How to Manage FMLA Intermittent Leave: 7 Strategies

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How to Better Manage FMLA Intermittent Leave: 7 Strategies

There is probably no task more cumbersome for HR professionals than managing intermittent leave under the Family Medical Leave Act (FMLA). Intermittent leave allows qualified employees to take FMLA leave in small blocks of time (such as one hour) versus one block of 12 weeks.

Although intermittent leave can benefit employees who need time off work for their own health condition or to help with another family member's serious health condition, it can create burdens and adversity for employers if it isn't managed appropriately. The following administrative strategies tend to help employers manage intermittent leave more effectively.

1. Require medical certification.

You have the right to determine that intermittent leave is medically necessary. You can require medical certification to be submitted in order to make this determination and request multiple medical opinions. Doing so gives you some control over the situation and helps you understand the frequency and duration of intermittent leave needed by the employee.

2. Ask for recertification.

Requiring employees to recertify their leave when the condition changes or according to a certain period (such as every 6 months or annually) helps keep employees honest and makes sure you stay knowledgeable about the condition's status and any changes needed for the leave.

3. Have employees use paid leave concurrently with FMLA leave.

Requiring use of concurrent paid leave, disability, etc. curbs the adverse effects of excessive absenteeism. If you don't require use of concurrent leave, you may risk an employee using more than the allotted 12 weeks of leave provided under FMLA.  

4. Use a rolling 12-month period to calculate FMLA leave.

Calculating FMLA leave on a calendar 12-month basis can lead to employees taking back-to-back leave and potentially provides 24 weeks or 6 months of FMLA to an employee. Conversely, calculating FMLA on a rolling 12-month period can prevent back-to-back leave.

5. Accommodate the employee to reduce disruptions.

You may assign an employee to an alternative position with equivalent pay and benefits to better accommodate intermittent leave. You may also work with them to establish an intermittent leave schedule that reduces the leave's disruptions to your business operations. Remember, it's completely legal to request that the employee make a reasonable effort not to disrupt your business operations.

6. Establish guidelines for call-offs.

Call-offs can disrupt business, so provide requirements that employees must call in before they are absent if they are going to be using FMLA leave. You may also request that employees provide notice of unforeseeable leave as soon as practicable.

7. Track leave and absences.

You may request recertification from health care providers when you notice a pattern of absences which could suggest that an employee is abusing intermittent leave. Also, be aware that not tracking FMLA may lead you to provide more than the required amount of leave. Make sure nothing goes uncounted, and if you don't have the time to track it, consider outsourcing FMLA.

While these strategies won't necessarily reduce the number of employees using FMLA leave, they will typically help your organization avoid the costly consequences of mismanaged intermittent FMLA leave.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application.

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Military FMLA: Wading through the Confusion

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Verifying Next of Kin

According to the Department of Labor:

"Next of kin of a covered servicemember" means the nearest blood relative other than the covered servicemember's spouse, parent, son, or daughter, in the following order of priority: Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA.

When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember's next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember's only next of kin.

How is an employer supposed to know if a next of kin has been designated?

Verifying next of kin can isn’t as easy as it sounds. Here are some guidelines which will help employers in this situation when next of kin needs to be determined:

  • The Emergency Contact Form (DD0093) would rank employee’s relatives. This will help determine Next of Kin. For example, if the servicemember didn't have brothers/sisters, child, spouse, or parent, then maybe they would list their cousin or uncle as an emergency contact and beneficiary.
  • To obtain the DD0093, the employer can contact:
    • Army orders verification should be sent to hrc.foia@conus.army.mil
    • For all other branches of the armed forces: To identify a contact person, an employer should look at the military order and conduct an Internet Search to locate of the unit/battalion the servicemember is assigned. There is no general location/number employers can use to verify the validity of the orders. Employers are going to have to do some research to find the appropriate officer in charge of the unit/battalion.

This link has contact information for all the branches of the armed forces. Each branch can provide verification of active duty dates of service. The verification of orders is given by the unit officer in charge of the service member.

Military orders for Marines, Air Force, and Navy will detail what unit or battalion the servicemember is assigned.

The links below can be used to locate contact information for the unit the servicemember is assigned. The employer should contact the officer in charge of the unit to verify the orders.

The Air Force doesn't have a main location on the web which has all the units and contact information. An employer’s best option is to conduct an Internet Search of the unit indicated on the orders to locate a contact person.

