New FMLA Enforcement Initiative: Roadmap for Heading Off FMLA - - PowerPoint PPT Presentation

New FMLA Enforcement Initiative: Roadmap for Heading Off FMLA Complaints and Handling DOL Investigations

Structuring Compliance Processes and Self-Audits to Mitigate Employer Liability

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WEDNESDAY, JUNE 25, 2014

Presenting a live 90-minute webinar with interactive Q&A Marti Cardi, VP , Legal & Chief Compliance Officer, Reed Group, Westminster, Colo. Joseph J. Lynett, Shareholder, Jackson Lewis, White Plains, N.Y .

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STRAFFORD: CONTINUING LEGAL EDUCATION

June 26, 2014

Joseph J. Lynett, Esq. Marti Cardi, Esq. Jackson Lewis, P.C. Reed Group Shareholder VP-Legal, Chief Compliance Officer Lynettj@jacksonlewis.com mcardi@reedgroup.com

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 Overview  Initial FMLA complaints  Incorporating latest regulations into policies and

procedures

 Self-audits  On-site DOL FMLA investigations  Advance preparation  Preparation upon notice  On-site employee interviews by DOL investigator

7

 DOL Officials have described 2014 as a

“pivotal year” for FMLA enforcement

 DOL is adopting an approach much more

similar to that commonly used in wage & hour investigations

 Section 106 of the FMLA provides same

authority as Section 11(a) of the FLSA

8

 More DOL participants, more assets on the

ground conducting the investigation

 Little or no advance notice of the investigation  Investigations increasingly conducted on-site at

employer’s place of business

 Condensed time-frames to respond or comply

with DOL requests

 Increased scope of investigation, examining

FMLA notices and technical compliance with regulations

9

 FMLA Investigations can be:

 “Complaint-based” – Employee files a complaint

with the DOL alleging that his/her FMLA rights have been violated

 Interference  Retaliation

 “Directed” – The Company has been selected for a

audit

10

 Greater need to administer FMLA in

accordance with law and regulations.

 Flawed administrative process create systemic

exposure.

 Responses to requests for FMLA leave  Discipline under attendance control policies  Certification/Recertification requests  Denials of FMLA Leave  Return to work process  Recordkeeping practices

11

 Failure to provide required notices  General Notice:

 In Handbooks or written policies  Have recent FMLA changes been incorporated into policies?

 Specific Notice –

 Must provide written notice of:

 Rights and responsibilities  Leave being counted as FMLA  Obligation to provide medical certification  Obligation to substitute paid leave for unpaid FMLA leave  Arrangement for premium payments  Reinstatement rights

 Must provide notice within 5 business days of leave request or

knowledge that leave is FMLA qualifying

 Use WH 381 Form

12

 Flawed certification practices

 Not provided timely  Failure to accept adequate certifications  Failure to provide extensions  Failure to provide written notice of deficiencies  Improper contacts with health care providers

 Authentication and clarification

 Use WH 380E and 380F forms, adding GINA Safe

Harbor Notice to WH 380E form

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 Failure to properly designate FMLA leave

 Must provide designation notice for each FMLA-

qualifying reason in each applicable 12 month- period

 Use WH 382 form  Reference fitness for duty certification requirements

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 Leaves improperly denied

 Supervisors often fail to recognize or communicate

information that establishes a right to FMLA leave

 Consider training front-line supervisors receiving

information from employees about reasons for absences

• r leave

 Improper calculation of FMLA leave

 Count only FMLA actually taken  Employees actual workweek is the basis of calculation

 Failure to maintain required records

15

FMLA Regulation Section 825.500:



(c) Covered employers who have eligible employees must maintain records that must disclose the following:



(1) Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.



(2) Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA.



(3) If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.

