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Kristin Tugman| August 27th 2013
1
Curbing FMLA abuse
Top 10 FMLA mistakes and suggested best practices
Angela A. Ripper
Assistant Vice President and Senior Counsel
July | 2014
FX-3358 (11-13)
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Top 10 FMLA Employer Mistakes
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The following mistakes allow FMLA abuse and
can create liability for employers who are not
administering FMLA requests appropriately.
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Top 10 mistakes
1. Improperly determining eligibility
2. “Deeming” employees FMLA
eligible
3. Failure to provide required notices
6. Failure to properly designate
FMLA time
7. Inappropriate use of medical
certifications
4. Using a calendar year 12-month
period
8. Failure to request a new
certification and redetermine
eligibility in a new leave year
5. Failure to calculate leave
entitlement appropriately
9. Improper use of recertifications
10. Failure to monitor intermittent
leaves closely
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1. Improperly determining eligibility
Regulations
(825.104; 825.105; 825.110; 825.111)
Employee must:

Work for covered employer,

Have worked 1,250 hours and 12 months

Work at a worksite where there are 50
employees in a 75 mile radius.
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1. Improperly determining eligibility (continued)
Best practice:
(825.104; 825.105; 825.110; 825.111)


Make sure you are a covered
employer. Verify that you had 50+
employees for each calendar day for
20 weeks in the current or
preceding year.
At the time the leave is requested,
determine that the employee works
at a location where there are 50
employees within 75 miles.
 Count all employees on payroll
(including temps) except
expatriates.
 For work at home employees,
look to site in to which employee
reports or receives assignments
from.


Verify that the employee worked for
12 nonconsecutive months prior to
start of leave.
 Include employment prior to a
continuous break in service of
7 or less years.
 Include military service in
calculation of tenure and hours
worked.
Verify that the employee worked
1,250 hours immediately prior to
the start of leave using FLSA “hours
worked” standard.
 Do not include leaves or PTO.
Include temp time in hours worked and tenure for
any employee who worked for you as a temp.
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2. “Deeming” employees eligible for FMLA
Regulations
(825.110(d); 825.120(a)(2); 825.121(a)(2); 825.207(c); 825.301; 825.701(a)(3))
An employer cannot “deem” an employee eligible for FMLA if they are not eligible.
An employer cannot deem an absence to be FMLA-covered if it is not.
Best practice:
(825.104; 825.105; 825.110; 825.111)

Do not count FMLA absences
against an employee unless
the employee is eligible and
the absence is covered.

If you improperly deduct
time from an employee’s
FMLA bank, the employee
may be entitled to an
additional 12 or 26 weeks
of FMLA leave.

Do not treat office
locations as covered
if there are not 50
employees within a
75 mile radius.

Grant a corporate leave if
you wish to provide leave in
circumstances that are not
covered by FMLA (i.e. same
sex marriages not recognized
in the state or residence,
domestic partners,
grandparents, small offices,
new employees).
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3. Failure to provide required notices
Regulations
(825.300): Employers have to give 4 notices:
GENERAL
NOTICE

General rights
under the
FMLA
RIGHTS &
RESPONSIBILITIES
NOTICE
ELIGIBILITY
NOTICE



Send Within 5 days of
request for leave
State at least one
reason why if ineligible
Once eligible, employee
remains eligible for
remainder of the leave
year for that leave
reason (although may
exhaust entitlement).




Provide at the same
time as eligibility
notice
Advise of method used
for 12-month period
Use of paid leave &
conditions
Must explain that if
employee wants, can
go unpaid
DESIGNATION
NOTICE




Within 5 business days of
determining that leave
qualifies as FMLA, send
notice as to exactly how
much time is designated
If not possible to determine
time, provide every 30 days
on request of employee if
leave was taken within 30
day period
Must inform about Fit-forduty requirements and
essential job functions if
those are to be addressed
in Fit for Duty
Failure to designate –
employer is liable only if
employee can demonstrate
harm
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3. Failure to provide required notices (continued)
Best practice:

Electronic general notice is sufficient but it must
be accessible to employees and applicants.

If you have a handbook, general notice must be
in the handbook.

