1 / 75

The Certification Process and Serious Health Conditions

Which Direction?. The Certification Process and Serious Health Conditions. Presented by Kira Fonteneau. NOTICE TO ALL EMPLOYEES Sick Leave Policy We will no longer accept a doctor statement as proof of sickness. If you are able to go to the doctor, you are able to come to work. SURGERY :

blanca
Download Presentation

The Certification Process and Serious Health Conditions

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Which Direction? The Certification Process and Serious Health Conditions Presented by Kira Fonteneau

  2. NOTICE TO ALL EMPLOYEES Sick Leave Policy We will no longer accept a doctor statement as proof of sickness. If you are able to go to the doctor, you are able to come to work. SURGERY: Operations are now banned. As long as you are an employee here, you need all your organs. You should not consider removing anything. We hired you intact. To have something removed constitutes a breach of employment. PERSONAL DAYS: Each employee will receive 104 personal days a year. They are called Saturday and Sunday. VACATION DAYS: All employees will take their vacation at the same time every year. The vacation days are as follows: Jan. 1, July 4 & Dec. 25. BEREAVEMENT LEAVE: This is no excuse for missing work. There is nothing you can do for dead friends, relatives or coworkers. Every effort should be made to have non-employees attend to the arrangements. In rare cases where employee involvement is necessary, the funeral should be scheduled in the late afternoon. We will be glad to allow you to work through your lunch hour and subsequently leave one hour early, provided your share of the work is done enough. OUT FROM YOUR OWN DEATH: This will be accepted as an excuse. However, we require at least two weeks notice, as it is your duty to train your own replacement. Thank you for your service! -- Management

  3. TOPICS Current FMLA Data Defining a “Serious Health Condition” Intermittent and Reduced Schedule Leave Notice Requirements Recent DOL Decisions Pending Federal FMLA Legislation

  4. Current FMLA Data

  5. Costs to Implement FMLA 2004 Lost Productivity 4.8 billion Health Benefits 5.9 billion Replacement of Workers 10.3 billion Total Direct Costs 21 BILLION Source: Employment Policy Foundation Analysis of EPF FMLA Survey

  6. Distribution of FMLA Costs By Industry, 2004 Other 12% Manufacturing 18% Financial Services 9% Telecomm. 25% Transportation 31% Trade 5% Source: Employment Policy Foundation Analysis of EPF FMLA Survey.

  7. Percent of Employees Who Took FMLA in 2004 Health Care Education Financial Services Telecommunications Retail/Wholesale Trade Transportation Utilities Manufacturing 0% 5% 10% 15% 20% 25% Source: Employment Policy Foundation Analysis of EPF FMLA Survey.

  8. What Do the 2004 Statistics Reveal? FMLA Leave Becoming More Frequent - 14.5% of all employees took FMLA leave. - 35% took leave more than once. Intermittent Leave Common - 30% of leave was less than 5 days in length. - 20% was for one day or less. Employee Notice Often Not Provided - Nearly 50% of all leave-takers do not provide notice before the day leave is taken. Source: Employment Policy Foundation Analysis of EPF FMLA Survey

  9. Foot Rash? Daughter’s Pregnancy? Drunkenness? Defining a Serious Health Condition Sick Spouse? Trip to Vegas? Toothaches? Son’s ADHD? Stress? Sinusitis? GERD??? Flu? Eye Injury? Broken Bones?

  10. FMLA Definition of a“Serious Health Condition” Injury, impairment, or physical or mental condition involving: Inpatient care in a hospital, hospice, or residential medical care facility; or Continuing treatment by a health care provider. 26 U.S.C. § 2611(11). Continuing treatment by a health care provider requires incapacity to work due to a serious health condition “of more than three consecutive calendar days” and Treatment two or more times by a health care provider, or Treatment one time by a health care provider resulting in a regimen of continuing treatment under the health care provider’s supervision. 29 C.F.R. § 825.114(a)(2).