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 You can do it on your own; or  You can do it with the DOL looking

• ver your shoulder

17

• 1. General Notice to All Employees 29 CFR § 825.300(a)

 Two general notice requirements:

 Posting – Conspicuous place, accessible to all employees;

electronic posting OK

 Handbooks or other written policies regarding employee benefits

• r leave rights; electronic OK

 If no written leave policies, provide to all new hires

 Content of general notices:

 Explain the FMLA’s provisions  Provide information about filing a complaint with the Wage &

Hour Division, DOL

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• 2. Specific Notices to Employees

 Eligibility notice (oral or written) 29 CFR § 825.300(b)

 Within 5 business days of employer knowledge of

employee need for FMLA leave

 If employee is not eligible, notice must state at least one

reason

 Eligibility does not change for same leave reason during

12-month leave year

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• 2. Specific Notices to Employees (continued)

 Notice of Rights & Responsibilities (written) 29 CFR § 825.300(c)

 Provide each time employee eligibility notice is sent  Variety of specific rights & responsibilities

addressed, including employer-specific policies

 May include certification forms

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• 2. Specific Notices to Employees (continued)

 Designation notice (written) 29 CFR §§ 825.300(d); 825.301

 5 business days after receiving sufficient info

 Whether the employee’s leave will be designated as FMLA leave  Whether the employee’s leave will be counted as paid leave  Whether employer will require a fitness-for-duty cert upon RTW;

list of essential functions if provider is to address these

 Amount of leave that will be counted against FMLA entitlement

(if known)

 If amount is unknown (e.g., intermittent leave) respond to

employee inquiries orally, followed up by written confirmation

21

• 2. Specific Notices to Employees (continued)

 Changes (written) 29 CFR § 825.300(d)

 If information in designation notice changes (e.g., employee

exhausts FMLA leave entitlement)

 Within 5 days of employer notice of change, and in

connection with another need for leave

 Disputes (written) 29 CFR § 825.301(c)

 Employer must discuss with employee if there is a dispute

• ver whether leave should be designated as FMLA

 Discussion & decision must be documented

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• 3. FMLA Certification Forms

 Notify employee of need for certification within 5 days of

employer’s knowledge of need for leave; provide form

 Notify employee of consequences of failure to return adequate

certification

 Do not request more information than permitted by FMLA

regs

 DOL forms permitted but not required  Add GINA notice to certification for employee’s SHC  Provide employee 15 days to return completed cert form

29 CFR §§ 825.305; 825.306; 825.309; 825.310

23

• 4. Job Descriptions

 Describe essential functions

 Use for fitness for duty certificates  Use to measure “equivalent position” if employee is

not reinstated to SAME position

 Describe other duties  Describe job qualifications  Information not in job description may be

pertinent (e.g., employee’s shift or location)

24

• 5. Rules for Calculating Leave Usage



Designated leave year (4 options) 29 CFR § 825.200(b)



Military caregiver leave – 26 weeks in a single 12-month period, measured forward only 29 CFR § 825.200(f)



Application of rules relating to:

 Holidays & employer work closure 29 CFR § 825.200(h)  Physical impossibility of mid-shift start/stop

29 CFR § 825.205(a)(2)

 Mandatory overtime 29 CFR § 825.205(c)



Special rules for airline flight crews 29 CFR § 825.800 et seq

25

• 5. Rules for Calculating Leave Usage (continued)

 Increments for intermittent & reduced schedule

29 CFR § 825.205

 Not more than minimum increment used for other types

• f leave

 Not greater than one hour increments  Do not count more time as FMLA than amount of leave

actually taken

 Employee’s actual work week is the basis of

intermittent/reduced leave entitlement (e.g., 50-hour workweek = 50 hours of leave x 12 weeks)

26

• 6. Incomplete/Insufficient Medical Certs 29 CFR §

825.305(c)



If cert form is complete & sufficient, employer cannot request any additional information



Advise employee in writing of any insufficiency or missing info



Allow employee 7 calendar days to cure the deficiencies



Only if employee fails to cure can employer deny the leave for an incomplete or insufficient cert

27

• 7. Authentication & Clarification of Medical Certs

29 CFR § 825.307(a)



Once a complete certification is provided, employer can contact provider



No supervisor contact with provider



Employer cannot ask for any additional medical information

28

• 8. Recertification 29 CFR § 825.308

 General rule – no more frequently than 30 days  But – no sooner than duration of condition specified in

certification (e.g., 2 month duration)

 Can recertify every 6 months, regardless of duration in

certification (e.g., 8 months or lifelong condition)

 Exceptions: employee requests extension; circumstances

change significantly; employer has reason to doubt continued validity of original cert

 Recert can be requested only in connection with an absence

29

• 9. Maintenance of Benefits 29 CFR §§ 825.209-213

 Maintain same coverage under group health plan

employee had prior to FMLA leave

 Same employer and employee contributions

 Includes applicable family coverage  Includes coverage for medical, surgical, hospital, dental,

vision, mental health, etc.

