Pro-active Approaches to the FMLA: Using Rules and Regulations to Your Advantage

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July 26, 2018


I. Deadlines and Notices

A. General Posters and Employee Handbooks 29 CFR § 825.300(a)

1. Employment Poster

a. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division.

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b. The notice must be posted prominently where it can be readily seen by employees and applicants for employment.

c. The poster and the text must be large enough to be easily read and contain fully legible text. Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements the regulations.

d. Employers covered by the FMLA must post this general notice even if none of their employees are eligible for FMLA leave.

e. An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $110 for each separate offense.

2. Employee Handbook §825.300(a)(3)

a. If an FMLA-covered employer has any eligible employees, it shall also provide this general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist.

b. An employer with no employee handbook may instead distribute a copy of the general notice to each new employee upon hiring.

c. Distribution of the handbook and/or general notice may also be accomplished electronically.

d. The format of the handbook provisions and/or general notice may duplicate the DOL form WHD Publication 1420 at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf or may utilize a different format as long as all of the information contained in the DOL form.

e. Where an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer shall provide the general notice in a language in which the employees are literate.

f. Employers furnishing FMLA notices to sensory-impaired individuals must also comply with all applicable requirements under Federal or State law.

B. Notices from Employee to Employer

a. In General. §825.302(a).

a. Timing. Generally, an employee must give at least 30 days advance notice of a need for FMLA leave if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of the employee or of a family member, or the planned medical treatment for a serious injury or illness of a covered servicemember.

i. In those cases where the employee is required to provide at least 30 days notice of foreseeable leave and does not do so, the employee shall explain the reasons why such notice was not practicable upon a request from the employer for such information.

b. Exceptions. If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable.

i. As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.

  • For example, an employee's health condition may require leave to commence earlier than anticipated before the birth of a child. Similarly, little opportunity for notice may be given before placement for adoption.

ii. For foreseeable leave due to a qualifying exigency, notice must be provided as soon as practicable, regardless of how far in advance such leave is foreseeable.

iii. Notice need only to be given one time regardless of whether FMLA leave is to be continuous or is to be taken intermittently or on a reduced schedule basis.

iv. An employee shall advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.

v. Unforeseeable Leave. §825.303(a). When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case.

vi. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave.

b. Content of General Employee Notice. §825.302(c). An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.

a. Example. Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee's family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, that a covered military member is on active duty or call to active duty status, and that the requested leave is for one of the reasons listed in the regulations; if the leave is for a family member, that the condition renders the family member unable to perform daily activities, or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence, if known.

b. Initial Request. When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA as long as the employee states a qualifying reason for the needed leave.

  • Case Note: An employee was found to have given sufficient notice when he called his supervisors and told one that he had been hit by a car and another that he would not return until he had recovered. Stimpson v. UPS, No. 08-2263 (6th Cir. 11-3-09) (reversing district court on this issue).
  • Case Note: An employer was aware that an employee had debilitating high blood pressure from lengthy absences he had taken in past. The employee’s wife called off for him on November 1 on the grounds that his blood pressure was elevated. When the supervisor returned the call, she gave him the precise reading of 180/110. The employee’s physician also faxed the employer to excuse him from work because of “hypertensive urgency.” The employer did not request additional information and, instead, fired him on November 2 for poor attendance. The Court found the employee had put the employer on sufficient notice that his absence might be covered by the FMLA and the employer failed to inquire further if it disputed this. Barrett v. Detroit Heading, LLC, No. 07-1792 (6th Cir. 2-17-09).

i. Latter Absences for Same Reason. When an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave.

ii. If the employee fails to explain the reasons for requesting leave, the leave may be denied.

c. Unforeseeable Leave. §825.303(b). An employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.

i. Example. Depending on the situation, such information may include that a condition renders the employee unable to perform the functions of the job; that the employee is pregnant or has been hospitalized overnight; whether the employee or the employee's family member is under the continuing care of a health care provider; if the leave is due to a qualifying exigency, that a covered military member is on active duty or call to active duty status, that the requested leave is for one of the reasons listed in the FMLA regulations, and the anticipated duration of the absence; or if the leave is for a family member that the condition renders the family member unable to perform daily activities or that the family member is a covered servicemember with a serious injury or illness; and the anticipated duration of the absence, if known.

ii. Initial Request. When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA.

iii. Latter Absences. When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act.

d. Employer Responsibility to Inquire. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. An employer may request medical certification to support the need for such leave.

i. Exingency/Caregiver Certification. An employer may also request certification to support the need for leave for a qualifying exigency or for military caregiver leave.

ii. When an employee has been previously certified for leave due to more than one FMLA-qualifying reason, the employer may need to inquire further to determine for which qualifying reason the leave is needed.

iii. An employee has an obligation to respond to an employer's questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.

iv. Unforeseeable Leave Requests. The employer will be expected to obtain any additional required information through informal means. An employee has an obligation to respond to an employer's questions designed to determine whether an absence is potentially FMLA-qualifying. Failure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.