  11. Minimizing Employer Mistakes Failure to Grant FMLA Leave Because of a Misunderstanding of What Qualifies as a “Serious Health Condition” [29 C.F.R. 825.114] Must be left entirely to health care professionals Incapacity to perform the essential functions of the position the employee applies at the time the employee misses work

  12. Minimizing Employer Mistakes Employers must remember that: (1) incapacity for more than three consecutive days is not a prerequisite for leave if there is an overnight hospitalization, pregnancy, or chronic serious health condition, and (2) treatment alone—even without “incapacity”—is a sufficient basis for FMLA leave in cases of overnight hospitalization, prenatal care, chronic serious health conditions, or conditions that would likely result in more than three consecutive days of incapacity.

  13. Recent Decisions Serious Health Conditions

  14. Beaver v. RGIS Inventory Specialists, Inc.2005 WL 1607045 (6th Cir. Jul. 7, 2005) Plaintiff’s sinusitis, bronchitis, and ear infection did not constitute a “serious health condition” under the FMLA because “[t]he legislative history of the FMLA makes it clear that routine, commonplace illnesses of short duration are not covered by the statute.” S. Rep. No. 103-3 (1993): Minor illnesses lasting only a few days and outpatient surgical procedures requiring a brief recovery period are normally not covered.

  15. Russell v. North Broward Hosp.346 F.3d 1335 (11th Cir. 2003) When defining a “serious health condition,” the phrase “more than three consecutive calendar days” means a continuous period of incapacity extending more than 72 hours, and therefore, a hospital employee who was absent from work for seven consecutive partial days of incapacity after she slipped and fell at work did not have a “serious health condition” covered by the FMLA.

  16. Perry v. Jaguar of Troy353 F.3d 510 (6th Cir. 2003) The fact that an employee’s child has ADD and/or ADHD does not necessarily qualify as a “serious health condition” under the FMLA. In this case, plaintiff’s son’s conditions were not “incapacitating.” He could attend school and engage in the same daily activities in which most children engage.

  17. Davis v. Boise Cascade Corp.2005 WL 1324017 (D.Minn. June 3, 2005) Even normally minor illnesses can be serious health conditions if they satisfy the regulatory tests for serious conditions. In this case, fact questions existed as to whether plaintiff’s toothache resulted in more than three days of incapacity and received qualifying treatment. Test: Plaintiff must produce objective evidence of: Period of incapacity requiring absence from work; Period of incapacity exceeds 3 days; Proof that employee received continuing treatment by health care provider within the period

  18. Dominick v. Ver Halen, Inc.2003 WL 23095738 (W.D. Wis. Mar. 10, 2003) The FMLA regulations do not support defendant’s interpretation that “treatment” is limited to treatment addressing chronic dependency issues as opposed to treatment for acute physical symptoms resulting from alcohol abuse.

  19. Fioto v. Manhattan Woods Golf Enters. 270 F. Supp. 2d 401 (S.D.N.Y. 2003) Without evidence that employee was needed “to care for” his mother physically or psychologically, employer did not violate FMLA by firing employee who took day off work to be present while his dying mother underwent emergency brain surgery.

  20. Tellis v. Alaska Airlines, Inc. 414 F.3d 1045 (9th Cir. 2005) An airline mechanic’s regular telephone calls to his pregnant wife while spending three days driving cross-country to bring her a more reliable car cannot be considered “caring for” his wife under the FMLA.

  21. Municipality of Anchorage v. Gregg101 P.3d 181 (Alaska 2004) Multiple adverse health conditions, although minor in isolation, may collectively incapacitate an employee for purposes of the FMLA.

  22. Brenneman v. MedCentral Health Sys.366 F.3d 412 (6th Cir. 2004) Employee did not receive continuing treatment under physician’s supervision for his intestinal flu, as required for such illness to constitute FMLA-qualifying serious health condition based upon one visit to physician, where FMLA certification document indicated that treatment regimen involved only leave from work, rest, and fluids.

