TACKLING TOUGH FMLA
ISSUES
NEIL AND STEPHANIE
2013 MIDWEST LABOR LAW CONFERENCE
TOUGH ISSUES
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Designation – Getting it Right
Serious Mental Health Conditions
Attendance Policies
So-called Fraud
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JOE WORKER’S BIG TOE
A heavy object fell six feet onto Joe Worker's right big
toe, cutting and bruising it. Joe missed no work, but he
filed a workers compensation claim for medical bills.
The company allowed Joe's claim. Six months later,
Joe went to his doctor on his day off complaining
about shooting pains in his right big toe. His doctor
diagnosed "capsulitis, right big toe" and stated that
Joe should be off work for the next four days. Joe
emailed the plant nurse to tell her that he would miss
work due to his toe injury, and called the absence
line, per the attendance policy. The plant nurse
treated this as a point under the no-fault attendance
policy.
JOE WORKER’S BIG TOE (CONT.)
The company nurse obtained the medical records from Joe's doctor
as part of the workers compensation process. Those records showed
that Joe had gone back to his doctor, two weeks after the first visit,
for a follow up exam. Three weeks later the nurse realized that Joe's
four day absence may qualify for FMLA leave, so she sends Joe an
Eligibility Notice and a Rights and Responsibilities Notice, and sent a
Certification of Health Care Provider directly to Joe's doctor, with
instructions to return a complete and sufficient Certification with 15
days. Joe's doctor did so.
The nurse examined the doctor's certification and noticed that it did
not contain a diagnosis of Joe's toe condition. She gave Joe seven
days to cure the deficiency, which Joe failed to do. The nurse
therefore denied FMLA for failure to complete a sufficient
certification. Eventually, the company fired Joe for excessive
absenteeism, including the four day absence taken on account of
his toe.
DESIGNATION
The Answer is Easy
If you Take it Logically
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Notices
Designations
Certifications and Re-certifications and
Authentication and Clarification
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NOTICES
• Employee Notice of Need for Leave
• State a qualifying reason
• Provide enough information to determine whether the
leave qualifies
• Anticipated duration and timing
• Can be verbal
• Initial notice need not refer to FMLA
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DUTY TO INQUIRE
• Employer should inquire further
• If necessary to determine whether leave qualifies
• To obtain necessary details of leave
• Employer may request medical certification
• Employer may consider information obtained under
ADA, workers compensation or paid leave
programs when determining entitlement to leave
• If Employee disputes the FMLA designation,
employer must document the dispute
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DENIAL
Employers can delay or deny FMLA leave if:
• Employee fails to provide reason or explanation of
need for leave
• Employee does not respond to employer inquiries
about whether leave is qualifying
• Employee fails to provide a complete and sufficient
Certification within 15 days or after a 7 day
opportunity to cure or
• The Certification shows that the employee is not
entitled to leave
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ELIGIBILITY AND
RIGHTS AND RESPONSIBILITIES NOTICE
• Employer must provide Eligibility Notice once it
acquires knowledge that leave may qualify under
FMLA.
• Employer Rights and Responsibilities Notice must
detail specific expectations and obligations and
the consequences of a failure to meet them
• Timing: within 5 business days of acquiring
knowledge that leave may qualify
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DESIGNATION NOTICE
Employer must provide Designation Notice once it
acquires knowledge that leave qualifies under FMLA.
Designation Notice:
• Must include the amount of leave, counted and
remaining and
• May be oral, if followed in writing
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CERTIFICATION OF HCP
Employers can require Certification of the patient’s
Health Care Provider (HCP)
• When
• Within five business days of notice of leave
• Within five business days of when leave begins or
• When the employer has reason to question the leave or its
duration
• Employer must request first Certification of HCP in
writing, subsequent requests can be oral
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CERTIFICATION CONTENTS
Complete and Sufficient Certificate must have:
• Date the serious health condition began
• Probable duration
• Medical facts describing the health condition
• Information showing the patient cannot perform
essential functions (employee) or is in need of care
(family member)
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CERTIFICATION CONTENTS
Certificate of HCP may include description of:
• Symptoms
• Diagnosis
• Hospitalizations
• Medications
• Doctors visits
• Referrals or continuing treatment
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MEDICAL RELEASE IN LIEU OF
CERTIFICATION
• Employer may request, but cannot require a
medical release when designating FMLA leave
• Employee medical release satisfies the employee’s
obligation to provide Certification of HCP
• Limited in scope: employee’s release need only
authorize HCP to provide a sufficient certification
(see above), and not a complete medical history
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DO YOU WANT TO KNOW MORE?
I Hope My Meaning
Won’t be Lost or Misconstrued
• Designation should be based only on information
from employee
• Employer can ask the HCP to authenticate and
clarify the certification
• Once certification is complete and sufficient,
employer cannot ask employee for more
information
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DO YOU WANT TO KNOW MORE
(CONT.)?
