DOL to Employers: If it’s FMLA, it’s FMLA. If it’s not, it’s not.

Posted on: March 18, 2019 0

By Marti Cardi, Vice President Product Compliance Gail Cohen, Director Employment Law & Compliance

March 18, 2019

 

There is joy in my blessed li’l FMLA heart.  The US Department of Labor has issued a much-needed Opinion Letter addressing whether an employer or employee can elect not to apply the FMLA to a leave for an FMLA-qualifying event.  Spoiler alert:  The answer is NO.

This has never seemed like a gray area to me.  We blogged about this over 3 years ago.  (See prior blog posts here  and here.) As I said back then, “No, no, no!  The employee does NOT get to choose!”  The regulations are clear, and the DOL FMLA Branch Chief has spoken publicly on this issue. Yet many employers still think employees have the right to choose whether to use FMLA for a qualifying absence.

In the new Opinion Letter FMLA2019-1-A, the DOL addressed this specific question:  Can an employer delay application of FMLA to a leave that is clearly FMLA-qualifying and allow the employee to first use paid sick leave or other leave?

But the DOL went further. As stated in the Opinion Letter:

  • Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason,
    neither the employee nor the employer may decline FMLA protection for that leave.
  • Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying
    leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
  • Once the employer has enough information to make this determination, the employer must,
    absent extenuating circumstances, provide notice of the designation within five business days.
  • And so, the employer may not delay designating the leave as FMLA-qualifying even if the
    employee would prefer that the employer delay the designation.

When does this arise? Take a look at my friend Jeff Nowak’s blog FMLA Insights for a humorous example (and some additional guidance).  Here is another scenario. Your employee announces she is pregnant.  She also tells you that her husband needs surgery and she wants to take a week off to care for him during the operation and recovery.  But, she doesn’t want to use her FMLA time for that, preferring to reserve it for bonding following the birth of the child.  She’ll use her accrued sick leave and PTO instead:

EMPLOYEE: I am pregnant and want to take FMLA for bonding time after my baby is born.  I also need a week off to care for my husband following his surgery next month.  I want to use my sick leave for the time to care for my husband and save all of my FMLA for bonding.   Remember, care of my husband is an allowed use for sick leave under our policy.

YOU (the employer):  OK.

YOU (6 weeks later): Hey, you said you only needed a week off and you’ve been gone 2 weeks.  You are out of sick leave and PTO.  You’re fired.

EMPLOYEE: But you can’t fire me! My husband needed more time for recovery and care.  The time off was for an FMLA reason and I have job protection.

YOU: You said you didn’t want to use FMLA.

EMPLOYEE: Yes, but I wouldn’t have chosen that if I had known I wouldn’t have job protection during my leave!

What a mess.  I wonder who wins in front of a jury?

It’s OK to allow employees more time through company policies.  The Opinion Letter makes clear that an employer cannot designate time as FMLA in excess of the 12 (or 26) weeks, whether before OR after FMLA leave. If you want to be more generous, provide it through a company policy but don’t call it FMLA.  In fact, the FMLA regulations state that “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.”  29 C.F.R § 825.700.

But what about “substitution?”  Sometimes there is confusion due to the provision in the FMLA regulations that an employee may “substitute” other leave for FMLA leave.  But the regulations – and now the Opinion Letter – make it clear that paid leave provided by the employer will run concurrently with the unpaid FMLA leave.  29 C.F.R § 825.207(a).  As the DOL says in the Opinion Letter:

[P]roviding such additional leave outside the FMLA cannot expand the FMLA’s 12-week (or 26-week) entitlement under the FMLA. . . . Therefore, if an employee substitutes paid leave for unpaid FMLA leave the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

So here’s the deal, in my words:

  • The FMLA is a law that provides 12 (or 26) weeks of job-protected leave of absence for 5 qualifying leave
    reasons (key word: law).
  • Neither the employer nor the employee can change the law or choose not to follow it.
  • It’s the law.

Pings for Employers

  • Don’t allow an employee to decline FMLA coverage and protections for a leave you know, or have reason
    to believe, is for an FMLA-qualifying event.
  • Always provide the employee with the FMLA Notice of Rights and Responsibilities and Eligibility Notice
    within 5 days of the employee’s leave request. If you are not clear whether the leave is requested for an FMLA
    reason, be safe and provide the employee with the notices and the certification form.
    Failure to do so
    could be considered interference with the employee’s FMLA rights.
  • Don’t chafe about this rule if it is news to you: It’s actually to your benefit!  The rule gives you, the employer,
    some control over how much time your employees can take off and when. You get to choose whether and
    under what circumstances employees can take more company leave following FMLA leave by designing your
    policies accordingly
    .
  • If you live in states covered by the federal Ninth Circuit Court of Appeals, you may already be aware of the
    opinion in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014). In that case the court held that
    an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order
    to preserve FMLA leave for future use.  A few lower courts in other states have followed the Escriba decision.
    In the Opinion Letter the DOL explicitly rejects the Ninth Circuit’s holding.  This causes a conundrum for
    employers within those states – whether to follow the court’s ruling or the FMLA regulations and now this
    Opinion Letter.

