FMLA/CFRA O : How to Effectively and Legally Handle

How to Effectively and Legally Handle
Family Leave Requests and Avoid Legal Risks
California Audio Conference
Thursday, July 6, 2006
10:30 a.m. – noon Pacific
Presented by:
Randy DeVaul
Susan Fahey Desmond
Chris Hoffman
Diane O’Malley
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Employer Resource Institute
1819 Polk Street, #290
San Francisco, CA 94109
(800) 695-7178
Randy DeVaul is the safety and human resources audio conference producer for Employer
Resource Institute and principal of Randy DeVaul, LLC. He has 25 years’ experience as a safety
professional. He is internationally published in major safety trade publications and has authored
three performance-based workplace safety books that have attracted international attention.
Randy has both regulatory and industry experience in occupational and mine safety, as well as
experience with workers’ compensation, performance management, strategic planning, organizational development, and employee benefits and retention programs. He has served on national
and state association committees for training, safety/health, and both federal and state legislative
Randy has numerous instructor and train-the-trainer certifications from national and state
organizations. He is a presenter for a national seminar group on best practices in workers’
compensation, and he has written and delivered management training seminars in performance
safety, OSHA and MSHA compliance, workers’ compensation, emergency planning and management, and other topics.
Randy has a Master of Arts degree from Liberty University, where he also earned the highest
award for a perfect GPA. He is an active member in the American Society of Safety Engineers,
serving on the International Practices Specialty, as well as member of the Southern California
Industrial Safety Society. He is nationally registered as a Safety, Health, Environmental
Practitioner (RSHEP). He can be reached at [email protected]
Randy DeVaul, LLC
406 Derbycreek Ln
Chester, VA 23836
Susan Fahey Desmond is a shareholder with the law offices of Watkins Ludlam Winter &
Stennis, P.A., and has offices in New Orleans, Louisiana and Gulfport, Mississippi. She received
her B.A. from the University of Mississippi in 1982 and her law degree from the University of
Tennessee in 1985. She is licensed to practice law in Mississippi, Louisiana, and Colorado.
Susan has been representing management in labor and employment issues since 1986. Susan is a
frequent speaker and author with regard to issues facing employers. She frequently speaks on
issues such as discrimination in the workplace, sexual harassment, the Family and Medical Leave
Act, and the Americans with Disabilities Act. Susan is currently completing a book addressing
unique issues employers face with regard to mothers in the workplace.
Susan was recognized by her colleagues as the Outstanding Young Lawyer in Mississippi in
1996. She has served in numerous capacities in the American Bar Association, including being
chair of the Labor and Employment Committee/Young Lawyers Division. Susan can be reached
at [email protected]
Susan Fahey Desmond
Watkins Ludlam Winter & Stennis, P.A.
Post Office Drawer 160 (39502)
2510 14th Street, Suite 1010
Gulfport, MS 39501
Phone: (228) 822-8506
Fax: (228) 864-0516
Chris Hoffman is the founding partner of the San Diego office of Fisher & Phillips, LLP. Chris
has represented hundreds of employers in matters ranging from class action wage and hour disputes, to harassment litigation, union representation attempts, and general employment advice.
In addition, Chris advises employers in the complicated area of family and medical leaves as
well as the Fair Credit Reporting Act, the Americans with Disabilities Act and workers' compensation laws. Chris also spends a significant amount of time counseling clients regarding day to
day employment issues and assisting them to find practical solutions to their legal problems in a
proactive manner. This includes extensive supervisor training as well as preparing sound
employment policies and procedures. He can be reached at [email protected]
Christopher C. Hoffman
Fisher & Phillips LLP
Suite 950
4225 Executive Square
La Jolla (San Diego), California 92037
Phone: (858) 597-9610
Fax: (858) 597-9601
Diane O’Malley is a partner in the firm of Hanson Bridgett, Marcus, Vlahos, and Rudy in
San Francisco, California. After practicing in New York City in the areas of employment and
commercial litigation, Diane Marie O'Malley joined the firm in 1989. Her employment related
litigation practice includes representing public and private sector employers before administrative agencies, in arbitration proceedings, and in federal and state courts.
On a daily basis, Diane also advises employers about issues related to hiring, training, and
terminating employees; wage and hour issues and compliance with the myriad of discrimination
laws to which employers must adhere. Diane has advised and represented various church related
groups in the particular issues related to day care facilities and the application of discrimination
and state labor laws. She also has experience helping start-up and small businesses grapple with
employment related issues as these businesses grow.
