common fmla pitfalls and how to avoid them presented by steven j. luckner, esq. june 10, 2015
TRANSCRIPT
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Common FMLA Pitfalls And Common FMLA Pitfalls And How To Avoid ThemHow To Avoid Them
Presented by Steven J. Luckner, Esq.
June 10, 2015
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Who is Covered Under the FMLA?
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The FMLA provides for 12 weeks of unpaid job protected leave in a 12 month period where:
- The employee has a “serious health condition” that renders the employee unable to perform the essential functions of his or her job; or
- The employee needs to care for a child, spouse or parent that suffers from a “serious health condition”; or
- The employee is involved with the birth, adoption or foster care placement of a child and to care for such child within the first 12 months after birth.
WHAT DOES THE FMLA PROVIDE?
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A “serious health condition” includes an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
This includes care for a “chronic serious health condition”.
WHAT IS A “SERIOUS HEALTH CONDITION”?
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Requires periodic visits for treatment by a health care provider;
Continues over an extended period of time; and
May cause episodic rather than a continuing period of incapacity.
WHAT IS A “CHRONIC SERIOUS HEALTH CONDITION”?
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Employee Surveillance
CAN I CONDUCT SURVEILLANCE OF
EMPLOYEES WHO ARE OUT ON FMLA LEAVE TO
ENSURE THEY ARE NOT BEING DISHONEST
ABOUT THE REASON FOR LEAVE?
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Incentive Payments
WE GIVE QUARTERLY BONUSES THAT REQUIRE PERFECT ATTENDANCE. ARE PEOPLE ON FMLA
ELIGIBLE?
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Third Medical Opinions
THE EMPLOYEE’S PHYSICIAN AND OUR PHYSICIAN DISAGREE ABOUT WHETHER THE EMPLOYEE’S
CONDITION REQUIRES LEAVE. CAN WE SEND THE EMPLOYEE TO A THIRD
DOCTOR? WHO PAYS?
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Breaks At Work
EMPLOYEE HAS BEEN APPROVED FOR INTERMITTENT FMLA LEAVE, BUT WANTS TO TAKE THE INTERMITTENT LEAVE WHILE AT
WORK. DO I HAVE TO ALLOW THAT?
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Prior Exceptions
EMPLOYEE HAS REQUESTED FMLA LEAVE TO CARE FOR HIS MOTHER-IN-LAW. WE
GRANTED LEAVE TO A FEMALE EMPLOYEE LAST YEAR FOR THE SAME REASON.
DO WE HAVE TO ALLOW?
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No Medical Certification
EMPLOYEE REQUESTED FMLA LEAVE, BUT FAILED TO RETURN THE MEDICAL CERTIFICATION BY THE DEADLINE. CAN I DENY FMLA LEAVE SOLELY ON
THIS BASIS AND/OR TERMINATE?
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Retroactive DesignationEMPLOYEE WAS INJURED ON THE JOB, REQUIRING
SURGERY. I FORGOT TO COUNT THE SURGERY RECOVERY TIME AS FMLA. NOW THE EMPLOYEE HAS RETURNED TO WORK AND HAS REQUESTED FMLA
LEAVE FOR AN UNRELATED CONDITION. CAN I RETROACTIVELY COUNT THE WORKERS’
COMPENSATION TIME AS FMLA?
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Changing Leave Policy
I WANT TO TRANSITION MY FMLA LEAVE SYSTEM FROM A YEARLY SYSTEM TO A ROLLING
12 MONTH SYSTEM. HOW DO I ACCOMPLISH THAT AND HOW DO YOU RECOMMEND
MANAGING THAT?
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Intermittent LeaveEMPLOYEE HAS BEEN APPROVED FOR
INTERMITTENT LEAVE FOR (INSERT CONDITION). NOW, EVERY TIME SHE IS LATE OR LEAVES EARLY
WITHOUT PERMISSION, SHE CLAIMS IT IS RELATED TO HER CONDITION AND IS PART OF HER INTERMITTENT LEAVE. WHAT CAN I DO?
EMPLOYEE HAS BEEN APPROVED FOR INTERMITTENT LEAVE. LATELY, HE’S TAKING LEAVE ON FRIDAYS AND MONDAYS. WHAT
CAN I DO?
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Extension of Leave
EMPLOYEE HAS EXHAUSTED ALL OF HIS FMLA LEAVE. WE GRANTED AN ADDITIONAL 30
DAYS OF LEAVE, BUT EMPLOYEE WAS STILL UNABLE TO RETURN. CAN I TERMINATE HIM
NOW?
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FMLA Fraud
AN EMPLOYEE, WHILE ON FMLA LEAVE, POSTED PICTURES ON FACEBOOK OF HERSELF
SURFING IN HAWAII. CAN I TERMINATE THE EMPLOYEE FOR FMLA FRAUD?
EMPLOYEE IS OUT ON FMLA LEAVE. SAME EMPLOYEE CHECKS ME OUT AT TARGET. CAN I TERMINATE THE EMPLOYEE FOR FMLA FRAUD?
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I USUALLY DON’T SEND OUT FORMS OR LETTERS TO EMPLOYEES WHEN THEY
ARE OUT FOR FMLA QUALIFYING CIRCUMSTANCES, BUT I DISCUSS IT WITH
THEM EITHER BY EMAIL, PHONE, OR IN PERSON. THIS ISN’T A PROBLEM, RIGHT?
FMLA Forms
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Steven J. LucknerOgletree Deakins, Nash,
Smoak & Stewart, P.C.
10 Madison Avenue
Morristown, NJ 07960
Tel: (973) 656-1600 [email protected]
Thank you!
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