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FMLA BOOT CAMP:

How to Tackle Tough Issues

Deborah M. Tharnish

Kelsey K. Crosse

DISCLAIMER

Due to limitations and the nature of this program please understand that printed material and oral presentations or other data presented are not intended to be a definitive analysis of the subjects discussed. Users are cautioned that situations involving employment law questions are unique to each individual circumstance, and the facts of each situation will dictate a different set of considerations and varying results. Material contained on this site or listed as a reference is a general review of the issues, and must not be considered as a substitute for advice from your own attorney on your own independent situations.

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Family and Medical Leave Act

• Purpose

• Balance work and family life

• Promote economic security of families and serve national interest in preserving family integrity

• Qualify

• Employers

• Private Sector - 50 employees, 75 mile radius

• Public Employers

• Employees

• Minimum Service - 12 months

• Minimum Hours – 1250 hours

• Covered Issue

Covered Issues

• Birth, Adoption, Foster Care

• SHC • Employee’s SHC

• To care for a spouse, child, or a parent

• Military Family Leave

• Exigent circumstance

• Military caregiver leave

Qualifying Family Members

• Parent

• Biological

• Adoptive / Foster Parent

• In Loco Parentis

• Spouse

• Son or Daughter

• Biological, adopted, foster child, a step child, a legal ward, or a child of a person standing in loco parentis who is

• Under 18 years of age • Or…

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Adult Children

1. SHC

2. Employee must be

needed to care for the

adult child

3. Incapable of Self Care

4. Because of a disability

1. SHC An illness, injury, impairment, or physical or mental condition involving:

• Inpatient Care

• Continuing Treatment by a Health Care Provider

• Incapacity Plus Treatment

• More than 3 consecutive full calendar days that involves either:

• Treatment 2 x by a HCP

• 1st visit within 7 days + Both visits within 30 days

• Treatment one time by a HCP (within 7 days) followed by a regimen of continuing treatment

• Incapacity due to Pregnancy or Prenatal Care

• Chronic Conditions

• Requires periodic visits 2 x per year

• Continues over an extended period of time

• Permanent or Long-term Conditions

• Multiple Treatments

2. Care for (29 CFR § 825.124)

Physical or psychological

• The family member is unable to care for his/her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself/herself to the doctor.

• Providing psychological comfort and reassurance that would be beneficial to the family member with a SHC who is receiving inpatient or home care.

• The term also includes situations where the employee may be needed to substitute for others who normally care for the family member, or to make arrangements for changes in care, such as transfer to a nursing home.

• The employee need not be the only individual or family member available to care for the family member.

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3. Incapable of Self Care

• Requires active assistance or supervision in 3 or more activities of daily living or instrumental activities of daily living.

ADLs: caring for oneself, grooming and hygiene, bathing, dressing, and eating

IADLs: cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, and a post office.

4. Because of a Mental or

Physical Disability

• An impairment that “substantially limits” one or more “major life activities”

• ADAAA – includes the loss of operation of a major bodily function such as:

• Immune System

• Normal Cell Growth

• Digestive

• Bowel

• Neurological

• Brain

• Respiratory

• Circulatory

• Endocrine

• Reproductive

Deafness

Blindness

Intellectual Disability

Mobility Impairments

Autism

Cancer

Cerebral palsy

My 23 year old son with down

syndrome lives with me and goes to a

community resource program during

the day. When he is ill, I must stay

home with him and he cannot be left alone.

Can I take FMLA leave for this reason?

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Entitled to FMLA Leave?

Penny Dillon v. Carlton (11th Cir. 1998)

• Tardiness and absenteeism were severe enough that she was placed on probation.

• Son was diagnosed with ADHD.

• Her son’s condition later improved and then worsened a few months later.

• Penny was given a new certification form. She submitted it. The doctor crossed through the phrase “SHC” twice and said that her son needed care “As all children do.”

19 year old daughter with

cancer.

Can I take FMLA leave for this

reason?

My 20 year old daughter has

been put on bed rest because of

her high risk pregnancy. I am the

only one available to care for her.

Can I take FMLA leave for this reason?

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My adult daughter has a disability,

epilepsy, which is controlled by

medication. Can I take FMLA leave

to care for her if she is admitted to a

hospital overnight for observation

due to a car accident?

Needed to Care for?

Castro Marchisheck v. San Mateo Cty. General Hospital

(9th Cir. 1999)

• Castro was a senior medical technologist.

• Her son Shaun was assaulted by several acquaintances.

• Castro requested vacation leave for 5 weeks to return her son to the Philippines to live with her brother. Her request was denied.

• She went on the trip and was terminated when she returned.

Needed to Care for?

Charles Tellis v. Alaska Airlines, Inc. (9th Cir. 2005)

• Charles was a maintenance mechanic.

• Whether his cross-country trip to retrieve the family vehicle during his wife's late-stage pregnancy difficulties, and his calling her on the phone during the three and a half days he was away, were “to care for” his wife under the FMLA and thus a protected absence from his employment?

• Court said care “involves some level of participation in ongoing treatment of that condition.”

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Needed to Care for?

Suzan Gienapp v. Harbor Crest (7th Cir. 2014)

• Harbor Crest is a residential nursing facility.

• Suzan requested leave to care for her adult daughter who was undergoing treatment for thyroid cancer.

• Did Suzan provide care for her daughter as well as her grandchildren?

