sarah k. willey - miller johnson · incomplete certifications do not meet the employee’s...

© 2018 Miller Johnson. All rights reserved. 1

Sarah K. Willey

The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.

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Managing intermittent FMLA leave 8/40 hour work restrictions

Social Media and misuse of time off work

Addressing job performance/misconduct in the context of health concerns Evaluating essential job functions

Mental health conditions

Leaves of Absence

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Your production facility has several open positions, and all employees are working overtime… with no end in sight

Tom gives this note to his supervisor:

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Patient limited to working 8 hours per day and 40 hours per week; no weekend work


ConsiderationsMandatory overtime is covered by the FMLA

Calculation of bank – either normal schedule or average assigned hours over 12 months prior to commencement of leave

If not FMLA, evaluate ADA

Overtime an essential job function

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1. Make sure the eligibility requirements are met every time a new leave is granted

2. Use the certification procedure to your advantage

3. Have a set call-in procedure4. Be aggressive with misuse of FMLA leave

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1250 hours in the past 12 monthsActual time worked

FMLA leave does not count

12 total months of employment

Determined at the commencement of the leave

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At the commencement of each leaveOnce intermittent leave is approved, it is a single

leave

The employer cannot require the employer to re-establish eligibility for each absence

If an employee requests leave for a different reason, eligibility must be satisfied

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Eligibility lasts through the 12 month period designated by the employer

Rolling backward Eligibility is re-calculated as of the first absence for

the condition after the 12-month period has ended

(DOL Opinion Letter FMLA 112 (9/11/00))

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Critical sections on Medical Certification Form [See Attachments]: PART A: MEDICAL FACTS

What date condition commenced

Probable duration of condition

Date(s) employee was treated for the condition

Whether employee will need to have treatment at least twice per year

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Critical sections on Medical Certification Form: PART A: MEDICAL FACTS

Whether the employee is unable to perform any of his / her job functions

Identify those job functions

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This is an opportunity to ask how the employer can help the employee perform those essential job functions.

Examples: Tom Employee frequently late to work due to medication

Employee leaving early due to migraine headaches

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Critical sections on Medical Certification Form: PART B: AMOUNT OF LEAVE NEEDED

Whether employee will be incapacitated for a single period of time

Whether employee will need to attend follow-up appointments

If there will be episodic flare-ups, estimate the frequency and duration

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Did ER require Med Cert?

Was Med Cert timely provided?

Was Med Cert “complete”?

Does ER question authenticity of Med

Cert?

Does Med Cert need clarification, e.g.,

duration?

Is there a FMLA leave need based on

Med Cert?

Does ER reasonably doubt the validity

ER must notify EE of “incomplete” Med Cert and give EE

opportunity to cure

Did EE provide revised Med Cert

that is “complete”?

Seek EE permission for ER HCP to contact HCP who signed Med

Cert.

ER HCP may contact signing HCP to clarify/authenticate Med Cert.

No ER contact with signing HCP allowed

Did info provided by EE show there is need for

leave covered by FMLA

Use FMLA procedure for second and third

opinions

Grant FMLA leave

Yes

No

Yes No

No

No

No

Yes

Yes

Yes

Yes

No

No

No

Yes

EE grants permission

EE denies permission

Yes

Yes

Deny FMLA leave

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Certification must be completeComplete means that all relevant portions are fully

completed

Incomplete certifications do not meet the employee’s obligation

Give the form back to the employee, identify the deficiency, and set a new date for the completed form to be returned – in writing

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Authentication / Clarification processMust have permission from employee (use

the certification form)

Use a health care provider to clarify / authenticate cert

Establishing relationships with health care providers for this purpose is very valuable

Make sure the employer’s health care provider fully understands the concerns with the certification

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Reason to doubt the validity of the need for leave (e.g., Tom)

Goal might be to narrow the scope of intermittent leave (e.g., unlimited / unknown need to once every month)

At the employer’s expense

Carefully choose a provider Cannot be provider with whom the employer regularly contracts

There is nothing unlawful about asking those providers for referrals

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Medical Certifications for conditions with lengthy or indefinite durations: Recertifications (limited value)

Every 6 months

Circumstances have changed significantly

The employer receives information that casts doubt on the stated reason for the absence or the validity of the certification

New certifications

With first absence for the condition in the new leave year – second/third opinions

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Written policy Require notice of absence / tardy within certain

period of time

Require notice for each day of absence / tardy

Call particular person/people

Tom – must provide notice every time he does not work overtime due to flare-up of his condition

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Centralized system with trained personnel

For ALL time off work (even if leave early)

Specific reason for the absence

– “sick” is not enough

When employee expects to return

Whether employee has been takenoff work by a healthcare provider (if so, for how long)

Whether employee has seen a health care provider

Whether employee is on medication

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Misuse of FMLA leave is unprotected FMLA does not prohibit investigation of an

employee’s activities while using FMLA leave Intermittent leave is FMLA-protected only if it is

medically necessary “Family member” leave is authorized only “to

care for” that person “New child” leave is only for birth, placement,

or “to care for the newborn child”Other uses are not FMLA leave and may be

fraudulent

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Example of real life Facebook postings: “Ok, way 2 much time off work, I’m bored!!! Who

wants 2 hang out or go out 2nite? I’m ready !!”

