Coronavirus: The FMLA Amendments and Paid Leave

Posted on: March 16, 2020 0

by Marti Cardi, Esq – Vice President Product Compliance

March 16, 2020

 

Like many employers nationwide, Matrix Absence Management looks and sounds a lot like COVID Central these days. Which is to say, we are watching closely each development as it unfolds, and then – because we’re cool that way – trying to help you make sense of it in the context of employee absence and running your business. The hottest news relates to amendments to the FMLA and proposed paid sick leave flying through Congress.

Early on March 14 the U.S. House of Representatives passed, by a vote of 363-40, a bill relating to coronavirus issues. The text of the Families First Coronavirus Response Act, H.R. 6201, is here. A congressional summary of H.R. 6201 is here.

As it relates to leave of absence, key components of the bill include:

  1. a major amendment to the Family and Medical Leave Act that provides paid and job-protected leave
    for certain coronavirus-related events; and
  2. a provision for paid sick leave, again relating to coronavirus events.

President Trump has tweeted his support for the bill and the Senate is expected to pass it, although perhaps not without changes.  Here are the current details.  Watch this blog for updates, as this is a fast-developing issue!

NOTE:  H.R. 2601 uses the term “coronavirus” and not specifically COVID-19.  “Coronavirus” is defined as “SARS– CoV–2 or another coronavirus with pandemic potential.”

FMLA Amendments – Paid Leave, New Leave Reasons, and More

Effective dates.  Effective not later than 15 days after passage; sunsets on December 31, 2020 (unless extended, of course).

Employee eligibility.  Applies to employees who have worked for 30 calendar days for the employer from whom they request leave. This is quite a cutback from the FMLA’s usual eligibility requirements of 12 months and 1250 hours worked. The DOL is authorized to draft regulations excluding certain health care provider and emergency responders from eligibility.

Covered employers.  Applies to employers with fewer than 500 employees. (What?!) Written this way, the bill burdens small employers and leaves roughly a jillion employees of large employers without the bill’s protections. An earlier version of the bill would have applied to employers with “1 or more employees.” Go figure.

The bill does have a provision authorizing the DOL to issue regulations to exempt small business with fewer than 50 employees from the requirements of the amendments “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  It’s impossible to say when such regulations will be issued, and what happens to small employers and their employees in the meantime.

New leave reasons.  For covered employers, the bill expands FMLA leave reasons to cover employee absences:

  • To comply with a recommendation or order by a public health official that the employee should stay off work
    due to the employee’s exposure to, or symptoms of, coronavirus (note the word “recommendation” leaves a
    lot of wiggle room)
  • To care for a family member when a public health official or medical provider determines that the family member
    should stay out of the community due to exposure to or symptoms of coronavirus
  • To care for a child under age 18 if the child’s school or day care provider has been closed or is unavailable due
    to coronavirus

Expanded definition of “family member.”  For purposes of the amendment, “family member” includes the usual parent, spouse, and child and:

  • Adds a pregnant woman, a senior citizen, an individual with a disability, or someone with access or functional
    needs who is also

    • The employee’s son or daughter, next of kin, grandparent, or grandchild.
  • Expands the definition of “parent” to include a biological, foster, or adoptive parent, stepparent, parent-in-law,
    parent of the employee’s domestic partner or the in loco parentis

Interestingly, the employee’s domestic partner is not an added relationship.

Duration of leave.  The full 12 weeks of FMLA entitlement is available for these reasons.

Paid leave.

  • The first 14 days of leave is unpaid under the FMLA-related amendment. The employee can elect to
    use other paid leave
    available from the employer. But, read below regarding the paid sick leave
    provisions of H.R. 6201.
  • After 14 days, further FMLA leave under H.R. 6201 is paid by the employer at two-thirds of the
    employee’s usual rate of pay.

Job protections.  Generally, employees will be entitled to the usual FMLA job protections (reinstatement to same or equivalent position) after coronavirus-related leave.  Employers with fewer than 25 employees may be excused from job restoration requirements if the situation meets certain conditions, including that the job has been eliminated due to factors related to the coronavirus and the employer makes efforts to restore the employee to an equivalent position for a period of 12 months following the end of the employee’s leave.