  23. Blackburn v. Potter2003 WL 1733549 (S.D. Ind. Mar. 31, 2003) An adult child’s Cesarean section and subsequent recovery period may constitute an “incapacity due to pregnancy” that would allow her mother to take FMLA leave to provide care.

  24. Conrad v. Eaton Corp.303 F.Supp. 2d 987 (N.D. Iowa 2004) The fact that employee can perform his or her job functions at some hypothetical, non-existent workplace is irrelevant; the inquiry is focused on whether employee is able to perform the requisite job functions at his or her current place of employment.

  25. Intermittent and Reduced Schedule Leave

  26. FMLA Definition of Intermittent/Reduced Schedule Leave Intermittent: Leave taken in separate blocks of time due to to a single qualifying reason. Reduced: Leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A change in employee’s schedule for a period of time, normally from full-time to part-time. 29 C.F.R. § 825.203(a)

  27. Percent of Employees Who Took FMLA Due To Chronic Health Condition, 2004 Health Care Education Financial Services Telecommunications Retail/Wholesale Trade Utilities Manufacturing 0% 10% 20% 30% 40% 50% Employment Policy Foundation Analysis of EPF FMLA Survey. This FMLA Survey by the EPF found that, on average, chronic health conditions accounted for 27 percent of FMLA leave. Because chronic conditions that qualify for FMLA leave are a subset of all serious health conditions, the occurrence of intermittent leave, as well as of leave due to serious health conditions, is likely much greater.

  28. When Intermittent/Reduced Schedule Leave is Permitted “for planned and/or unanticipated medical treatment of a related serious health condition . . .;” “for recovery from treatment or recovery from a serious health condition;” “for prenatal examinations or for [a pregnant employee’s] own condition;”

  29. When Intermittent/Reduced Schedule Leave is Permitted • “to provide care or psychological comfort to an immediate family member with a serious health condition;” and even • “for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition . . . .” 29 C.F.R. § 825.203(b)

  30. Length of Intermittent Leave • No limit on the length of intermittent leave. • Employer may limit leave increments to the shortest period of time that employer uses to account for absences of leave under its payroll system. • Employee’s pay may be docked for any day or part of a day taken pursuant to FMLA leave without affecting employee’s status as exempt under the FLSA. • Pay may be docked only for the time actually taken for leave. 29 C.F.R. §§ 825.206(a), 825.205(a). Ex: Exempt employee who takes intermittent leave for a two-hour doctor’s appointment may only be docked for that period of time.

  31. Employee Requests for Intermittent Leave Intermittent leave need only be requested and approved one time during any given FMLA 12-month period. 29 C.F.R. § 825.302(a)

  32. When May An Employer Request Recertification? • Employee requests an extension of leave. • Circumstances described by the previous certification have changed significantly. • Employer receives information that casts doubt upon the continuing validity of the certification.

  33. Scheduling of Intermittent Leave Employees seeking intermittent leave “must attempt to schedule their leave so as not to disrupt the employer’s operations . . . Subject to the approval of the health care provider.” Section 825.302(e) effectively puts the burden on the employer to “initiate discussions with the employee and require the employee to attempt to make such arrangements, subject to the approval of the health care provider.”

  34. Reassignment Rights During Intermittent Leave An employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent or reduced leave schedule. 29 C.F.R. § 825.117

  35. Minimizing Employer Mistakes • Controlling Abuse of Intermittent Leave • Consider requiring a new certification. • Require an initial certification no less than every 12 months. • Force the employee’s certifying physician to provide concrete information.

  36. Minimizing Employer Mistakes Controlling Abuse of Intermittent Leave • Require the employee to provide written verification whenever the employee’s intermittent leave is based on the need to be present at some location. • Look for any suspicious patterns of unscheduled absence and consider seeking recertification based on “changed circumstances.”