CASE NOTE:

  • Constructive Notice of Leave. The Seventh Circuit in Chicago has excused employees from requesting FMLA leave when they are too ill to realize they need a medical leave. In one case, a long-time employee with a previously unblemished record freaked out over a stray puppy that had entered her workspace, engaged in bizarre and threatening behavior, called off sick for days on end due to the stray dog, and failed to provide the necessary medical certification to justify a medical leave of absence. Stevenson v. Hyre Electric Co., 505 F.3d 720 (7th Cir. 10/16/07). In another, another long-time employee with a clean record fell asleep at work. The Court has analogized the situation to when the employer sees an employee run over by a car: the need for leave is obvious. The Sixth Circuit has not yet adopted this theory.

C. Notices from Employer to Employee

1. Eligibility Notice §825.300(b)

a. When an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLAqualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances.

i. Notice may be written or oral. Employers may use the DOL Form WH-381 on the DOL’s website at http://www.dol.gov/whd/forms/WH-381.pdf.

ii. Where an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer shall provide the eligibility notice in a language in which the employees are literate.

iii. Employers furnishing FMLA notices to sensory-impaired individuals must also comply with all applicable requirements under Federal or State law.

b. Employee eligibility is determined (and notice must be provided) at the commencement of the first instance of leave for each FMLAqualifying reason in the applicable 12-month period (i.e., leave year). All FMLA absences for the same qualifying reason are considered a single leave and employee eligibility as to that reason for leave does not change during the applicable 12-month period.

  • Note: Once an employee is deemed eligible for leave for a particular FMLA qualifying reason for that leave year, s/he remains eligible for the rest of the leave year for that FMLAqualifying reason even if circumstances later change. For instance, if an employee had worked 1252 hours in the prior year before the first leave request for intermittent leave for migraines, but then fails to satisfy the 1250 hour requirement at the time of latter absences for migraines, the employee is still eligible for FMLA leave during that same leave year as long as the FMLA-qualifying reason remains the same.
  • Note: It is important to issue the eligibility notice whenever the reason for the medical leave is different than prior designations or the employer may waive its right to object during the leave year.

- No new eligibility notice is required for subsequent leave requests (for different FMLA qualifying reasons) in the same leave year if the employee’s eligibility status has not changed.

- If, however, the employee's eligibility status has changed, the employer must notify the employee of the change in eligibility status within five business days, absent extenuating circumstances. This could arise, for example if the employee has worked less than 1,250 hours of service for the employer in the 12 months preceding the commencement of leave for the subsequent qualifying reason or the size of the workforce at the worksite has dropped below 50 employees.

  • Case Note: In Davis v. Michigan Bell Telephone, 543 F.3d 345 (6th Cir. 2008) an employee began FMLA leave on December 13 for chronic depression and did not attempt to return to work until a month later on January 15. A new leave year began on January 1 because the employer used a calendar year basis. Although the employee had been eligible for FMLA on December 13, she was not eligible as of January 1 because she had not worked 1250 hours in the prior calendar year. The employer warned her that she was ineligible, but she still did not return to work until January 15. Therefore, her January absence was unprotected and she was terminated for poor attendance. It was irrelevant that her absence constituted consecutive days for purposes of calculating her FMLA eligibility.