If no handbook, must distribute upon hire.
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4. Using a calendar year 12-month period
Regulations
(825.200(b))
Employer can choose the method by which the applicable 12 month period during which
employee is entitled to leave is measured (calendar, fixed year, measured forward or
rolling backward).
Best practice:


Rolling backward method provides that
each time an employee takes leave,
the employer looks backward 12
months to determine how much FMLA
time the employee has taken.
Each time an employee takes FMLA
leave the remaining leave entitlement
would be any balance of the 12 weeks
which has not been used during the
immediately preceding 12 months


Rolling backward method prevents
stacking of leave. The calendar method
allows for stacking.
Under the calendar method, an
employee can take 12 weeks of leave at
the end of one calendar year and
immediately take another 12 weeks at
the beginning of the new calendar year.
Caution: You must use the measured forward method for leaves to care for an
injured service member, regardless of the method chosen for other types of leave.
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5. Failure to calculate leave entitlement appropriately (continued)
Regulations
Regulations
(825.205(h))
(825.205(b))
Holidays within a full week of
FMLA are counted as FMLA.


If an employee is using FMLA
leave in increments of less than
one week, the holiday will not
count as FMLA unless the
employee was otherwise
scheduled to work during the
holiday.
If employer’s business activity has
temporarily ceased for one or
more weeks, the days the
employer’s activities ceased do
not count as FMLA.
The actual workweek is the
basis of leave entitlement to
determine how much FMLA
leave time an employee is
entitled to take.

For example, a 40 hour/week
employee is entitled to twelve
40 hour weeks of FMLA or 480
hours of FMLA.

A 20 hour/week employee is
entitled to 240 hours of FMLA.
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5. Failure to calculate leave entitlement appropriately (continued)
Regulations
Regulations
(825.200(b))
(825.205(c))
If an employee’s schedule varies
from week to week so that an
employer is unable to determine
with certainty how many hours
the employee would have
worked (but for the taking of
FMLA leave):

A weekly average of the hours
scheduled over the 12 months
prior to the beginning of the leave
(including any hours for which the
employee took leave of any type)
would be used for calculating the
employee’s leave entitlement.
If an employee would normally
be required to work overtime but
is unable to do so because of an
FMLA-qualifying reason:

The hours which the employee
would have been required to work
may be counted against the
employee’s FMLA entitlement but
must also be factored into the
employee’s entitlement.
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5. Failure to calculate leave entitlement appropriately (continued)
Best practice:


Take care to appropriately determine an
employee’s FMLA bank, factoring in the
employee’s normal schedule and any
required overtime.
Review an employee’s FMLA usage to
determine if a holiday falls within a full
week of FMLA.
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6. Failure to properly designate and track FMLA time
Regulations
Regulations
(825.300)
(825.205)
Employers must:
 Designate FMLA time
within 5 business days of
determining that leave
qualifies as FMLA.
Employers can:
 Track intermittent leave in
the smallest increment used
to track other forms of leave,
provided it is not more than
1 hour.
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6. Failure to properly designate and track FMLA time (continued)
Best practice:



If you fail to provide timely designation, you can
retroactively designate but you should ask the
employee if she relied to her detriment on your failure
to designate.
 If employee can demonstrate harm, you should not
retroactively designate.
If you have a problem with employees taking FMLA in
small increments to excuse late arrivals or late return
from lunch, adopt leave policies that require that
employees take leave in 1 hour increments.
 If employees want to take time for prescheduled
appointments, they must take time off in 1 hour
increments.
Generally, you cannot make an employee take more
FMLA than needed. However, there are exceptions for
physical impossibility, i.e. missed flights or trains,
clean rooms, etc.
Caution: You can only
deduct FMLA in 1 hour
increments if the
employee was not
allowed to work for the
full hour.
For example, you cannot
allow an employee to
arrive 15 minutes late,
begin work and still
deduct 1 hour from their
bank. Also, be careful of
employees who leave less
than 1 hour before the
end of their shift due to
medical reasons.
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7. Failure to use detailed medical certifications/proper
clarification and authentication
Regulations
Best practice:
(825.305)
Employer must provide employee written notice that a
certification is incomplete or insufficient including:
What additional information is necessary to make the
certification complete and sufficient.
The employer must provide the employee seven (7)
days to cure any deficiencies.

Use comprehensive medical
certification forms.

New DOL forms are
improved.

Return all incomplete and
insufficient certifications to
employee.

Contact medical provider to
clarify any answers that you
do not understand. Do not
allow supervisor to contact
HCP.

