- Hi, my name is Diane Seltzer and I'm an employment lawyer who practices in the Washington D.C. metropolitan area. My practice is devoted exclusively to employment law issues, and today I'm going to be talking with you about the Family Medical Leave Act and, specifically, we're going to go through some common compliance violations and talk about best practices for preventing those violations. This course assumes that you have a working knowledge of the Family Medical Leave Act, or FMLA as it is also called. But we will do a quick overview and review of some foundational points just as a refresher and just to make sure that we understand the foundation of the FMLA, what it protects, and what common problems arise. So what is the Family Medical Leave Act? Well, it's a law that provides unpaid job protected leave to employees under certain circumstances. That leave can be either continuous, intermittent, or a reduced schedule for work. And during FMLA leave, health insurance is to be maintained for the employee on leave. Finally, when the employee returns from FMLA leave, they are to be restored to the same or a substantially similar job. So those are the basic protections of the FMLA. Every covered employer must provide a general notice to their employees regarding the FMLA. This can be done by displaying a poster or distributing such poster electronically and by providing a written general notice to employees, such as in the employee handbook or in other written materials that an employee is provided upon their hire. There is a poster that the United States Department of Labor publishes on its website that gives a nice overview of employee rights under the FMLA, and I would encourage you to review that and keep that poster handy because it gives an overview of these basics under the law. So not everyone is eligible for FMLA leave, we should go over what the eligibility requirements are. First, you must work for a covered employer in order to be eligible for FMLA benefits. Who are covered employers? Well, to be covered by the FMLA, which, of course, is a federal law, a private employer must employ at least 50 employees in 20 or more work weeks in the current or previous calendar year within 75 miles of the work site. The workweeks do not need to be consecutive, and an employee is considered employed for a week if they worked any part of that week. Note that all federal, state, and local government agencies and all elementary and secondary schools are covered by the FMLA regardless of the number of employees that they have. So that covers who's a covered employer. Who are covered employees? Who are eligible? So to be eligible for FMLA benefits, an employee must, of course, work for an FMLA covered employer. They have to have worked for the employer for at least 12 months, but those 12 months need not be consecutive. Generally speaking, if the employee has a break in service that lasted more than seven years, the employee cannot count the period of employment prior to the seven year break. The employee must also have worked at least 1,250 hours during the 12 month period immediately preceding the commencement of the FMLA leave, and the employee must have worked at a location where at least 50 employees are employed by the employer within 75 miles of that site. What are the FMLA leave benefits, assuming that there's coverage? Well, FMLA eligible employees are entitled to up to 12 work weeks of job protected unpaid leave or sometimes earned or accrued paid leave, if the employer allows that, in a 12 month period. Or up to 26 work weeks in a single 12 month period to care for a covered service member with a serious injury or illness. The maximum leave available is a combined total of 26 work weeks of leave during the single 12 month period. Let's review the bases for requesting FMLA leave. There are a number of circumstances that provide leave rights. One, the birth of a child and to bond with the newborn within one year of birth. Two, when the employee adopts a child or accepts placement of a foster child, and to bond with the newly placed child within one year of birth. Three, for the employee's own serious health condition that makes the employee unable to perform one or more functions of their job. Four, to care for a child, spouse, parent, of the employee with the serious health condition. Five, for qualifying exigencies related to certain military deployments. And six, to care for a covered service member with a serious injury or illness. So we have to start off by understanding, what is a serious health condition? And I promise, once we cover these basics, we will certainly get into the problems that come from administering the FMLA. But let's understand the definition of a serious health condition. It is defined as an illness, injury, impairment, or physical or mental condition involving either inpatient care in a medical facility or continuing treatment by a healthcare provider. So, of course, we have to define what inpatient care is. And a serious health condition involving inpatient care includes an overnight stay in a hospital, hospice, or residential care facility. Or any period of incapacity or any subsequent treatment in connection with the overnight stay. More definitions, continuing treatment. What is continuing treatment? Well, a serious health condition involving continuing treatment by a healthcare provider includes any one of the following, a period of incapacity plus treatment, any period of incapacity due to pregnancy or for prenatal care, any period of incapacity due to or treatment for a chronic serious health condition, a period of incapacity which is permanent or long term due to a condition, or conditions requiring multiple treatments. You know what's next, defining incapacity and treatment. So a period of incapacity of more than three consecutive full calendar days and any subsequent treatment or incapacity related to the same condition that involves either two or more in-person visits to a healthcare provider for treatment for the illness within 30 days of the first day of incapacity. Or at least one in-person visit to a healthcare provider that results in a regimen of continuing treatment under the healthcare provider's supervision. That's what continuing treatment is, when there's incapacity plus treatment. And