I strongly support the DOL’s interpretation as the only logical result from the FMLA statute and regulations, and have always maintained that the Escriba decision is flat out wrong. (But then, they didn’t ask me!) For more discussion see our prior blog posts linked above. But, you should check with your own employment counsel for advice regarding the specific fact situation you are dealing with.

 

Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

DOL issues New “Safe Harbor” FMLA Certifications

Posted on: September 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

The Department of Labor recently issued updated versions of certifications employers can use when employees ask for FMLA leave. The new certifications are in effect until August 31, 2021. However, only the expiration date has changed.

The older forms with an expired date are still fully compliant with the FMLA but do tend to cause questions. Remember, these are just “safe harbor” forms; they are not mandatory. As many of our readers and employer clients have experienced firsthand, the DOL certification forms do not always provide employers with a “complete and sufficient certification.”

As a result, Matrix has developed its own certifications for employee’s own serious health condition and for a family member’s serious health condition that we use for managing our clients’ FMLA claims. These customized forms have resulted in fewer incomplete or unclear certifications, leading in turn to more expedient and efficient adjudication of FMLA entitlement. Matrix will be using the DOL certifications with the new expiration dates for military exigencies and for care of an ill or injured servicemember or veteran.

The new DOL forms are available here.

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.

If you have questions, contact your Account Manager or ping@matrixcos.com.

New DOL FMLA Opinion Letters – Organ Donation and No-Fault Attendance Policies

Posted on: August 31, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion. Thus, it provides an official, reliable interpretation of the FMLA and its regulations.

We may not always agree with the Division’s opinion, but at least we know where the agency stands!

On August 28, the DOL issued two new FMLA opinion letters:

Is incapacity due to organ donation covered by FMLA?

Opinion Letter FMLA2018-2-A offers guidance on whether time missed due to an organ donation is covered by the FMLA. Specifically, can an otherwise healthy employee, who does not himself suffer from a serious health condition, take FMLA to undergo organ donation surgery, recover from surgery, and receive other postoperative treatment?

The DOL concluded that the answer is “yes.”

As our readers know, for an eligible employee to take FMLA for his own condition he must have a serious health condition. This term generally indicates that the employee has an “illness, injury or mental or physical impairment” that requires “inpatient care” or “continuing treatment” and that makes the employee unable to perform the functions of his job  The DOL reasoned that the treatment itself the employee must undergo in connection with an organ donation renders the time associated with doing so a qualifying serious health condition. The surgery to donate an organ typically involves a stay in a hospital for one or more nights, which qualifies as “inpatient care.” Once the definition of a serious health condition is met, other periods of incapacity related to the serious health condition, such as recovery and postoperative treatments, will also be FMLA-protected absences.

Although not directly stated, the implication is that it doesn’t matter if the serious health condition arises from a voluntary situation – in this case, donating an organ to someone else. If the employee’s health situation meets one of the definitions of a serious health condition, absences are covered by the FMLA.

This is certainly an elaboration on the common understanding that, in general, the employee has to have an existing condition that necessitates time away from work for treatment. With this opinion letter, the DOL makes it clear that even if there is no existing serious health condition, elective treatment that creates a serious health condition can support FMLA leave and job protection. Another example where this might apply is infertility treatment. The condition of infertility is not an incapacitating condition but the treatment may incapacitate the employee and therefore provide FMLA protections.

PINGS FOR EMPLOYERS:

  • Always analyze whether an employee has a serious health condition in accordance with the definitions
    in the regulations. Even those conditions that the DOL notes will not typically be a serious health condition
    (the common cold, the flu, etc.) might qualify if the employee’s condition, incapacity, and/or treatments meet
    one of the definitions.
  • Don’t be influenced by whether the employee’s serious health condition is brought on by voluntary treatment
    for the benefit of the employee such as cosmetic treatments or for the benefit of others such as organ or
    bone marrow donation.
  • Judge each situation on its particular facts; don’t make assumptions based on the nature of the
    employee’s condition.
  • Remember that some states have laws that protect employees who need leave to donate an organ,
    bone marrow, and other human tissue. You can refresh yourself on these laws with our prior blog post here.

No-Fault Attendance Policies Done Right!

