Managing FMLA Intermittent Leave: How to Stop Abuse and Ensure Compliance

Managing FMLA Intermittent Leave: How to Stop Abuse
and Ensure Compliance
Devjani Mishra, Partner, Seyfarth Shaw LLP
(212) 218-5510
[email protected]
Ms. Mishra is a partner practicing labor and employment law in the New York office of Seyfarth
Shaw LLP. She has represented employers in all aspects of employment litigation, including:
workplace discrimination, harassment and retaliation claims; wage & hour actions under the Fair
Labor Standards Act and other statutes; suits under the Family and Medical Leave Act, the Fair
Credit Reporting Act, and the Uniformed Services Employment and Re-employment Rights Act;
common law non-competition and non-solicitation disputes; and numerous other actions under
federal, state and local law. Ms. Mishra has substantial trial experience and has successfully
litigated cases in federal and state courts and agencies in New York, New Jersey, Connecticut,
Pennsylvania, Florida and Vermont.
Ms. Mishra also regularly conducts training and counsels management on a wide range of topics,
including: avoiding discrimination; conducting internal investigations and compliance
assessments; handling employee leave and accommodation requests; implementing reductions
in force; addressing Web 2.0-related issues in the workplace; and managing employee
performance .
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Managing FMLA Intermittent Leave:
How to Stop Abuse & Ensure Compliance
Devjani Mishra
FMLA Overview
What is a “serious health condition”?
Requirements for employees requesting intermittent leave
FMLA certification forms
Strategies to calculate and manage intermittent leave
The ADA and “reasonable accommodation”
Guidance from the Courts
2 | © 2010 Seyfarth Shaw LLP
Overview of the FMLA
► Core right = absolute entitlement to leave for an eligible employee
► Benefit protection
► Right to reinstatement
► Five types of leave (originally three)
3 | © 2010 Seyfarth Shaw LLP
Public Enforcement
• The DOL investigated 1,889 FMLA cases in 2008,
including 757 termination complaints, 457 discrimination
complaints and 416 complaints of failure to provide leave.
• The DOL collected approximately $1.53 million in back
wages for FMLA violations in 2008.
4 | © 2010 Seyfarth Shaw LLP
Private Enforcement
• Remedies in private actions include lost wages, benefits,
attorneys’ fees and liquidated damages.
• March 2008: Atlanta federal jury awarded more than $2.2
million in back wages in an FMLA discrimination case, not
including liquidated damages, attorneys’ fees or interest
5 | © 2010 Seyfarth Shaw LLP
Covered Employers
• A covered employer:
► employs at least 50 employees
► for each workday during at least 20 workweeks
► within a 75 mile radius of the worksite of the employee seeking
6 | © 2010 Seyfarth Shaw LLP
Employee Eligibility
• Employees are eligible if:
► they have worked for a covered employer at least one year
► they have worked 1,250 hours over previous 12 months
► the employer has at least 50 employees within a 75 mile radius of the
• Special rules:
► Break in service of up to 7 years
► Written agreements, collective bargaining agreements and military
► Employee may become eligible during non-FMLA leave
7 | © 2010 Seyfarth Shaw LLP
Types of FMLA Leave
• Up to 12 weeks of leave in a 12 month period:
► For a serious health condition that makes the employee unable to
perform the employee’s job
► To care for the employee’s spouse, child or parent who has a serious
health condition
► To care for a newborn, newly adopted or newly placed foster child,
and/or for incapacity due to pregnancy, prenatal medical care or
8 | © 2010 Seyfarth Shaw LLP
“New” Leave – Qualifying Exigency
• Qualifying Exigency: up to 12 weeks for exigencies relating to
a covered family member’s
member s call to active duty from a reserve
component of the Armed Forces
► short notice deployment (within seven days of notice)
► military events and related activities
► childcare and school activities
► financial and legal arrangements
► counseling
► rest and recuperation (limited to five days of leave)
► post-deployment activities
► additional activities agreed upon by employer and employee
9 | © 2010 Seyfarth Shaw LLP
“New” Leave: Military Caregiver
• Up to 26 weeks to care for a spouse, parent, child or next of
kin with a q
y g “serious injury
j y or illness” who is or was a
member of the Armed Forces at any time during the five years
preceding medical treatment, recuperation or therapy
► “serious illness or injury” = incurred or aggravated in the line of active
military duty
► applied on a per-servicemember, per-injury basis
► single 12 month period measured forward from first date of leave;
may not be the same as for other leaves
► child
hild may b
be any age
10 | © 2010 Seyfarth Shaw LLP
Overlapping Leaves
• Where more than one type of leave is taken in a leave year,
no more than 12 weeks may be for any purpose other than
military caregiver leave.