note that in order to be considered to have received treatment by a healthcare provider, the employee must make an in-person visit to the healthcare provider within seven days of the first day of incapacity. What's considered continuing treatment for pregnancy or prenatal care? Well, eligible employees are entitled to FMLA leave for any period of incapacity due to pregnancy or for prenatal care, even if medical treatment is not required during the absence and even if the absence does not last more than three consecutive calendar days. The spouse of a pregnant woman is entitled to FMLA leave if needed to care for the pregnant spouse who is incapacitated or if they are needed to care for her during her prenatal care or following the birth of a child. And both parents are entitled to FMLA leave, if the leave is needed, to care for a child with a serious health condition. So next we look at the definition of continuing treatment for chronic conditions because, of course, chronic conditions can trigger FMLA rights. A serious health condition involving continuing treatment by a healthcare provider includes any period of incapacity due to a chronic serious health condition. A chronic serious health condition is one which requires periodic visits at least twice a year for treatment by a healthcare provider, or that continues or recurs over an extended period of time, including recurring episodes of a single underlying condition and that may cause episodic, rather than continuing, period of incapacity, such as... Let's start over for this slide, I'm going to go back to continuing treatment, chronic conditions. So continuing treatment for chronic conditions has its own definition, that's defined as a serious health condition involving continuing treatment by a healthcare provider. And that includes any period of incapacity due to a chronic serious health condition. A chronic serious health condition is one which requires periodic visits, at least twice a year, for treatment by a healthcare provider, that continues or recurs over an extended period of time, including recurring episodes of a single underlying condition, and that may cause episodic rather than a continuing period of incapacity. So think of asthma, diabetes, or epilepsy. Such an employee with this kind of situation qualifies, even if medical treatment is not required and even if the absence does not last more than three consecutive calendar days. Continuing treatment can also cover long term conditions. The period of incapacity which is permanent or long term due to a condition for which treatment may not be effective, think of Alzheimer's, a severe stroke, or the terminal stages of a disease, but that requires the continuing supervision of a healthcare provider will qualify an employee for leave under the FMLA. The employee or the family member must be under the continuing supervision of a healthcare provider, but need not be receiving active treatment by that healthcare provider simply because there may not be any treatment available at that point. Continuing treatment can also be defined as someone who has multiple treatments for a serious health condition. So any period of absence to receive multiple treatments for a restorative surgery after an accident or other injury, or a condition that would likely result in a period of incapacity of more than three days, and those would be consecutive full calendar days, of course, if treatment was not received. So think of cancer, like chemotherapy or radiation, or severe arthritis, physical therapy for that, or kidney disease such as dialysis. Those would be considered continuing treatment multiple treatments. Voluntary procedures can be a serious health condition, including cosmetic treatments. Those will be considered a serious health condition when inpatient hospital care is required or when complications develop. What about substance abuse? Is that a serious health condition? Well it may be, but FMLA leave may be taken only for treatment of that abuse by or on referral by a healthcare provider, not because of the effects of the employee's use of the substance itself. So again, we're thinking about treatment, not actual substance use. So defining job functions is important because the employee has to be unable to perform the functions of their position. And that definition is met if the healthcare provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the position, that would be enough to qualify the employee for FMLA leave based on the inability to perform the functions of their position. The employee who has to be absent from work to receive medical treatment for a serious health condition is also considered to be unable to perform the essential functions of the position during the absence for treatment. And finally, a word about military family leave. If there's a qualifying exigency arising out of the employee's, spouse, son, daughter, or parent being a military member on covered active duty or being notified of an impending call or order to covered active duty status, that will be a basis for FMLA leave. Or if the employee has to care for a covered service member with a serious injury or illness. As long as the employee is the spouse, son, daughter, parent, or next of kin of that covered service member, that too will qualify the employee for FMLA leave. So now that we have a background of the FMLA leave and the types of leave and the circumstances under which leave is available, let's talk about the most common violations of the law. I see these in my practice with some frequency. And it is important for employees to understand what might be a violation of their rights. And it's also important, of course, for employers to understand what they should and should not do so that they don't get complaints about violating the FMLA. And, of course, it's just a better way to run a business when you are compliant with the laws that apply to your business. So the first on my list is not recognizing a request for FMLA leave. You must remember, the employee does not have to use the term FMLA or Family Medical Leave Act, or that law that gives me rights to take leave. They just have to provide enough information for the employer to understand that the leave may be for an FMLA qualifying reason. So obviously we have to, as the