  37. Minimizing Employer Mistakes Controlling Abuse of Intermittent Leave • Consider requiring the physician to provide verification on a verification form that the absence does not require a new certification. • Make use of temporary transfers to deal with intermittent absences that cause dislocations.

  38. Recent Decisions Intermittent/Reduced Schedule Leave

  39. Sabbrese v. Lowe’s Home Ctrs. 320 F. Supp. 2d 311 (W.D. Pa. 2004) Leave taken by a diabetic employee, who has to eat to correct low blood sugar when medically necessary, may qualify as intermittent leave under the FMLA. An employee may need to take an unforeseeable intermittent leave in cases where a medical emergency renders an employee unable to comply with the employer’s policy.

  40. Banks v. Armed Forces Bank 126 Fed. Appx. 905 (10th Cir. Mar. 28, 2005) When an employee is correctly informed about an employer’s contrary policy as well as employee’s options well before the beginning of requested FMLA leave, an employer is not estopped from denying employee intermittent FMLA leave to care for a new child, even though employer initially represents that such leave is available and employee acts in reliance on such representation.

  41. Headlee v. Vindra, Inc. 2005 WL 946981 (N.D. Cal. Apr. 25, 2005) An employer may be equitably estopped from denying employee intermittent FMLA leave to take 12 consecutive Fridays off to drive her daughter to chemotherapy treatments, if employee proves that she reasonably relied on employer’s letter originally approving such leave and that she was harmed as a result of employer’s failure to honor its approval for leave.

  42. Notice Requirements

  43. Amount of Prior Notice Given Among FMLA Leave Takers in 2004 More than 1 day After Leave Taken Same Day, But At or After the Start of Leave Same Day, But Prior to Start of Leave Less than a Week, More than a Day 1 Week or Greater 0% 5% 10% 15% 20% 25% 30% 35% 40% Source: Employment Policy Foundation Analysis of EPF FMLA Survey.

  44. FMLA Notice Requirements Foreseeable Leave: At least 30 days notice is required by employee for situations such as expected birth, placement for adoption, or foster care, or planned medical treatment; or when 30 days notice is not possible, at least a verbal notification to employer within 1 or 2 business days of when leave becomes known. Unforeseeable Leave: In extraordinary circumstances where advanced not is not feasible, notice should be provided to employer as soon as practicable, considering the exigencies of the situation. 29 C.F.R. §§ 825.302, 825.303

  45. Minimizing Employer Mistakes • Employees need not mention the FMLA by name when requesting leave. • Employees must provide a reason(s) for the absence to allow employer to determine whether leave is FMLA qualifying. • 29 C.F.R. § 825.303(b)

  46. Minimizing Employer Mistakes • Currently it is the employer’s responsibility of designating leave, paid or unpaid as FLMA leave. • After notice is received, employer must inform employee (within 2 business days) that the leave has been designated FMLA leave. • Notice can be given orally or in writing, but verbal notice must be confirmed in writing by the following payday. • 29 C.F.R. § 825.208

  47. Minimizing Employer Mistakes Notice of employees’ FMLA rights MUST be posted! 29 C.F.R. § 825.300(a)

  48. Recent Decisions Notice Requirements

  49. Brenneman v. MedCentral Health Sys. 366 F.3d 412 (6th Cir. 2004) The test for sufficient notice of a serious health condition under the FMLA is whether the information that the employee conveyed to the employer was reasonably adequate to apprise the employer of the employee’s request to take leave for a serious health condition that rendered him unable to perform his or her job.

  50. Brock v. United Grinding Tech., Inc. 257 F. Supp. 2d 1089 (S.D. Ohio 2003) Former employer did not violate FMLA by discharging employee for failing to provide a doctor’s note upon his return to work after he had been out because he was “sick,” where employer was not on notice that employee intended to use FMLA leave; although employee had previously taken FMLA leave for depression, there was no indication that he was absent due to depression at the time employer requested a doctor’s note.

More Related