Common FMLA Pitfalls And Common FMLA Pitfalls And How To Avoid ThemHow To Avoid Them

Presented by Steven J. Luckner, Esq.

June 10, 2015

SpeakerSpeaker

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Steven J. LucknerMorristown, NJsteven.luckner@ogletreedeakins.com

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 steven.luckner@ogletreedeakins.com

Thank you!

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