employer, have a working knowledge of what kind of information could trigger an employee's rights. What does the employee have to say? If the employee says, "I have a cold," yeah, that's probably not going to make us think FMLA. But if the employee says "I have cancer and need chemotherapy," that should certainly, now that we've gone over these definitions, certainly trigger a response in the employer to provide information and recognize that as a request for FMLA leave. The notice of the need for leave can be oral or written, and when the notice must be given depends on whether the need for leave is foreseeable. So again, we don't wanna get in a situation where the employer says, "You didn't give me enough notice." Well, the need for the leave may not have been foreseeable and it doesn't excuse the employer from recognizing the request as one for FMLA leave. We also have to keep in mind that employers have to be aware of the bases for this FMLA leave so they recognize such a request. Okay, what's the second biggest problem? Not providing employees with FMLA forms or requesting that the employees complete FMLA forms. You wanna make sure both of those things are done. You've gotta make sure that they get forms and you've got to request that they complete them. Remember, the United States Department of Labor has forms online that are free, that are updated regularly, and that are simple to obtain. And utilizing uniform documents that are government approved and that are readily available to employees really eases FMLA management. I've certainly had clients who have come to me and asked me to create FMLA forms and if the only law that we're dealing with is the federal law, I say, "Go right to the website, don't pay me to do them." Now sometimes they need modified forms because there are state versions of the FMLA, and the laws and the eligibility and the amount of leave available do not track what the federal law provides. So then we do need to modify the forms. But if you can provide FMLA forms that the government's already created and approved, do that. And to start, I will say that there is an eligibility notice form. So when the employee requests FMLA leave, however that request is made, or when you as the employer acquire knowledge that an employee's leave may be for an FMLA qualifying reason, then you must notify the employee of their eligibility to take FMLA leave within five business days after the initial request for leave or when the employer acquires that knowledge that the leave may be for an FMLA qualifying reason, unless there's extenuating circumstances. Now remember, you're not telling the employee that they're getting FMLA leave. And employees, this does not mean that you've been approved for FMLA leave. It means that you're learning that there's a situation that may make you eligible. This is how we start the process. The notice has to be provided at the commencement of the first instance of leave for each FMLA qualifying reason in the applicable 12 month period. And the employer can satisfy this requirement by providing the employee with form WH-381, eligibility and rights and responsibilities notice. And in your materials, you have not only the current version of that form but a link to it on the web as well. Now understand with respect to eligibility, there are four separate FMLA certification forms, okay? And the four forms that will need to follow the eligibility form are, not all of them, of course, but the applicable one, are one for the employee's serious health condition. There's one for the serious health condition of a family member, there's a certification form for a qualifying exigency, and there's a certification form for military caregiver leave. And in the materials, there are links and live versions, of course, of each form. The employer has to provide the employee at least 15 calendar days to provide the requested certification. And again, you can satisfy this requirement by providing the employee with one of the forms on the list, either WH-380-E, WH-380-F, WH-384, either WH-380-E, WH-380-F, WH-384, WH-385, or WH-385-V. Well, what are each of those? Well, 380-E is the form you give for the certification of a healthcare provider for the employee's serious health condition under the FMLA. E for employee, a little pro tip there. The next one would be the WH-380-F, which is the certification of a healthcare provider for a family members' serious health condition, F, meaning family member. The next form, the WH-384 is the certification for military family leave for qualifying exigency under the FMLA. And WH-385 is the certification form for the serious injury or illness of a current service member for military caregiver leave under the FMLA. And also we have 385-V, which is the certification form for a serious injury or illness of a veteran, hence the V, for military caregiver leave under the FMLA. So there are a number of forms that the employer should be providing to the employee. And if they don't, this is a compliance problem that can jeopardize the employee's right to FMLA leave and then lead the employee to not only get the benefit of the law, but file claims against the employer because they never knew they were eligible for this leave. Remember that the employer is responsible in all circumstances for designating leave as FMLA qualifying and for giving notice of that designation to the employee. The designation notice has to be in writing and the employer, of course, can use a government issued form, which I have put in the materials, it's formed WH-382. And on that form, the employer has to notify the employee of the amount of leave counted against their FMLA leave entitlement. And if the employer requires that paid leave be substituted for FMLA leave, as some employers do, then the employer has to inform the employee of this designation at the time of designating FMLA leave. So again, these are really some pitfalls that we see in terms of compliance, which is not providing forms, not asking employees to complete certain forms. And then, of course, the leave sometimes that could have been and should have been designated as FMLA leave is not. And that causes the employee to suffer because they're not getting the benefit of a leave that they're entitled to receive and, of course, the employer can have