Emergency Paid Sick Leave Act

Another key part of H.R. 6201 creates paid sick leave for absences related to coronavirus.

Effective dates. Effective not later than 15 days after passage; sunsets on December 31, 2020.

Eligible employees.  There are no eligibility requirements.  Employees can take this paid sick time immediately upon its effective date.

Covered employers.  Again, applies to employers with fewer than 500 employees.

Leave reasons.  Allows the employee to take paid sick leave:

  • To self-isolate because the employee has been diagnosed with coronavirus
  • To obtain medical diagnosis or care if the employee is experiencing symptoms of coronavirus
  • To comply with a recommendation or order by a public health official that the employee should stay off
    work due to the employee’s exposure to or symptoms of coronavirus
  • To care for or assist a family member –
    • Who is self-isolating because the family member has been diagnosed with coronavirus
    • Who is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care
    • When a public health official or medical provider determines that the family member should stay out
      of the community due to exposure to or symptoms of coronavirus
  • To care for a child under age 18 if the child’s school or cay care provider has been closed or is unavailable
    due to coronavirus

Definition of “family member”.  Paid sick time to care for or assist a “family member” includes the following relationships:

  • Parent (biological, foster, or adoptive parent, stepparent, parent-in-law, parent of the employee’s domestic
    partner or in loco parentis)
  • Spouse (including domestic partner, broadly defined to include anyone in a “committed relationship”)
  • Child (no age limit) (biological, foster or adopted child, stepchild, child of domestic partner, legal ward, or child
    of a person standing in loco parentis under age 18)
  • A pregnant woman, a senior citizen, an individual with a disability, or someone with access or functional needs
    who is also

    • The employee’s sibling, next of kin, grandparent, or grandchild

Amount of paid sick leave hours:  Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees get the number of hours they typically work over a 2-week period.  Unused paid sick leave cannot be carried over to a new year. Pay for leave to care for or assist a family member and to care for a child due to a school closure is paid at 2/3 pay; all other leave is paid at the greater of the employee’s full pay or federal, state or localminimum wage. It is not clear from the bill whether an employee can use the paid sick leave in more than one segment, such as for the employee’s own coronavirus diagnosis and then to care for a family member or due to a school closure.

Other paid sick leave provided by the employer.  The paid sick leave required by H.R. 2601 is in addition to other paid sick leave already offered by the employer as of the day before the bill is enacted. The employee can use the coronavirus-related sick leave first and preserve other paid sick leave for subsequent use.

Employer Tax Credits for Paid Leave

H.R. 2601 also includes provisions for tax credits for employers subject to the FMLA paid leave and the paid sick leave requirements. The tax credits go against Social Security taxes paid by the employer. I will not attempt to interpret these provisions (I never wanted to be a tax attorney!) but various resources are available online.

What about “Regular” FMLA?

H.R. 6201 does not make any changes relative to regular FMLA as we know and love it. Shortly we will provide a blog post about how FMLA applies to coronavirus-related situations for all employers, and especially now those with 500 or more employees. Stay tuned!

Matrix Can Help!

If you have questions about your leave of absence and disability services from Matrix please contact your account manager.  We are equipping our teams with the latest information for clients about how we are managing claims, our emergency preparedness, and more.  We’ll pull through this together!

In Loco Parentis and Non-Traditional Caregiving Relationships

Posted on: February 4, 2020 0

By Gail I. Cohen, Director, Employment Law & Compliance

February 4, 2020

 

Recently, an Ohio federal district court heard a lawsuit filed by an Apple employee whose sister was terminally ill and claimed FMLA entitlement for his request to care for his nieces and nephews. The case, Brede v. Apple, involved a claim of FMLA interference and retaliation by a former Apple employee who worked in one of its stores at the Genius bar. That employee, Edward Brede, had requested one day of intermittent “FMLA” every 2 weeks to care for his seriously ill sister’s children. Apple granted his request under its Paid Family Care policy. After Brede was fired for violating company policy, he brought this lawsuit.

The district court granted Apple’s motion to dismiss the case.

