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.

A “Grand Bargain” – Massachusetts Enacts Paid Medical and Family Leave

Posted on: June 29, 2018 0

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

Governor Charlie Baker signed a bill on June 28 making Massachusetts the seventh jurisdiction to enact paid family and medical leave (PFML).  The paid leave provisions are part of a so-called Grand Bargain between the state legislature and voters that was designed to keep several voter initiatives off the November ballot. 

Here are some key provisions:

Funding.  The benefits will be funded at an initial rate of 0.63% of employee’s average weekly wage (to be adjusted annually):

  • The premium for medical leave (employee’s own serious health condition)
    will be paid 40% by the employee and 60% by the employer
  • The employee pays 100% of the premium for family leave
  • The premium has not (yet) been apportioned between medical leave
    and family leave

Premium contributions.  Employers and employees must begin making premium contributions July 1, 2019.

Paid leave benefits available.  Paid leave benefits for all leave reasons except family member serious health condition begin on January 1, 2021.  Paid leave benefits to care for a family member with a serious health condition begin on July 1, 2021.

Leave reasons.  Leave reasons mirror those of the federal Family and Medical Leave Act (which will run concurrently in most cases):  Employee’s serious health condition, family member’s serious health condition, bonding with anew child, family military exigencies, and care for a seriously ill or injured service member.

Benefit amount.  Benefits are paid based on a percentage of an employee’s wages, with a cap of $850 weekly.

Leave duration.  Leave durations in a 12-month period are up to:

  • 20 weeks for medical leave (an employee’s own serious health condition)
  • 12 weeks of family leave (care of a family member with a serious health condition, bonding, or military exigencies)
  • 26 weeks to care for a seriously ill or injured service member
  • Aggregate maximum of 26 weeks in a 12-month period for all leave reasons

Voluntary plan.  Employers can meet obligations through the state plan or through a private plan(s) for medical and/or family leave that offer benefits at least as beneficial to employees as the state plan

Matrix will administer this leave law for clients: Watch this space for a more detailed summary of the new law in the next day or two. 

Existing PFML laws.  California, New Jersey, New York, and Rhode Island already have paid family and medical leave laws in effect.  In addition, Washington State’s PFML law will require premium payments starting January 1, 2019, and paid leave benefits starting January 1, 2020.   You can check out our prior summaries about Washington State here and hereWashington D.C. is next in the wings with premium payments starting July 1, 2019, and paid leave benefits starting July 1, 2020.

 

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.

“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!

Don’t Miss It: THE 2018 DMEC FMLA/ADA EMPLOYER COMPLIANCE CONFERENCE

Posted on: April 24, 2018 0

Join your peers and prepare to confidently tackle your organization’s FMLA/ADA challenges at the 2018 DMEC FMLA/ADA Employer Compliance Conference, Apr. 30-May 3, in Orlando!

This year, Matrix Absence Management is a National Sponsor and I have the privilege of facilitating four sessions! I would love for you to join me and my colleagues at any or all of the below:

Monday, April 30 12:00 pm -2:00 pm
Liability Alert! HR and Supervisor Ethical Missteps:

This session will highlight real ADA and FMLA cases to help you gain a deeper understanding of ethical pitfalls in managing leaves and disabilities, such as misplaced benevolence, relying on stereotypes, what you ask, and how you communicate. Throughout, you will learn best practices to promote ethical ideals.  Join Marti Cardi, Vice President, Product Compliance, Matrix Absence Management, Inc. and Jaclyn Kugell, Partner, Morgan, Brown and Joy, LLP

Monday, April 30 4:30 pm -5:30 Preconference Wrap-Up: Ask the Experts!

Join me and other presenters  as we wrap up the first day of sessions with a chance to ask questions of our experts on the topics covered during the afternoon preconference workshops.

Wednesday, May 2 9:00 am -10:00 am
DOL Red Flags in FMLA Investigations:

Helen Applewhaite, DOL Branch Chief for FMLA will headline in this sessionto help you to identify red flags that could reveal issues with your practices and policies.  I will bring in the practical advice on how you can proactively address these issues to stay in the clear and – occasionally perhaps – will disagree with Ms. Applewhaite and the DOL.

Wednesday, May 2 4:15 pm-5:15 pm
Roundtable Mental Health in the Workplace – The Do’s, Don’ts, and Shoulds:

Join your peers for a small-group discussion and  bring your questions about how to manage mental-health claims in the workplace under the ADA and FMLA:  performance and conduct issues, obtaining medical information, requiring counseling as a condition of continued employment . . .


These sessions with be equally engaging and enlightening, and offer true real-world examples you can put into practice (with the help of Matrix Absence Management, of course).  I hope you decide to join us but if not, stay tuned for my recap of the conference.

To learn more about the 2018 DMEC FMLA/ADA Employer Compliance Conference and to download the full program click here:  http://dmec.org/conferences-and-events/compliance-conference/.