liability. The next pitfall and compliance violation that I certainly see a great deal of in my practice is something as simple as failing to have and distribute an FMLA poster or policy. So remember, by law, all covered employers have to display a general notice about the FMLA, such as through an FMLA poster. And covered employers who have employees who are eligible for FMLA leave must also provide employees with general notice about the FMLA. They must notify them about their eligibility status and rights and responsibilities under the FMLA, and they must notify them whether and how much leave will be designated as FMLA leave and counted against their FMLA leave entitlement. So it is crucial that the employer, to comply with the law, have written information for the employee to utilize and understand and look at to tell the employee what needs to be done and to tell them what their rights are. And it is really astonishing how many companies grow to a certain size. The FMLA didn't apply in the past and, all of a sudden, they are at 50 or more employees and they are covered and they don't have a policy. Or they have, you know, like they've kind of flirted with the 50 person headcount for some time and they don't realize they've been at or over 50 for long enough to be covered by the FMLA. So sometimes it's as simple as that. The company didn't realize they grew, and now they need to have this. Other times they just didn't have good HR advice and so they didn't have or distribute an FMLA poster or policy. Now remember, to meet the general notice requirements of the FMLA, covered employers must display a poster in plain view for all workers and applicants to see. And thus notifying them of the FMLA provisions and providing information concerning how to file a complaint with the Wage and Hour Division. A covered employer must display this poster, even if it doesn't have any eligible employees. So it's opening day, no one's been there for more than a year or even a year, but the employer still must display this information. And an employer who will fully violates the posting requirement may be subject to a civil monetary penalty, and penalty amounts can be found online through the link that I've provided. So remember, again, employers can post the Wage and Hour Division's FMLA poster which is, again, available for free from their website in order to satisfy this requirement. Or you can use another format, so long as the information provided includes at a minimum all the information contained in the FMLA poster. My advice remains the same, why reinvent the wheel? This has been done, this has been approved by the government, it's been updated by the government, just use what they've published. And remember, in addition to displaying a poster, a covered employer who has any eligible employees, any, also must provide a general notice containing the same information that's in the poster in its employee handbook or in other written material about leave and benefits. So if no handbook or written leave materials exist, then the employer must distribute this general notice to new employees upon hire. And employers may meet this general notice requirement by either duplicating the general notice language found on the FMLA poster or by using another format, as long as the information provided includes at a minimum all the information contained in the FMLA poster. And, of course, the poster may be posted electronically, such as on an intranet or by email. And the general notice may be distributed electronically, provided all other requirements are met. So again, another pitfall is just failing to have and distribute this poster or policy. That will get you into trouble. I've certainly had situations where employees have said, "I never saw anything about the FMLA at my workplace," and they were right. The next big pitfall or compliance violation is failing to designate leave as FMLA leave or backdating leave as FMLA leave. So remember, the employer is responsible in all circumstances for designating leave as FMLA qualifying and for giving notice of the designation to the employee. When the employer has enough information to determine whether the leave is being taken for an FMLA qualifying reason, so after receiving the employee certification, which we covered before, then the employer must notify the employee whether the leave will be designated as FMLA leave within five business days, absent extenuating circumstances. So in any circumstance where the employer does not have sufficient information about the employee's reason for leave, the employer should inquire further of the employee to determine whether the leave is potentially FMLA leave qualifying. But note here, there are really strict timeframes for designating the leave as FMLA leave. And backdating can get us into all kinds of trouble, as can just failing to designate leave as FMLA leave in a timely fashion. There's really two potential violations, not doing a designation or doing it so late that it prejudices the employee. So remember, if an employer does not designate leave as FMLA leave, it can retroactively designate it as FMLA leave with appropriate notice to the employee provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. So liability can arise if the employer's failure to designate leave in a timely manner or, of course, to retroactively designate it as such causes the employee to suffer harm. Think about the employee who is, and I'll put in quotes, saving FMLA leave for a future reason. Maybe they know they're going to have a baby or a surgery and they were saving or banking their FMLA leave, they didn't think they'd used any of it, and now they learn later that they actually did exhaust their leave due to a late or retroactive designation. And now when they thought they would have FMLA leave for a future event, they don't. And that's a situation where it could cause harm. So remember, it's really important to designate the leave in a timely fashion. And if you're going to backdate it, make sure that the employee, if the employee acts or is upset or surprised or, of course, if you are the representing the employee and this is prejudicial, make sure you take that into account. And perhaps you want to change that retroactive designation so that the employee still has a full