Curbing Leave Workarounds: Strategies to Promote Appropriate FMLA Usage

1. Curbing Leave Workarounds: Strategies to Promote Appropriate FMLA Usage Francie Barber, RN, MA, COHN-S/CM Peter P. Greaney, MD Jerome Schreibstein, Esq. Karen Wollgast, CPDM�

2. Take Aways Understanding changes and updates to FMLA Top Legal Pitfalls of FMLA Program in Action: Regence Group Clinician�s Role in FMLA New Opportunities for Occupational Health Nurses

3. Welcome Welcome, everyone. We have a few brain teasers for you that we�d like you to consider during Jerry�s talk. He will address them once his section is over. We�d also like to ask you to save your questions for the very end of the program.Welcome, everyone. We have a few brain teasers for you that we�d like you to consider during Jerry�s talk. He will address them once his section is over. We�d also like to ask you to save your questions for the very end of the program.

4. FMLA � Compliance Perspective From Employer Legal Counsel Jerome Schreibstein, ESQ. Law Office of Jerome Schreibstein 275 Battery Street, 18th Floor� San Francisco, CA 94111 Office Direct Dial: (415) 875-3355 Cell: (415) 298-1030 Office Fax: (415) 358-9885 E-mail: jschreibstein@jschreiblaw.com

5. FMLA Brain Teasers

6. FMLA Brain Teasers Question: An employer has a worker who wants intermittent leave to take care of her emotionally disturbed 20-year-old son whenever he has an �incident.� Is something that unpredictable and recurrent covered by the FMLA? Question: An employee�s wife had rotator cuff surgery. The doctor�s medical certification form was approved by the employer. Three weeks after the surgery, the employer requested a medical examination. When asked about this, the employer cited 29 C.F.R. �825.307 that a second and third medical opinion can be required. Since the original certification stated that the employee will be out 90 days after surgery, can an employer after the surgery and the approval of the medical certification require a second opinion?

7. FMLA Brain Teasers Question: What can an employer do when an employee's medical certification says that the employee has a need for intermittent leave "forever"? Question: Can an employer attach a job description to an employee�s medical certification form? The employer wants to do this because it suspects that some employees tell their health care providers anything to convince them of the need to take FMLA leave, and thus take unnecessary absences. Question: An employee took FMLA leave and then was seen during that leave at his child�s soccer game. Can the employer terminate him for fraud?

8. FMLA Overview Covered Employers 50> each working day during 20> work weeks in current/preceding year Only applies if 50> w/75 mi. of EE�s worksite EEs w/no fixed site Joint employers 50> each working day during 20> work weeks in current/preceding year Only applies if 50> w/75 mi. of EE�s worksite (includes employers with scattered operations, as well as large company with remote satellites) EEs w/no fixed site � reporting to or assigning site controls Joint employers � fact-intensive inquiry as to which EEs counted 50> each working day during 20> work weeks in current/preceding year Only applies if 50> w/75 mi. of EE�s worksite (includes employers with scattered operations, as well as large company with remote satellites) EEs w/no fixed site � reporting to or assigning site controls Joint employers � fact-intensive inquiry as to which EEs counted

9. FMLA Overview Eligible Employees Employed at least 12 mos. at leave commencement (need not be consecutive) 1,250 hours of active work service before leave (no vacation or PTO counted)

10. FMLA Overview Permissible Leave Reasons Employee�s own serious health condition Serious health condition of a child/spouse/parent (or Registered Domestic Partner under state laws) Child�s birth/adoption/foster care placement Recent: �qualifying exigency� re: or care for EE�s covered family member in military Permissible Leave Reasons Employee�s own serious health condition Serious health condition of a child/spouse/parent (or Registered Domestic Partner under state laws) Child�s birth/adoption/foster care placement Recent: �qualifying exigency� re: or care for EE�s covered family member in military Permissible Leave Reasons Employee�s own serious health condition Serious health condition of a child/spouse/parent (or Registered Domestic Partner under state laws) Child�s birth/adoption/foster care placement Recent: �qualifying exigency� re: or care for EE�s covered family member in military

11. FMLA Overview Serious Health Condition: An illness, injury, impairment or physical or mental condition that involves: inpatient care (hospital, hospice or residential care facility), or �continuing treatment by a health care provider�

12. FMLA Overview Continuing Treatment by Healthcare Provider: A period of incapacity (inability to attend work/school or perform day-to-day activities), and Involves treatment 2> by a healthcare provider (during the incapacity) or a regimen of supervised continuing treatment

13. FMLA Overview Other Qualifying Reasons Incapacity due to pregnancy/pre-natal care Chronic conditions requiring treatment (periodic visits, protracted, may be episodic, rather than continuous incapacity) Permanent/long term conditions where treatment not effective

14. FMLA Overview Other Qualifying Reasons: Multiple treatments Restorative surgery, or Condition that would probably result in 3> days of incapacity w/o intervention (e.g., cancer (chemo.), arthritis (PT), or diabetes (dialysis)) Substance abuse � treatment by health care provider Other Qualifying Reasons: Multiple treatments (even if not 3 days of incapacity); Restorative surgery, or Condition that would probably result in 3> days of incapacity w/o intervention (e.g., cancer (chemo.), arthritis (PT), or diabetes (dialysis)) Substance abuse � treatment by health care provider (not absences because of abuse) Other Qualifying Reasons: Multiple treatments (even if not 3 days of incapacity); Restorative surgery, or Condition that would probably result in 3> days of incapacity w/o intervention (e.g., cancer (chemo.), arthritis (PT), or diabetes (dialysis)) Substance abuse � treatment by health care provider (not absences because of abuse)

15. FMLA Overview Generally Excluded: Common cold, flu, earache, stomach upset, minor ulcer, headache (unless otherwise qualifying) Conditions for which cosmetic treatments are administered Generally Excluded: Common colds, flus, earaches, stomach upset, minor ulcers, headaches (unless otherwise qualifying) Conditions for which cosmetic treatments are administered Generally Excluded: Common colds, flus, earaches, stomach upset, minor ulcers, headaches (unless otherwise qualifying) Conditions for which cosmetic treatments are administered

16. FMLA Overview HealthCare Provider is: (1) A doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or(2) Any other person determined by the Secretary to be capable of providing health care services.(b) Others "capable of providing health care services" include only:(1) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State and performing within the scope of their practice as defined under State law;(2) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice as defined under State law;(3) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee or family member is receiving treatment from a Christian Science practitioner, an employee may not object to any requirement from an employer that the employee or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider other than a Christian Science practitioner except as otherwise provided under applicable State or local law or collective bargaining agreement;(4) Any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and(5) A health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.(c) The phrase "authorized to practice in the State" as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions. (29 CFR 825.125) I want this dense text to illustrate how dense some of these regs. areI want this dense text to illustrate how dense some of these regs. are

17. FMLA Overview Care for Loved One: Serious health condition is defined the same way as for employee�s own condition Care provided by employee family member includes both physical and psychological care

18. FMLA Overview Military Family Member: Up to 12 weeks for �qualifying exigency� arising b/c of covered family member�s active duty military service Up to 26 weeks to care for family member recovering from wound during military service (extends to next of kin)

19. FMLA Overview Leave Duration: 12 work weeks per year Controlling year � ER choose (a) calendar year, (b) any other fixed year (e.g., fiscal year, EE�s anniversary, etc.), (c) measured forward from the time FMLA 1st taken, or (d) �rolling� backward from usage