Managing FMLA

Under the New Regs

“FMLA X Games”
Christopher S. Thrutchley, JD, PHR

Best Practices | Best Defense newtonoconnor.com © 2010

TOPICS
• Managing FMLA Under the New Regs
and Recent Case Law Developments
• Expansion of Military Leave by the Nat’l
Defense Authorization Act
• Strategies for Managing Challenging
Issues and Minimizing Abuse
Best Practices | Best Defense
“FMLA” stands for
A. Fridays & Mondays Late Allowance
B. Faked My Last Attack of ________
C. Fire My Lazy A_____
natomy

D. All of the above

Best Practices | Best Defense

The Holiday Snow Skiing Injury
Bob is a welder. He hurt his knee skiing. On
Monday, it hurt so much his boss let him off
early to see a doctor. The doctor said he
needed surgery with 4 to 6 weeks of rehab
and would try to schedule it in two weeks. He
released Bob to work with a brace but didn’t
mention surgery and rehab. After two weeks
of work, the doctor called Bob to confirm the
surgery the next day. The next morning, Bob
called in to “take a sick day.” The next day,
Bob called his boss “to get FMLA for up to six
weeks of rehab due to knee surgery.”
Best Practices | Best Defense
1. True or False:

Bob’s need for FMLA for his surgery and

rehab was unforeseeable, because it was
scheduled to occur in less than 30 days.

Best Practices | Best Defense

2. When Bob returned to work with a brace,
he had a duty under the FMLA to--
A. Request “FMLA” for his upcoming absence
B. Begin working with his boss to schedule leave
in a manner least disruptive to the company
C. Tell his boss or HR that surgery may be set in
two weeks followed by 4 to 6 weeks of rehab
D. Provide documentation from his doctor
establishing his need for FMLA leave
Best Practices | Best Defense
3. When Bob called “to get FMLA,” the boss called
HR for advice. HR should--
A. Call Bob to find out why he didn’t tell his boss
or HR about the surgery and rehab ASAP
B. Call the doctor to authenticate Bob’s need for
surgery and clarify details about the rehab
C. Send Bob the proper Certification form to
confirm if the leave is FMLA-qualifying.
D. Deny Bob’s “request” for FMLA due to his
failure to give adequate notice
Best Practices | Best Defense
4. When the boss or HR first learned Bob
may need FMLA, they had five days to--
A. Determine if Bob is eligible for FMLA
B. Confirm Bob hasn’t exhausted his FMLA
C. Find out why Bob failed to give timely
notice of his need for leave
D. Send Bob notice of his eligibility for
FMLA and his rights and responsibilities
Best Practices | Best Defense
5. True or False:

The deadline for sending Bob the Notice

of Eligibility form is five business days
after learning of Bob’s possible need for
FMLA, not five calendar days.

Best Practices | Best Defense

6. With the Notice of Eligibility form, HR
should include all of the following except:
A. Reasons why Bob is ineligible
B. A Certification form and Bob’s most
current Job Description
C. Legal remedies for FMLA violations
D. Bob’s responsibilities while on leave and
consequences of failing to fulfill them
Best Practices | Best Defense
7. True or False:
An otherwise ineligible employee
may become eligible for FMLA if a
failure to give timely notice of
eligibility harms the employee.

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8. True or False:
You may condition the use of FMLA on
following your normal policy for giving
notice of an absence or for requesting any
other form of leave, such as
– Advance written notice of reason for leave
– Notifying a specific person or dep’t
– Requiring notice by a certain time
Best Practices | Best Defense
9. HR called Bob. Bob has several excuses for the
timing of his notice. Which excuse is the DOL
most likely to consider adequate--
A. Bob’s doctor did not confirm the exact date
and time of surgery until the day before
B. Bob never received the company’s policies
and didn’t realize he did anything wrong
C. Bob followed the advice of co-workers who
told him how it’s always been done before
D. When Bob learned of the surgery date, he
called the absence “hotline” per policy. When
it didn’t work, he called his boss the next day.
Best Practices | Best Defense
10. HR finds Bob’s excuse inadequate. Another unexcused
absence means discharge. But, absence over 3 days
under a doctor’s care is an FMLA-covered serious
health condition. Therefore, HR should:
A. Send Bob a Designation form denying FMLA leave
and fire him per policy for excessive absenteeism
B. Send Bob a Certification form first to confirm the
absence is indeed FMLA-qualifying and protected
C. Send Bob a Designation form granting FMLA leave
since he has a serious health condition
D. Seek the advice of counsel, since this is a risky issue.
Best Practices | Best Defense
11. If Bob’s excuse is adequate, HR should--
A. Send a Designation form approving FMLA
leave for up to six weeks.
B. Send a Certification form and Job Description
within 5 business days
C. Send a Certification form and Job Description
within 7 calendar days
D. Send a Certification form and Job Description
promptly; there is no mandated deadline
Best Practices | Best Defense
12. True or False:

If Bob’s need for leave was unforeseeable,

the employer would have had up to five
business days after Bob’s leave began to
send a Certification form.