• All types of leave may intersect with state laws that have
different eligibility requirements.
• Unlike spouses, same-sex partners who both work for the
same employer cannot be limited to a combined total of 12 (or
26) weeks of leave
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“Serious Health Condition”
• Definition of “serious health condition” remains the same, but forms no
longer include “check boxes”
• “Continuing treatment” requirement has been clarified, so that an
employee must:
► see a health care provider within 7 days of the first day of incapacity
and have a regimen of treatment; OR
► see a health care provider 2 times within the first 30 days of
incapacity, unless extenuating circumstances prevent this; OR
► in the case of a chronic condition,, visit a health care provider
at least
twice per year.
12 | © 2010 Seyfarth Shaw LLP
“Serious Health Condition”
• Continuing treatment = not just “treatment” per se
►Incapacity due to permanent or long term conditions (e.g. Alzheimer's
Alzheimer s
►Period of absence to receive multiple treatments (e.g. chemotherapy,
radiation, dialysis)
• Remember:
►Whether a condition is “serious” is a fact specific determination
►Ultimate determination must be based on health care provider’s
di l certification
tifi ti
13 | © 2010 Seyfarth Shaw LLP
Certification Forms
New Certification Forms for each type of leave
► certification for employee
p y – WH-380-E
► certification for family member – WH-380-F
► certification of qualifying exigency – WH-384
► certification for military caregiver – WH-385
► New forms are optional, but employer cannot request more
► DO NOT requestt di
► Old forms should no longer be used
All forms available at
14 | © 2010 Seyfarth Shaw LLP
Medical Certification
• Clarification and Authentication
► Authentication – whether the health care provider completed the form; no
consent needed
► Clarification – of material that is in the form; consent needed
► If form is incomplete, employer must advise employee in writing of what
additional information is needed and provide seven calendar days to remedy
► Either authentication or clarification can be done by the employer directly, but
who is not the employee’s
must be done byy an appropriate designee
supervisor – HR, leave administrator, management
15 | © 2010 Seyfarth Shaw LLP
Medical Certification
• Second and Third Opinions
► NOT the same as clarification and authentication
► Employee must provide HIPAA authorization or risk denial of leave
► May use if there is doubt about the initial certification, BUT cannot
request after designation has been made or recertification requested
16 | © 2010 Seyfarth Shaw LLP
Medical Certification
• Periodic Recertification
► annual medical certification for conditions lasting in excess of one
leave year
► recertification after the minimum duration of the condition has expired;
more than 30 days vs. less than 30 days
► recertification may be requested every 6 months, even if the condition
will cause intermittent absences for a longer period
► recertification
tifi ti iin certain
t i changed
d circumstances,
l di extension
request or information casting doubt on validity of certification
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Intermittent Leave
• Basic principle: Employee may not be required to take
more leave than he/she needs
• Options:
►Intermittent leave = leave taken in discrete blocks of time due to a
single qualifying reason
►Reduced schedule = reduced hours per workweek or workday
18 | © 2010 Seyfarth Shaw LLP
Intermittent Leave
• Available for:
p y
own or family
y member’s serious health condition
►Qualifying exigency
►Military caregiver leave
• May take for child care leave only with employer consent,
and employer may set restrictions on minimum increment
of leave
►BUT: employer consent not required if mother has serious health
condition in connection with the birth of a child, or if the newborn
child/newly placed child has a serious health condition
19 | © 2010 Seyfarth Shaw LLP
Employee Notice of Intermittent Leave
• If possible:
► Schedule in advance
► Minimize disruption to employer operations