• Employer can request second opinion
• But only if employee’s certification of HCP is invalid
• A sufficient and complete certification signed by the HCP is
presumptively valid
• Employer risks violating HIPPA, Ohio common law or
the FMLA if it obtains or uses personal health or
other medical information unnecessary for the
employer’s FMLA administration
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RE-CERTIFICATIONS
• Once every 30 days
• When an employee asks for an extension
• Circumstances change
• Duration or frequency of absences or
• Nature or severity of the condition
• When information casts doubt on the stated reason
for leave
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DESIGNATION ISSUES
• Retroactive designation
• Over-designation
• Incorrect notice of eligibility
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BEST PRACTICES FOR DESIGNATION
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Use all opportunities to gather information
Request CHP and read it.
Don't get between worker and doctor.
Require RTW fitness and attach job description.
Enforce deadlines.
• 15 days for CHP
• 7 days to cure
• Act timely.
• First 5 days matter
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SERIOUS MENTAL HEALTH
CONDITIONS
It Grieves Me So
To See You in Such Pain
• 1/4 Americans have a diagnosable mental health
condition in a given year
• 1/17 Americans have a disabling or incapacitating
serious mental health condition
• 1 in 10 FMLA cases involve serious mental health
conditions
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SERIOUS MENTAL HEALTH
CONDITIONS
Americans with serious mental health conditions:
• Are in the workforce
• Have loved ones in the workforce
• Usually qualify for FMLA leave
• Often need intermittent leave
• Are subjected to stereotypes and stigma and
• Want to protect their privacy
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MIKE THE SUPERVISOR
Mike worked as a Supervisor of a Customer Service
Team for Global Communications Company. Mike's 15
year old daughter, Ann, attempted suicide twice
during the last six months. Ann's psychiatrist
recommended that a responsible adult stay with Ann
at all times for fifteen months. Mike therefore arranged
for adults to be with Ann from the time she woke up
until she came home from school at 2:45 p.m. Mike
applied for a reduced leave schedule so he could be
home by 2:45 each day. Global Communication
Company notified Mike that he was eligible for FMLA
leave, but required him to complete a Certification of
Health Care Provider for a Family Member.
MIKE THE SUPERVISOR
Mike said in his part of the Certification that Ann "needs to
have an adult with her all the time" because she "could
harm herself when alone." But Ann's psychiatrist said in his
portion of the Certification only that the "patient is a child
who requires supervision." The doctor checked "yes" to the
question, "will the condition will cause episodic flare ups"
and estimated that flare ups could occur once each two
months and could last 6 hours each. Based on this
information, Global Communications Company notified
Mike that absences for treatment and "flare ups" of Ann's
condition were covered by the FMLA, but not care for Ann
during normal business hours, since Ann's doctor did not
certify that Mike needed to be with Ann after 2:45 each
day.
EXPANSIVE COVERAGE
FMLA coverage occurs from:
• Inpatient admission
• Incapacity and treatment
• Chronic condition
Serious mental health conditions involve:
• Inpatient admission
• Ongoing treatment
• Chronic conditions
• Episodes of incapacity
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INTERMITTENT LEAVE
To qualify for intermittent or a reduced leave
schedule:
• Patient must have a medical need for the leave
• The need is best accommodated by intermittent or
reduced leave
• As certified by HCP, if requested
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INTERMITTENT LEAVE
Can be taken for:
• Planned medical treatment
• Unplanned medical treatment
• Recovery from
• Treatment
• Serious health condition
• Care
• Psychological comfort
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INTERMITTENT LEAVE
Can be taken when:
• Medically necessary
• Planned, but not to unduly disrupt operations
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INTERMITTENT LEAVE TRANSFERS
Employers may Transfer employees
• To an available position
• Employee is qualified
• Better accommodates intermittent absences
• To an altered, existing job
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INTERMITTENT LEAVE TRANSFER
• Position must have equivalent pay
• But need not have equivalent duties
• However, a transfer cannot
• Force the employee to take more leave than medically
necessary
• Discourage employee from taking leave
• Work a hardship on employee
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FMLA AND PRIVACY
Its Really Not My Habit
To Intrude
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HIPPA
ADA protections
Common law breach of confidentiality
FMLA privacy protections
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ELAINE COLLEGE PROFESSOR
Elaine, a tenure track math professor at Arlington College, suddenly
believed that she could write poetry better than Poe and music better
than Dylan. Her resulting behaviors convinced a friend to take Elaine to
the Community Hospital Emergency Room, where the psychiatric
resident recommended a voluntary, inpatient evaluation. Elaine
agreed. A week later, Community Hospital discharged with Elaine with a
diagnosis of Bipolar I Disorder and an explanation that she had
experienced a manic episode. Elaine, now on meds, felt like she had
been hit by a truck.
