginning To End

Step 1

Does The FMLA Apply To Your Company?

3535


Step 1


Step 2

Is the employee eligible for FMLA leave?

3636

Is The Employee Entitled To Is The Employee Entitled To FMLA/CFRA Leave?FMLA/CFRA Leave?

Only employees who meet certain requirements are entitled to job protected leave under the FMLA/CFRA

2 part test: (1) Does the employee satisfy the eligibility

requirements under the FMLA? (2) If yes, does the employee have FMLA leave

available or has the employee previously exhausted his/her FMLA leave rights?

3737

Does the employee meet the

FMLA eligibility

requirements?

Part 1


Step 1


Step 2

Does the employee

have available

FMLA leave?

Part 2

3838

Part 1 – Is the Employee Eligible Part 1 – Is the Employee Eligible For Leave Under The FMLA/CFRA?For Leave Under The FMLA/CFRA?

Whenever an employee requests a leave of absence, the first question to ask is whether the employee meets the three requirements.

What are the 3 eligibility criteria:1._________________________________2._________________________________3._________________________________

3939

Employee Eligibility Employee Eligibility Requirement #1Requirement #1

1. Employee has worked for the Company for at least 12 months (e.g. 52 weeks) 12 months do not have to be

consecutive Look at employee’s entire

employment history with the Company Count any week in which the

employee is maintained on the payroll

4040


2. Employee has worked for the Company for at least 1,250 hours during the 12 consecutive months preceding the start of the leave (not the date of the requests the leave)

For example, if an employee notifies you on June 15th that they will be having surgery on August 1, you determine the number of hours worked as of August 1 – not June 15th

AND…

4141


3. Employee works at a work site where there are at least 50 employees within a 75-mile radius Test can be met either when leave is

requested or when taken Salespeople are deemed to work at their

“home base” worksite (where work assignments originate or where they report for work).

Temporary employees count for calculating the 50 employee coverage threshold if they have a “continuing employment relationship” (DOL August 5, 2004 Opinion Letter)

4242

Does the employee meet the

FMLA eligibility

requirements?

Part 1


Step 1


Step 2

Does the employee

have available

FMLA leave?

Part 2

4343

Part 2 Of Employee Eligibility Part 2 Of Employee Eligibility AnalysisAnalysis

FMLA/CFRA leave does not necessarily mean that they are entitled to take FMLA/CFRA leave An employee may have already exhausted leave

rights or part of his/her leave rights

You have to determine whether the employee has any available FMLA leave available If the employee has previously taken leave,

determine if the employee has exhausted all 12 weeks of leave or how much time the employee has remaining

You want to manage the employee’s expectations of how much job-protected leave he/she can take

4444

Ensure Compliance with the Family and Medical Leave Act

12 Workweeks in a 12-month period “Workweek” = the employee’s normally

scheduled week Examples – Alternative Workweek

Schedules; Part-time employees 12-Month period must be defined in the

Company’s policy (e.g. handbook) If Company fails to specify which method it

uses to calculate the 12-month period, the employee is entitled to the most beneficial method

4545

Calculating FMLA leaveCalculating FMLA leave

1) “Rolling” Method. The best method of calculating the 12-week leave period is the “rolling” method by which the employer looks back in time to the last FMLA leave and calculates one year from that time. This is the only method that avoids employees’ stacking.

2) Calendar Year. The employer may also use the calendar-year method by which the employer provides up to 12 workweeks of leave to each eligible employee each calendar year.

3) Twelve-Month Period. The employer may also institute a policy that provides up to 12 weeks of FMLA leave in any 12-month period.

4646

Example Of Rolling MethodExample Of Rolling Method

S cenario #1:

Jan Feb Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Jan Feb Mar. Apr. May June# weeks taken 4 4 4

_12 11 10 9 8 7 6 5 4 3 2 1

Step #1:

Step #2: Take the sum of the # weeks used in preceeding 12 months (e.g. 4 weeks in Feb. + 4 weeks in June + 4 weeks in December = 12 weeks)

Step #3: Subtract the # of weeks used in preceeding 12 months from the 12 weeks of FMLA entitled leave (e.g. FMLA 12 weeks - 12 weeks used = 0)

Step #4:

Employee takes 4 weeks off starting February 1, 2009; then 4 more weeks off beginning June 1, 2009; then 4 more weeks off

beginning December 1, 2009. Then the employee requests additional leave beginning January 1, 2010.

