The most common reason for FMLA (and OFLA) leave, and the one most often missed, is where an absence is caused by short-term medical conditions that require more than incidental medical treatment. Under FMLA, and its state counterpart, an employee will be found to have a serious health condition that justifies leave if:
- the employee is incapacitated (unable to perform an essential function of the job) or the employee’s family member is incapacitated (unable to go to school or work) and the employee is needed to provide care to the family member; and
- the condition lasts more than three consecutive, full calendar days; and
- there is sufficient medical involvement by a health care provider.
Sufficient medical involvement occurs where the employee or the employee’s family member receives in-person treatment 2 or more times by a health care provider where: (1) the first visit occurs within 7 days of the onset of incapacity; and (2) the second visit occurs within 30 days the onset of incapacity; or (b) the employee or the employee’s family member receives in-patient treatment by a health care provider within 7 days of the onset of incapacity, and thereafter receives a regimen of continuing treatment that is supervised by the heath care provider.
In applying the three-part test, above, to determine if a short-term illness qualifies as a serious health condition, there are a few considerations to keep in mind. First, treatment by a health care provider can include the initial examination to determine if a serious health condition exists, as well as visits to evaluate the condition. However, visits that are primarily to conduct routine exams, such as a physical, do not count.
Second, the health care provider, not the employee, is the one who decides wither additional visits or a regimen of continuing treatment is necessary. Given this, employees cannot bring themselves under the umbrella of FMLA coverage by simply returning to the health care provider a second time if this visit was not ordered by the provider.
Third, the requirement that a second visit occur within 30 days of initial incapacity is not absolute. There is a potential extension of the 30-day time period where there are extenuating circumstances, such as scheduling difficulties with the physician’s office that are beyond the employee’s control. The duration of an extension is to be determined on a case-by-case basis and takes into consideration the unique circumstances surrounding the delay.
When an employee has a short-term illness and misses work, it is important to look for red flags to identify whether the leave may qualify for FMLA, and thus whether the employee should be provided with the certification form to determine if the leave actually qualifies. Examples of such red flags include:
- The employee or the employee’s family member is sick and unable to work or go to school for more than 3 full days;
- The employee or the employee’s family member is seen by a health care provider because of the condition;
- The employee or the employee’s family member has follow up care, referral to alternative care, such as physical therapy, is given a prescription that is being monitored by the physician, or has a follow-up visit to the health care provider within 30 days.
Often these facts may come to your attention because the employee asks for additional time off to take care of these issues or in follow-up discussion when the employee returns to work. Employers who learn of these facts and don’t act to evaluate them do so at their peril.
FMLA places a heavy burden on employers to identify potential FMLA-qualifying situations, even when the employee does not mention FMLA by name or make it crystal clear that the employee or a family member had a serious health condition. Given this, and because most HR professions and managers do not have medical training, employers should err on the side of caution and avoid any risk of interfering with an employee’s right to protected leave.
In this case, being cautious means providing employees with the certification form and related paperwork in cases where there may be a qualifying leave. Doing so then allows the employee to decide if he or she will actually take steps to complete and return the paperwork or otherwise pursue the leave. This simple step frees the employer from having to decide if the absence actually qualifies for FMLA protection, and instead hands over responsibility for this part of the decision-making process to a qualified health care provider. Thank goodness that we don’t have to make these difficult decisions, and instead need only be sensitive to the need to provide certification paperwork when the situation looks like it might qualify for FMLA protection.
This Blog is made available for educational purposes and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Many employees describe themselves as part of the ‘sandwich generation,’ meaning they are called to provide care to both their children and their aging parents. Sometimes these requests for leave arise because of inpatient care provided to a covered family member. Under the FMLA (but not OFLA), inpatient care requires an overnight stay in a hospital, hospice, or residential care facility. Under the FMLA (and OFLA), the time of the stay, and any subsequent period of incapacity or follow-up treatment associated with the stay, qualify for coverage under the Act.
Although generous, the right to leave in this area is not unlimited. When a family member is receiving inpatient care, the basic medical, hygienic, or nutritional or safety needs are presumably provided for by the hospital or facility. Given this, an employee’s leave is generally limited to time needed to:
- make arrangements for changes in such care, such as transfer to a nursing home;
- provide care during the subsequent period of incapacity;
- provide transportation for follow-up care; or
- provide psychological comfort and reassurance which would be beneficial to a covered family member with a serious health condition who is receiving inpatient or home care.