In addition to being licensed to practice law in California, Diane is a member of the State Bar
of New York and is admitted to the United States District Court, Eastern and Southern Districts of
New York, the United States Court of Appeals for the Second Circuit, the California Supreme
Court, the United States Court of Appeals for the Third Circuit and the United States Supreme
Court. She can be reached at [email protected]
Diane O’Malley
Hanson Bridgett Marcus Vlahos and Rudy
333 Market Street
Suite 2100
San Francisco, CA 94105
Phone: (415) 995-5045
Fax: (415) 541-9366
I. Compliance Overview
II. Employer Coverage
• Who is affected
III. Eligibility as a “Serious Health Condition”
• What conditions are covered
IV. Response to and Documentation of Leave
• What triggers the request
• What supervisors need to know
• What to say and do
• What to record and when
• Intermittent leave—calculating and tracking
• Document retention—what and where
V. Special Concerns
• Health insurance and other employer obligations during
• Job restoration
• FMLA exhausted but need more time
• Concurrent leaves—documentation and tracking
• Integration of employee after use of leave
VI. Practical Application
• What to do when an employee is on leave
• Handling increased workloads
• Hiring temporary employees—is that a good idea?
Questions & Answers
You may e-mail your questions to [email protected]
Thank You
Thank you very much for attending our audio conference
today. We hope you’ve found this conference valuable.
CD recordings of this conference and past ERI conferences
can be ordered by calling 1-800-695-7178.
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information about CD recordings of this conference and
past conferences, as well as for information about our
upcoming conferences. We hope you’ll consider joining
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evaluation. Evaluations will be e-mailed to participants
shortly after the conference.
How to Effectively and Legally Handle Family
Leave Requests and Avoid Legal Risks
Supplemental Materials
1. FMLA Training Handout with Case Study
© Employer Resource Institute
FMLA Training Handout with Case Study
FMLA Allows Unpaid Employee Leave for Special Family Situations
• FMLA covers private employers with at least 50 employees, plus all public employers.
• FMLA covers employees who:
- Have worked for the employer at least 12 months and at least 1,250 hours in the last
12 months.
- Work at an employer site with at least 50 employees or within 75 miles of a company site
with 50 employees.
• Eligible employees may take up to 12 weeks’ unpaid leave in 12 months.
• Employers can’t try to prevent a qualified employee from taking a qualified leave.
• Employees may take leave all at once or intermittently.
• Intermittent leave (including reduced workdays) is usually used for health conditions
(e.g., chemotherapy).
• Employer or employee may choose to have the employee use paid leave (e.g., vacation,
personal, or sick time) for certain FMLA purposes.
FMLA Leaves Cover Four Family Situations
• Eligible employees may take leave for:
- A child’s birth and the care of that child.
- A child’s adoption or foster care placement and the care of that child.
- A serious personal health condition that makes the employee unable to perform essential
job functions.
- Caring for a spouse, child, or parent with a serious health condition which may include:
- Illness, injury, impairment, or physical or mental condition that involves overnight care in
a health facility or continuing treatment by a healthcare provider for three or more days.
- Incapacity due to pregnancy, prenatal care, or a chronic serious condition (e.g., an
asthma attack), even for less than three days and without healthcare provider treatment.
- Multiple healthcare provider treatments for reconstructive post-accident or injury surgery
or a condition (e.g., chemotherapy) likely to cause incapacity of over three consecutive
days if untreated.
• Employers may require medical certification regarding conditions and fitness to return to work.
• Employers may require second or third opinions if they pay for them.
Employees Provide Notice of FMLA Leave
• Employees must give 30 days’ notice for foreseeable leaves (e.g., pregnancy).
• Employers must respond promptly with information on FMLA rights, benefits during leave,
any certification requirements, etc.
• Employers may deny leave or delay it for 30 days if notice of foreseeable leave is not given
on time.
• Employees should notify employers of unexpected leaves as soon as possible.
FMLA Protects Most Employees’ Jobs
• Most employees returning from FMLA leave must receive their original or equivalent jobs,
with equivalent pay and benefits.
• Key employees (the 10 percent highest-paid salaried employees) may not get their jobs back
after FMLA leave if the employer proves the return (not the leave) would cause the employer
“substantial or grievous economic injury” or “a hardship.”
• Employer inconvenience is not a qualifying reason.
• All employees retain any benefits accrued before the leave.
• Employees keep health coverage during leave if they continue to pay their share of premiums.