In granting the motion to dismiss, the court took as true Brede’s claims of an in loco parentis relationship with his nieces and nephews. Even assuming that was the case, however, Brede can only take FMLA if the purpose of him doing so was to care for those children who needed care due to a “serious health condition;” and he did not ever indicate any of them did. Rather, the purpose of his request for time off was to care for them because his sister could not. Moreover, the court reasoned that if Brede had requested FMLA to care for his sister, who did have a “serious health condition,” he could only do so if he stood in loco parentis to her.

The FMLA defines a “parent” to include “an individual who stood in loco parentis to an employee when the employee was a son or daughter,” and similarly, a “son or daughter” is defined to include “a child of a person standing in loco parentis.” Employees who stand in loco parentis to a child can take FMLA to care for that child with a serious health condition and to care for an individual who stood in loco parentis when the employee was a child, when that “parent” has a serious health condition. The regulations go on to define persons who are in loco parentis as “those with day-to-day responsibilities to care for and financially support a child.”

The DOL has two (mostly) helpful Fact Sheets (#28B and #28C) that discuss in loco parentis. However, the DOL takes a broad view of who can take FMLA, stating in the fact sheets that it includes someone who has day to day responsibilities to care for a child OR financially supports a child.  As you can see from the regulations excerpted above, the FMLA actually requires BOTH.

There are not many court cases on record about the in loco parentis relationship. We previously blogged about Coutard v. Municipal Credit Union, in which the 2nd Circuit concluded an employee who sought time off to care for his grandfather provided sufficient notice to his employer of his need for FMLA. In reaching that conclusion, the court reasoned that it was incumbent upon the employer to dig further to determine whether his grandfather stood in loco parentis to him (which he, in fact, did, having raised the employee after his parents’ death).

Pings for employers

  • Be familiar with the two DOL Fact Sheets linked above. Despite that one glitch in expanding the scope, the Fact
    Sheets are otherwise quite helpful.  In particular, they offer these factors for consideration in assessing ILP status:

    • the age of the child;
    • the degree to which the child is dependent on the person;
    • the amount of support, if any, provided; and
    • the extent to which duties commonly associated with parenthood are exercised.
  • When an employee indicates he or she is seeking leave to care for a family member that is not a specific FMLA
    covered relationship (i.e., parent, son or daughter, or spouse), talk to the employee about his or her relationship
    to that individual.
  • If the employee is requesting time off to care for a “parent”, like the Coutard matter, ask:
    • Did the relative care for him or her as a child OR provide financial support?
    • Do they reside together, or did they do so in the past?
  • If the employee is requesting time off to care for a “child” (as in the Brede case), include:
    • Has the employee assumed daily responsibility for care for or financially support the child?
    • Does the employee intend to assume a “parenting” role and if so, is there a permanent intent to do so?

Consider state leave laws also

This discussion is focused on FMLA, but it is important to remember that many of the state FMLA-like leave and paid family and medical leave laws include care for family members beyond the traditional definition in FMLA. Common additions include grandparents, grandchildren, siblings, and – our favorite – the “like a family member” relationship.  For example, New Jersey allows leave for any individual with a close association with the employee equivalent to a family relationship.

In general, because of this expanded focus at the state leave level to recognize the non-traditional nature of evolving families, it is critical for employers to keep an open mind about these requests and ferret out the right facts to ensure they are providing employees with the leaves to which they may be entitled.

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.

 

A year in review, a year ahead: A look at the DOL and EEOC

Posted on: January 19, 2020 0

by Marti Cardi, Esq – Vice President Product Compliance

January 19, 2020

 

Last month we provided a 2019 review and 2020 look ahead regarding leave law legislation.  You can find that post here.  Now let’s look at what the enforcement agencies accomplished in 2019 and what to expect for 2020.

Part 2:  DOL and EEOC Activities

US DEPARTMENT OF LABOR UPDATE

Opinion Letters

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 DOL of how a particular law applies in specific circumstances.  An opinion letter provides an official, reliable interpretation of the FMLA and its regulations. 

