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2. The Family and Medical Leave Act Liability Hot Spots Risk Research Bulletin, July 2008

3. Background FMLA allows up to 12 weeks of unpaid leave in a 12 month period for one or more of the following reasons: Birth and care of an employee’s newborn child Placement of an adopted or a foster child with an employee Care of an employee's immediate family member with a serious health condition Employee’s own serious health condition that makes him or her unable to work

4. Background Employee becomes eligible for FMLA leave after working 12 months and at least 1,250 hours during the 12 months preceding leave request “Serious health condition” includes inpatient care or continuing care by a health care provider

5. Background “Health care provider” includes: Doctors Dentists Optometrists Psychologists Nurse practitioners Chiropractors Licensed social workers

6. Mistakes That Result in Liability 1. Retaliation against employee taking leave 2. Failure to manage abuse of intermittent leave 3. Failure to designate FMLA leave and provide notice 4. Not returning an employee to equivalent job

7. Retaliation Against an Employee Taking Leave Best Practices 1. Identify managers in situations where retaliation is likely to occur. 2. Require HR to review all proposed discipline against an employee on FMLA leave or recently returning from it. 3. Require that an employment lawyer review all proposed terminations of an employee on FMLA leave or recently returning from it.

8. Failure to Manage Abuse of Intermittent Leave Best Practices 1. Always request medical certification of the initial condition. 2. Require employees to return medical certifications within 15 days. 3. Seek second opinions and third opinions if necessary.

9. Failure to Manage Abuse of Intermittent Leave Best Practices (cont.) – 4. Seek recertification every 30 days for employees with chronic conditions. 5. Require other leave to run concurrently with FMLA leave. 6. Establish a policy on outside work.

10. Failure to Manage Abuse of Intermittent Leave Best Practices (cont.) – 7. Consider using private investigators when you suspect abuse. 8. Be wary of “gotcha” moments.

11. Failure to Designate FMLA Leave and Provide Notice Best Practices 1. Train supervisors to recognize and report situations to HR that may trigger FMLA leave. 2. Centralize leave designation in the HR department. 3. When in doubt, preliminarily designate time off as FMLA leave. 4. Check state law for stricter rules.

12. Not Returning an Employee to Equivalent Job Best Practices 1. Remember that employees returning from medical leave usually make very sympathetic witnesses. 2. Documentation is critical. 3. Consider giving employees a second chance.

13. For UE Members For a copy of “The Family and Medical Leave Act Liability Hot Spots,” Risk Research Bulletin, July 2008, go to www.ue.org.www.ue.org For risk management technical advice and assistance, email www.risk@ue.org.