Calendar Year 2009 Calendar Year 2010

Look backwards at the preceeding 12 months from the date the employee requests the leave

Determine the # of remaining weeks the employee is entitled to use (e.g. in this scenario, zero b/c the employee has exhausted all 12 weeks in the preceeding 12 months as of the date of the employee's request for additional leave)

Employee requests

additional leave Jan. 1

4747


Jan Feb Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Jan Feb Mar. Apr. May June# weeks taken 4 4 4

_12 11 10 9 8 7 6 5 4 3 2 1

Step #1:

Step #2: Take the sum of the # weeks used in preceeding 12 months (e.g. 4 weeks in June + 4 weeks in December = 8 weeks)


Step #4:


Determine the # of remaining weeks the employee is entitled to use (e.g. in this scenario, 4 weeks b/c the employee has only used 8 weeks in the

preceeding 12 months as of the date of the employee's request for additional leave)


Employee requests

additional leave Mar. 1

4848


S cenario #3:

Jan Feb Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Jan Feb Mar. Apr. May June# weeks taken 2 2 2 6 1 1 1

_12 11 10 9 8 7 6 5 4 3 2 1

Step #1:

Step #2: Take the sum of the # weeks used in preceeding 12 months (e.g. 6 weeks in May + 1 week in July + 1 week in Sept. + 1 week in Nov. = 9 weeks)


Step #4:



Determine the # of remaining weeks the employee is entitled to use (e.g. in this scenario, 3 weeks b/c the employee has only used 9 weeks in the

preceeding 12 months as of the date of the employee's request for additional leave)

Employee takes 6 weeks off starting May 1, 2009; then 1 week off beginning July 1, 2009; then 1 more week off beginning Sept. 1,

2009; then 1 more week off beginning Nov. 1, 2009. Then the employee requests additional leave beginning May 1, 2010.

Employee requests

additional leave May. 1

4949


Step 1


Step 3

Does the reason for the leave

qualify under FMLA?

Step 2


5050

Step #3Step #3

The next step in the analysis is to determine whether the

reason for the employee’s leave of absence is covered

under the FMLA/CFRA

5151

Six Qualified FMLA RequestsSix Qualified FMLA Requests

1) For employee’s own “serious health condition” that makes him/her unable to perform job.

2) To provide care for employee’s immediate family member with “serious health condition.”

Spouse Includes common law marriage if recognized by state, domestic partner

Child Child must be under 18 or incapable of self-care due to

disability Includes child of a domestic partner in CA

Employee’s parent (not spouse’s parent).

5252


3) For the birth of a child, and to care for the newborn child.

• Remember, pregnancy disabilities and leaves for the birth of a child are not covered under California’s Family Rights Act; they are covered exclusively under California’s PDL

4) For the placement of a child with the employee for adoption or foster care.

5353


5) To provide care for a covered service member with a serious injury or illness related to certain types of military service.

• Spouse, son, daughter, parent of “next of kin” can take 26 workweeks

• “Next of kin”= nearest blood relative• “Serious illness or injury”= results in

recuperation, therapy, medical treatment, is in outpatient status or is on the temporary disability retired list in the Armed Forces

• Can require certification but not recertification/second opinions

• Intermittent leave available

5454


6) Exigent Circumstances Military Leave• Spouse, son, daughter or parent is on active

duty or notified of an impending call to active duty

• Qualifying exigencies:• short notice deployment, • military events, • childcare and school activities, • financial and life arrangements, • counseling, • rest and recuperation, and• post-deployment activities

• Can request copy of active duty orders/certification

5555

HypotheticalHypothetical

Employee requests leave of absence to care for her mother in law while she is undergoing chemotherapy. The doctor submits a proper certification form in support of the employee’s leave.

Is the employee entitled to FMLA leave?

5656


Step 1


Step 3

Does the reason for the leave

qualify under FMLA?

Step 2


Step 4

Is there a serious health

condition?

5757

To Qualify For FMLA Leave There To Qualify For FMLA Leave There Must Be A Serious Health Must Be A Serious Health

ConditionCondition To qualify for protection under the

FMLA the employee, or the employee’s immediate family member must have a “serious health condition.”

5858

What Counts as a Serious Health What Counts as a Serious Health Condition?Condition?

An illness, injury, impairment, or physical or mental condition of the care recipient that involves:

(a) Hospital / Inpatient care; or(b) Continuing treatment by a physician or practitioner

The “continuing treatment” category includes many different types of treatment and is the basis for leaves that you might not otherwise consider

to be “serious health conditions.”

5959

Continuing Treatment Continuing Treatment Includes…Includes…

Continuing Treatment A period of incapacity of more than three full consecutive

calendar days: Treatment two or more times by a HCP must occur within 30-

day period (unless extenuating circumstances exist); or Treatment once, plus continuing regimen of treatment

First treatment must occur within seven days of first day of incapacity

Chronic conditions: visits for treatment must occur at least 2 times a year

6060


Step 5

What type of leave must be provided?