Authenticate all questionable
certifications.
Regulations
(825.307)
Employer can contact the Health Care Provider for
clarification or authentication.
Contact can be made by a human resources
professional, a leave administrator, or a
management official.
Caution: The employee’s immediate
supervisor cannot make contact.
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8. Failure to request a new certification and redetermine
eligibility in new leave year
Regulations
Best practice:
(825.300(b)(2);
DOL Opinion Letter 2005-3-A:

Establish the one year period of
eligibility for each leave request/
reason. Do not redetermine eligibility
prior to that time.

Re-evaluate eligibility upon the first
absence in the new leave year.
Employees with ongoing intermittent
leaves for chronic conditions may
become ineligible due to hours
worked.

Request a new certification if the
employee continues to be eligible.

Authenticate, clarify and request
2nd/3rd opinions on the new
certification as warranted.
Once an employee is determined to be eligible for
FMLA, (s)he remains eligible for one year for that
leave reason.
Regulations
(825.305(e)):
When the employee’s need for leave lasts beyond
a single leave year, the employer may require the
employee to provide a new medical certification in
each subsequent leave year.
The new medical certification is subject to
authentication/clarification and second and
third opinions.
.
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9. Improper use of recertification
Regulations
Best practice:
(825.308)
Recertification cannot be
requested more often than
every 30 days unless:
an extension is requested,
an employer has reason to
doubt the validity of the leave
request,

the circumstances of the
leave have changed, or

Recertify at a minimum of
every 6 months.

Recertify patterns of absence
(i.e. Monday/Friday).

Recertify absences that
exceed stated frequency and
duration.

Recertify if you receive
information that questions
validity.

Utilize clinical resources to
determine whether/when to
recertify unknown or
indefinite conditions.

the minimum duration has
expired.

Regardless of the
minimum duration of
the condition,
recertification can be
requested every six
months.
The DOL clarified
that this applies even
to “unknown and
indefinite” conditions.
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10. Failure to monitor intermittent leaves closely
Best practice:
Check certifications carefully:



Require the Health Care Provider to
certify that leave is medically
necessary.
Require probable frequency and
duration of episodes, if known.
Require estimated treatment
schedules, including recovery,
if known.
Monitor absences:





Monitor whether absence is for
treatment or episodes.
Watch for patterns of absence.
Consider requiring employees to take
bonding/adoption leave in continuous
block.
Request recertifications as often as
possible.
Require employees to attempt to
schedule planned medical treatment
at less disruptive times.
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Conclusion

The FMLA regulations that became effective in
2009 provide employers with mechanisms by which
we can better curb FMLA abuse.

However, there are also some traps employers
can fall into if they do not review the regulations
carefully and administer leave requests
appropriately.

Employers should adopt leave policies that allow
the employer to prevent abuse while maintaining
compliance.

Always remember to consider state leave laws
when evaluating employee leave requests.
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FX-3358 (11-13)
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This program has been submitted for 1.25
(General) recertification credit hours
toward PHR, SPHR and GPHR
Health
&
Wellness
and
employee
recertification through the HR Certification
motivation:
Institute.
Making the connection
Please note that the program ID number to apply
for HRCI credit will be emailed to all attendees
once we receive
theand
approval
from theSolutions
HR
Health
Productivity
Certification Institute.
Kristin Tugman| August 27th 2013
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References Continued
13. Leiter, M.P., Jackson, N.J.,Shaughnessy, K., (2009). Contrasting burnout, turnover intention, control, value
congruence, and knowledge sharing between baby boomers and generation X. Journal of Nursing
Management, 17, 100-109.
14. Sommers, D. & Franklin, J.C., (2012). Employment outlook : 2010-2020: Overview of Projections to 2020.
Monthly Labor Review, Bureau of Labor Statistics, 1-20.
Thank you for your participation
15. James, J.B., Swanberg,
& McKenchie,
S.P. (2007). Generational presentation.
differences in perceptions of older
in the J.E.,
UBA
WisdomWorkplace
workers’ capabilities. The Center on Aging Work and Workplace Flexibiltity, 12, 1-10.
To view a recording of this presentation, or to register for future
presentations,
contact
local
UBA
Partner
Firm.
16. Golden,
M. (2013). 7 ways generation
X’ers differyour
from baby
boomers.
Retreived
2013,
http://top7business.com/?Top-7-Ways-Generation-Xers-Differ-From-Boomers&id=1860
17. Boychuk-Duchscher, J.E., & Cowin, L. (2004). Multigenerational nurses in the workplace. JONA, 34(11), 493501.
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