• If foreseeable:
► Employer may temporarily transfer employee – not if unforeseeable
► Equivalent pay & benefits
► Equivalent duties not required
► Terms of transfer cannot discourage
g leave
► Return to prior or equivalent job when employee is able to resume
former schedule
20 | © 2010 Seyfarth Shaw LLP
“Medically Necessary”
• Medical need for leave
• Purposes best served by intermittent or reduced schedule
►Intermittent condition (e.g. asthma, migraines)
►Scheduling (e.g. elderly parent’s condition requires family members to
share responsibility for care)
►Planned or unanticipated medical treatments
►Recovery from planned or unanticipated medical treatments
ƒ Available even if employee did not receive treatment on date of or in
ti with
ith a particular
ti l absence
21 | © 2010 Seyfarth Shaw LLP
Medical Certification
• Confirm medical necessity through certification
►Make request for certification in writing within 5 days of notice – include
d dli ffor returning
t i certification
tifi ti & consequences ffor ffailure
tto submit
b it
►Review certification to ensure it is:
ƒ Complete,
ƒ Legible, and
ƒ Internally consistent
►If incomplete/deficient – must notify employee and provide opportunity to
correct within 7 days
• If certification does not show necessity, may deny intermittent leave, but:
►U caution
ti iin d
i as opposed
d tto requesting
ti more iinformation.
►Use clarification and authentication options
►Consider second and third opinion options
22 | © 2010 Seyfarth Shaw LLP
Medical Certification – Form WH-380-E
• Question 5: “Will the employee be incapacitated for a single
continuous period of time due to his/her medical condition,
including any time for treatment and recovery?”
23 | © 2010 Seyfarth Shaw LLP
Medical Certification – Form WH-380-E
• Question 6: “Will the employee need to attend follow-up
treatment appointments or work part-time
part time or on a reduced
schedule because of the employee’s medical condition?”
• “If so, are the treatments or the reduced number of hours of
work medically necessary?”
►“Estimate treatment schedule, if any, including the dates of any
scheduled appointments and the time required for each appointment,
including any recovery period.”
►“Estimate the part-time or reduced work schedule the employee
needs, if any.”
24 | © 2010 Seyfarth Shaw LLP
Medical Certification – Form WH-380-E
• Question 7: “Will the condition cause episodic flare-ups
periodically preventing the employee from performing his/her
job functions?”
►“Is it medically necessary for the employee to be absent from work
during the flare-ups?”
►“Based upon the patient’s medical history and your knowledge of the
medical condition, estimate the frequency of flare-ups and the duration
of related incapacity that the patient may have over the next 6
months ”
25 | © 2010 Seyfarth Shaw LLP
Certification Forms
• Form for Family Members (WH-380-F) mirrors WH-380-E
• Qualifying Exigency Form (WH-384)
(WH 384) includes similar
questions in Part B
• Military Caregiver Form (WH-385) includes similar questions
in Part C
26 | © 2010 Seyfarth Shaw LLP
New Certifications
• Require new certification if the actual reason for leave
unrelated to any
y stated reason for
intermittent leave
• New certification at the start of every new leave year (in
conjunction with first absence of new leave year)
• Not the same as recertification
27 | © 2010 Seyfarth Shaw LLP
• Employer may not require employee to re-establish eligibility
for leave with each absence
►1,250 hour test applied only once per 12-month FMLA leave year for
intermittent leave
►If eligible on date of first intermittent absence, employee remains
entitled for the same reason throughout the 12-month period, even if
hours worked dips below 1,250
28 | © 2010 Seyfarth Shaw LLP
Calculating Leave
• Only time actually taken can be charged
• May limit increments to smallest period of time recorded by
payroll system as long as one hour or less (i.e. tenths or
quarters of hours)
• Break 12-week entitlement into smaller amounts
►Example: full-time 40 hour employee reduces schedule to 20 hours
for 4 weeks.