compliment of leave available for that future situation that they believe will happen. The next common compliance issue is failing to grant or track intermittent leave. Remember, intermittent leave is expressly permitted under the Family Medical Leave Act. FMLA leave can be taken in increments of time equivalent to down to the smallest increment of time used in other instances of leave, even down to the minute. So however you measure leave at your company, that is the amount of FMLA leave that the person who's applying for the leave can take. You can't force somebody to take leave in full day increments or full hour increments if you allow other kinds of leave, PTO, sick leave, et cetera, or over time or docking people when they're late, if those are measured in smaller increments. So it's not lawful to deny an employee's request for intermittent FMLA leave simply because the increments requested are small or difficult to track. And that's a common compliance violation because people who are not experienced in this area feel this is just a pain in the neck and we don't wanna do it that way and we don't have to do it that way, but that's just not true. So if someone is needing it on an intermittent basis, it is a lawful request and it should be tracked as such, just like any other leave. And failing to track intermittent leave can result in the employee being given too much FMLA leave over time because you're losing the time that the employee is not allowed to take because of the tracking issue. On the other hand, there are times when the employee isn't getting the benefit of the law because this leave is not being counted towards their FMLA leave. The fact that they're taking the leave is held against them, or they're not even able to take leave in the first place because it's intermittent. Now remember, if an employee needs intermittent leave that's foreseeable, the employer may require the employee to transfer temporarily to an alternative position for which the employee is qualified and that better accommodates recurring periods of leave. Also, an employer must provide equivalent pay and benefits in the alternative position, but the position doesn't have to have equivalent duties. And finally, when an employee no longer needs to continue on intermittent or reduce schedule leave and is able to return to work full time, the employer must place the employee in the same or equivalent job as the job the employee left when the leave commenced. So there are definitely problems if you fail to grant or track intermittent leave or allow a reduced schedule. The next pitfall of the FMLA is asking an employee to work at all when they qualify for or are on FMLA leave. to work at all when they qualify for or are on FMLA leave. It's very easy for an employer to start, what I'll call, bargaining or negotiating process with an employee. Well, can you just work a little bit? Can you just work a few hours? Can we call you if we need you? And/or actually doing any of those things while the employee is on leave. There are very, very limited exceptions, for example, if you can't find something and you have to call or email the employee to see if they can help you locate something that perhaps only they know the whereabouts of. Or if there's an internal investigation, you could potentially ask the employee if they're willing to participate in that investigation, especially if it's their complaint, even though they're on FMLA leave. But the wiser and safer course is to just leave that employee alone while they are on FMLA leave, and not try to negotiate them working a little bit or coming in sometimes or being amenable to occasional phone calls for information. I have recently had a situation where an employee who did file her own complaint was on FMLA leave and the employer said to me, "Do we have to wait until her leave is over to interview her or to talk with her about the investigation?" And I said, "The best course is to ask the employee what her preference was, since it was in fact her complaint that was being investigated." And the employee did turn out to be fine with being interviewed and helping move the investigation forward, and did not want everything to wait until she came back from FMLA leave. But that's the exception and not the rule. So remember, the employee has an absolute right to the time off if they have an FMLA qualifying reason for taking leave. There's to be no discussion of, and certainly no mandate of, working from home or working part-time or working at all. And an employee who's asked to or, worse, told to work when they qualify for and they want to take FMLA leave may have a claim that their rights have been violated and that their employer has interfered with, restrained, or denied them the exercise of their FMLA rights. And then if that's the case, the employee can file a complaint with the United States Department of Labor's Wage and Hour Division or can bring a private action in court. So there are severe consequences for interfering with these rights. And something so innocent, or innocent seeming as, picking up the phone or asking the employee if they could do a little bit of work while they're on FMLA leave will be considered a violation of the law. Another pitfall that employers can find themselves in and can certainly be a compliance problem is mismanaging or canceling employee benefits while an employee is on FMLA leave. Some employers don't realize what their obligations are with respect to these benefits while the employee is on FMLA leave, and take action that really can land them not only in legal trouble, but that can, you know, for want of a better word, freak out the employee who has now found they don't have health insurance, particularly when they're out of the office due to a serious health condition. So remember that an employer is required to maintain coverage of an employee on FMLA leave under any group health plan, including medical and dental coverage, and the employer must provide the same level of health benefits as if the employee had not taken leave. So taking FMLA leave cannot result in the loss of any employment benefit that accrued prior to the commencement of the leave. And an employee's entitlement to benefits other than group health benefits while they're on FMLA leave, so for example, the