Elaine's doctors recommended an initial, four week continuous leave,
with no work, and then intermittent leave, as needed, during the next
three to six months. Elaine inquired about taking time off. Arlington
College gave Elaine a Certification of Health Care Provider to
complete, as well as a disability compensation application. The disability
compensation application required Elaine to sign a medical release.
ELAINE COLLEGE PROFESSOR (CONT.)
Elaine did not sign and return the medical release, but
she returned the Certification of Health Care Provider.
On it, her doctor stated:
I have diagnosed the patient with a condition that is episodic
in nature. The patient was hospitalized due to this condition,
and it may periodically and without warning incapacitate her
in the future. Based on the patient's medical history and my
knowledge of her condition, it is likely to cause episodic flare
ups that last from one to three days at a time, two or three
times a month, during the next six months. During a typical
flare up the patient is unable to perform the functions of her
job as a professor for Arlington College.
HIPPA PRIVACY
• HIPPA covers “Business Associates”
• Performs functions for a covered entity
• That involve the use or disclosure of protected health
information 45 CFR 160.103.
• Examples:
• Claims processing or administration
• Utilization review
• Benefit management Id.
Takeaway: Isolate insurance information from FMLA
administration
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ADA PRIVACY
• Prohibited medical inquiries:
• Whether an employee has a disability or
• The nature and severity of the disability,
• Unless: job-related and consistent with business necessity
• Examples of prohibited inquiries:
• We need a doctor’s diagnosis to excuse your absence
• You’re not acting right. Is there something wrong with you?
• What were you admitted to the hospital for?
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ADA
• Permitted medical inquiries:
• Follow up on requests for an accommodation for a nonobvious disability
• Address abuse of sick time
• Ensure employees can perform their jobs safely and
• FMLA Certifications
• Information obtained through ADA compliant
medical inquiries can be used for FMLA decisionmaking
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OHIO COMMON LAW
• Tort for breach of confidentiality actionable against:
• Physicians and hospitals that disclose confidential medical
information to a third party without authorization or privilege
to do so, and
• Third parties who induce physicians or hospitals to disclose
such information.
Biddle v. Warren Gen. Hosp., (1999) 86 Ohio St.3d 395
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FMLA PRIVACY
• Employee request for FMLA time only requires
• A qualifying reason and
• An explanation of the qualifying reason
• Employee request for FMLA does not require
• Disclosure of diagnosis
• Description of the nature or severity of the condition
• Reason for hospitalization (e.g., suicide attempt). Fact of
hospitalization is sufficient
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FMLA PRIVACY
Certification of HCP needs to:
• Describe appropriate medical facts
• Sufficient to support the need for leave
• Certification may request information about:
• Symptoms
• diagnoses and
• Medication.
• But the health care provider does not have to
provide such information unless necessary for the
employer to designate leave as qualifying
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BEST PRACTICES
Employer best practices:
• Timely request and obtain permissible information
and certifications
• Ask whether you really need to know more
• Err in favor of granting leave
Employee best practices
• Timely provide complete and sufficient certifications
• Seek assurances of privacy
• Decline benefits that require unwanted disclosures
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FMLA AND ATTENDANCE POLICIES
NEW
in 2009:
• Employee must comply with the employer's policy
for reporting absences and requesting leave.§
825.302(d)
• Revised regulations effective Jan. 16, 2009,
abrogated Cavin v. Honda of America Mfg., Inc.,
346 F. 3d 713 (6th Cir. 2002).
• FMLA leave may be delayed or denied when an
employee does not follow the employer's usual
notice and procedural requirements.
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ABSENCE REPORTING POLICIES ARE
ENFORCEABLE
• Unless unusual circumstances justify the failure to
comply.
• Being told by his employer that there was no light
duty work for him to do after his doctor restricted his
lifting and scheduled him for surgery did not excuse
employee from daily call-in requirement for his
absences prior to surgery.
Srouderv. Dana Light Axle Mfg., (6th Cir. Aug. 7, 2013).
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NEUTRAL ABSENCE REPORTING
POLICIES
• Neutral absence reporting policies can be
enforced even when the employee’s absence
qualifies for FMLA.
• Employer must be prepared to show that firing was
because of non-compliance with employer’s policy
– and not because the employee requested FMLA
leave.
Ritenour v. Tennessee Dept. of Human Services, (6th Cir. 2012).
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“NO-FAULT” ATTENDANCE POLICIES
• Assess “points” each time employee is absent.
• As points accumulate, employee becomes subject
to progressive discipline, including termination.
• Appearance of simplicity is deceptive;
administration can be complex.