►12-week entitlement * 40 hours per week = 480 hours
►20 hours FMLA used per week * 4 weeks = 80 hours
►480 hours entitled – 80 hours used = 400 hours remaining
29 | © 2010 Seyfarth Shaw LLP
Calculating Leave
• Part-time or variable hour employees = pro rata entitlement
►Example: 30 hour per week employee reduces his schedule to 20 hours per
week for 4 weeks
ƒ 12 weeks * 30 hours = 360 hours entitled
ƒ 10 hours FMLA used * 4 weeks = 40 hours
ƒ 360 hours – 40 hours = 320 hours remaining
• Variable hour employee – average hours over 12 weeks prior to
beginning of leave
• Remember - only time actually taken can be charged
►If employee works from home while on intermittent leave, don’t deduct time
spent working from FMLA entitlement
30 | © 2010 Seyfarth Shaw LLP
Calculating Leave – Exempt Employees
• Exempt employees often work more than 40 hours per week, so using
40-hour week may be improper
• Agree up front to the average weekly hours and reduce the
agreement to writing
• Deduct leave proportionately
• Example: exempt employee working 50 average weekly hours
reduces schedule to 20 hours per week for 4 weeks:
►12 weeks * 50 hours = 600 hours
►30 hours FMLA used * 4 weeks = 120 hours
►600 hours – 120 hours = 480 hours remaining
31 | © 2010 Seyfarth Shaw LLP
Calculating Leave – Exempt Employees
• Exception to FLSA – allows partial day docking
►Allowed for personal reasons
►Not otherwise permitted
►If docking for non-FMLA reason, risk losing exempt status, not only for
that particular employee, but for all employees in same exempt
►Dock exempt employees for intermittent leave with care – consult with
legal counsel
32 | © 2010 Seyfarth Shaw LLP
Reasonable Accommodation
• The ADA requires an employer to provide reasonable
accommodation to qualified individuals with disabilities who are
employees or applicants for employment, unless to do so would
cause undue hardship.
►Remember: a “serious health condition” under the FMLA is not necessarily a
“disability” under the ADA
• “Accommodation” is defined as any change in the work environment
or in the way things are customarily done that enables an individual
with a disability to enjoy equal employment opportunities. This can
include a leave of absence.
33 | © 2010 Seyfarth Shaw LLP
Reasonable Accommodation
• Three categories:
►Modification/adjustment to job application process; or
►Modification/adjustment to the work environment, or to the manner or
circumstances under which the position held or desired is customarily
performed, that enable a qualified individual with a disability to perform
the essential functions of that position; or
►Modification/adjustment that enables employee with a disability to
enjoy equal benefits/privileges as are enjoyed by similarly situated
p y
without disabilities.
34 | © 2010 Seyfarth Shaw LLP
Reasonable Accommodation
• When an employee is eligible for leave under both the ADA
and the FMLA, the employer must administer leave in
compliance with BOTH statutes:
►First determine employee's rights under each statute separately
►Then consider whether the two statutes overlap
35 | © 2010 Seyfarth Shaw LLP
Reasonable Accommodation Under ADA
• Employee needing leave related to her disability entitled to leave if no other
effective accommodation and no undue hardship.
• Employer must continue health insurance benefits during leave only if it does so for
other employees in a similar leave status.
• Employer must hold open position during leave unless it can show undue hardship.
• Upon return to work, must allow employee to return to same position (assuming
that there was no undue hardship in holding it open) if the employee is still qualified
(i e the employee can perform the essential functions of the position with or
without reasonable accommodation).