The DOL’s other August 28 opinion letter (FMLA2018-1-A) relates to an employer favorite – no-fault attendance policies. These are polices where an employee’s absence, no matter what the cause, is counted against the employer’s attendance point system. Once an employee accrues a pre-set number of absences, she is subject to discharge per employer policy. Points usually roll off the employee’s record after a certain period of time, such as 12 months after the absence. The catch is that absences attributable to FMLA leave cannot be counted toward an employer’s attendance policy.

An employer posed this question to the DOL: Does an employer’s no-fault policy violate the FMLA if it is put on hold during FMLA leave and the employee returns to work with the same number of attendance points as he had accrued prior to the start of leave? The DOL says no, as long as the policy is applied in a nondiscriminatory (read: consistent) manner.

Under this employer’s policy, attendance points remain on an employee’s record for 12 months. But, if the employee goes on FMLA leave, the employee’s accrued points at the beginning of the leave remain and do not roll off during the leave.

The DOL recognized that the FMLA does not entitle an employee to superior benefits or position simply because he or she took FMLA leave. (e.g., 29 C.F.R. § 825.214.) Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA. If the number of accrued points remains effectively frozen during FMLA leave under the employer’s attendance policy, an employee does not lose a benefit that accrued prior to taking the leave. According to the new opinion letter, the DOL’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.

On the other hand, if the employer counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave.

PINGS FOR EMPLOYERS:

  • Review your “no-fault” attendance policy to ensure that it does not penalize employees for absences
    attributable to FMLA reasons.
  • Treat any policy regarding “freezing” of attendance points accrual or roll-off the same for FMLA absences
    as for any other types of absences (for example, absences attributable to a workers’ comp injury or pursuant
    to a personal leave policy).

For more background on DOL opinion letters, you can review our prior blog post.

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.

If you have questions, contact your Account Manager or ping@matrixcos.com.

“Because I Said So!” – Following the FMLA Late Certification Rule

Posted on: May 11, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Employers now know that they have to follow FMLA regulations “because I said so!”  That was the declaration from Helen Applewhaite, DOL Branch Chief for FMLA, in a moment of levity when I asked why employers had to follow a particular FMLA regulation that I called “nonsensical” and another person called “goofy” (well, we were in Disney territory, after all!).

Last week I was in Orlando for the annual Compliance Conference hosted by the Disability Management Employer Coalition.  I had the honor to co-present a plenary session with Helen Applewhaite entitled FMLA Check-Up:  Red Flags and DOL Recommendations.  After hours of discussion, Helen and I identified 3 categories of issues that the DOL observes employers struggle with:  notifications and communications between employers and employees; recertifications; and protection of the employee’s right to FMLA leave.  Here is an issue we covered in our presentation: 

The late certification rule:  Are you familiar with the late cert rule?  I know from working with Matrix clients that this rule is often unknown to or misunderstood by employers.  Here’s the situation:  An employee fails to return his completed Certification of Health Care Provider within the 15 days allowed by the regulations (or longer if allowed by the employer).  A certification is ultimately provided that supports the requested leave.  Any time off taken for the requested leave reason must be handled by the employer as follows:

  1. Approve FMLA leave during the 15-day period after the certification was requested
  2. Approve FMLA leave during the period that begins with the date of receipt of the certification
  3. Approve or deny FMLA leave during the interim period.

Example:  Terry requests FMLA leave to care for his elderly mother who has a serious health condition.  On June 1, Terry’s employer (or Matrix!) provides Terry with all the required FMLA notices and information, including  Certification of Health Care Provider (CHCP), advising Terry that he must return the CHCP within 15 days (by June 16).  Terry immediately starts taking 1-2 days off per week to care for his mother.  He does not return the completed CHCP until July 1.  The CHCP supports Terry’s usage, saying his mother will need Terry’s care up to 2 days per week.  In this scenario:

  1. Terry’s employer must approve any absences Terry took from June 1 through June 16.
  2. It must approve any covered absences from July 1 going forward.
  3. Terry’s employer has the option whether to approve or deny any leave days taken in the
    interim period from June 17 through June 30.

The late cert rule is found in the FMLA regulations at 29 C.F.R. § 825.313  

Pings for Employers. 

As always with the FMLA, there are related issues for consideration by employers:

  • Adopt a uniform policy regarding whether or not to approve absences that occur in the interim period. Approaching the decision on a case-by-case basis is not only inefficient, but creates a risk of perceived or actual unfairness or discrimination. 
  • Before denying any absences in the interim period, be sure to check with the employee as to whether there are extenuating circumstances that excuse the employee’s late certification. The regulation requires this.
  • If there are no extenuating circumstances and the employer’s policy is to deny FMLA coverage for the interim absences, then the employer can impose discipline in accordance with its attendance policy for those absences.
  • If a certification is never received, the leave is not FMLA protected.
  • If the late certification has deficiencies, follow the correct processes with regard to incomplete or insufficient certs (written notice to employee of deficiencies and 7 days to cure) or for authentication or clarification. See FMLA regulations 29 C.F.R. § 825.305(c) and 825.307. If you ultimately get a satisfactory certification, the leave should be approved as of the date the late but deficient cert was received (plus the initial 15 days).