Best Practices | Best Defense

13. True or False:

Sending Bob the Notice of Eligibility and

the Certification forms fulfills the
employer’s duty to provide Bob timely
notice of the approval of FMLA leave.

Best Practices | Best Defense

14. Bob failed to return a fully completed
Certification form to HR within 15 days of
receiving it. HR should—
A. Discipline Bob for lack of cooperation
B. Deny Bob’s request for FMLA leave
C. Send a Certification form directly to
Bob’s doctor to expedite the process
D. Find out if Bob has made diligent, good
faith efforts to get it completed on time
Best Practices | Best Defense
15. True or False:

If Bob does not have an adequate excuse

for not returning a completed Certification
form within 15 days of his receipt, HR may
delay or deny approval of FMLA leave and
impose any other consequences of which
Bob had advanced notice.
Best Practices | Best Defense
16. Bob’s Certification is incomplete. Question
5 is unanswered. HR can’t tell if Bob only
needs reduced schedule leave for rehab.
To cure this deficiency, HR should—
A. T or F: Call Bob’s doctor for clarification
B. T or F: Send Bob notice of the defect
and his duty to cure it within 15 days.

Best Practices | Best Defense

17. HR notifies Bob of the deficiency and of
his duty to get an answer to Question 5.
Bob must make a diligent, good faith effort
to return the cured Certification--
A. Within 15 calendar days of receipt
B. Within 7 calendar days
C. Within 7 business days
D. Within 5 business days
Best Practices | Best Defense
18. Bob returns a cured Certification, but the
answer is vague and the writing looks
suspiciously similar to Bob’s. HR should—
A. Call the doctor to clarify the answer and to
authenticate that the writing is the doctor’s
B. Require Bob to cure the insufficient answer
and call the doctor to authenticate it
C. Call the doctor to clarify the answer and to
authenticate the doctor authorized the writing
D. Delay approval of FMLA until Bob signs a
HIPAA release allowing HR to obtain the
information it needs from the doctor
Best Practices | Best Defense
19.True or False
When the HR Professional calls the
doctor to obtain clarification regarding the
vague answer, she should try to get as
much additional relevant information as
possible, since the new FMLA regulations
impose no penalty on an employer for
doing so.

Best Practices | Best Defense

20.Each of the following people may
contact Bob’s doctor for clarification
or authentication purposes except:
A. An HR professional
B. Bob’s direct supervisor or manager
C. Any other member of management
D. The company’s health care provider

Best Practices | Best Defense

21.True or False
When HR finally received sufficient
information to know that Bob needed three
weeks of FMLA after surgery, plus three
weeks of reduced schedule leave for the
final phases of rehab, HR had two
business days to send Bob a Designation
form approving his FMLA leave retroactive
to his first day of absence.
Best Practices | Best Defense
 New FMLA Timeline
In 30 In 5 days, give In 15 Notice of In 7 In 5
days notice of: days or need to days days,
or Eligibility and ASAP, cure in 7 or notice of
ASAP, Rights & return days or ASAP, Design.
notice Responsibilities complete ASAP submit of leave
of (including duty Cert. to cured as FMLA
need to return employer Cert. and FFD
for complete Exam to
FMLA Certification) RTW