“Harbor Crest's concession in the district court requires us to frame the issue as whether a combination of assistance to

one's daughter, plus care of grandchildren that could take a load off the daughter's mind and feet, counts as ‘care’ under the Act. To this the answer

must be yes.”

Needed to Care for?

Beverly Ballard v. Chicago Park Dist. (7th Cir. 2014)

• Swimming Instructor

• Dying mother – already receiving hospice support.

• Fairygodmother Foundation

• Employer – away-from-home trip requires ongoing medical treatment.

• Court said “care” does not require ongoing treatment of a condition.

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Needed to Care for?

Cheek v. City of Edwardsville, KS (D. Kan. 2007)

• Employee’s father had open heart surgery.

• She admitted she took time off to mow the lawn for her father but she also provided assistance to him whenever it needed to be done including when her mother was unavailable to assist him.

What does this all mean?

Care

• Overseeing a daughter’s trust, picking up her laundry

• Mere visitation

• Helping mother move to new home

• Flooded basement

• Parent able to care for his own basic needs

• Absence after death of parent b/c no longer need to care for him/her

Psychological Care

• An employee must state that “he was doing something

– anything – to participate in his mother’s care. It would not have taken much to meet the very loose psychological care standard” (SDNY 2003) (2nd Cir. 2005)

• May involve an unconscious family member.

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Recommendations

Gather the Facts

• How will the employee provide care?

• What type? Physical or Psychological?

• To whom will the care be provided?

• Where will the employee provide care?

• How does the HCP indicate that the employee will provide care?

• Will the employee be in close proximity and regular contact with the family member?

• Substitute services?

• Close and continuing proximity

• Primary Purpose

• Direct care vs. Indirect care

Who is a Health Care Provider? YES

• Doctors of medicine or osteopathy

• Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited)

• Nurse practitioners, nurse-midwives, clinical social workers, and physician assistants

• Christian Science Practitioners

• A HCP recognized by the employer or the employer’s group health plan’s benefits manager

• A HCP listed above who practices in another country but is authorized to practice under the laws of that country

NO?

What about Chiropractors?

Sievers v. Iowa Mut. Ins. Co. – Iowa Supreme Court 1998

• Gwenda requested time off to accompany her daughter, who suffered a seizure, to South Dakota.

• Does the FMLA cover chiropractic treatment under the circumstances of this case?

1. The chiropractor performing the treatment is authorized to practice in the state in which the treatment is performed;

2. The treatment must be within the scope of the chiropractor's practice as defined under the law in the state where the chiropractor is practicing;

3. The treatment must consist of manual manipulation of the spine to correct a subluxation; and

4. X-rays must demonstrate the existence of the subluxation.

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What About Bonuses?

• Is the bonus awarded to all employees?

• Employers may deny a bonus that is based on achieving a goal so long as the employee taking FMLA leave is treated the same as employees taking non-FMLA leave.

• Hours worked

• Products sold

• Perfect attendance

Fraud 1.) FMLA Leave for Non-

FMLA purposes

• Rodney Jones v. Gulf Coast Health Care of Delaware, LLC d/b/a Accentia Health and Rehabilitation Center of Tampa Bay

Activities Director

2.) Misrepresenting a

medical condition

Altering medical documentation

Managing Leave Requests

• Require an employee to complete a written leave request for all absences

• Keep Diligent Records

• Specific reasons for leave • Amount of leave taken • Assigning leave to proper leave years when they overlap

• Use the medical certification and recertification process

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Medical Certification • Employers must provide notice / request certification within 5

business days of:

1) Receiving notice of the need for leave 2) Beginning leave

• Request medical certification in writing

• Inform employees of consequences if they don’t furnish a certification

• Employees must submit within 15 calendar days

• Employer must identify any deficiency in writing and provide 7 days to cure.

• Annual certification may be required for a condition lasting more than 1 year

• Employee responsible for cost

Medical Certification

• Contact information for the HCP

• When the serious health condition began

• How long the SHC is expected to last

• If the employee is the patient, whether the employee is unable to work, and the likely duration of this inability

• If a family member is a patient, whether the family member needs care, and an estimate of the frequency and duration of the leave required to care for the family member

• Whether the employee’s need for leave is continuous or intermittent, and

• Appropriate medical facts about the condition

Recertification

• Allowed every 30 days if in connection with an absence by the employee (with exceptions)

• However long the certification form states that the employee would need leave; or

• Less than 30 days if the circumstances have changed significantly

• Employee requests an extension of leave;

• Duration / frequency of the absence / nature or severity of the illness / complications;

• Information casts doubt on employee’s stated reason for the absence or the continuing validity of the certification.

• Every 6 months for a continuing condition in connection with an absence.

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Managing Fraud and Abuse

• Require an employee to complete a written leave request for all absences

• Keep diligent records

• Use the medical certification and recertification process

• Follow up on incomplete and inadequate medical certifications

• Use 2nd and 3rd opinions

• Request recertifications when authorized

• Get a new certification every new 12 month period

• Maintain effective call-in procedures / inquire

• Watch the schedule of absences closely

• Investigate & train managers

• Confront the employee

• Give an opportunity for him/her to explain

DEBORAH M. THARNISH

KELSEY K. CROSSE The Davis Brown Law Firm

215 10th Street, Ste. 1300

Des Moines, IA 50309

515-288-2500

DeborahTharnish@davisbrownlaw.com

KelseyCrosse@davisbrownlaw.com

QUESTIONS?