• Employees who let health coverage lapse during leave must be reinstated when they come
back to work.
Applicable Regulations: Family and Medical Leave Act (FMLA)
FMLA is a valuable benefit that allows employees to take care of important family and health
situations without putting their jobs at risk.
Discussion Tips
• Distribute copies of the case study and discuss it. Then check and discuss the outcome.
• Review your organizational FMLA policies and explain who can provide guidance and
appropriate paperwork.
Knowledge Review
• Have participants complete the Family and Medical Leave Act Quiz on page 15. It provides a
useful review of their understanding of the subject.
Family and Medical Leave Act: A Case Study
The Case
When her young son was rushed to the hospital with a critical illness, hourly worker Sandy
Stone asked for part of the day off to go to the hospital to be with her son. When her request
was denied, she went anyway—and was assessed a half-point penalty for missing part of the
day without an excuse. Company policy was to assess a one-point penalty for each unexcused
day and a half-point for part of a day. The policy stated that six points was cause for probation
and eight was cause for firing.
When Sandy learned about the half-point, she asked her supervisor: “Isn’t there a Family and
Medical Leave Act that lets me take time off to be with my sick son?” Her supervisor just
reminded her of the company’s unexcused absence policy. Sandy even brought in a doctor’s
note explaining the seriousness of her son’s illness. But the penalty stuck. So did the ones she
accrued over the next few months, after she used up her vacation days taking care of her son.
When Sandy had accumulated six points, she received a warning. When she reached eight, she
was fired. Sandy filed suit, charging that her employer should have given her permission to take
time off under the Family and Medical Leave Act. She claimed that FMLA covered the reasons
she was absent: being with her son at the hospital and taking him to doctor’s appointments
once he got out.
The company stuck to its guns. It responded that her son didn’t have a serious health condition
and that Sandy failed to give proper notice of her absences.
The Outcome
The court ruled that the company should have permitted Sandy unpaid leave under the Family
and Medical Leave Act. Her son was hospitalized and had to stay in bed, and he needed
medical care and treatment for an extended time. That qualified as a serious health condition.
Sandy told her employer about the situation as soon as he was hospitalized and provided a note
from the doctor. The company had the option to ask for additional information and chose not
to. Sandy should have been allowed to take unpaid intermittent leave to care for her son, as
permitted by the Family and Medical Leave Act. Had she been permitted to take the leave, she
would not have accrued points for those absences and wouldn’t have been fired.
All employers covered by the Family and Medical Leave Act should recognize that it is illegal to
deny leave to an employee whose situation and notification qualify.
Case Study Quiz
Family and Medical Leave Act
1. All employers are covered by the Family and Medical Leave Act.
a. True b. False
2. Employee eligibility for FMLA benefits begins as soon as an employee is hired.
a. True b. False
3. Employees may take FMLA leave all at once or intermittently.
a. True b. False
4. Employees may take FMLA leave for a child’s birth, adoption, foster care placement,
and related care, and for:
a. A wedding and honeymoon
b. Moving
c. Personal or immediate family member’s serious health condition
5. FMLA leave is generally unpaid.
a. True b. False
6. Employees can decide to take FMLA leave without giving notice, even if they knew
when the leave would be needed.
a. True b. False
7. Employers don’t have to give employees returning from FMLA leave their same or
equivalent jobs.
a. True b. False
8 . A key employee is one with special skills or a managerial title.
a. True b. False
9. To keep health coverage during FMLA leave, employees must continue to pay their
share of premiums.
a. True b. False
10. An employer must take an employee’s word that a personal or family member’s
health condition is serious.
a. True b. False
Quiz Answers
Family and Medical Leave Act
1. b. False. FMLA covers all public employers plus private employers with at least 50 employees.
Covered employees must work at a site with at least 50 employees or within 75 miles of a
company site with 50 employees.
2. b. False. Employees must have worked for the employer at least 12 months and at least 1,250
hours in the last 12 months.
3. a. True.
4. c. Personal or immediate family member’s serious health condition.
5. a. True.
6. b. False. They must give 30 days’ notice for foreseeable leaves. Employers may deny leave or
delay it for 30 days if notice of foreseeable leave is not given on time.
7. b. False. They have to do so for all employees. The only exception is where they can prove
the return (not the leave) of a key employee would cause the employer “substantial or grievous
economic injury” or “a hardship.”
8. b. False. A key employee is one who’s among the 10 percent highest-paid of the company.
9. a. True.
10. b. False. Employers may require medical certification and, if they pay for it, second or third