Best Practices | Best Defense

Washed Up Skier’s Syndrome
Near the end of rehab, the boss notices that
Bob’s productivity stats are dropping sharply,
and Bob is becoming chronically tardy. HR
advises the boss to meet with Bob to discuss
expectations, but Bob is a no-call, no-show
the next two days. A concerned co-worker
reports that he heard Bob has been skipping
rehab sessions and going to the casino “to
shake off his depression.”
Best Practices | Best Defense
22. Which two of the following grounds give
HR a lawful basis to require Bob to
complete a new Certification form with
updated information about his condition:
A. An employer may require recertification as
frequently as every 30 days if it chooses
B. Bob’s situation has changed significantly
C. HR has reason to doubt the validity of Bob’s
Certification form
D. HR has received information that casts doubt
on the reason given for Bob’s absences
Best Practices | Best Defense
Recertification Changes
• General Rule
– May require recertification no more frequently
than every 6 months (no longer 30 days)
• Exceptions
– Employee requests an extension
– Circumstances have “changed significantly”
– Reason to doubt validity of certification, or
– Receipt of information that casts doubt on the
reason given for the absence
Best Practices | Best Defense
From Syndrome to Attempted Suicide
The third day, Bob’s wife calls the boss in
tears. She reports that Bob spent the first
day and night of his two-day absence in the
ER. Bob had “an accident leaving the casino
that may have been a suicide attempt.” The
second day of his absence, she took him to a
mental care provider for an eval. The MCP
restricted Bob to bed rest for the day and
prescribed anti-depressants. She is taking
Bob back to the MCP today for follow up.
She promises that she or Bob will “keep the
boss posted about his status.”
Best Practices | Best Defense
23.True or False

Based on what HR has learned thus far, it

has constructive notice of Bob’s need for
additional FMLA due to at least one new
serious health condition and should treat
the absences as potentially FMLA-
qualifying as additional information is
gathered.
Best Practices | Best Defense
24.True or False

If the report from Bob’s wife is true,

Bob’s “accident” and ER visit
constitute a separate serious health
condition for which FMLA coverage
applies.

Best Practices | Best Defense

25. Bob shows up at work the next day. His
release says: “severe depression; may
have incapacitating lapses while meds
being adjusted. Must see MCP monthly
for evals for at least 6 to 12 months.”
True or False:
Bob’s two-day absence to see the MCP is
not an FMLA-covered serious health
condition, because it did not exceed three
consecutive days.
Best Practices | Best Defense
Serious Health Conditions
• Inpatient care (an overnight stay)
• Incapacity and Treatment (>3 days)
– First treatment must be within first 7 days
• Pregnancy or Prenatel Care
• Chronic Conditions (any period of incapacity)
– At least two visits for treatment per year
– Lasts an extended period (including episodic)
– May cause episodic incapacity (asthma, etc.)
Best Practices | Best Defense
Serious Health Conditions
• Permanent or Long-Term Care
– Continuing treatment
– Alzheimer’s, severe stroke, terminal illness
• Conditions Requiring Multiple Treatments
– Any period of incapacity for
• Restorative surgery after an accident or injury
• A condition that would likely result in incapacity of
more than three days in absence of treatment
• E.g., chemo, radiation, dialysis
Best Practices | Best Defense
26.After taking all of the proper steps,
HR grants Bob intermittent FMLA for
chronic depression. Bob called in
“sick” 8 times in the first 30 days.
True or False:
Bob’s absences are not FMLA-
protected unless he stated when he
called in that he was missing work
due to his chronic condition.
Best Practices | Best Defense
27.True or False

Under the new “One Hour Increment

Rule,” HR may deduct one hour of
FMLA leave for each day Bob was
tardy due to the onset of depression
even if Bob was not one hour late.

Best Practices | Best Defense

28. After 7 months and 30 missed days, HR
notices 80% of Bob’s absences fall on
Monday, Friday, and around holidays. HR
should consider each of the following
strategies except--
A. Give the data to the MCP and ask if the pattern
is consistent with Bob’s condition
B. Hire a P.I. to conduct surveillance
C. Make sure Bob’s boss is plugged into the
grapevine with co-workers
D. Require Bob to produce a doctor’s note for each
subsequent absence
Best Practices | Best Defense
29.True or False

Since six months from the last

certification has elapsed, HR should
require Bob to recertify his chronic
condition.

Best Practices | Best Defense

30.After Bob used 11 weeks of FMLA,
he learned that his twin brother, Billy,
a U.S. Marine, was injured in the line
of duty and may not survive.
True or False
Bob is entitled to use some or all of
his remaining leave for qualifying
exigency leave to help Billy get his
legal and financial affairs in order.
Best Practices | Best Defense
Qualifying Exigency Leave
• Up to 12 weeks in a 12 month period
• For “non-medical” and “non-routine” needs
(i.e., “exigencies”) that arise due to
– Active duty or call to active duty of spouse,
son or daughter (any age), or parent All service
– In the Reserves or National Guard members
– In support of a “contingency operation”
– (Written order will usually specify In foreign
“contingency operation”) deployment
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Qualifying Exigency Leave
• “Qualifying Exigency” strictly limited to:
– Short-notice deployment
– Military events and related activities
– Childcare and school activities
• Includes actually providing childcare
– Financial and legal arrangements
– Counseling
– Rest and recuperation (up to 5 days)
– Post-deployment activities
– Additional activities (requires mutual assent)
Best Practices | Best Defense
Qualifying Exigency Leave
• Similar notice rules apply
• Similar certification rules apply