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

The DOL issued 3 new opinion letters in 2019:

  • Opinion Letter FMLA2019-1-A clarified the question of whether an employee, or employer, can delay
    the designation of a leave of absence taken for an FMLA-qualifying reason, to allow the employee to
    use or exhaust any paid leave benefits prior to doing so. The DOL concluded that the answer is no –
    once the employer is on notice that the employee is seeking leave for a potentially FMLA-qualifying
    reason, it is obligated to provide the required FMLA notices and, if supported, designate the leave as
    FMLA leave.  The opinion letter also reminds us that, while the FMLA allows employers to be more
    generous and grant an employee more leave than FMLA requires, any time the employer gives beyond
    FMLA is not FMLA but, rather, a company policy leave.  To read more about this opinion letter, check
    out our prior blog post.
  • The above opinion was amplified in Opinion Letter FMLA2019-3-A. An employer asked the DOL whether
    it could delay FMLA designation when the terms of a collective bargaining agreement required employees
    to take company paid leave before taking FMLA.  The DOL concluded that the employer cannot delay
    designation as FMLA any leave taken for an FMLA-qualifying reason, even if the terms of a collective
    bargaining agreement appear to require otherwise.
  • Finally, Opinion letter FMLA2019-2-A, addressed the question whether an employee could take FMLA
    to attend meetings to discuss a child’s Individualized Education Plan. The DOL concluded the answer was
    yes.  Attending such meetings constituted “care” for a child with a “serious health condition,” even if the
    meetings did not include a medical provider.  For more details, read our prior blog post on this topic

Coming in 2020:  New DOL FMLA certification forms?

In 2019 the DOL issued proposed new FMLA certification forms for public comment, which we discussed in a prior blog post.  We understand that these proposed certification forms resulted in a deluge of comments to the DOL and Matrix was among that chorus of commentators.  No one knows if or when the DOL will issue new forms but we will certainly be watching will tell you all about them when they do!

Coming in 2020:  DOL request for input on FMLA regulations?

Also in 2019 the DOL announced that it “will solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”  The notice did not provide a specific timeline for the Request for Information and nothing has happened since the announcement.  There is certainly much to improve in the FMLA regulations – see a discussion in Jeff Nowak’s FMLA Insights blog.  We hope the DOL in fact proceeds with this RFI.  If it does, we will weigh in on changes we feel are needed based our Matrix’s administration of thousands of FMLA claims every year.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION UPDATE

The Commission.

2019 brought the appointment of Janet Dhillon as Chair of the EEOC.  Chair Dhillon comes from a strong business background, which may be good news for employers.  Time will tell.  That leaves 2 openings on the Commission and about a year (or 5) for President Trump to appoint new commissioners.  The other 2 current Commissioners, in addition to Chair Dhillon, include Charlotte Burrows, appointed by President Obama (2nd term ends in 2023) and Victoria Lipnic, also appointed by President Obama (2nd term ends in 2020).

Also in 2019, Sharon Fast Gustafson was appointed as General Counsel for the Commission.

Focus on disability and pregnancy.

A couple of months ago we took a look at the prevalence of disability and pregnancy-related press releases issued by the EEOC in 2019 through October 20.  That post is available here.  We’ve updated the numbers through the end of 2019:

  • The EEOC issued over 300 press releases relating to lawsuits it filed or
    settled in 2019.
  • 134 (approximately 45%) of these were lawsuits alleging disability or
    pregnancy discrimination
    and failure to accommodate (109 disability-related, 20 pregnancy-related,
    and 5 involving both).
  • Settlements ranged from $16,000 to $2,650,000 in damages awarded to
    the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit
    alleging failure to
    accommodate a cart pusher at a Walmart store.
    More on that in the blog post linked above!

Statistics.

In late November 2019, the EEOC published its Agency Financial Report. In the report, the EEOC boasts of reducing its inventory of charges to the lowest number of pending charges – 43,580 – in 13 years.  The EEOC also touts its collection of $159.6 million in connection with its mediation process, and $39.1 million in connection with 177 litigation matters.  In its Fiscal Year 2018 (which ended September 2019), the EEOC filed 144 lawsuits, 17 of which alleged a systemic pattern and practice and 27 which were “non-systemic” but had multiple alleged victims of discriminatory practices.

A year in review, a year ahead: A whole lotta stuff going on!

Posted on: December 19, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

December 19, 2019

 

Take a deep breath and let’s review what happened in 2019, and what’s coming in 2020. First we will look at legislative activity. In another post we will check in with our favorite federal agencies, the Equal Employment Opportunity Commission and the Department of Labor. 

