Common FMLA Pitfalls And How To Avoid Them Presented by Steven J. Luckner, Esq. June 10, 2015

Speaker 2 Steven J. Luckner Morristown, NJ

Who is Covered Under the FMLA? 3

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? 4

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”? 5

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”? 6

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? 7

Incentive Payments WE GIVE QUARTERLY BONUSES THAT REQUIRE PERFECT ATTENDANCE. ARE PEOPLE ON FMLA ELIGIBLE? 8

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? 9

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? 10

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? 11

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? 12

Retroactive Designation EMPLOYEE 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? 13

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? 14

Intermittent Leave EMPLOYEE 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? 15

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? 16

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? 17

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 , PHONE, OR IN PERSON. THIS ISN’T A PROBLEM, RIGHT? FMLA Forms 18

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Steven J. Luckner Ogletree Deakins, Nash, Smoak & Stewart, P.C. 10 Madison Avenue Morristown, NJ Tel: (973) Thank you! 20