6161

What Type of Leave Must Be Provided?

Leave is frequently taken for significant periods of time such as one month or even the full twelve weeks, but employees are entitled to take FMLA leave in day long and/or hour long increments.

Intermittent leave must be granted if it is medically necessary (i.e. for periodic appointments, flare-ups of a chronic condition and a pre-natal condition).

What Type of Leave Must Be What Type of Leave Must Be Provided?Provided?

6262


Step 5


Step 6

How does the process get started?

Employee Notification

6363

When has an employee sufficiently When has an employee sufficiently requested a leave of absence from requested a leave of absence from

the Company to trigger your the Company to trigger your obligations to send FMLA/CFRA obligations to send FMLA/CFRA information to the employee?information to the employee?

Is it enough for the employee to tell the Company that he/she is feeling

sick or needs time off work?

6464

Employee Notice ObligationsEmployee Notice Obligations Provide sufficient information to indicate need for

leave (but no need to mention FMLA by name) Calling in “sick” without more not enough Employer continues to have duty to inquire

further Employee must follow employer’s normal and

customary call-in procedures to request FMLA leave

Employer may deny or delay FMLA leave should customary procedures not be followed• However, an employer may not deny leave if an

employee provides timely verbal or written notice under FMLA rules

6565

If foreseeable event - 30 days notice

If not foreseeable - as soon as practicable under the facts and circumstances

When does the employee When does the employee have to say it?have to say it?

When does the employee have When does the employee have to say it?to say it?

6666


Step 5


Step 6



Conditionally Designate the leave and send materials to employee.

Step 7

6767

Notification: Employer Must Notification: Employer Must Provide 4 NoticesProvide 4 Notices

1) General Notice Provide upon hire of employee. Explain FMLA provisions and procedures for filing

complaint.

2) Eligibility Notice Provide within 5 days of request for FMLA leave, or

when you acquire knowledge that leave may be for a FMLA reason.

If employee is not eligible, must state at least one reason why employee is not eligible (i.e., months employed, hours worked, eligible worksite).

6868


3) Rights and Responsibilities Notice Provide if the employee is eligible to take FMLA

leave. Inform employee of any requirements to provide

medical certification, the right/requirement to substitute paid leave, the process for paying any premiums for continuation of health care coverage during leave, and job restoration rights.

Include consequences for failure to meet obligations.

Key employee designation. The employer must designate employees as key employees and follow other procedures, if the employer intends to use the key employee exception.

6969


4) Designation Notice Provide within 5 days of receipt of information

sufficient to make designation determination. Advise if required to use paid leave and any

fitness for duty requirement. Notify of amount of leave that will be counted

against FMLA, if known. Retroactive designation allowed if no harm or

injury caused to the employee or if mutual agreement between employer and employee

7070

What is the process for What is the process for designating leave?designating leave?

It is the employer's responsibility to designate leave as FMLA-qualifying, and to give notice of the designation to the employee

The employer's designation decision must be based only on information received from the employee or the employee's spokesperson The employer is expected to inquire further of the

employee if additional information is needed

7171

When does the leave When does the leave administration process begin?administration process begin?

Once an employee makes a request for a leave of absence, preliminarily designate the leave of absence.

If the reason for the leave is not an FMLA-qualifying reason, notify the employee that he/she is not eligible & explain why.

If the employee does not meet the FMLA eligibility requirements, send the employee written notification to demonstrate that you went through the analysis.

If an employee is eligible for FMLA, send the employee an initial designation packet that notifies the employee that he/she may be eligible for FMLA leave and provides the employee with all the necessary paperwork to support a FMLA/CFRA leave of absence.

Must be done within 5 days

7272

Retroactive DesignationRetroactive Designation

An employer may not designate leave as FMLA-qualifying after an employee has returned to work, unless:

The employer did not learn of the FMLA reason for the absence until after the employee’s return

The employer knew of the reason but was unable to confirm that it was FMLA-qualifying

Consult with legal counsel prior to making a retroactive designation

7373

A request for leave from a “Key Employee” may be denied, but this exception is rarely used.

Only applies to “exempt salaried” employees Highest paid 10% within 75 mile radius Substantial and grievous economic injury would

result Up Front designation Must be allowed to take leave, but no right to

reinstatement Employer must give written notice to the

employee, at the time employee gives notice of the need for FMLA leave that s/he is key employee

Key Employee DesignationKey Employee Designation

7474


Step 5


Step 6



Conditionally Designate the leave and send materials to employee.