The Court also rejected the employee’s argument that the employer should be estopped from denying FMLA leave on the basis that it did not give sufficient notice of her changed eligibility. The Court found that she was not entitled to FMLA if she were not eligible even if the employer was late in giving the eligibility notice. However, the Sixth Circuit later held that an employer could be estopped from denying FMLA leave to an ineligible employee IF the employer incorrectly informed the employee that he was eligible for FMLA leave AND the employee relied on that incorrect information. Dobrowski v. Jay Dee Contractors, Inc., 571 F.3d 551 (6th Cir. 2009). In the Dobrowski case, however, the employee still lost the estoppel claim because he could not show that he relied on the incorrect information in that he had scheduled his surgery before receiving the incorrect eligibility notice. The Court was unsympathetic tothe employee’s argument that he would have rescheduled his surgery if his leave had been denied.

c. Content of the Eligibility Notice:

i. The Notice must state if the employee is eligible for FMLA leave and, if not, at least one reason why not. For instance, the notice may explain “the number of months the employee has been employed by the employer, the number of hours of service worked for the employer during the 12-month period, and whether the employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.”

d. Written Notice of Rights & Responsibilities. Although the eligibility notice may be oral, the employer must simultaneously provide the employee with written notice of his/her rights and responsibilities any time the employer provides an eligibility notice. This R&R notice should explain the specific expectations and obligations of the employee and any consequences of a failure to meet these obligations.

i. Where an employer's workforce is comprised of a significant portion of workers who are not literate in English, the employer shall provide the eligibility notice in a language in which the employees are literate.

ii. Employers furnishing FMLA notices to sensory-impaired individuals must also comply with all applicable requirements under Federal or State law.

iii. The R&R Notice should include, as applicable:

  • That the leave – if it ultimately qualifies -- may be designated and counted against the employee's annual FMLA leave entitlement and the applicable 12-month period for FMLA entitlement;
  • Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to do so;
  • The employee's right to substitute paid leave, whether the employer will require the substitution of paid leave, the conditions related to any substitution, and the employee's entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave;
  • Any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse);
  • The employee's status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial;
  • The employee's rights to maintenance of benefits during the FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave; and
  • The employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.

iv. An employer may include other information, such as the medical certification form and information about whether periodic reports will be required during the leave of the employee’s status and intent to return to work.

v. The DOL has a sample form which employers may use on its website.

vi. If the specific information provided by the notice of rights and responsibilities changes, the employer shall, within five business days of receipt of the employee's first notice of need for leave subsequent to any change, provide written notice referencing the prior notice and setting forth any of the information in the notice of rights and responsibilities that has changed. For example, if the initial leave period was paid leave and the subsequent leave period would be unpaid leave, the employer may need to give notice of the arrangements for making premium payments.

e. Delayed Request for Medical Certification.

2. Designation Notice §825.300(d)

a. The employer is responsible for designating leave as FMLAqualifying, and for giving written notice of the designation to the employee.

i. If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination.

The notice to the employee that the leave is not designated as FMLA leave may be in the form of a simple written statement.
ii. A prototype designation notice (WH-382) is included on the DOL’s website at http://www.dol.gov/whd/forms/WH-382.pdf.
iii. The employer may base the designation notice only on information provided by the employee or designee.

b. Timing. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.

i. If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee's need for leave, the employer may provide the employee with the designation notice at that time.

ii. Only one notice of designation is required for each FMLAqualifying reason per applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave.

iii. Retroactive Designation. §825.301(d). If an employer does not timely designate leave, the employer may still retroactively designate leave as FMLA leave with appropriate notice to the employee as long as the employer’s failure to timely designate

leave does not cause harm or injury to the employee.

iv. Failure to Designate. If an employer’s failure to timely designate leave causes harm to the employee, it may also constitute an interference with FMLA rights.

c. Substitution of Paid Leave. If the employer requires paid leave to be substituted for unpaid FMLA leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, the employer must inform the employee of this designation at the time of designating the FMLA leave.
d. Fitness for Duty. If the employer will require the employee to present a fitness-for-duty certification to be restored to employment, the employer must provide notice of such requirement with the designation notice. If the employer will require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the employee's position, the employer must so indicate in the designation notice, and must include a list of the essential functions of the employee's position. If the employer handbook or other written documents (if any) describing the employer's leave policies clearly provide that a fitness-for-duty certification will be required in specific circumstances (e.g., by stating that fitness-for-duty certification will be required in all cases of back injuries for employees in a certain occupation), the employer is not required to provide written notice of the requirement with the designation notice, but must provide oral notice no later than with the designation notice.

e. Use of FMLA Leave. If the amount of leave needed is known at the time the employer designates the leave as FMLA-qualifying, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee's FMLA leave entitlement in the designation notice.

i. If it is not possible to provide the hours, days, or weeks that will be counted against the employee's FMLA leave entitlement (such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee's FMLA leave entitlement upon the request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period.

ii. The notice of the amount of leave counted against the employee's FMLA entitlement may be oral or in writing.