Questions please contact:
Holly Moyer, M.Ed., CRC
Sr. Absence Management Consultant
(440) 937-9507
Holly.moyer@careworks.com

9 Common (and Avoidable) FMLA Mistakes

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There is probably no law that gives HR more headaches than the Family Medical Leave Act (FMLA). Even the most adept and experienced HR professionals make errors when administering FMLA. It’s hard not to make mistakes, given the emergence of new case law as well as state and federal regulations that are constantly expanding the scope of employee leave and employer’s obligations in administering that leave.

One small mistake with FMLA, however, can cause big consequences for your organization. Here are 9 of the most common (and avoidable) FMLA mistakes.

  1. Not counting leave as FMLA. If your organization does not run FMLA concurrently with other paid time off, sick leave, disability, or worker’s compensation, it may incur lost work time which can lead to significant costs. Also, some employers may not track time that should be qualified as FMLA leave, especially when reasons for employees’ leave or time off are not known by HR.
  2. Disciplining employees for FMLA-protected absences. It’s not uncommon for employers to penalize employees for absences, but when FMLA factors into the absence, tread carefully. If employees are eligible for FMLA and are qualified to take leave, they are protected, even though your attendance policy may be very specific. Disciplining or terminating an employee for taking leave may not be an appropriate or legal measure to take.
  3. Taking adverse action after denying leave. Denying an employee’s request for FMLA and then taking a series of adverse actions following that request can be a fatal mistake. While these actions may be warranted, employers need to watch their timing. If you deny an employee’s request for FMLA, then immediately follow-up with a termination, it could suggest that the employee’s FMLA request was linked to the termination. Plus, the courts have been especially mindful of retaliation charges lately.
  4. Failing to communicate your FMLA policy and procedure. As an employer, you must let employees know about their rights under FMLA. A 2012 ruling suggests that you must also communicate the procedure by which leave needs to be taken and how you are tracking employees’ time (i.e. rolling calendar year measured forward/measured backward etc.). Even misinforming employees of the time in which they are eligible for FMLA can be a liability.
  5. Allowing your supervisors to manage FMLA. Supervisors are usually the first people employees turn to when they need to take leave. Sometimes, however, supervisors don’t realize that they must direct the employee to HR and not handle FMLA cases on their own. Be sure that your supervisors know how to respond when employees ask for leave. Otherwise they could face personal liability for FMLA violations.
  6. Making assumptions about an employee’s health condition. Making judgments about whether employees have a serious health condition or not without the necessary information can be disadvantageous. Employees may present clear signs of a serious health problem or the condition may be less visible. Take each employee’s request for FMLA seriously and ask for appropriate documentation if you question its validity.
  7. Not verifying or clarifying FMLA documentation with health care providers. Employers may clarify any documentation they receive from health care providers, ask for second and third opinions, and make sure that the employee who is requesting leave does in fact have a serious health condition. Also, know that requiring too much or too little medical documentation could result in liability. Don’t ask for too much, but don’t accept too little.
  8. Removing an employee from their prior job. An employee goes out on leave, perhaps you find that another employee can perform the person’s job better, and then you consider terminating the returning employee or moving them into a lower position. Be aware that unless you have adequate performance documentation to demote or terminate the individual, FMLA regulations say that the returning employee is entitled to their same job or one of equal pay, responsibility, and benefits.
  9. Not providing a reasonable accommodation. Although FMLA only allows for 12 weeks of unpaid leave, your organization may need to explore other reasonable accommodations following FMLA leave if employees have a disability or medical condition that is protected under the Americans with Disabilities Act (ADA). Under ADA, an extension of unpaid leave could be a reasonable accommodation in some circumstances. Oftentimes, both FMLA and ADA apply, especially when serious health conditions are present.

Employers unfortunately can pay a steep price for their mistakes in administering FMLA—whether they are honest or intentional. Our best advice for avoiding FMLA mistakes is to maintain open lines of communication with employees and managers, stay up to date on FMLA case law, don’t make assumptions, keep excellent documentation, and be conscious of the timing of your decisions.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. 

Proposed Changes to FMLA

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In 2012, the Department of Labor (DOL) announced proposed changes to Military FMLA and changes which would affect Airline Flight Crew Employees.   Secretary Solis discussed the amendments at Joining Forces for Caregivers, an event held Monday January 30th, 2012 in Washington, D.C.  

“Keeping the basic promise of America alive means ensuring that workers, from our servicemen and servicewomen who keep us safe at home to the flight crews who keep us safe in the skies, have the resources, support and opportunities they need and have rightfully earned,” said Secretary of Labor Hilda L. Solis in a press release. “The proposed revisions… are an important step toward keeping that promise.”