ability to earn holiday pay, that entitlement is to be determined by the employer's established policy. Note to self, write policy. The policy for providing such benefits when the employee is on other forms of leave, paid or unpaid leave, as may be appropriate. So there is no special treatment of someone because they're on FMLA leave either more or less favorably. And if someone else was to be on PTO or some kind of unpaid leave and they get holiday pay instead of PTO, then so would the employee who is on FMLA leave. But the important thing to remember is that there should be a policy that says what the employee gets, or what leave or what pay to which they are entitled while they're on other forms of leave. Then that would carry right over to when they're on FMLA leave. Also remember that any share of a group health plan premium that was paid by the employee prior to FMLA leave must continue to be paid by the employee during the FMLA leave period. So if the employee typically pays 20% of the health insurance premiums for their group coverage through the employer, then that would continue while they're on FMLA leave. And that can be taken care of through billing or prepayment or payroll deduction if they're on paid leave, there are ways of handling that. And, of course, it is more concerning when the employee is in an unpaid status while they're on FMLA leave and we'll get to that situation in a moment. Do remember that if premiums are raised or if they're lowered, the employee on FMLA leave would be required to pay the new premium rates. And in the absence of an established employer policy, again, note to self, write this policy or make sure it exists, or if you're an employee, look and see if one exists. In the absence of an established employer policy providing a longer grace period, an employer's obligations to maintain health insurance coverage cease if an employee's premium payment is more than 30 days late. All right, so this is just not an unfettered, we have to keep paying everything even though the employee is not doing their part or paying their portion. Also remember, if the employee does not return after FMLA leave, they generally must pay back the amount of the employer paid premium that was spent during the FMLA leave. Now again, this is a common compliance violation, but it's also a situation where sometimes employers leave money on the table. If the employee doesn't return to work because of one of the following things, either the continuation, recurrence, or onset of a serious health condition of either themselves or the employee's family member, or if they don't return to work due to the serious injury or illness of a covered service member, that would entitle the employee to FMLA leave. Or if they don't return to work due to the kitchen sink, other circumstances beyond the employee's control, well, then the employer cannot recover the employer's share of the health plan premiums that it paid while the employee was on FMLA leave. So absent any information about this, why the employee's not returning, or if the employer knows the employee is not returning because they're moving across country or they took a different job, the employer can seek out repayment. And as a practical matter, whether it's worth it, how much money they will recoup, those are game day decisions that the employer has to make to decide if it's worth the pursuit, worth the effort. But also the employer will have to decide if it's worth the risk because if the employee is not returning to work due to one of the reasons I just enumerated, the most worrisome one, of course, being circumstances beyond the employee's control, then the employer does not have the right to recover those premiums. So a simple way, a best practice that the employer can engage in is to find out from the employee, why are you not returning to work? And unless the employee lists one of these three reasons, then the employer can go retrieve or attempt to retrieve the money that it paid for those premiums and not leave that money on the table. And, of course, for employees, they want to make clear if they're not returning to work due to one of these reasons so that the employer does not try to recover those premiums. And understand that under the FMLA, an employee is deemed to have returned to work where they return to work for at least 30 calendar days, where they transfer directly from taking FMLA leave to retirement, or when they retire during the first 30 days after their return. So return to work is not necessarily, I came back for one day and then I left again. Okay, another common, common compliance pitfall or violation is directly contacting the employee's healthcare provider for additional information. It seems so obvious, "Well, this form wasn't filled out correctly, we'll just call the doctor and get some more information." Well, the family medical leave doesn't allow you to do it that way. So if there's a medical condition that's the basis for the leave and if an employer has questions about the medical certification, you remember those forms from many, many slides ago? Then the healthcare provider representing the employer can contact the employee's healthcare provider with the employee's permission, but only for the purpose of clarifying, such as messy handwriting or to understand the meaning of a response that may not be clear, maybe it's vague, maybe it's not responsive to the question. Or they can do it to authenticate the certification, particularly when there is a certification that just has a phone number with the name or doesn't have any identifying information. For example, no affiliation with a medical practice, no hospital name, no address, no email, it's just signed by somebody whose name you can probably barely read. And I have certainly seen those where it is peculiar that a certification form would be signed by someone and we have no information about how to get in touch with them or the organization that they work for, or the hospital that they have privileges at, nothing. So in that situation, the employer's healthcare provider, someone that they appoint, not just the supervisor of the employee, not a coworker, not HR, but someone that the healthcare provider representing the employer can contact the employee's healthcare provider to get that