 

Part 1 – Legislative Activity

In 2019, state legislatures were quite busy on the leave of absence front.  Here is a summary of significant bills that were enacted and developments for those already in place:

PAID FAMILY AND MEDICAL LEAVE

California – CA PFL extended, leave reason added.  Effective July 1, 2020, CA Senate Bill 83 amended California’s existing Paid Family Leave (PFL) to provide for eight weeks (up from six weeks) of paid benefits to eligible employees. The leave is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption.

CA Senate Bill 83 also added a new qualifying reason to the PFL program: Effective January 1, 2021, California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.  The pay benefit is new but the law still won’t provide job protection for such leave.  Rights to reinstatement for all PFL benefits reasons (bonding, care of a family member, and military exigencies) may be available under other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.

More changes may be on the way.  The bill includes a requirement for study and development of a proposal for bonding leave up to 6 months per parent, and an increase in the wage replacement rates from the current 60-70%.

Colorado – Just a study.   Lots of legislative activities that made all of us followers of the paid family leave legislative bandwagon believe Colorado would pass such a bill ultimately resulted in a bill to fund a study to decide whether to enact such legislation in the future.

Connecticut – PFML enacted.  CT paid family leave was signed into law in June by the Governor.  Premium contributions will start on January 1, 2021, with employee benefits payable effective January 1, 2022. To learn more about the significant provisions of CT PFL, please click here  to read our Radar blog post.

New Jersey – changes to existing PFML laws.  In February New Jersey enacted significant changes and expansion of its existing Family Leave Act (FLA), Security and Financial Empowerment Act (SAFE Act), and Family Leave Insurance program (FLI).  Some of the changes were effective immediately upon passage and others are phased in over the next several months:

  • Significant expansion of the types of family relationships for which
    employees can take leave or receive benefits pursuant to the NJ FLA,
    SAFE Act, and NJ FLI, including removal of the age limit for care of
    a covered child with a serious health condition under NJ FLA and
    NJ FLI.  (Effective February 2019.)
  • Lower threshold for covered employers, from employers with 50 or
    more employees to those with 30 or more employees. (Effective July 2019.)
  • Employees who are, or whose family member is, a victim of domestic or sexual violence can now
    receive FLI benefits for leaves covered by the SAFE Act. (Effective February 2019.)
  • Increase in weeks of FLI benefits from 6 weeks to 12 weeks, or from 42 days to 56 days if taken
    intermittently.  (Effective for leaves commencing on or after July 1, 2020.)
  • Elimination of the 7-day waiting period before an employee can receive paid leave. (Effective for
    leaves commencing on or after July 1, 2019.)
  • Increase in benefits payments. (Effective for leaves commencing on or after July 1, 2020.)  These
    changes also apply to the state temporary disability benefits.
  • Increase in “wages” measurement for calendar years beginning on and after January 1, 2020.
  • A NJ employer’s private plan no longer requires approval by a majority of the employees.  (Effective
    in February 2019.)

For the details, including a handy reference chart of all the changes, check out this Radar post.

Massachusetts – Regulations and other developments.   Regulations were finalized in June 2019 and employer/employee contributions started in July, but a lot more information is yet to come.  Employers can opt out of the state plan and provide employee benefits through a private plan.  The Massachusetts Department of Family and Medical Leave issued a bond form for self-funded private plans and, together with the Department of Insurance, approved a declaration form for insured private plans.  Lots of Massachusetts PFML information is available on this blog – just put “Massachusetts” in the search bar.

Oregon – PFML enacted.  Signed by the Governor in August 2019, Oregon creates the most generous (to date) leave and benefits, with employee contributions to start January 1, 2022, and benefits as of January 1, 2023. To read more about the salient provisions of Oregon PFML, please click here.

Washington – Ready, set, go!  Matrix Radar and our WA PFML team have been furiously tracking the regulations promulgated by the State of Washington in anticipation of the January 1, 2020, launch of benefits under WA PFML.  We are ready to administer voluntary plans for clients that elected that route.  Here is the latest post, but pay close attention to Matrix Radar for all the developments! 