Step 7

Review Medical

Certification and

determine qualificatio

n

Step 8

7575

Verify Leave Qualifies Under Verify Leave Qualifies Under FMLAFMLA

Obtain Proper Medical Certification From The

Employee Requesting Leave Of Absence And Make Sure You Actually Get The Certification

Documents Back

7676

Medical CertificationMedical Certification

Employer may require an employee’s leave of absence to be verified by a medical certification signed by the health care provider

Employer may require a certification in 2 situations: Initially for a leave based on a serious health

condition (of the employee or a family member) Subsequently if the employee fails to return to

work because the condition continues, recurs or a new condition starts

7777

FMLA Medical Certification FMLA Medical Certification RequirementsRequirements

To require certification, the employer must: Tell the employee they have to provide

a certification Allow at least 15 calendar days for the

employee to provide the certification Tell the employee what will happen if

he or she fails to provide notice

7878

Employee’s Certification Employee’s Certification ResponsibilitiesResponsibilities

When the leave is foreseeable and employee has given at least 30 days notice, the employee should provide the medical certification before the leave begins

When this is not possible, the employee must provide the certification to the employer within the time frame requested by the employer, (allowing at least 15 calendar days), unless it is not practicable under the circumstances to do so despite the employee's good faith efforts

7979

Under CFRA, Company Is Limited Under CFRA, Company Is Limited In Information It May Receive In Information It May Receive

Under CFRA, the certification may only include: The date the serious health condition

commenced The probable duration of the condition A statement that the employee is unable

to perform an essential function of the job due to the serious health condition.

8080

Certification Requirements Certification Requirements Under the CFRAUnder the CFRA

Leave for family member: under the CFRA, the health care provider need not identify the serious health condition of the employee’s family member

Leave for employee’s own serious health condition: The health care provider need not identify the

underlying diagnosis of the serious health condition, but may with the employee’s consent

Company is entitled to the timing and during of the leave

8181

Evaluation of Certification from Evaluation of Certification from Health Care ProviderHealth Care Provider

Make sure employee submits the certification form within the required 15 days If employee fails to, immediately send

notification letter to employee and give another 15 days to submit the certification

Once the employee submits the certification form review it in its entirety

8282


If there are deficiencies with the certification, prepare a letter to the employee that specifically describes each of the problems and how the employee should cure the problem Employer must given written notice of what

additional information is necessary to make certification complete or sufficient

Employer must provide seven calendar days to cure any deficiencies (employee may have more time if not practicable despite employee’s diligent good faith efforts)

8383


Only if employee fails to timely cure deficiencies may Employer contact HCP for verification and clarification (cannot seek additional information)

Only health care professional, human resources, leave administrator, or management official may contact HCP (NOT direct supervisor)

Must still obtain employee’s permission for clarification of “individually-identifiable” health information under HIPAA

If employee fails or refuses to cure deficiencies or does not give permission to contact HCP to clarify, may deny leave

8484


Leave requests should only be denied where: The employee is clearly not eligible for

leave Doesn’t meet eligibility requirements Previously exhausted leave rights Reason for leave is not covered (e.g. sick

sibling) The health care provider states that the

reason for the leave is not a serious health condition

The claim appears on its face fraudulent

8585

Broad Definition Of Health Care Broad Definition Of Health Care Provider Under The FMLAProvider Under The FMLA

A health care provider can be a state-authorized: doctor of medicine or osteopathy podiatrists, dentists, clinical psychologists, optometrists and

chiropractors nurse practitioners, nurse midwives and clinical social

workers Christian Science practitioner listed with the First

Church of Christ, Scientists in Boston, MA Any health care provider from whom an employer, or

the employer’s group health plan will accept certification to substantiate a claim for benefits

A health care provider listed above who practices in a country other than the US

8686

Handling Doubts of the Validity Handling Doubts of the Validity of Employee’s Certificationof Employee’s Certification

An employer may require a second and even third opinion at the expense of the employer If the second opinion is consistent with the

initial certification, the employer must accept that determination

If the second opinion is inconsistent, the employer may require a third opinion at the employer’s expense which will be final and binding

The employee is entitled to FMLA benefits pending resolution of the certification issues

8787

Risks of Not Obtaining a Risks of Not Obtaining a Second OpinionSecond Opinion

If the Company does not challenge an improper certification at the time it is made, the Company may waive its right to assert subsequent challenges and may also be limited in its discovery of medical records

8888

Recertification (only for non-military leave) Generally cannot require more often than 30

days If minimum leave > 30 days, must wait until

period ends May request if leave < 30 days (or longer) and

employee requests extension, or circumstances have changed, or receive information that “casts doubt” upon employee’s stated reason

RecertificationRecertification

8989

Distinguish - Return To Work Distinguish - Return To Work Medical CertificationMedical Certification

Employer can uniformly require the certification

Must be job related; Consistent with business necessity; Should not exceed essential functions of

the job; and Can only ask for one if it was for the

employee’s own serious health condition. NO Second or Third Opinions

9090


Step 9

Follow up with employee as to whether leave qualifies?

