The DOL Gets Busy – New Opinion Letter, New Draft FMLA Cert Forms!

Posted on: August 13, 2019 0

By Marti Cardi, Vice President Product Compliance

August 13, 2019

 

The Department of Labor rolled out two new developments last week just in time to leave for August vacations:  First, a new opinion letter addressing whether FMLA covers time taken for specialized child educational meetings; and second, drafts of new (and improved) FMLA certification forms for public comment.

Let’s dig in!

DOL Opinion Letter FMLA2019-2-A – Meetings for Child’s Individualized Educational Program

On August 8, 2019, the DOL released Opinion Letter FMLA2019-2-A relating to whether attending a meeting to discuss a child’s Individualized Education Program (IEP) qualifies as FMLA leave. 

 

A bit of background:  The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a child who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others. 

The individual who requested the opinion letter explained the situation as follows

You explain that your children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress. You explain that these meetings include participation by “a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the … child under the child’s IEP,” as well as teachers and school administrators. These participants provide updates regarding your children’s progress and areas of concern; review recommendations made by your children’s doctors; review any new test results; and may make recommendations for additional therapy. You ask if your wife may use intermittent FMLA leave for the care of a child to attend these meetings.

I include these details here so it is clear that these are not your everyday parent-teacher conferences or disciplinary meetings – which would generally not be covered by FMLA.

The DOL determined that these meetings did in fact qualify for FMLA intermittent leave.  The wife’s (mother’s) attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition” under 29 C.F.R. § 825.100(a).  And, care for a family member can include “mak[ing] arrangements for changes in care.”  Such FMLA coverage does not require the child’s doctor to be present nor require that the child be receiving treatment at the meetings – providing “care” is sufficient.

Pings for Employers.  Be sure to read my friend Jeff Nowak’s more detailed post on his blog, FMLA Insights. Jeff provides some excellent tips for employers that you will want to heed – including, of course, training your supervisors!

But in a nutshell:  When an employee requests leave to attend meetings relating to the care of a family member (here, a child in specialized education, but it could also be an elderly parent receiving detailed medical treatment), take time to analyze the situation carefully.  Think broadly; don’t just deny the FMLA request because the family member’s condition falls outside our usual concept of a “serious health condition” or because the meeting doesn’t seem to fit within FMLA protection. 

At Matrix our claims examiners have been alerted to this new opinion letter and its significance.  If we receive a request for time off for meetings relating to care of a family member, we will analyze the request for FMLA intermittent leave correctly and obtain appropriate documentation even when the meeting seems at first glance not to be an FMLA-qualifying event.   

 

New Draft FMLA Certification Forms – Now That’s Exciting!

Oh boy, oh boy, oh boy!  New cert forms!  And a chance to comment!  What more could an FMLA geek ask for to relieve the summer doldrums?

Seriously, this is a welcome step in FMLA-Land.  The current certification forms tend to be cumbersome and, in our experience, often don’t yield all the information the regulations entitle employers to receive.  On August 7 the DOL issued a press release explaining the goal of the new forms:

The revisions will make the forms easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave. The revisions will increase compliance with the law, improve customer service, and improve the administration of the law. WHD drafted the revisions with input from the public in letters, interviews, and public meetings….

The changes will reduce the time it takes a health care provider to provide information, and help leave administrators review and communicate information to employees more directly and clearly, reducing violations.

What’s the status?  The DOL is soliciting public comments on the proposed forms by 11:59 p.m. on October 4, 2019.  The official notice was published in the Federal Register and includes directions for submitting comments. After that date, the DOL will consider the comments received and – eventually – issue new final forms.  There is no timeline for final action by the DOL and, although unlikely, they could decide not to change the forms from the current versions.  Until new forms are officially adopted, the current forms remain approved by the DOL but still optional.  With an expiration date on the current forms of August 31, 2021, the DOL has lots of time!

What are the changes?  The changes are summarized by the DOL as:

  • Fewer questions requiring written responses; replaced by statements that can be verified by simply
    checking a box [These are the best changes, in our humble opinion.  They should result in fewer
    inconsistencies within the form and less confusion regarding the frequency and duration for intermittent
    leave.]
  • Reorganization of medical certification forms to more quickly determine if a medical condition is a
    serious health condition as defined by the FMLA
  • Clarifications to reduce the demand on health care providers for follow-up information
  • More information on the notification forms to better communicate specific information about leave
    conditions to employees
  • Changes to the qualifying exigency certification form to provide clarity to employees about what
    information is required
  • Changes to the military caregiver leave forms to improve consistency and ease of use
  • Layout and style changes to reduce blank space and improve readability

Here are the revised forms, with links for your viewing pleasure:

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility of Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

What is Matrix Doing?  Several years ago, we at Matrix designed our own certification forms for FMLA leave necessitated by the employee’s or a family member’s serious health condition.  Like the newly proposed DOL revisions, we adopted a simpler means of identifying the type of serious health condition involved with a check-the-box format and reconfigured the questions about leave parameters, including frequency and duration of episodes for intermittent leave.  As the DOL is now hoping, these resulted in significantly clearer provider responses and much less need for follow-up and clarification.

We will review the DOL’s proposed forms and submit comments by the deadline.  If you would like to share with us your own thoughts on the draft forms, please do so!  Once the forms are finalized we will evaluate whether they have gone far enough to simplify leave management and consider using the DOL forms going forward. 

MATRIX CAN HELP!

At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day.  Our claims examiners are experts in reviewing FMLA certification forms to ensure we have received all the information the employer is entitled to and that it is clear and makes sense.  Want to harness that expertise? Contact us at ping@matrixcos.com or through your Account Manager.

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!