  • If such notice is oral, it shall be confirmed in writing, no later than the following  payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). Such written notice may be in any form, including a notation on the employee's pay stub.

f. Exhaustion of Leave Entitlement. If the information provided by the employer to the employee in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), the employer shall provide, within five business days of receipt of the employee's first notice of need for leave subsequent to any change, written notice of the change.

3. Adverse Consequences §825.300(e)

a. An employer’s failure to comply with the regulatory notice requirements may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights.

b. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.

II. Enforcing Paid Leave and Customary Call-Off Procedures

A. Customary Call-Off Procedures §825.302(d)

1. Complying with employer’s notice policy. An employer may generally require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. This means that an employer may specify where and how an employee may request FMLA leave.

Nonetheless, an employer may not delay or deny leave based on a timing requirement (i.e., call before the start of your shift) if the employee satisfied the timing requirement of the FMLA regulations (i.e., 30 days or as soon as practicable).

a. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer's policy to contact a specific individual.

b. “Unusual “circumstances would include situations such as when an employee is unable to comply with the employer's policy that requests for leave should be made by contacting a specific number because on the day the employee needs to provide notice of his or her need for FMLA leave there is no one to answer the call-in number and the voice mail box is full.

c. Where an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied. However, FMLA-protected leave may not be delayed or denied where the employer's policy requires notice to be given sooner than requirements of the FMLA regulations and the employee provides timely notice as set forth in the FMLA regulations.

d. Unforeseeable Leave. When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

a. For example, an employer may require employees to call a designated number or a specific individual to request leave.

b. Timing. If an employee requires emergency medical treatment, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. Similarly, in the case of an emergency requiring leave because of a FMLA-qualifying reason, written advance notice pursuant to an employer's internal rules and procedures may not be required when FMLA leave is involved.

  • Case Note: In Randolph v. Grange Mutual Casualty Co., 2009-Ohio-6782 (12/22/09), the Ohio Court of Appeals for Franklin County reversed summary judgment for an employer because it found that the employee may have given sufficient “as soon as practicable” notice of his need for unforeseeable FMLA leave when his mother called his supervisor at the end of his shift instead of him calling within 30 minutes of the beginning of his shift as required by the employer’s policy. The employee was on the last day of a probationary period for poor attendance and had only been approved for FMLA leave for treatment for his depression. He failed to show up for work on the last day of his probation or call off within 30 minutes as required by policy because he had blacked out and did not wake up until the middle of the afternoon. By that time, his supervisor had left him a voice mail that he had been fired for violating the terms of his probation. He discovered this when he called in to report his medical emergency, but then was too upset to speak to his supervisor when he learned that he had been fired. Instead, he went to his mother’s house and explained what happened. She then called the supervisor to explain what was happening and that her son would be soon hospitalized.

In reaching this decision, the Court found it relevant that the employer summarily terminated the employee by voice mail and how this notice of his termination adversely affected his mental health, preventing him from calling his employer any earlier in the day under the circumstances.

iii. Personal Notice.
Notice may be given by the employee's spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally. For example, if an employee's child has a severe asthma attack and the employee takes the child to the emergency room, the employee would not be required to leave his or her child in order to report the absence while the child is receiving emergency treatment. However, if the child's asthma attack required only the use of an inhaler at home followed by a period of rest, the employee would be expected to call the employer promptly after ensuring the child has used the inhaler.

iv. If an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

2. Consequences of Employee’s Failure to Give Proper Notice. §825.304. An employer may delay or deny leave if the employee fails to give proper notice of the need for leave if the employee had actual notice of the FMLA notice requirements (i.e., the employer’s obligation to post a poster and distribute a handbook/notice).

a. Foreseeable leave—30 days. When the need for FMLA leave is foreseeable at least 30 days in advance and an employee fails to give timely advance notice with no reasonable excuse, the employer may delay FMLA coverage until 30 days after the date the employee provides notice. The need for leave and the approximate date leave would be taken must have been clearly foreseeable to the employee 30 days in advance of the leave. For example, knowledge that an employee would receive a telephone call about the availability of a child for adoption at some unknown point in the future would not be sufficient to establish the leave was clearly foreseeable 30 days in advance.

b. Foreseeable leave—less than 30 days. When the need for FMLA leave is foreseeable fewer than 30 days in advance and an employee fails to give notice as soon as practicable under the particular facts and circumstances, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. For example, if an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLAprotected leave for one week (thus, if the employer elects to delay FMLA coverage and the employee nonetheless takes leave one week after providing the notice (i.e., a week before the two week notice period has been met) the leave will not be FMLA-protected).

c. Unforeseeable leave. When the need for FMLA leave is unforeseeable and an employee fails to give notice in accordance with § 825.303, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

d. Waiver of notice. An employer may waive employees' FMLA notice obligations or the employer's own internal rules on leave notice requirements.

e. Consequences of Unprotected Leave. If an employer does not waive the employee's obligations under its internal leave rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with the FMLA regulations.