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RISKS OF “NO-FAULT” ATTENDANCE
POLICIES
• FMLA qualifying absence is not identified when it
should be and worker is wrongly penalized.
• Domino effect of incorrectly identifying absence
may not manifest itself until employee is later
terminated.
• Failure to designate absence as FMLA-qualifying
gives rise to both interference and retaliation
claims. § 825.220(c)
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BEST PRACTICES
• Avoid no-fault policies.
• If using a no-fault policy, check & double check
that:
• Designations are correct; and
• Mathematical tabulations of points are correct.
• Adopt attendance policies that require an
employee to disclose the real reason for the
absence.
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BEST PRACTICES (CONT’D)
• Training is essential so personnel recognize and
understand FMLA qualifying absences.
• Persons to whom employee reports the absence.
• Persons administering attendance, tracking absences and
recording reasons.
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BEST PRACTICES (CONT’D)
• Simplify and centralize attendance tracking.
• Respond in writing to employee requests for FMLA
designated absences.
• Tell employee how absence is designated and
invite rebuttal if employee disagrees.
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PERFECT ATTENDANCE BONUS
• Is permissible and does not violate FMLA § 825.215(c)(2).
• Reward achievement of a job-related performance goal.
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UNRELATED REASONS DEFENSE
• FMLA does not protect employees from termination
for reason unrelated to leave and
• FMLA allows employers to prevent abuse of leave
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UNRELATED REASONS DEFENSE
Employer discharges were found unrelated to FMLA
leave where the discharge was for:
• Misrepresentation of fact to obtain FMLA leave
• Misrepresentation of fact to obtain a non-FMLA
benefit
• Working in violation of a written policy
• Conduct inconsistent with leave
• Failure to follow call off procedures
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UNRELATED REASONS DEFENSE
• Arises when employer proffers a legitimate,
unrelated reason.
• In Interference claims, Employee can attack the
proffered reason as pretextual
• But in retaliation claims:
• Employer need only articulate the unrelated reason
• Show reasonable reliance on a particularized set of facts
and
• Block the employee’s pretext with its “honest belief” in its
proffered, unrelated reason
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HONEST BELIEF
• As long as the employer held an honest belief in its
proffered reason, the employee cannot establish
pretext even if the employer’s reason is ultimately
found to be mistaken, foolish, trivial or baseless.
• Unless: the Employer made an error too obvious to
be unintentional
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UNRELATED REASONS DEFENSE
Interference claim does not require proof of intent:
• Employee shows a prima facie case
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Eligible employee
Covered employer
Employee entitled to leave
Employee gave notice
Employer denied leave or benefits
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ENTER THE HONEST BELIEF RULE
In a Circumstantial Evidence Retaliation claim, intent
is at issue:
• Prima facie case
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Employee engaged in activity protected by the FMLA
Employer knows it
Adverse employment action occurred
Causal connection exists
• If Employer “honestly believed” its proffered reason,
it could not have taken the adverse action
because the employee engaged in the protected
conduct.
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MARY MAINTENANCE MANAGER
Mary Maintenance Manager took leave from Foreign
Motors for six weeks to care for her father, who has
Alzheimer's disease. Mary made money on the side before
her leave by buying and selling used books. Foreign Motors
has written "moonlighting" policy allows employees to earn
money outside of their Foreign Motors job, but not during
work hours during a leave.
While on leave, Mary posted a picture on Facebook of a
first edition book, To Kill a Mockingbird, with the caption,
"Dad loves going to book sales. Today he found this buried
in a box. It could be worth $Thousand$$. I love you Dad!"
Facebook showed that Mary posted the picture at 4:40
p.m., during Mary's normal work hours.
MARY MAINTENANCE MANAGER
(CONT.)
Foreign Motors investigated. The head of security called Mary
into work for questioning. Mary denied buying books during work
hours. Mary insisted that she had gone to the book sale the day
before, after work hours. Mary said she had a receipt from the
book sale that showed she bought it after work hours. The head
of security did not ask Mary for a copy of her receipt, and Mary
did not provide it. Mary admitted that she lied about finding the
book "today," but said she did so to make her discovery seem
more exciting.
Foreign Motor's Director of Human Resources reviewed the
investigation file. She concluded that Mary violated the
moonlighting policy. The Director of Human Resources waited
until Mary returned from her leave, and then terminated her
employment for "violation of moonlighting policy" and
"dishonesty." Mary filed suit for interference and retaliation under
the FMLA.
BEST PRACTICES
But I’ll Repeat Myself
At the Risk of Being Crude
• Require certifications, status reports and
compliance with call-off procedures
• Provide all leave allowed – do not interfere
• Investigate unrelated reasons carefully
• Perform a reality check
• Document decision
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