Excess FMLA Absences: An Employer Success Story

Posted on: November 13, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

November 13, 2019

 

What can an employer do when an employee takes intermittent FMLA leave in excess of the frequency and duration authorized by the health care provider’s certification?  In a good case for employers, one court has explicitly upheld disciplinary measures taken when an employee exceeded her approved absences, resulting in violations of the employer’s attendance policy.  But it was a multi-step process to get there.  Here’s the story:

Tori’s FMLA certification.  Employee Tori Evans worked as an administrative assistant for Cooperative Response Center, Inc., an alarm monitoring service.  After several years of employment (and a pretty dismal attendance record, by the way) she developed reactive arthritis and needed occasional time off for medical treatments and flare-ups.  There is no question in the case that her condition was real.  Tori requested FMLA leave and returned a certification from her health care provider supporting FMLA leave for up to 2 half days per month for medical appointments, and 2 full days per month for flare-ups.  The provider described her symptoms as “GI illness, oral lesions, and joint pains.”  CRC approved Tori’s FMLA leave in accordance with the provider’s certification.

Then what happened?  Tori began reporting absences in excess of her FMLA certification frequency and duration.  CRC’s progressive attendance policy provided for increasing levels of discipline for unexcused absences, culminating in termination for 10 attendance points over a rolling 12-month period.  CRC warned Tori of the possible consequences of absences beyond the approved certification.  Then CRC followed the FMLA recertification process (29 C.F.R. § 825.308), asking her doctor to verify the appropriate frequency and duration based on her condition.  In the section of the new cert form addressing the frequency and duration Tori needed for appointments and flare-ups, the doctor wrote, “Refer to prior FMLA form.” Based on this and other events, CRC assessed 6 points for absences in excess of her FMLA certification; 2 points for requesting FMLA absences for a medical condition not covered by her certification; 1 point for Tori’s failure to follow CRC’s dual absence reporting procedure; and 1.5 points for another absence due to a medical condition not related to her reactive arthritis. 

Total:  10.5 attendance points.  Result:  termination.  Next step:  lawsuit.

What CRC did right.  CRC’s management of Tori’s FMLA leave and her attendance problems was near picture perfect:

  • CRC warned Tori of the consequences of excessive absences (presumably in addition to having its policy
    in writing and available to employees).
  • When Tori began to exceed the parameters of her certification, CRC went back to her provider, following
    the recert process, and obtained verification that the original frequency and duration were still correct.
  • CRC carefully analyzed Tori’s reported reasons for absence to verify whether they were covered by her
    FMLA cert. For example, once she reported an absence of 2 days because her “knee gave out,” which was
    not a symptom of her reactive arthritis as stated by her provider in her original certification.  Other times
    she reported she had “lost her voice” and had a fever and was aching everywhere. On these last two
    occurrences Tori did not relate them to her approved FMLA, in violation of 29 C.F.R. § 825.303(b)
    (until her lawsuit, that is):

When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.

  • CRC enforced its dual absence reporting procedure and assessed an attendance point when Tori reported
    an absence to her supervisor for work coverage but not to HR for FMLA purposes. The courts have
    generally accepted that an employer may require an employee to report an FMLA-covered absence to
    2 sources.  (See our prior blog post on this topic here.)

What’s missing?  It is important to remember that the FMLA regulations indicate a provider’s assessment of frequency and duration for an intermittent leave is an estimate only.  See 29 C.F.R. § 825.306(a)(5)-(8) (e.g., the certificate must contain “an estimate of the frequency and duration of the episodes of incapacity”).   The court did not acknowledge the estimate issue in its opinion.  One suspects that the result would be the same, as Tori had 6 absences in excess of her certification approval.  Nonetheless, employers should not jump to attendance discipline on the basis of just 1 or 2 excess absences. 

Remember, too, that this is just one case – and a district court case at that.  As such, it is not binding on any other courts outside of the federal district of Minnesota.  However, the analysis is sound and provides a good roadmap for handling those excess FMLA absences beyond the estimated frequency and duration.