  • Case Note: In Walton v. Ford Motor Company, 424 F.3d 481 (6th Cir. 2005), the employer’s policy required employees to request medical leave within two days through the labor relations department and specifically instructed employees to not call off by calling the security guards at the front desk. The employee injured his knee and was advised by his physician to not return to work until evaluated by a specialist, which ultimately confirmed a torn ligament and instructed him to stay off work for a few months. The employee never told his supervisor or called the labor relations department, but instead gave two updates to the security guard, which only noted that he had called off “sick” until May 28. The employer sent him a letter by certified mail on April 27 that he would be terminated in five days if he did not provide a sufficient excuse. However, he did not pick up the letter until after he was terminated, did not call the labor relations department until May 9 and did not submit the required medical documentation until May 17. The Court held that the employer did not violate the FMLA by terminating the employee for failing to comply with its customary call-off procedures.

B. Substitution of Paid Leave. §825.207

FMLA leave is generally unpaid leave. However, employees and employers may “substitute” paid leave (i.e., vacation, paid time off, compensatory time, sick leave, etc.) for unpaid FMLA leave in most circumstances so that the employee is paid during the FMLA leave and simultaneously exhausts his or her accrued paid time off. If paid leave is not substituted, the employee remains eligible for that paid leave (i.e., to take vacation, etc.) upon return from unpaid FMLA leave. If paid leave is substituted, the period of the paid leave and unpaid FMLA leave run simultaneously so that both are exhausted simultaneously (depending on the amount of FMLA entitlement and accrued paid leave). The employee is always entitled to 12 weeks of FMLA leave even if the employee has not accrued 12 weeks of paid leave.

1. The FMLA term “substitute” means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer's applicable paid leave policy during the period of otherwise unpaid FMLA leave.

2. Employee’s Election. An eligible employee may choose to substitute accrued paid leave for FMLA leave.

- An employee's ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.

3. Employer’s Election. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave.

4. Procedural Requirements. When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. If an employee does not comply with the additional requirements in an employer's paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave.

- Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies. In other words, the employer may not impose more rigorous requirements on the use of FMLA leave than it does for other time off.

5. If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer's plan.

If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave will not count against the employee's FMLA leave entitlement. For example, paid sick leave used for a medical condition which is not a serious health condition or serious injury or illness does not count against the employee's FMLA leave entitlement.

6. Exception: STD/Disability Leave. Leave taken pursuant to a disability leave plan would be considered FMLA leave for a serious health condition and counted in the leave entitlement permitted under FMLA if it meets the criteria for FMLA leave. In such cases, the employer may designate the leave as FMLA leave and count the leave against the employee's FMLA leave entitlement.

Because leave pursuant to a disability benefit plan is not unpaid, the provision for substitution of the employee's accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee's salary.

7. Compensatory Time. Section 7(o) of the Fair Labor Standards Act (FLSA) permits public employers under prescribed circumstances to substitute compensatory time off accrued at one and one-half hours for each overtime hour worked in lieu of paying cash to an employee when the employee works overtime hours as prescribed by the Act. This section of the FLSA limits the number of hours of compensatory time an employee may accumulate depending upon whether the employee works in fire protection or law enforcement (480 hours) or elsewhere for a public agency (240 hours). In addition, under the FLSA, an employer always has the right to cash out an employee's compensatory time or to require the employee to use the time. Therefore, if an employee requests and is permitted to use accrued compensatory time to receive pay for time taken off for an FMLA reason, or if the employer requires such use pursuant to the FLSA, the time taken may be counted against the employee's FMLA leave entitlement.