Discipline that has been imposed for absences that appear unexcused because a certification has not yet been received should be rescinded with respect to any now-FMLA-protected absences.  The tough question is what to do if the employee has been terminated for unexcused absences and then the late certification comes in.  Consult your employment counsel on this one!

DOL Announces ERISA Disability Claims Handling Rules Will Go into Effect AS IS on April 1, 2018

Posted on: January 8, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE 

On Friday, January 5, 2018, the U.S. Department of labor issued a press release announcing that the Final Rule amending the regulations governing claims handling procedures for ERISA disability claims will go into effect on April 1, 2018, without changes from the original.  The Final Rule was originally issued by the DOL on December 16, 2016, with an effective date of January 1, 2018.  That effective date was postponed until April 1, 2018, in order to “solicit additional public input and examine regulatory alternatives” to the Final Rule.  The DOL accepted comments until December 11, 2017.   

The DOL press release states: 

The Department announced a 90-day delay of the applicability date of the final rule – from Jan. 1, 2018, through April 1, 2018 – to give stakeholders the opportunity to submit data and information on the costs and benefits of the final rule.   . . .

The information provided in the comments did not establish that the final rule imposes unnecessary regulatory burdens or significantly impairs workers’ access to disability insurance benefits.

We wrote in detail about the ERISA changes when the final Rule was first issued and provided suggestions for employer actions.  We urge you to read that post here.  Below we provide a brief recap of the changes.

  1. Independence and impartiality of claims adjudicators. Claims and appeals must
    be decided in a manner designed to ensure independence and impartiality of the
    persons involved in making the benefit determination. 
  2. Improvements to disclosure requirements. Benefit denial notices must contain the following:
  • A complete discussion of why the plan denied the claim and the standards
    applied in reaching the decision.
  • The basis for disagreeing with the views of health care or vocational
    professionals whose opinions were provided by the claimant or obtained at
    the behest of the plan.
  • The basis for disagreeing with a finding of “disability” by the Social Security
    Administration (SSA), if applicable.
  • The specific internal rules, guidelines, protocols, standards or other similar
    criteria of the plan relied upon in making the adverse determination or, alternatively,
    a statement that such guidelines etc. do not exist.
  • If the denial is based on a medical necessity or experimental treatment or similar
    exclusion or limit, either an explanation of the scientific or clinical judgment for the
    determination, or a statement that such explanation will be provided free of charge
    upon request.
  1. Claimant’s right to access entire claim file. An initial adverse benefits determination
    must contain a statement that the claimant is entitled to receive, upon request and
    without charge, the documents relevant to the claim for benefits.
     
  2. Notice of new or additional evidence or rationales before adjudication. A claimant
    must be notified of and provided an opportunity to respond to any new evidence or
    rationales developed by the plan during the pendency of the appeal.  However, the new
    regulations do not extend the time deadlines for the plan’s determination (45 days from
    the filing of the appeal, with a possible 45-day extension).
     
  3. Claimant is deemed to have exhausted administrative remedies if a plan fails to
    comply with claims procedure requirements.
    A claimant can seek court review of a
    claim denial based on a failure to exhaust administrative remedies under the plan if
    the plan failed to comply with the claims procedure requirements, unless a detailed
    exception applies.
  4. Expanded definition of “adverse benefit determination” that triggers
    appeals procedures.
    Under the new rule, rescissions of coverage, including retroactive
    terminations due to alleged misrepresentation of fact (e.g., errors in the application
    for coverage) must be treated as adverse benefit determinations, thereby triggering
    the plan’s appeals procedures.  Rescissions for non-payment of premiums are
    not covered by this provision.
     
  5. Notices and denials must be written in a “culturally and linguistically
    appropriate” manner.
    If a disability claimant’s address is in a county where 10
    percent or more of the population is literate only in the same non-English language,
    benefit denial notices must include a prominent statement in the relevant non-English
    language about the availability of language services.  Such services must include assistance
    with filing claims and appeals in the non-English language.  The plan must provide written
    notices in the applicable non-English language upon request.

What is Matrix Doing to Comply with the New Regulations?

Not to worry – Matrix’s disability claims handling procedures will embrace the new rules and will
continue to be best in class!  We will be ready to administer our clients’ disability plans in compliance
with the new regulations by April 1, 2018.  Indeed, we originally marched toward the January 1, 2018,
compliance date. 

If you have questions, please contact your account manager or practice leader, or send us an email at ping@matrixcos.com.