Pings for employers.   As an employer, you can tightly monitor and assess an employee’s specific absences to ensure they are within the scope of an approved FMLA leave and comply with your absence policies:

  • Enforce company and FMLA reporting procedures
  • Watch the frequency and duration of the employee’s absences
  • Seek recertification when an employee’s absences exceed the certification’s frequency and duration
  • Apply consequences for unexcused/non-FMLA absences

But remember to:

  • Be consistent in applying your policies to FMLA and non-FMLA situations
  • Give a little leeway regarding an employee’s absences – the provider’s certification is an estimate only

The case is Evans v. Cooperative Response Center from the federal court for the District of Minnesota.

Thanks to my fellow blogger Jeff Nowak (and his source!) for bringing this case to my attention.  You can read his take on the case here.

MATRIX CAN HELP!  Are your FMLA procedures up to snuff like CRC’s?  Matrix can help you avoid FMLA pitfalls and follow compliant procedures to manage difficult situations.  We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us through your Matrix or Reliance Standard account manager or at ping@matrixcos.com.

 

Federal Protections for Victims of Domestic Violence Proposed in US House and Senate

Posted on: November 9, 2017 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance

Identical bills that propose significant leave of absence rights and job protections for victims of domestic violence, dating violence, sexual assault, and stalking were introduced simultaneously in the US Senate and House of Representatives on October 31, 2017.  If passed, the bills (S 2043 and H 4198) will require employers to provide up to 30 days of job protected and partially paid “Safe Leave” for victims – referred to as “survivors” – of these abusive personal crimes.

Startling statistics.  The bills provide some eye-opening Congressional findings regarding the impacts of these crimes:

  • Studies indicate that one of the best predictors of whether a survivor will be able to stay
    away from his or her abuser is the degree of his or her economic independence. However,
    domestic violence, dating violence, sexual assault, and stalking often negatively impact
    a survivor’s ability to maintain employment.
  • Survivors of severe intimate partner violence lose nearly 8,000,000 days of paid work,
    which is the equivalent of more than 32,000 full-time jobs and almost 5,600,000 days
    of household productivity each year.
  • Nearly 1 in 4 women and 1 in 9 men in the United States have suffered sexual violence,
    physical violence, or stalking by an intimate partner.
  • Annual costs of intimate partner violence are estimated to be more than $8,300,000,000
    in direct costs of medical and mental health care and indirect costs of lost productivity.

Based on these statistics and more, the goal of the bills is “to empower survivors of domestic violence,
dating violence, sexual assault, or stalking to be free from violence, hardship, and control, which
restrains basic human rights to freedom and safety in the United States.”

Several states have similar laws for the protection of victims of such personal crimes, although none of them contain pay provisions.  The passage of the most recent of such laws in Nevada prompted our prior blog post on these leave laws, in which we summarized the Nevada law and identified other states with similar laws:  Leave rights for victims of domestic violence:  Growing need, multi-state trend.

Summary of the bills’ provisions.  Here is a rundown of the key provisions of the two bills.  Several key
attributes of the leave rights are not specified in the bills, as noted below.  We would expect that, if passed,
the Department of Labor regulations authorized by the bills would clarify these points.

Keep in mind that these were just introduced and are likely to go through changes as they are considered
by both houses.  We will be watching their legislative journey and will report any updates on this blog.

ISSUE PROVISION
Eligible employees All employees – no eligibility requirements such as length of service or hours worked.

Includes full-time, part-time, and temporary employees.

Covered employers Employers with 15 or more employees.
Persons entitled to leave – “survivor” Employee who, personally or whose family or
household member, is experiencing or has experienced:

  • Domestic violence, dating violence, sexual assault,
    or stalking (“abuse”) (as those terms are defined
    in § 40002 of the Violence Against Women
    Act of 1994 (34 U.S.C. § 12291)).

Collectively referred to as a “survivor.”

“Family or household member” Defined as:

  • A son or daughter, parent, spouse, domestic
    partner, or any other individual related by
    blood or affinity whose close association with
    the person is the equivalent of a family
    relationship; and
  • Is not the abuser involved.
Leave reasons Leave can be used for the following activities related to the abuse, for the employee or the family or household member:

Seek medical attention;

  • to obtain services from a survivor
    services organization;
  • to obtain behavioral health services
    or counseling;
  • to participate in safety planning,
    temporary or permanent relocation,
    or taking other actions, to increase safety; or
  • to take legal action, including preparing
    for or participating in a civil or criminal
    legal proceeding.
Amount of “Safe Leave” 30 days in a 12-month period.