  • Case Note: In Pellegrino v. CWA, No. 11-2639 (3rd Cir. 4-19-12), the Third Circuit Court of Appeals in Pennsylvania affirmed the dismissal of an FMLA claim brought by an employee of a labor union who was fired to travelling to Cancun, Mexico with friends during her four-week FMLA leave in violation of the employer-union’s paid sick leave policy. The sick leave policy required employees utilizing sick leave to remain in the immediate vicinity of their residence. Exceptions were made when requested in writing in advance. The employee did not seek an exception to travel to Mexico two weeks after her surgery. She was fired as soon as she admitted the violation during her FMLA leave. The Court found that the employer was justified in terminating the employee for violating the sick leave policy because that policy was not inconsistent with the FMLA. In an earlier case, the same court had “approved a city government’s policy that required employees to call the city each time they came and went from their homes during leave.” Callison v. City of Philadelphia, 430 F.3d 117 (3d Cir. 2005) (cited with approval in Allen v. Butler County Commissioners, No. 07-4320 (6th Cir. 8-19-09).

III. Medical Certifications

A. In General

1. Employee’s Obligation. §825.305. It is the employee's responsibility either to furnish a complete and sufficient certification or to furnish the health care provider providing the certification with any necessary authorization from the employee or the employee's family member in order for the health care provider to release a complete and sufficient certification to the employer to support the employee's FMLA request.

  • The employee should typically provide the certification within 15 days of request, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts or the employer provides more than 15 calendar days to return the requested certification.

2. Employer’s Obligations.

a. Medical Certifications. An employer may require that an employee's leave to care for the employee's covered family member with a serious health condition, or due to the employee's own serious health condition that makes the employee unable to perform one or more of the essential functions of the employee's position, be supported by a certification issued by the health care provider of the employee or the employee's family member.

i. An employer must give notice of a requirement for certification each time a certification is required; such notice must be written notice in the Rights & Responsibilities Notice given with the Eligibility Notice. An employer's oral request to an employee to furnish any subsequent certification is sufficient.

ii. An employer must give notice of a requirement for certification each time a certification is required; such notice must be written notice whenever required by § 825.300(c). An employer's oral request to an employee to furnish any subsequent certification is sufficient.

iii. The information that an employer may require in a medical certification is governed by 29 C.F.R. §825.306. In addition, prudent employers will also be sure to comply with the Genetic Information Nondiscrimination Act and warn physicians to not disclose, among other things, family medical history, in completing the FMLA form. All too frequently physicians do not clearly complete the FMLA medical certification forms so that an employer can readily discern whether an employee is qualified for FMLA leave or is abusing the FMLA. The FMLA regulations also govern how an employer may authenticate, clarify or obtain additional medical opinions to assist its decisionmaking process.

iv. The DOL has prototype medical certification forms on its website:

  • WH-380E – for employee’s own serious health condition
  • WH-380F – when employee is needed to car for family member.

b. Military Leave. An employer may also require that an employee's leave because of a qualifying exigency or to care for a covered servicemember with a serious injury or illness be supported by a certification, as described in §§ 825.309 and 825.310, respectively.

c. Timing. In most cases, the employer should request that an employee furnish certification at the time the employee gives notice of the need for leave or within five business days thereafter, or, in the case of unforeseen leave, within five business days after the leave commences.

i. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.

B. Incomplete, Insufficient and Unclear Certifications. The employee must provide a complete and sufficient certification to the employer if required by the employer in accordance with the FMLA regulations.

1. The employer shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.

a. A certification is considered incomplete if the employer receives a certification, but one or more of the applicable entries have not been completed.

b. A certification is considered insufficient if the employer receives a complete certification, but the information provided is vague, ambiguous, or non-responsive.