Once the family member leaves the hospital or residential facility, the scope of activities an employee may engage in and still qualify for leave expands and becomes quite blurry. Clearly there are outer-limits on the right to leave. Courts have consistently held that leave sought solely for the purpose of making repairs to a parent’s home or cleaning up after a natural disaster is not the same as providing care to the parent, and thus is not qualified. Requests for leave where the purposes of such leave include both covered and non-covered activities present more complex questions and require courts to look more carefully at the circumstances surrounding the leave and the way care is being provided to the family member.
In Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078 (9th Cir.2002), the court was faced with a situation where arguably protected time was mixed with time that appeared not to qualify. In this case, the employee took FMLA leave to care for his father who was suffering from depression. The employee admitted that he performed daily chores, such as shoveling snow, chopping wood, clearing the yard, but also claimed that he drove his father to counseling sessions. The employer challenged whether care was actually provided to the father, arguing that the employee did not actually attend any of the counseling sessions, and thus that all the time away fell outside the FMLA. The Ninth Circuit rejected this argument, and instead concluded that the employee did participate in his father’s treatment, albeit indirectly. The court pointed to evidence that the employee spoke to his father daily about his grief. The court also found it significant that the employee acted as a constant presence in his father’s life during this critical time.
Similarly, in Briones v. Genuine Parts Co., 225 F.Supp.2d 711 (E.D.La.2002), the court adopted an expansive view of what it means to provide care for a covered family member. In this case, the employee took FMLA leave to care for his three healthy children while his wife cared for their seriously ill son. The court adopted a broad view of the law when it noted that the father “would have been entitled to FMLA leave had he been at the hospital caring for [his sick son] himself instead of using leave to facilitate [his wife's] fulfilling that role.” Briones, 225 F.Supp.2d. at 715. The court then concluded that the FMLA is flexible enough to encompass the actions of the father in the scope of its protection.
What these cases demonstrate is that employers must be careful to fully understand the circumstances of an employee’s leave request to care for a family member with a serious health condition. In situations where the employee will be substantively involved in the care provided to the family member, or where the employee would have been involved but is instead filling in for a spouse who is taking over that responsibility, the leave is most likely qualified. If the employee is instead simply helping a covered family member with travel unrelated to medical care, or is performing household tasks unrelated to the family member’s transition from inpatient care, then the leave most likely falls outside FMLA. In most cases, the FMLA certification form and a follow up discussion with the employee will help sort out covered leave from non-covered leave. In cases where the proper characterization is still not clear, employers assume far less risk by granting the leave and designating the time as FMLA and/or OFLA.
This Blog is made available for educational purposes and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Transforming the Way We Work Presentation, August 18th
By · CommentsMultiple demands in the lives of employees are relentlessly increasing, which have a major impact on employee productivity and engagement. How employees perform individually and collectively as a team are not keeping pace with their growing and ever changing workloads. Therefore, under this new and changing world paradigm shift, the way we’re working isn’t working. Far too many organizations expect their employees to operate and conduct business transactions in the same way that computers do: continuously, at high speeds, for long periods of time, running multiple programs at the same time. This expectation is a prescription for performance failure and adversely impacts employee engagement which ultimately results in business failure. Click here to register for this Wednesday, August 18th luncheon.
Tony Schwartz is President and CEO of The Energy Project, a company that helps individuals and organizations fuel energy, engagement, focus and productivity by harnessing the science of high performance.
Knowledge Transfer Meets Vulcan Mind Meld
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One of my favorite scenes in Star Trek was when Spock would place his fingers on someone’s face and chant: “My mind to your mind. Your thoughts to my thoughts.” This inevitably resulted in an exchange of critical information that saved the Enterprise and her crew. While in contemporary times we may lack the telepathic powers of 23rd Century Vulcans, we can do a lot to protect our businesses from brain drain and the loss of human capital with knowledge transfer tools and techniques.
Knowledge transfer is an urgent issue and organizations and their HR teams can’t wait for the recession to end before they begin to move forward on this critical initiative.
Here’s how:
- Lay the foundation - Perform an analysis of critical skills and key knowledge areas that your business will require for business success over the next two to five years. Next, analyze your current workforce and perform a gap analysis, considering normal turnover including potential retirement of traditional and boomer generation employees. Finally, examine the existing social networks both formal and informal that already exist.