Washington news flash!  Here is an unsettling piece of breaking news:  the WA Employment Security Department, charged with administering the state plan benefits, just released its form for use when an employee seeks leave for his/her own or a family member’s serious health condition.  The form does not contain any questions for the provider about intermittent leave usage – no request for estimated frequency and duration.  I ask, how will the ESD monitor intermittent leave usage and gauge whether an employee is taking appropriate intermittent leave?  We all know that is hard enough under the FMLA and other laws that require this information.  The ESD will be administering intermittent leaves in a vacuum. 

 

ORGAN DONATION

California amended its existing organ and bone marrow donation law effective January 1, 2020.  Current law provides for 30 days’ paid leave of absence for organ donation and 5 days of paid leave for bone marrow donation.  Under the new law, employees are entitled to an additional 30 days of unpaid leave for organ donation. To read more, please click here.

Oregon.  Effective January 1, 2020, Oregon’s companion to FMLA, the Oregon Family Leave Act (OFLA) has been amended to allow employees to take leave for “[a]ny period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery.”   In reality most situations where an employee is serving as an organ or tissue donor are already covered as a serious health condition under OFLA but this removes any doubt that such absences are covered, as well as appointments in preparation for such donation. 

New York.  Similarly, New York passed a law to include organ donation in the definition of serious health condition under the NY PFL law.  We summarized the law, passed in 2018 and effective February 3, 2019, on Matrix Radar here.  

 

LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE

New York.  Effective November 18, 2019, this new law requires employers to grant reasonable leave to victims of domestic violence.  To read our blog about this important new law and its requirements, please click here.

Puerto Rico.  In July, the Governor of Puerto Rico signed legislation effective August 1, 2019, affording employees who are, or whose family members (very broadly defined) are victims of domestic violence, sexual abuse, sexual harassment, or stalking to take up to 15 days of unpaid leave in a calendar year (on a “fractioned” or intermittent basis, too). That law also requires PR employers to provide reasonable accommodations to such individuals, which includes changes in work schedule or location and provides that requested accommodations can only be denied if “unreasonable.”

 

FLIGHT CREWS

California.  Clients in the airline industry are used to the FMLA regulations specific to flight crews, which historically have not applied under the California Family Rights Act (“CFRA”).  Assembly Bill 1748, signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, amends CFRA to address airline flight deck or cabin crew employees. The bill closely follows the FMLA rules regarding leave eligibility for flight crews.  It provides that the Department of Fair Employment and Housing may promulgate regulation(s) to assist employers with calculating the hours worked requirement of this CFRA amendment. As of this writing, no such regulations prescribing the method for employers to do so have been made publicly available.

 

PREGNANCY ACCOMMODATIONS

Kentucky.  Effective June 27, 2019, SB 18 requires Kentucky employers to consider reasonable accommodations for their employees with “limitation(s)” (but not necessarily disabled in the fashion employers have come to expect) as a result of pregnancy and related conditions. To read more about that law, please click here.

Oregon.  Effective January 1, 2020, Oregon employers must grant reasonable accommodations to employees with known limitations as a result of pregnancy, childbirth and related conditions.  The Oregon law also requires employers to provide the notice of rights to all employees by July 1, 2020, and within 10 days of an employee providing notice of her pregnancy.  Click here  to read more.

 

MATRIX CAN HELP!  Matrix will administer all of the above new or expanded leave laws for our clients using Matrix’s FMLA/Leave of Absence services.  No client action needed!  The laws have been or will be implemented in our system as of the effective date, along with any other updates to scripts, packets, etc. that are needed due to the changes. 

Matrix manages pregnancy accommodation laws for clients with our ADA services.  The above two new laws will likewise be added to our suite of state and federal pregnancy accommodation laws managed by our ADA Specialists.

Matrix has designed a WA PFML voluntary plan for our participating clients.  We have filed and received approval for over 40 such plans.  In preparation for January 1 claims, we have made necessary system changes, added WA PFML to our letters and packets, provided extensive training for our claims staff, and held educational webinars for our clients with voluntary plans administered by Matrix.  If the thought of the state administering your employees’ claims has you concerned – especially in light of the inadequate medical certification form the state plans to use – contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering or send a message to us at ping@matrixcos.com.

 

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.