• If undue hardship to hold open or if employee is no longer qualified, employer must
reassign to a vacant position for which she is qualified.
36 | © 2010 Seyfarth Shaw LLP
Reasonable Accommodation
• Examples of overlap situations:
►Employee with ADA disability needs 13 weeks of leave for treatment
related to the disability;
►Employee with ADA disability takes 10 weeks of FMLA leave. Upon
return to work, employer wants to put her in an equivalent position
rather than her original one;
►Employee with ADA disability takes 12 weeks of FMLA leave. He
notifies employer that he’s ready to return to work, but is no longer
able to p
perform the essential functions of his p
pre-leave p
37 | © 2010 Seyfarth Shaw LLP
Reasonable Accommodation Under the ADA
and Intermittent Leave
• Employee who needs a modified/part-time schedule because of disability
entitled to such a schedule if there is no other effective accommodation
and no undue hardship
• If there is undue hardship, must reassign employee if there is a vacant
position for which she is qualified and which would allow the employer to
grant the modified or part-time schedule without undue hardship.
• Employee receiving part-time schedule as reasonable accommodation
entitled only to those benefits (including health insurance) that other parttime employees receive.
►If non-disabled part-time workers don’t get health insurance, disabled
employee given a part-time schedule as a reasonable accommodation does
not get coverage
38 | © 2010 Seyfarth Shaw LLP
Reasonable Accommodation
and Intermittent Leave
• Examples of overlap situations:
►Employee with ADA disability requests that she be excused from
work one day a week for the next six months because of her
disability and, if honored, this request would result in an undue
►Employee with ADA disability requests that she be excused from
work one day a week permanently because of her disability.
39 | © 2010 Seyfarth Shaw LLP
Recordkeeping Requirements
• For employees who request and become eligible for FMLA leave,
employers must keep records of the following for at least three years:
►Additions tto and
d ti
wages related
l t d to
t leave
d total
t t l wages paid
►Where time off is taken in less than 1 day increments, record of leave hours
►Dates FMLA leave is taken
►Policies, procedures and copies of all notices under which leave is taken
►Written notices of employee’s request
►Premium payments made for employee benefits while on leave
NOTE: There may be longer record retention requirements in certain cases.
40 | © 2010 Seyfarth Shaw LLP
What the Courts Say - Notice
• Employee must affirmatively request intermittent leave (as
opposed to a continuous block of time); no violation where
employee failed to do so. Adams v. Honda of Amer. Mfg., 111
Fed. Appx. 353 (6th Cir. 2004).
41 | © 2010 Seyfarth Shaw LLP
What the Courts Say - Notice
• No violation of FMLA when employer discharged employee for
taking leave to care for her son’s
son s chronic asthma where
employee failed to fill out the company’s FMLA notice form,
despite the fact that the company had previously approved
FMLA leave for the employee’s son’s asthma. Greenwell v.
State Farm Mut. Auto Ins. Co., 486 F.3d 840 (5th Cir. 2007).
42 | © 2010 Seyfarth Shaw LLP
What the Courts Say - Notice
• No violation where employee who was discharged following a
y and attendance p
problems claimed after
series of disciplinary
the fact that some of the absences were FMLA-qualifying due
to depression. The Court noted that depression can be but is
not always a serious health condition, and that the employee
telling her supervisors she was having problems with her
medication and might miss work was not adequate notice.
Rask v. Fresenius Medical Care North America, 509 F.3d 466
((8th Cir. 2007).
43 | © 2010 Seyfarth Shaw LLP
What the Courts Say - Notice
• But see Bradley v. Mary Rutan Hosp. Assoc., 322 F. Supp. 2d
926 (S.D. Ohio 2004). Even though employee never formally
told supervisor about husband’s illness, supervisor’s notes
showed awareness of the husband’s illness and that
employee had mentioned she may need to work part time
because of his illness. Given this information, it was the
employer’s burden to question the employee further to
determine whether her need for leave was protected by the
44 | © 2010 Seyfarth Shaw LLP
What the Courts Say – Medical Certification
• No violation for failing to designate occurrences of tardiness as
intermittent FMLA and terminating employee for tardiness, where
employee’s doctors never said it was medically necessary for her to
be late to work. Brown v. Eastern Maine Med. Ctr., 2007 WL 2028983
(D. Me. May 9, 2007).