  • Case Note: Before the FMLA regulations were updated in 2009, the Sixth Circuit held in Novak v. MetroHealth Medical Center, 503 F.3d 572 (6th Cir. 2007) that an employee could not prove that she suffered from a “serious health condition” covered by the FMLA because the medical certifications she had submitted to her employer were insufficient. Among other things, the physician who completed the certification form for the chronic back condition admitted that she had not seen or treated the plaintiff in over four months before the plaintiff sought FMLA leave. The employer gave the plaintiff a week to cure the deficiency, and she submitted three additional (but deficient) certification forms, but she never sought a certification from her actual treating physician. The court also held that the employer was not required to obtain a second medical opinion before rejecting the plaintiff’s deficient certification forms. More recently, the Sixth Circuit held that a medical certification is presumptively valid if an employee’s treating physician completes it even if there was no contemporaneous medical or psychological examination because the healthcare provider is entitled to rely on his/her professional knowledge of the patient. Hyldahl v. Michigan Bell, No. 09-2087 (6th Cir. 10/31/12) (affirming award of back and front pay and liquidated damages of $ 134,936.27).
  • Case Note: In another case, Stimpson v. UPS, No. 08-2263 (6th Cir. 11-3-09), the Sixth Circuit found a medical certification to be deficient in the following situation (where the employer provided no opportunity to cure the deficiencies): While Stimpson has produced three separate notes from physicians stating that he could not return to work, the most detailed notation given on the forms is that Stimpson cannot work “for medical reasons.” These notes fall far short of the requirement that any doctor’s certification must contain at a minimum “(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider’s knowledge, and (4) a statement that the employee is unable to perform [his] job duties” in order to be valid. . . . Stimpson also has not provided any other medical evidence to counter the emergency treating physician’s final diagnosis of bruises and mild back pain. Importantly, none of the medical information Stimpson has provided suggests that his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription Stimpson refused to take. Because Stimpson cannot demonstrate that he suffered from a serious health condition, he is not eligible for FMLA leave.

2. Timing for cure. The employer must provide the employee with seven calendar days (unless not practicable under the particular circumstances despite the employee's diligent good faith efforts) to cure any such deficiency.

a. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave.

b. A certification that is not returned to the employer is not considered incomplete or insufficient, but constitutes a failure to provide certification.

3. Consequences. At the time the employer requests certification, the employer must also advise an employee of the anticipated consequences of an employee's failure to provide adequate certification. If the employee fails to provide the employer with a complete and sufficient certification, despite the opportunity to cure the certification, fails to provide any certification, or fails to authorize the employer to clarify the certification, the employer may deny the taking of FMLA leave.

a. This provision will apply in any case where an employer requests a certification permitted by these regulations, whether it is the initial certification, a recertification, a second or third opinion, or a fitness for duty certificate, including any clarifications necessary to determine if such certifications are authentic and sufficient.

b. Foreseeable leave. §825.313. In the case of foreseeable leave, if an employee fails to provide certification in a timely manner then an employer may deny FMLA coverage until the required certification is provided.

c. For example, if an employee has 15 days to provide a certification and does not provide the certification for 45 days without sufficient reason for the delay, the employer can deny FMLA protections for the 30-day period following the expiration of the 15-day time period, if the employee takes leave during such period.

d. Unforeseeable leave. In the case of unforeseeable leave, an employer may deny FMLA coverage for the requested leave if the employee fails to provide a certification within 15 calendar days from receipt of the request for certification unless not practicable due to extenuating circumstances.

e. For example, in the case of a medical emergency, it may not be practicable for an employee to provide the required certification within 15 calendar days.

f. Absent such extenuating circumstances, if the employee fails to timely return the certification, the employer can deny FMLA protections for the leave following the expiration of the 15-day time period until a sufficient certification is provided. If the employee never produces the certification, the leave is not FMLA leave.

  • Case Note: In Stimpson v. UPS, 08-2263 (6th Cir. 11/3/09), the Sixth Circuit found that the employer violated the FMLA regulations by enforcing a requirement in the collective bargaining agreement that the employee provide a medical certification within 72 hours, instead of the 15 days permitted by the FMLA regulations. Ultimately, the Court decided the employer’s FMLA violation did not matter because the information contained in the employee’s medical certification was found insufficient to justify a need for FMLA leave. In addition, the employee ultimately did not produce the incomplete and insufficient medical certification for 17 days. Because the medical certification was not submitted within 15 days, the Court’s majority did not require the employer to give the employee the opportunity to cure the defects. Notably, the facts of this decision pre-dates the 2009 FMLA regulations currently in place.

4. If an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. The employer is limited to the information responsive to the areas covered in the FMLA regulations.

a. Employers may directly contact the medical provider to authenticate a certification or to clarify responses that are illegible or unclear.

i. “Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. No additional information may be requested.

ii. “Authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested.

b. The employer must use a health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances, however, may the employee's direct supervisor contact the employee's health care provider.

c. HIPAA. The requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule (see 45 CFR parts 160 and 164 ), which governs the privacy of individually-identifiable health information created or held by HIPAA-covered entities, must be satisfied when individually-identifiable health information of an employee is shared with an employer by a HIPAA-covered health care provider.

C. Second Opinions §825.307(b)

1. An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense.

a. This situation could arise when an employee’s General Practitioner says the employee needs to be off work because of a complicated condition, which typically only specialists treat.

b. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits.