Changes to Military FMLA

Changes proposed would permit an employee to take leave during or following an immediate family member’s deployment for matters related to the person’s service (e.g., military briefings, financial or legal arrangements).  The 26-workweek option would be extended to care for family members who are veterans with an illness or injury that occurred in the line of duty, including conditions that have arisen only after the veteran had left the service.   The five days a family member can spend with a military member while on rest or recuperation is likely going to increase up to 15 days.   The FMLA coverage, which only covered the National Guard for qualification of exigency leave in 2012, would also extend to family members serving in the armed forces.

Airline Flight Crew Changes

Due to the way crew members currently work, the hours are difficult to track.   The proposed changes are intended to create a more accurate and simple way to account for the hours.   The proposed revision for airline flight crew employees would add a special hours of service eligibility requirement and specific alterations for calculating the amount of FMLA leave.

For more information, contact Scott Vaka at CareWorks USA at 614-760-3536 or scott.vaka@careworks.com.

Survey Highlights Common FMLA Administration Practices

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A 2011 survey conducted by ERC and CareWorks USA highlights common Family Medical Leave Act (FMLA) administration practices pertaining to tracking, calculating, and managing leave.

Most Northeast Ohio organizations are tracking FMLA using manual methods. The most common way organizations track FMLA is using timesheets and attendance cards (52%). Over 30% of organizations also track FMLA using Excel (36%) and/or through payroll (35%).

The survey also sheds light on how organizations administer other facets of FMLA, including how FMLA is calculated and whether it is run concurrently with other benefits. The survey found that few employers are using the calendar method to calculate FMLA and instead, using rolling 12 month periods. Specifically, 59% of employers reported using a rolling 12 month period measured backwards to calculate FMLA. Conversely, 34% of respondents use a rolling 12 month period measured forward.

In addition, many employers run FMLA concurrently with other benefits. The graph below highlights the most common benefits run concurrently with FMLA by employers.

"Running benefits concurrently helps eliminate benefit 'stacking.' While an employer wants to ensure employees are afforded the time off they need under FMLA, it is essential that they run FMLA concurrent with STD, WC and other medical leaves as appropriate to avoid any prolonged absences beyond the protected leave," explains Holly Moyer, Sr. Disability Management Consultant at CareWorks.

To download the full results of the survey, please click here. Or, to learn more about CareWorks and the services they can provide for ERC members as a Preferred Partner, please click here.

Compliance and Tracking are Key FMLA Challenges

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According to the 2012 ERC/CareWorks FMLA Practices Survey, Northeast Ohio employers face numerous challenges associated with administering employee leave under the Family Medical Leave Act (FMLA). The survey cites that the biggest challenges employers face when administering leave under the Family Medical Leave Act (FMLA) are tracking leave, determining the overall costs associated with FMLA absences, and overall legal compliance. Determining what constitutes a serious health condition and meeting paperwork deadlines designated by the Department of Labor (DOL) were also cited as challenges, but were less common.

Additionally, 56% of respondents said they believe they are capturing all situations at their organization which should be designated as FMLA, further suggesting that several employers are experiencing challenges with tracking and administering the law.

"Employers spend a significant amount of time administering FMLA, but continue to struggle with compliance.  Every step of the FMLA administration process requires a substantial amount of detail, so an employer needs someone who is highly trained on the FMLA regulations and can stay on top of each claim on a daily basis," says Holly Moyer, Senior Disability Management Consultant at CareWorks. Holly adds, "The legal exposure for FMLA is on the rise, therefore it is critical for employers to have a well governed FMLA Administration program in place that focuses on compliance and consistent claim handling."

To download the full results of the survey, please click here. Or, to learn more about CareWorks and the services they can provide for ERC members as a Preferred Partner, please click here.

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee

Survey Shows Trends in FMLA Usage

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The ERC/CareWorks FMLA Practices Survey shows trends in FMLA usage. The majority of employers (71%) cite that between 1 and 10% of employees took FMLA in the last 12 months. Ninety percent of organizations reported that 20% or fewer employees took FMLA in the last 12 months.

The most common reasons in which employees take FMLA are due to pregnancy/maternity leave or an acute/chronic serious health condition. Fewer employees take FMLA to care for a family member or deal with a catastrophic event.

The survey also indicates that few FMLA claims are typically denied by employers. Sixty-nine percent of employers report that they did not deny any claims in the last 12 months and only 26% say they denied fewer than 10% of claims.

To download the full results of the survey, please click here and for a short summary of the results, please click here. Or, to learn more about CareWorks and the services they can provide for ERC members as a Preferred Partner, please click here.

FMLA for Domestic Violence?