9191


Step 9

Follow up with employee as to whether leave qualifies?

Step 10

Manage Leave & Maintain Employee’s Benefits

9292

Company Must Maintain Company Must Maintain Employee’s Health Care BenefitsEmployee’s Health Care Benefits

Company must follow the FMLA rules first; not typical COBRA rules.

Company must continue the same subsidized medical coverage that is provided to active employees.

Employees have 30 days to pay their share of the cost of coverage, measured from first of month or paycheck date.

9393

Company Must Maintain Company Must Maintain Employee’s Health Care BenefitsEmployee’s Health Care Benefits

Company must continue to maintain health care benefits, unless: Employee’s FMLA rights are

exhausted Employee provides Company with

unequivocal notice of intent not to return to work

Employee’s job is terminated for non-FMLA reasons (e.g. layoff)

9494

Company Must Maintain Company Must Maintain Employee’s Health Care BenefitsEmployee’s Health Care Benefits What happens if employee pays premiums

late or fails to pay premium at all? Company should continue to maintain

benefits and send employee written notification that payment has not been received and benefits will be terminated within 15 days of receipt of letter if payment is not received.

Company must give 15-days notice before putting employee on COBRA

Company may recover its share of premium payments made on employee’s behalf in most situations

9595

Company May Require Employee Company May Require Employee To Substitute Paid Leave BenefitsTo Substitute Paid Leave Benefits

Employers may require, or employees may elect, to substitute accrued paid leave benefits (e.g. sick leave, PTO or vacation time) for any part of the leave, but there are rules…

9696

Requiring Employees to Use Paid Requiring Employees to Use Paid Leave During LeaveLeave During Leave

Rules and Restrictions Employer cannot impose any notice or

certification requirements more stringent that the employer’s standard notice and certification requirements for the paid leave

Short Term Disability Its up to the employee to choose whether to

apply for temporary disability benefits FMLA/CFRA and disability can run concurrently More stringent requirements of the plan can

apply

9797

Can You Require An Employee To Use Can You Require An Employee To Use Accrued Accrued VacationVacation Time While Out On Time While Out On

FMLA/CFRA Leave?FMLA/CFRA Leave? YES The Company may require an employee to

use some or all of his/her unused accrued vacation benefits while out on FMLA leave Apply the policy uniformly to all employees Give notice in employee handbook of this

requirement Pay at the beginning of the employee’s leave

Employees may elect to apply vacation benefits to leave of absence

9898

Can You Require An Employee To Use Can You Require An Employee To Use Accrued Accrued SickSick Leave While Out On Leave While Out On

FMLA/CFRA Leave?FMLA/CFRA Leave? Depends… Company can require the employee to use,

or the employee may elect to use any accrued sick leave for The employee’s own serious health condition Or any other reason if mutually agreed upon (i.e.

in a policy/handbook) However, employers are required to allow employees to

use ½ sick leave to care for family member

Conversely, employee cannot request to use sick leave unless policy provides for such use.

9999

Benefits During PDLBenefits During PDL

Employer’s Rights Can require

employee to use any accrued sick leave during the otherwise unpaid portion of her pregnancy

Cannot require use of PTO/vacation

Employee’s Rights Employee may

elect to use sick leave benefits during PDL time

Employer must allow employee to use accrued vacation time if employee elects to use

100100

Paid Leave Benefits Paid Leave Benefits During & After LeaveDuring & After Leave

Employee is not entitled to accrue vacation or sick benefits during the time the employee is out on leave. Make sure to communicate with other departments

(e.g. payroll) to make sure that the employee does not continue to accrue benefits during LOA

Once the employee returns from the leave, the employee is entitled to resume accruing these benefits and is entitled to any accrued benefits that employee did not use during leave. Again, communicate with necessary department to

ensure there is no delay

101101

Communication is KeyCommunication is Key

Key Documents to Send to Employee Letter at commencement of leave confirming leave

and possibly predesignating FMLA/CFRA leave. Health Care Provider Notice For FMLA/CFRA

Certification. Letter to employee notifying him/her of exhaustion

of FMLA/CFRA rights. Letter to employee requesting update on condition. Letter to employee prior to return. Job abandonment letter

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