- Get executive support - Identify executive-level champions and share your findings from the analysis with them. Knowledge transfer can’t be seen soley as an HR program if it is to gain acceptance as a strategic initiative and capture resources necessary for its success. Strong advocacy from the top is essential and will serve to stimulate the interest and participation of other valuable stakeholders.
- Roll out a program and communicate, communicate, communicate! - Using information you’ve gathered through your analysis and leveraging your support base, design a program to show the benefits of knowledge management. One option that has worked in many organizations is mentorship. Here matures and boomers are engaged to transmit deep knowledge gained over years of work and share it Gen X and Y colleagues. Along with the program, prepare to communicate with stakeholders early and often using a variety of media. This is a critical engagement factor that will pay real dividends.
- Build in the use of social networking tools to facilitate knowledge transfer - Internal social networks can bridge generational divides. Stereotypes to the contrary, boomers are embracing social networking and becoming as comfortable in using social media as their Gen X and Gen Y colleagues. Build on this shared affordance.
Knowledge transfer is a high leverage point that can give your enterprise an unbeatable competitive edge. Spock would approve!
Editor’s note: This post also appears in BoomerCompass Blog.
In 1998, Google began as a start-up organization destined to change the world and impact millions of users. Today 70% of all searches use Google with a response time of one-half second. Ken Auletta, author of “Googled” (2009), traces the history of Google which began as a technology company and has evolved into a software,technology, Internet, advertising and media company all rolled into one organization. Google’s mission statement is to organize the world’s information and make it universally accessible and useful.”
In 1999, Stacey Sullivan was the 50th employee and was hired as the Chief Cultural Officer. The company is committed to remaining non-hierarchal and flat and has a value statement of “Don’t be Evil.” When Google went public in 2004,revenues were 3.2 billion and increased to 16.6 billion in 2007. In this same period profits went from 399 million to 4.2 billion defying a world wide recession. Google receives one million employment applications a year and only 1% of applicants are hired. Compare this figure to Harvard University where 7% of all applications are accepted. .1% of all profits go to philanthropy through the Google Foundation.
The ability to sort through digital clicks creates a business which is highly visible. According to Eric Schmidt, CEO, Google can tell you if you spend “x” dollars on ads, you will get “x”dollars in revenue per industry per customer. As the author states, “Nowhere in the three billion daily searches it conducts the two dozen or so “tetabits” (about twenty four quadrillion bits) of data it stores, the more than twenty million books it plans to digitize, will we find another company that has swept so swiftly across the nation.” The stock has traded around $500 a share in early August 2010 and Google just acquired Instantiations, a Tualatin, Oregon software company.
If you have not yet experienced the power, influence and technology of Google, it is only a matter of time. Stay tuned!
If you’ve been following these posts, you now know essentially every nuance of FMLA’s eligibility rules for employees and coverage rules for employers. It’s finally time to turn to the last part of the eligibility evaluation and examine what circumstances justify a request for leave.
In general, an employee can request leave:
- for child acquisition (adoption or foster placement of a child – a son or daughter);
- to care for a spouse, child or parent with a serious health condition;
- because of the employee’s own serious health condition, including pregnancy, that makes him/her unable to perform the essential functions of the job;
- because of the qualifying exigency related to a spouse, child or parent called to or on active duty; or
- to care for a service member with a serious illness or injury who is a spouse, child or parent, or for whom the employee is the next of kin.
Oregon closely follows FMLA in this area, but there are some important differences. For example, an employee who is needed to care for another can, under OFLA, also ask for leave to care for a same-sex domestic partner, parent-in-law, grandparent or grandchild. Similarly OFLA allows leave time to be with a spouse or a same-sex domestic partner who is home for military leave or where the spouse or same-sex domestic partner is called up to active duty.
Oregon also has two unique areas of coverage that go beyond the scope of FMLA. Under specific circumstances that will be discussed later, OFLA allows a parent to take “sick child leave” to care for a child who requires home care, but does not have a serious health condition. OFLA also provides, again in specific situations, addition leave to a mother is suffering from a pregnancy-related disability. Both of these types of leave will be explored in more detail in a future blog.
For now, let’s remember that each leave situations has specific rules that apply or thresholds that must be met. Some are straightforward, but many are not. The next several blog posts will drill down on these issues, and will offer some best practice suggestions to help you more effectively and confidently vet requests for FMLA/OFLA leave. By the end of the series, you should know the ins and outs better than most ‘experts’ in the area, so stay tuned!