clarification or to authenticate the certification. Also, if there's a question about a qualifying exigency and that involves meeting with a third party, then the employer can contact the individual or the entity with whom the employee is meeting for purposes of verifying that there is a meeting or appointment scheduled and to verify the nature of the meeting between the employee and the specified individual or entity. So there are some protections built in when someone can be contacted directly. It's not that the employer has to blindly accept what has been submitted, but they also don't just have an unfettered ability to make these contacts and to get additional information. Now remember, an employer that has reason to doubt the validity of a medical certification may require the employee to obtain a second medical certification at the employer's expense. And in that situation, the employer is allowed to designate the healthcare provider who furnishes the second opinion, but that provider may not be someone who's employed on a regular basis by the employer and, of course, that's because there would be the potential for bias. Now if the second certification differs with the conclusions of the first certification, the employer may require a third certification by a jointly selected provider, again, at the employer's expense. And that certification is final, so it's not best of three. It's if you get to the third, then whatever the third provider says is what goes. And these cases are not necessarily that common where we really need to get to this point, but it does drive home that there is a process if there are questions about what the initial healthcare provider submitted or assigned for the employee to submit. And it's really important for employers to respect this process, and it's really important for employees to understand what their rights are through this certification process. It is not intuitive necessarily that we think, well we have to go to step two and step three, or we can only request clarification of handwriting or to get something authenticated. But indeed, the FMLA is very clear on what the parameters are. And it is certainly a compliance issue for those who are not informed about this aspect of the law. The next common compliance issue is somewhat entertaining in that, it's a situation where an employer offers FMLA leave to employees who are not eligible or covered. And why do I say entertaining? There are many employers who don't want to give employees more rights than the law requires. And I have read many handbooks in my time of employers who have FMLA policies, but they only have 20 employees or 30 employees or five employees. And I've said to them, "Did you maybe copy this off the internet?" Or perhaps they used to be very large employers and now they're not, which I know to not be the case. And I don't understand why they're putting policies in their handbooks providing a very, very significant amount of leave to employees when these are small businesses who would suffer if their employees really took 12 weeks off. And who they don't have to give this right to, and they don't have to follow everything that the FMLA says they have to follow. So it can really be an issue when an employer offers FMLA leave, typically through policy, to employees who are not eligible or who are not covered. So my suggestion for handling being an employer who wants to offer leave is that's wonderful and I strongly endorse giving employees leave under the right circumstances, but I also advise employers against putting in a full FMLA policy in their handbook when it doesn't apply to them. You're giving away a lot more leave than you need to by law. And the bigger issue is once you realize you don't have to do this and you don't want to do it because, from a business perspective, it makes your life a lot harder, then you're going to have employees who will say, "Well hold on a second, it's in the handbook, I get FMLA leave." And then what do you do? On one hand, they're probably not gonna win a court case over it, but they are relying on a policy that you have published. So what's going to happen there? And what are the optics in that situation? And what does it do to morale when people say, "Well, the handbook says I get up to 12 weeks of leave and now you're telling me I don't because we're not covered by the law?" So I think being really careful with your policies is important and making sure that you don't give rights to people who are not covered by this law. And that you as a company don't put yourself out there as being covered by the FMLA if you're too small to be covered by it. Another compliance violation that I see is not considering state and local laws that may provide additional or more expansive coverage or benefits. Remember here, many state and local laws cover smaller employers, they cover additional employees, and they provide greater benefits. So you really have to check and see if your state has something like this. For example, where I practice in Washington D.C., we have a D.C. Family Medical Leave Act. And it covers employers with only 20 employees, rather than 50. And to be covered, the employee only has to work 1,000 hours in a 12 month period rather than 1,250 hours. So it covers more employers and it covers more employees and the benefits are greater. The D.C. law provides 16 weeks of family leave every two years, and it provides an additional 16 weeks of medical leave every two years. So theoretically someone who has a serious illness and who has a baby could take off 32 weeks of time over a two year period. So it's really important to make sure your local jurisdiction doesn't have laws that are more generous, that cover a smaller employer, that cover other employees. And it's typical that these laws would run concurrently with the Family Medical Leave Act, not consecutively. But make sure you're aware of laws in the areas in which you operate so that you are compliant with both federal and local law. Another compliance violation I see all the time is terminating an employee after they exhaust FMLA leave without first performing an analysis under the Americans with Disabilities Act as amended, regarding the employee's need for reasonable accommodation. So what we see are people who can potentially come