  • Case Note: Before the FMLA regulations were updated in 2009, the Sixth Circuit has held that an employer is not required to seek a second medical opinion before rejecting a deficient medical certification. Novak v.  MetroHealth Medical Center, 503 F.3d 572 (6th Cir. 2007). Among other things, the physician who purportedly provided the incomplete certifications of the employee’s chronic back condition admitted that she had not seen or treated the plaintiff in over four months before the plaintiff sought FMLA leave. The employer gave the plaintiff a week to cure the deficiency, and she submitted three additional (but deficient) certification forms, but she never sought a certification from her actual treating physician. The Court held that the employer was not required to obtain a second medical opinion before rejecting the plaintiff’s deficient certification forms. While the FMLA permits employers to obtain second medical opinions, it does not require them to do so.

2. The employer may deny FMLA leave:

a. If the certifications do not ultimately establish the employee's entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer's established leave policies, or

b. If the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition at issue if requested by the health care provider designated to provide a second opinion in order to render a sufficient and complete second opinion.

3. The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer. The employer may not regularly contract with or otherwise regularly utilize the services of the health care provider furnishing the second opinion unless the employer is located in an area where access to health care is extremely limited (e.g., a rural area where no more than one or two doctors practice in the relevant specialty in the vicinity).
a. The employer may use a second opinion to get an opinion from a specialist in the medical condition which the employee suffers.

4. Copies of opinions. The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, upon request by the employee. Requested copies are to be provided within five business days unless extenuating circumstances prevent such action.

5. Travel expenses. If the employer requires the employee to obtain either a second or third opinion the employer must reimburse an employee or family member for any reasonable “out of pocket” travel expenses incurred to obtain the second and third medical opinions. The employer may not require the employee or family member to travel outside normal commuting distance for purposes of obtaining the second or third medical opinions except in very unusual circumstances.

D. Third Opinions §825.307(c).

1. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense.

a. This third opinion shall be final and binding.

b. The third health care provider must be designated or approved jointly by the employer and the employee. The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider.

i. If the employer does not attempt in good faith to reach agreement, the employer will be bound by the first certification. For example, an employer that refuses to agree to any doctor on a list of specialists in the appropriate field provided by the employee and whom the employee has not previously consulted may be failing to act in good faith.

ii. If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification. For example, an employee who refuses to agree to see a doctor in the specialty in question may be failing to act in good faith.

c. The employer may deny FMLA leave if the employee or the employee's family member fails to authorize his or her health care provider to release all relevant medical information pertaining to the serious health condition at issue if requested by the health care provider designated to provide a third opinion in order to render a sufficient and complete third opinion.

2. Copies of opinions. The employer is required to provide the employee with a copy of the second and third medical opinions, where applicable, upon request by the employee. Requested copies are to be provided within five business days unless extenuating circumstances prevent such action.

3. Travel expenses. If the employer requires the employee to obtain either a second or third opinion the employer must reimburse an employee or family member for any reasonable “out of pocket” travel expenses incurred to obtain the second and third medical opinions. The employer may not require the employee or family member to travel outside normal commuting distance for purposes of obtaining the second or third medical opinions except in very unusual circumstances.

E. Annual Certifications and Re-Certifications.

1. Annual medical certification. §825.305(e). Where the employee's need for leave due to the employee's own serious health condition, or the serious health condition of the employee's covered family member, lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year.

v. Such new medical certifications are subject to the provisions for authentication and clarification, including second and third opinions.

2. Medical Recertifications. §825.308.

a. Recertification does not apply to leave taken for a qualifying exigency or to care for a covered servicemember.

b. Timing. An employer must give an employee at least 15 days to provide the recertification, unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.

c. Frequency

i. In General: An employer may request a recertification of a medical condition every six months in connection with an absence by the employee.

  • For example, even if the medical certification indicates that the employee will need intermittent or reduced schedule leave for a period in excess of six months (e.g., for a lifetime condition), the employer would be permitted to request recertification every six months in connection with an absence.

ii. 30-day Limit on Frequency: If medical certification does not indicate the minimum duration or specifies a minimum duration of less than 30 days, an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee.

iii. Other Limit on Frequency. If the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification, except that an employer may always request a re-certification every six months during an employee’s absence from work.

  • For example, if the medical certification states that an employee will be unable to work, whether continuously or on an interm

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