• Employee not entitled to intermittent FMLA leave because doctor’s
note indicated she could work with restrictions on dates in question.
Wessel v. Enersys, Inc., 2005 WL 476371 (D. Kan. Feb. 17, 2005).
45 | © 2010 Seyfarth Shaw LLP
What the Courts Say – Medical Certification
• Employer justified in terminating an employee for unexcused intermittent
absences despite earlier medical certifications where the last certification
provided incomplete information. The employer advised plaintiff of the
deficiencies and provided her time to correct. She failed to do so. The
court found that when a Dr. certifies an employee for intermittent leave, the
employer has a right to know how long the Dr. thinks the need for leave will
continue, the expected frequency of each episode, and the expected
duration of each episode. Muhammad v. Ind. Bell Tele. Co., 182 Fed.
Appx. 551 (7th Cir. May 25, 2006).
46 | © 2010 Seyfarth Shaw LLP
What the Courts Say – Medical Certification
• Where medical certification for intermittent leave stated that
the employee suffered from migraines that would cause
“intermittent short-term disabilities,” but also stated “no” when
asked whether the employee need to work intermittently or
less than a full schedule, the employer was justified in seeking
additional clarification from the employee and did not interfere
with her FMLA rights by doing so. Hoffman v. Professional
Med Team, 394 F.3d 414 (6th Cir. 2005).
47 | © 2010 Seyfarth Shaw LLP
What the Courts Say – Medical Certification
• Court denied employer’s motion for summary judgment
because, although the employer returned plaintiff’s
plaintiff s medical
certification for intermittent leave as incomplete, it did not tell
the employee what exactly was missing. Thus, the court held
that a reasonable jury could determine that the plaintiff was
not at fault for failing to provide adequate documentation.
Aboukora v. Keebler Co., 2006 WL 839238 (M.D. Ga. Mar. 30,
48 | © 2010 Seyfarth Shaw LLP
What the Courts Say – Medical Certification
• Employer justified in denying FMLA leave for employee whose
medical documentation merely said he was “totally
incapacitated” and numerous attempts to obtain more
information failed. Davis v. Henderson, 238 F.3d 420 (6th Cir.
• Informal discussion with employee regarding condition did not
put him on notice that he needed to provide certification.
Conrad v. Eaton Corp., 303 F. Supp. 2d 987 (N.D. Iowa 2004)
49 | © 2010 Seyfarth Shaw LLP
What the Courts Say – Recertification
• Court found company’s recertification policy violated the FMLA because it
required an employee to recertify its need for intermittent leave every 90
days, even when the healthcare provider has already certified that the
employee’s condition would last longer than 90 days. Court also found
that company’s 15-day notice policy was invalid because it required
certification within 15-days of when sick leave began, as opposed to when
employee first learns he or she has a serious health condition. Harcourt v.
Cincinnati Bell Tel. Co., 383 F. Supp. 2d 944 (S.D. Ohio Aug. 18, 2005).
50 | © 2010 Seyfarth Shaw LLP
What the Courts Say – Second Opinions
• Employer who granted FMLA leave for depression based on
initial medical certification could not later argue in court that
the employee did not have a serious health condition. Failure
to use the second opinion procedure resulted in a waiver of
the employer’s right to challenge request for leave. Smith v.
Univ. of Chicago Hosps., 2003 WL 22757754 (N.D. Ill. Nov.
20, 2003).
51 | © 2010 Seyfarth Shaw LLP
Devjani Mishra
[email protected]
52 | © 2010 Seyfarth Shaw LLP
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