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The Domestic Violence Leave Act (H.R. 3151) was introduced by Rep. Lynn Woolsey of California in June. She reintroduced it on Oct. 11 in light of Domestic Violence Awareness Month.

This legislation would allow employees to take lave under FMLA to address acts of domestic violence, sexual assault and stalking aimed at themselves, a spouse (including domestic partners and same sex-sex spouses), parent or child.

FMLA leave could be used to seek medical attention for injuries; obtain legal assistance or remedies; participate in a legal proceeding; attend support groups or therapy; and participate in safety planning, among other related activities held during work hours. An employee would be able to substitute paid leave for the leave provided under this bill.

An employer would be entitled to seek certification that the employee is legitimately taking FMLA leave for the reasons outlined in the measure, but would be required to keep such information confidential. In lieu of written documentation, such as police reports or witness statements, an employee would be able to satisfy the certification requirement by providing a written statement describing the reason for taking leave.

The text of this bill already has been incorporated into a more extensive leave bill – the Balancing Act of 2011 (H.R. 2346) – Rep. Woolsey introduced in June. Yet another measure, the Healthy Families Act (H.R. 1876, S. 984) introduced in May, would require employers to provide paid sick leave as well as paid leave for employees who are the victims of domestic violence, stalking or sexual assault.

For more information on proposed Domestic Violence Leave Act please visit:
http://www.govtrack.us/congress/bill.xpd?bill=h112-3151

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee

Court: Employers Have Right to Enforce Leave Policies

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Nearly half of all HR professionals say they’ve approved FMLA leave requests even though they believed the requests weren’t legitimate, according to a Society for Human Resource Management (SHRM) survey.

If you think employees are violating your policies, what can you do? One court ruled in May 2011 that you can fire such an employee - but first make sure you have the right policies in place.

The corporate office for the Communications Workers of America (CWA), the country’s largest telecom union, distributes a policy manual to employees that includes a sickness and absenteeism policy. CWA requires employees who accept wage replacement benefits while on medical leave to remain in the immediate vicinity of their homes.

In the case Pellegrino v. CWA, Denise Pellegrino spent two weeks at home, post-operatively and was on concurrent FMLA and paid sick leave - that was before she left home to go to Cancun, Mexico. According to CWA's sick leave policy, employees on leave may not leave their local area without written permission from the company unless seeking medical treatment or conducting "ordinary or necessary activities directly related to personal or family needs."

When CWA officials learned about Pellegrino's trip, they terminated her. She sued, claiming the termination interfered with her right to FMLA leave.

Although the court agreed Pellegrino's leave was protected, it found CWA had a right to enforce its leave policies.

CareWorksUSAsuggests the following to employers:

  • Have a clear sickness and absenteeism policy. CWA would not have been able to terminate this employee without a clearly written policy.
  • Distribute the policy to each employee. In this case, the court noted the employee in this case had received the policy.
  • Consistently enforce the policy. Consistently enforce the policy across your workforce.

(Pellegrino v. CWA, W.D. Pa., 5/19/11)

For more information, contact: 

Scott Vaka
Phone: 614-760-3536
Email: scott.vaka@careworks.com
Website: www.careworksabsence.com

15 Steps to Controlling FMLA Claims

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CareWorks USA has outlined 15 action steps employers can take that will help them control intermittent claims and control costs associated with intermittent absences.

  1. Clearly spell out your FMLA policy in the employee handbook.
  2. Clearly spell out your policy on intermittent leave for bonding after birth or placement (yes, the employer has a choice whether to allow this.)
  3. Run your FMLA concurrent with other applicable benefits.
  4. Check Eligibility every new 12 month period.
  5. Require Certification & Ensure the Certification is complete and legible.
  6. Conduct a thorough review of the medical information ~ a medical professional such as a nurse can be critical in understanding the medical jargon written on the certification.
  7. Include medical clarification in your review as necessary.
  8. Require a Frequency & Duration on Certification.
  9. DOL has given Employers the right to require employees to submit certification every 6 months - Certify claims for 6 months.
  10. Make employees accountable - Require them to report every FMLA occurrence.
  11. Ask your employee questions about his or her leave – every occurrence if necessary.
  12. Temporarily transfer the employee to an alternate duty position while on leave.
  13. Seek Fitness for duty - Employers can now conduct fitness for duty on intermittent cases (in association with an absence.)
  14. Utilize 2nd & 3rd opinions when appropriate.
  15. Partner with a vendor like CareWorks USA to help with administration, tracking and medical clarification.

Visit http://www.careworksabsence.com/leave-administration/ for more information on Family and Medical Leave Act.