 If employee elects not to continue coverage, must be

reinstated at end of leave without waiting period, exclusions,

• r examinations

30

• 10. Managing Concurrent/Consecutive Leaves

 FMLA, WC, ADA, state leaves, company policies (PTO,

medical leave, personal leave, disability plans, etc.

 Ensure process allows for analyzing each leave right

separately

 When more than one leave law, plan, or policy is

applicable, employee gets the more generous benefit

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• 11. Reinstatement 29 CFR §§ 825.214-216

 Reinstatement to same or equivalent position  If employee reinstated to a different job, both job

descriptions will be relevant to determine if “equivalent”

 Virtually identical pay, benefits, working conditions,

privileges, perquisites, and status

 Same or substantially similar duties and responsibilities,

entailing substantially similar skill, effort, responsibility, and authority

32

• 12. Recordkeeping Requirements 29 CFR § 825.500

 Any format is OK as long as the records are clear and

identifiable by date or pay period

 Keep records for 3 years  Make records available to DOL (inspection & copying)  “Copies [of FMLA notice documents] may be maintained in

employee personnel files.”

 Is this what you want to do?

 Maintain medical records separately and in compliance with

GINA and ADA if applicable (confidentiality)

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• 12. Recordkeeping Requirements 29 CFR § 825.500 (continued)

 Records to keep:

 Employee identifying information (name, address, etc.)  Payroll data (rates of pay, hours worked, payroll

additions/deductions)

 Dates of employee FMLA leaves  Hours of leave taken by employees, if less than full days  Copies of employee notices of FMLA leave (if in writing)

34

• 12. Recordkeeping Requirements 29 CFR § 825.500 (continued)

 Records to keep:

 Copies of employer notices to employees  Documents describing employee benefits and employer

policies/practices regarding paid & unpaid leaves

 Premium payments of employee benefits  Records of any dispute between employer and

employee regarding designation of leave as FMLA

35

• 13. Are Your Employees Trained & Resourced?



Personnel who manage FMLA leaves (Human Resources & Benefits):

 In-depth training and understanding  Resources for answering questions (attorney, DOL website, commercial

websites, etc.)

 Periodic training/seminars to stay current



Supervisors, Management

 First line of defense!  Issue spotters, not experts  Red flags that send them scurrying to HR  No retaliation for FMLA requests or usage



Employees

 How to request & discuss FMLA Leave

36

When the DOL comes knocking

37

 Initial conference with employer  Examination of records  Site inspection  Employee and manager interviews  Final conference with employer  Resolution/remedies  Enforcement, if necessary

38

When the DOL comes knocking:

 Accept the inevitable & make it a HIGH priority  Strike the right tone  Be truthful – no games  Be prepared

 Conduct an FMLA audit BEFORE an investigation  If advance notice, get records and witnesses ready

39

When the DOL comes knocking:

 Provide what is requested  Select meeting & interview locations carefully  Discuss with DOL if requests seem too broad

 Employee categories  Time frame  Geographic region  Types of records

 NO RETALIATION – get the word out

40

After the investigation:

 No retaliation  Assess all processes/procedures  Implement lessons learned from DOL  Train, train, train  Document, document, document

41

Most Common FMLA Mistakes

 Termination or Discipline for Missed Work Time  Leave Denial  Point System/“No Fault” Policy  Failure to Recognize Sufficient Information for

Designation

 Failure to Provide Notice  Medical Certification & Recertification Issues  Retaliation

42

 Confirm leave and attendance policies reflect most

recent FMLA changes

 Audit FMLA Performance:

 Are notices of eligibility and rights and responsibilities

being sent within 5 business days?

 Are medical certifications being reviewed properly?  Are designation notices being sent timely?  Are you seeking recertifications appropriately?  Are you keeping all records required by regulations?  Are managers passing along information about reasons

for absences that trigger FMLA protections?

 Evaluate FMLA usage (assuming you have records) and

benchmark it against other companies.

43

Thank you!

Joseph J. Lynett, Esq. Jackson Lewis, P.C. Shareholder

Lynettj@jacksonlewis.com

Marti Cardi, Esq. Reed Group VP-Legal; Chief Compliance Officer

mcardi@reedgroup.com