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31.Bob exhausts his 12 weeks of leave.
He then learns that Billy has been
given only 26 weeks to live and has
been placed in a VA facility just two
hours from Bob’s home.
True or False
Bob may be entitled to use up to 26
weeks of military caregiver leave to
care for Billy over the next 12
months. Best Practices | Best Defense
32. Bob uses 26 weeks of leave to care for
Billy. Miraculously, he survives but suffers
from post-traumatic stress disorder and
has lengthy, incapacitating flashbacks. He
will be receiving therapy for an indefinite
period. Under the NDAA, how long may
Bob seek FMLA leave to care for Billy?
A. Up to 1 year after Billy leaves the service
B. Up to 3 years after Billy leaves the service
C. Up to 5 years after Billy leaves the service
D. None of the above. There is currently no limit.
Best Practices | Best Defense
 Compliance and Absence
Management Strategies to
Implement Now

Best Practices | Best Defense newtonoconnor.com © 2010

Compliance Strategies
• Update FMLA policies and
procedures
• Re-evaluate, Update Related Policies
– PTO Policies
– Absence Management Policies
• Adopt New Certification Forms
– May design your own
Best Practices | Best Defense
Compliance Strategies
• Update/develop Notice Templates
– Eligibility, R&R, and Designation Notice
– Augment R&R notice to police abuse
• Keeping HCP appointments
• Complying with restrictions on and off job
• Providing full, truthful information to all
• Cooperating with work comp adjusters
• Regular contact with employer regarding
status
Best Practices | Best Defense
Compliance Strategies
– Augment R&R notice to police abuse
• Submitting to required post-accident drug
and alcohol testing
• Not working elsewhere while on leave
• RTW first day after release with a release
• Cooperating in providing information,
allowing access to information
• Cooperating in safety-related and other
investigations
Best Practices | Best Defense
Compliance Strategies
• Update Job Descriptions
– For use with Certifications and FFD
• Develop FMLA guidelines for use by
front-line leaders

Best Practices | Best Defense

Compliance Strategies
• Train HR, Benefits, Payroll, and other
leaders with rollout of updated
policies and guidelines to:
– Promote consistent administration of
leave policies and procedures
– Protect against interference with or
violation of FMLA rights
Best Practices | Best Defense
Compliance Strategies
• Check other state laws
• Nine states now have their own
different military leave laws
– California, Connecticut, Illinois, Indiana
– Maine, Minnesota, Nebraska
– New York and Oregon
Best Practices | Best Defense
Compliance Strategies
• Implement steps to minimize abuse
– Communicate regularly with employees
• Convey genuine concern
• But also subtly implies you’re monitoring
• If you suspect abuse, make regular calls to
the employee and vary the times
• Require calls after each appointment
Best Practices | Best Defense
Compliance Strategies
• Implement steps to minimize abuse
– Consider surveillance
• Work with comp adjuster and take
advantage of adjuster’s resources
• Use your own surveillance if someone lives
nearby or other circumstances warrant
– Ensure concurrent FMLA and W/C leave
Best Practices | Best Defense
Compliance Strategies
• Implement steps to minimize abuse
– Take advantage of second opinions
– Utilize light or modified duty
– Communicate with HCPs
• Authenticate and clarify information
• Ensure understanding of job description
– Get written statement from employee soon
after an accident
Best Practices | Best Defense
Compliance Strategies
• Implement steps to minimize abuse
– Enforce discipline rules for fraud
– Be inquisitive with employee about
• Reasons for absences
• What the employee is doing while absent
– Enforce safety rule violations
– Communicate with co-workers, friends
Best Practices | Best Defense
Compliance Strategies
• Be alert to potential ADA issues
– Regarding someone as disabled
“EEOC TAKES AIM AT
COMPANY POLICIES LIMITING
MEDICAL LEAVES”
Sears pays $6.2M, largest ever in EEOC
ADA suit, to settle claim attacking
terminations based on inflexible
application of medical leave limits.
Best Practices | Best Defense
 NOTICE
This presentation is for educational purposes only, not to
provide legal advice. Information in this presentation
should not be relied upon or used as a substitute for legal
advice from a licensed attorney in any general or specific
circumstance. NOTK is not responsible for reliance upon or
use of this information. Use of this presentation does not
establish an attorney-client relationship with NOTK.
Best Practices | Best Defense newtonoconnor.com © 2010