Navigating the complex world of leave management, a review of key state and federal regulations. What you need to know to stay in compliance in 2016.
In This Webinar We Covered:
- Updates on State & Federal leave laws and ADA compliance
- Recent case law developments
- Evolving options to support employers with leave and ADA administration
Questions and Answers from Webinar:
Question: So when someone calls in using an FMLA day you are saying that we can ask for specific details – if that is the case, what questions should we ask?
Answer: You can ask enough questions to know that the absence qualifies under the FMLA and is covered by the certification you have on file. Each scenario will be different, but in general, you should ask for the general reason for leave (not diagnosis, but if the employee has multiple FMLA leaves, enough to know which one applies) and whether the absence is related to an episode or a treatment (or recovery from a treatment). This allows the employer to ensure the absence is truly qualifying and supported by certification.
Question: How does the Kings Aire case stating that an employer has an obligation to designate FMLA for a qualifying absence work with the case from the 9th circuit court that determines that an employee can waive FMLA protections?
Answer: Most employment lawyers disagree with the ruling on the Escriba case and recommend their client employers continue to designate FMLA (or at least provide the employee an opportunity to certify). Here’s a good article on the case and how most employment firms view the decision: http://www.fmlainsights.com/can-an-employee-decline-fmla-leave-even-though-the-absence-is-covered-by-the-act-court-says-yes/
Question: How does FMLA & OFLA relate to an employee who is a surrogate. Does it cover the time the ee is required by the surrogacy agency to meet with the prospective parents?
Answer: Pregnancy is definitely a serious health condition (SHC) so once a surrogate becomes pregnant, the FMLA and OFLA apply. However, prior to the pregnancy, the absences for pregnancy to occur (in vitro, parental meetings, etc.) are typically not covered as there is no (SHC).
Question: How far back should we be willing to cover past absences under FMLA?
Answer: There is nothing specific in the regulations – only that an employer can retroactively designate as long as it does not cause any harm to the employee. It really becomes a case-by-case analysis regarding the harm but also, any internal policies an employer may have about providing notice for leave. As always, an employer should be consistent in decisions to retroactively designate.
Question: When asking for re-certification, who should pay for any related fees? For example, I’ve seen physicians ask for a $20 paperwork fee. Is it best practice for the employer to pay this, and if so, how is it best handled?
Answer: It depends on what state the employee is in. Under the federal FMLA, the obligation for any payment is up to the employee. However, some state leave laws require the employer to pay for anything not covered by medical insurance. OFLA is one of those leave laws (in addition to laws in CT, and HI).
Question: Does an employee have the right to decline FMLA designation if an employer indicates that intermittent absences are likely FMLA? If so, what are the employer options if the employee does decline.
Answer: There is conflicting case law in this area (see question #2 above). The general recommendation is to send the employee the required eligibility notice and rights and responsibilities and request certification. If the employee chooses not to respond and submit certification, then the absences will not be protected. But the employer is protected as they fulfilled their obligations under the FMLA.
Question: How do State leave laws differ from Federal laws? And, which takes precedence? Specifically Oregon…
Answer: State laws can vary in a number of ways. They can have different eligibility requirements and cover different reasons for leave. For example, under OFLA, an employee must be employed at least 180 calendar days and work an average of 25 hours per week (the hours per week requirement does not apply if the employee is taking parental leave) to be eligible. FMLA requires the employee work 12 months, 1250 hours and work at a location with at least 50 employees in a 75 mile radius. Neither law takes precedence – each law stands alone. If the employee meets the requirements for both, he/she is eligible for both. But if he/she only meets the requirements for one of the laws, then he/she is eligible for only that law. That said, where differences are minimal, an employer can choose to apply the more generous standard to both. For instance, for a serious health condition to qualify as chronic, the FMLA requires the condition requires treatment at least twice per year. OFLA does not include that requirement for chronic conditions. If certification supports a chronic condition under the less stringent OFLA requirements, an employer can apply that standard to the FMLA concurrently.
Question: When seeking clarification of an FMLA request, is the employer allowed to contact the healthcare provider directly?
Answer: Under the FMLA, yes; but state leave laws vary. Under the FMLA, the employer can make the contact directly as long as it is not the employee’s manager making the contact. OFLA requires a health care provider on behalf of the employer make the contact. CFRA does not allow for clarification.
Question: Can you provide an example of ADA-specific items that could be listed as essential functions for a typical office job?
Answer: Possible essential functions of a typical administrative job could be typing, speaking on the phone, writing/documentation and effective verbal communication/interaction with others. The Job Accommodation Network (JAN) has a great resource on the development of job descriptions. It explains essential functions and how to identify them. This resource can be found here: https://askjan.org/media/jobdescriptions.html
Question: Can employers require use of paid vacation & or sick leave for FMLA absences, up to the point of exhausting those benefits?
Answer: Under the FMLA, an employer can require the employee use earned paid time offer during unpaid FMLA leave. State leave laws can vary for this requirement so you should always check the substitution provisions for any applicable laws.
Daris Freeman, Assistant Counsel, Unum
Ms. Freeman provides general employment law support for Unum, her primary responsibility is to support Unum’s Leave Management Center which administers FMLA, ADA and over 200 complementary state laws. Daris received her Bachelor of Science degree in Organizational Management from Covenant College, her Juris Doctor from the Nashville School of Law, and is licensed to practice law in the State of Tennessee. She is a certified trainer for SHRM and CE credit and is a frequent speaker on FMLA and ADA.