N E I L A N D S T E P H A N I E2 0 1 3 M I D W E S T L A B O R L A W C O N F E R E N C E

TACKLING TOUGH FMLA ISSUES

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TOUGH ISSUES

• Designation – Getting it Right• Serious Mental Health Conditions• Attendance Policies• So-called Fraud

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.

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DESIGNATION

The Answer is EasyIf you Take it Logically

• 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

• 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 SoTo 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

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.  

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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

• HIPPA• ADA protections• Common law breach of confidentiality• FMLA privacy protections

ELAINE COLLEGE PROFESSORElaine, 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.

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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 non-

obvious 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 decision-making

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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 leaveEmployee 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

• 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.

NEW

in 2009:

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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• 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• 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.

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.

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BEST PRACTICES

But I’ll Repeat MyselfAt 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