“Had a great wkend, job interview in the morning, then to visit my mom, and maybe a bike ride.”

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Follow standard internal investigation procedures

What does the certification say? Reason for leave – Flare-up? Treatment?

Estimated duration

What is the reason for the absence?

What does the employer know about the absence?

Is there an opportunity to learn more information?

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To defend an employment decision based on FMLA fraud, the employer must show that it had an honest suspicion of dishonesty.

On what evidence might an employer rely? Rumor

Admission by employee

Documentation

Employers can be asked to participate in an internal investigation during FMLA leave.

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Under the ADA, employers have an affirmative obligation to: Provide reasonable accommodations to qualified

individuals

Who have an actual disability or a disability record,

If such accommodations are necessary for them toperform the essential functions of the job theemployee performs

Reasonable accommodation process is critical

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The obligation to provide a reasonable accommodation to a disabled employee is triggered when the employee requests it

A request must be specific enough so that two issues are clear to the employer: First - The employee has a disability that is causing

a work-related limitation, and

Second - The employee believes that an accommodation is needed in order to do the job

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A disability is a physical or mental condition that makes it more difficult for an individual to do something important, or that impacts one of his or her major bodily functions in comparison to the general population

Short-term conditions are disabilities if they are “substantially limiting”

An individual with back impairment that results in a 20-pound lifting restriction that lasts for several months is disabled

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Here is what the EEOC says:

When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition

To request accommodation, an individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation”

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Critical analysis = Can the disabled employee perform the essential functions of the job, with or without a reasonable accommodation? Is what the employer asking the employee to do

actually an “essential” job function?

Employers are falling into the trap of relying on job descriptions without confirming their accuracy and relevance to the job at handAlso, job requirements are not limited to the

content of job descriptions

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The employee must have the ability to perform the essential job functions:

With

Or without reasonable accommodations

Essential functions are distinguished from marginal functions

Just because a job function is listed on a job description does not mean that it is an essential job function

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Performing work at the work site, rather than from home, can be an essential job function, but employers must include that in the job description and be prepared to prove it

EEOC v. Ford Motor Company: Ford refused to allow an employee with IBS to temporarily telecommute based on the argument that she could not effectively perform her job without on-site interaction with co-workers

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Upon receiving a reasonable accommodation request, the employer must engage in the interactive process

The bottom line – the employer should make every reasonable attempt to help the employee be successful

This is usually not a quick or easy process

BUT, the employee must ultimately be able to perform the essential job functions

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Accommodation must be provided up to the pointof undue hardship

Undue hardship means that an accommodation would be:

Unduly costly

Substantial

Disruptive

Would fundamentally alter the nature or operation of the business

Employers are not required to allow an employee to work if there is a direct threat to the employee or others

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Potential accommodation under the ADA

Only with regard to leave for an employee’s own serious health condition

Critical to have a process in place, including a medical verification form

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EEOC position: Leave of absence is intended to allow an employee

to get to the point where the employee is able to perform the essential functions with or without reasonable accommodation

100% healed rules illegal

Specific time frames where terminated illegal

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An employer must engage in the interactive discussion process with an employee who needs leave as a reasonable accommodation

The employee has obligations to include: Telling the Employer an accommodation is needed

Meeting and discussing relevant information about the leave

The Employer may need more information about the disability

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An indefinite leave really is an undue hardship The employee’s inability to state “whether or when

she will be able to return to work at all” is an indefinite leave

It is critical to evaluate whether or not there is an estimated date of return to work

Important– notes from providers stating, “Sarah is off work until _____...” is usually not an estimated date of return to work

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You must be responsive to RTW accommodation requests from employees on ADA leaveAn employee may make this request

An employee may provide restrictions to RTW from a health care provider

100% healed policies violate the ADA

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You must consider reassignment as part of the RTW reasonable accommodation process When?

Where the employee is unable to perform the essential functions of his / her prior position even with a reasonable accommodation

Where the RTW in the prior position creates an undue hardship

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You must consider reassignment as part of the RTW reasonable accommodation process Disabled employee gets the open & available

position

No requirement to compete for the position

Employee just needs to be marginally qualified [need not be the best applicant]

Exception: Uniformly applied seniority system

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You really are required to hold the employee’s position open for him / her for RTW after the leave ends Unless you are able to show undue hardship in

holding the position open

Then you must consider “reassignment” to an open and available position and hold that position for the employee until the leave ends

You need to communicate any reassignment to the employee on leave

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“An employee who is unable to come to work on a regular basis is unable to satisfy any of the functions of the job in question, much less the essential ones.”

Moore v. Payless Shoe Source, Inc.

Employers need not accommodate erratic or unreliable attendance especially where there is no anticipated date when the employee could be expected to regularly attend work. Basden v. Professional Transport, Inc.

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The Magic Question: Is there anything we can do to help you successfully meet our attendance expectations? Schedule change

Open and available position

Modifications at work

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45 Ottawa Ave SWSuite 1100Grand Rapids, MI 49503

100 W Michigan AveSuite 200Kalamazoo, MI 49007

millerjohnson.com

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Sarah Willey

269.226.2957

[email protected]

sarah k. willey - miller johnson · incomplete certifications do not meet the employee’s...

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