back from FMLA leave, but maybe they do need some reasonable accommodation because they have an ongoing disability and they no longer need, or perhaps they can't, take off any more time from work. They've used up all their 12 weeks or whatever it is, but they still need something. And I say, don't terminate someone without doing this analysis. And, of course, employees, don't quit without thinking about maybe I could do the job if I just had reasonable accommodation. So since the Americans with Disabilities Act as amended was enacted, many more serious health conditions are likely to qualify as disabilities because an impairment does not need to prevent or significantly prevent or severely or significantly restrict a major life activity in order to be substantially limiting. Substantially limits will be construed broadly in favor of expansive coverage. Also, whether an an individual is disabled must be evaluated without regard to mitigating measures, such as hearing aids and medication, with the exception of eyeglasses and contact lenses. And also impairments that are episodic or in remission are disabilities if they would be substantially limiting when active. So with respect to the Americans with Disabilities Act and the Family Medical Leave Act, an employer really has to determine the employee's rights under each statute separately and then consider whether the two statutes overlap and then decide what actions to take. So the employer has to therefore provide leave under whichever statutory provision provides the greater rights to the employees. And if an employer violates both the FMLA and an anti-discrimination law like the Americans with Disabilities Act, the employee may be able to recover under either or both statutes. So remember for reasonable accommodation, which could just be time off from work to recover or go to treatment, under the FMLA, there's 12 weeks of leave per year maximum under the federal law. But under the Americans with Disabilities Act, additionally may be a reasonable accommodation as long as it does not cause undue hardship. So we have to, at least as employers, look at that possibility. Automatic termination could violate the Americans with Disabilities Act if the employee is perhaps just saying, "I just need two more weeks off and then I can come back to work." Well, without going through that analysis at the end of FMLA leave, that could cause a legal issue for the employer. I will say on the other side of that, indefinitely will almost always be unreasonable. So there's gotta be a balancing there between what's too much and what's too little. But certainly, there should be some analysis. If the employee needs to come back with reasonable accommodation, the employer has got to look at, is that reasonable accommodation? And can the employee perform the essential functions of their job with or without reasonable accommodation? It should never be, 12 weeks are up, goodbye. It should always be, are you planning to come back? And what, if anything, do you need in order to do your job when you come back? Understand also that under the Family Medical Leave Act, an employer cannot require the employee to take light duty. We talked about that a few slides ago. There's no bargaining, can you just do a little bit of work? Can you just come in sometimes? Nope. The FMLA is all or nothing, they're on leave and you cannot ask them to try to do some work. But under the Americans with Disabilities Act, you might have to offer light duty if it could be a reasonable accommodation. Under that law, the employer has to consider job restructuring as a reasonable accommodation. And job restructuring could mean modifications such as relocating or redistributing marginal job functions, altering when or how a function is performed, whether that function is essential or marginal, or perhaps job sharing. That list is endless and it's not within the scope of this course to discuss what those possible modifications might be, but it's to alert you that you have to think about that when the employee is coming back from FMLA leave. And there's certainly no requirement under the Americans with Disabilities Act to remove essential functions as a form of reasonable accommodation. The final thing I wanna warn you about is retaliating against employees who've requested or utilized FMLA leave, don't do it! Retaliation for exercising FMLA rights is unlawful. And how do we look at it? Well, we look at the timing of the adverse employment action vis-a-vis the exercise of rights under the FMLA, that's what's critical. Unless someone comes out and says, "You're taking FMLA leave, I am going to get you for that, you're gonna be sorry you did it." We typically don't have that situation, so we look at circumstances. And we wanna know if someone is retaliated against, or it seems like it, for example, being fired after taking the leave, are there legitimate articulable reasons for the action that have nothing to do with the FMLA leave or that perhaps predate the FMLA leave? Sometimes people will, for example, take time off of work under the FMLA because they just know they're about to get fired and they're trying to insulate themselves from that adverse employment action. Or maybe it's because they just got their final warning that now they're anxious and they have to take time off for the anxiety. But that doesn't undo the fact that there's already disciplinary action out there, or that a reorganization was already planned and was about to go underway. So just remember, it can look like retaliation, but the employer may have legitimate reasons for taking this action that have nothing to do with the FMLA. And in closing, I will tell you there are certainly times when someone is on FMLA leave that then the employer discovers all these things the employee was doing wrong or not doing well or hiding and that becomes the basis for the termination. It's like the employee can't cover up certain things anymore and once they come to light, come to the surface, the employer uses that as the basis for the termination. So I hope in this program you feel more comfortable understanding the common compliance violations, no matter whether you represent employers or employees, and that you have a good sense of how to avoid them and how to address them, thank you.