This Blog is made available for educational purposes and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
The Leave Blog – Eligible Employee Odds & Ends
By · CommentsThis week we are finishing our series on determining when an employee becomes eligible for FMLA leave. We now focus on a few odds and ends that employers should know in the event there is question about how the Act would treat a particular employee asking for leave.
In cases where an employer has not kept accurate records of time worked, including where an employee is considered exempt under the FLSA, the burden falls to the company to prove that the employee has not worked at least 1250 hours in the prior 12 months. Proving a negative is never easy, so employers who deny leave based on an assumed inadequacy of hours worked do so at their peril.
OFLA does not have a similar provision regarding the consequences of failing to maintain time records. Despite this absence, employers should assume that an employer who claims insufficient hours were worked will need to prove the deficiency somehow.
The last employee eligibility rule to keep in mind relates to when the evaluation of hours worked is made. The duration and the hours worked tests are applied at the time the FMLA leave is to be taken, not when the leave is requested. As a result, an employee who has not met the duration test and is thus non-eligible when the request for leave is made, may actually become an eligible employee while on non-FMLA leave. When this happens, only leave occurring after the moment of eligibility may be counted for FMLA purposes.
Under OFLA, the duration of employment test is only 180 days instead of the 12 month period required under FMLA. Like FMLA, an employee can meet the 180 day threshold on a non-OFLA leave, so long as the average hours worked per week is still above 25. For employees who work full-time, this may not be a problem.
Covered employers who deny OFLA and/or FMLA leave based on insufficient hours or duration of employment are taking a calculated risk. If you do so, it is important that you can offer sufficient proof, if challenged. Interference with the right to take FMLA leave is a serious claim – one where automatic liability can attach. Before you act, you may want to involve counsel in your analysis. Better to be safe than sorry.
This Blog is made available for educational purposes and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Research shows that engaged employees are more productive employees. They are more profitable, more customer-focused, safer and more likely to withstand temptations to leave the organization. In the best organizations, employee engagement transcends a human resources initiative – it is the way they do business.
Actively disengaged employees erode an organizations’ bottom line, while breaking spirits of colleagues in the process. Within the US workforce, The Gallup Organization estimates the cost to the bottom line to be more then $300 billion in lost productivity alone. This study was done before the recession–imagine the costs today!
I presented on Employee Engagement at your July program. Click here for the slide show from the presentation. Click here for the Podcast.
Last week we looked at the two tests for employee eligibility under the FMLA – the duration of employment test, and the hours of work test. This week we look a bit more closely at the first of these tests.
To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months over the prior seven years. There are two exceptions to this 7-year look back rule that are worth noting.
The first, and most important, exception is where the employee has a break in employment because of National Guard or Reserve military service obligations. Where this occurs, the employee’s time spent fulfilling military obligations is counted, just as if there were no break in employment. As a result, employees fulfilling military obligations should generally be eligible for leave upon their return to work.
A similar, but slightly different, exception is recognized for OFLA leave. Under our state regulations, if an employee was eligible for OFLA leave prior to being called up to fulfill a military obligation, the employee remains eligible for such leave afterward. The military service time is not counted for eligibility purposes, but it does not constitute a break in service that would require re-qualification under the state duration of employment (180 days) test. The difference between the FMLA and OFLA standards is, therefore, more of form than of substance.
The second exception to FMLA’s duration of employment test arises where there is a written agreement, including under a collective bargaining agreement, which affirms a company’s intention to rehire an employee after a break in service for particular reasons, such as pursuing higher education or for childrearing. In short, if the employer’s intent to rehire is clear, then the 7-year look back rule does not limit the periods of employment that may be considered. There is no similar exception under OFLA, but because FMLA regulations are often looked to for guidance in interpreting OFLA, it is possible such an agreement would be recognized.
Finally, the FMLA regulations recognize an employer’s right to waive application of the 7-year look back rule. There is one significant consequence that is worth noting, however. If an employer decides to forego this rule, then it must do so uniformly, for all employees. OFLA does not specifically address this issue. Oregon employers should therefore assume that if they voluntarily provide OFLA leave to an employee by waiving an eligibility rule they may then be required to waive eligibility rules for all employees.
Many employers may never have occasion to examine or apply the 7-year look back rule. For those who do, it is important to know how this rule works and when exceptions apply. Denying leave improperly carries significant consequences, so if you have an employee that is on the cusp, drill down and ensure your counting and your application of the rules and exceptions is correct. If you have questions, make sure to involve counsel in your analysis.
This Blog is made available for educational purposes and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