COMMENT:  The bills do not specify whether
the 30 days are work days or calendar days,
which could result in either 6 weeks or 4.3
weeks of leave respectively.  The most likely
interpretation is 30 work days, but we will
watch for clarification.

Leave year calculation method Not specified.

COMMENT:  The applicable 12-month period for 30 days
of leave is not defined.  FMLA permits 4 methods
(calendar year, fixed year, measured forward, rolling back).

Leave usage methods Not specified.

COMMENT:  The FMLA allows usage as a continuous/ block
leave, as a reduced schedule, and as intermittent periods
of leave of varying increments.

Pay provisions
  • Employees will accrue up to 56 hours of paid
    Safe Leave at an accrual rate of 1 hour of paid
    leave per 30 hours worked.
  • Exempt employees (those not subject to
    overtime pay requirements) are assumed to
    work 40 hours per week for accrual purposes;
    if they normally work a shorter week, the hours
    worked in that normal shorter week are used for accrual.
  • Accrual and carryover are maxed at 56 hours
    of paid leave.
  • Employees start accruing paid Safe Leave upon
    hire, but cannot use accrued time until the 60th
    calendar day of employment.
  • Accrued paid leave used by the employee
    counts toward the total 30 days per 12 months
    of Safe Leave
Employee request for Save Leave
  • Must be provided to the employer orally or in
    writing as soon as practicable after the employer
    is aware of the need for leave; and
  • Must inform the employer of the expected
    duration of the leave [and, presumably, the dates].
  • The employee must schedule the requested
    leave at a time that does not unduly disrupt the
    employer’s operations, unless such scheduling
    is not practicable.
Documentation
  • The employer can require documentation
    from the employee to support the leave.
  • Several types of documentation
    are acceptable, including a police
    report, court order, sworn statement
    from the employee or family/household
    member, documentation from an
    attorney or medical professional, and more.
  • The employer cannot specify the type of
    documentation that is acceptable for the
    requested leave.
  • The employee must submit documentation
    within 30 days of the first date of Safe Leave,
    but an employer cannot deny leave while
    awaiting documentation.
Employer notice to employees None required.

COMMENT:  The bills do not require any form of
notice to employees, either in general such as
posting or with respect to a specific Safe Leave request.

Job protection An employee must be reinstated to the same
or an equivalent job upon return to work from
Safe Leave.
Benefits Employers must maintain employees’ coverage
under any group health plan or employee welfare
benefit plan during Save Leave.
Interaction with FMLA Safe Leave under the proposed laws will be
“in addition to any leave taken (directly or indirectly)”
under the FMLA, not to exceed 30 days in
a 12-month period.

COMMENTS:

  • The bills are not clear whether leave for a
    reason that qualifies under both FMLA and
    these bills (e.g., leave for a serious health
    condition of the employee or a family member
    that results from domestic abuse) would count
    toward both.
  • It does appear that this leave is in addition to
    leave taken under the FMLA for reasons not
    covered by the Safe Leave law – not just
    additional leave reasons under the existing
    FMLA 12 week entitlement.
Interaction with other leave laws or employer policies An employee may substitute other leave available
pursuant to state or local law, a collective bargaining
agreement, or an employer program or plan for an
equivalent period of Safe Leave.
Other provisions The bills are quite detailed.  At present some additional provisions include:

  • Prohibitions against discrimination, retaliation,
    and interference with rights.
  • Federal and state entitlement to unemployment
    compensation when an employee is separated
    from employment due to circumstances related
    to being a survivor of domestic violence, dating
    violence, sexual assault, or stalking.
  • Key employee provision enabling employers
    to deny job restoration to certain employees
    in limited circumstances, similar to FMLA.
  • Enforcement by the DOL and by the employee,
    including civil actions.
  • The “Survivors’ Employment Sustainability Act,”
    which protects employees and applicants from
    discrimination, harassment, and retaliation based
    on the individual’s status as a survivor of domestic
    violence and other personal abuse (including a
    survivor of an unauthorized communication of an
    intimate image of the individual).
  • Prohibitions against insurers and employers
    who self-insure employee benefits from
    discriminating against survivors of domestic violence,
    dating violence, sexual assault, or stalking and
    those who help them in determining eligibility,
    rates charged, and standards for payment of claims.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.