Administering FMLA leave is a constant challenge for HR professionals. Determining what to do in situations involving intermittent leave, serious health conditions, notice obligations and overlapping leave policies can be time-consuming and, if handled incorrectly, can place you at risk for a lawsuit. Be prepared! In this 90-minute webinar, attorneys Dana Connell and Michael Congiu of Littler Mendelson will explain what you need to know to navigate the complicated issues that can arise when administering FMLA leave.

1. A Division of Thompson Media Group
Navigating the Top FMLA
Concerns for Employers
Dana Connell, Esq.
Michael Congiu, Esq.
Littler Mendelson, PC
321 N. Clark Street
Suite 1000
Chicago, IL 60640

2. Overview
• Policy-Related Issues
• Intermittent Leave
• Extended Leave Scenarios
2

3. Policy-Related Issues
3

4. Enforcing the 50 Employee/75 Mile
Requirement
• There are risks associated with being too
generous
– May have to give more leave than intended
• “Generous” leave does not count as FMLA
– May lead to unintended FLSA Issues
4

5. Enforcing the 50 Employee/75 Mile
Requirement
• The “promissory estoppel” problem
– Does your handbook address this
requirement?
• Peters v. Gilead Sciences, 533 F.3d 594 (7th Cir.
2008)
• The “Penal Transfer”
– Different branches/offices with different rules
5

6. The Broader “Estoppel” Problem
• Gaps in FMLA Policy May Lead to Inadvertent Grant of
FMLA
• Some Key Provisions:
– The selected 12-month leave period;
– That FMLA leave must be completed within 12 months of birth, adoption or
placement in foster care;
– That leave may be shared in certain circumstances when spouses are employed
by the same employer;
– That an employee must comply with the employer’s usual and customary notice
and procedural requirements for requesting leave, absent unusual
circumstances, which could include written notice; and
– The need to consult with employer to avoid operational disruptions when
arranging intermittent leave for planned medical treatment.
6

7. “FMLA” for Domestic Partners
• Is such leave required by state law?
• If not, have same “generous” risks and
issues:
– Leave does not count as FMLA
– Leave is not protected
– FLSA consequences
7

8. DOL Forms Expiration
• The federal Office of Management and
Budget’s must approve the forms
• The DOL has sought renewal of the
approval, and companies are permitted to
use the forms pending that renewal
– http://www.dol.gov/whd/forms/
8

9. GINA and the DOL Forms
• Certification of Health Care Provider for Employee’s
Serious Health Condition (WH-380-E)
– The following should be added right after the first paragraph of
instructions to the health care provider in Section III:
• Important Notice to Health Care Provider:
• The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and
other entities covered by GINA Title II from requesting or requiring genetic information
of an individual or family member of the individual, except as specifically allowed by
this law. To comply with this law, we are asking that you not provide any genetic
information when responding to this request for medical information. “Genetic
information” as defined by GINA, includes an individual’s family medical history, the
results of an individual’s or family member’s genetic tests, the fact that an individual or
an individual’s family member sought or received genetic services, and genetic
information of a fetus carried by an individual or an individual’s family member or an
embryo lawfully held by an individual or family member receiving assistive reproductive
services.
9

10. GINA and the DOL Forms
• Certification of Health Care Provider for Family
Member’s Serious Health Condition (WH-380-F)
– Add the following right after the first paragraph of instructions to
the health care provider in section III:
• Important Notice to Health Care Provider:
• The Genetic Information Nondiscrimination Act of 2008 (GINA) generally prohibits employers and
other entities covered by GINA Title II from requesting genetic information of an individual or family
member of the individual, except as specifically permitted by this law. GINA permits employers to
request an employee’s family medical history, which is one form of genetic information, when an
employee requests leave to care for the serious health condition of a family member. "Family
medical history" includes information about the manifestation of disease or disorder in the family
member who is the subject of this certification. Accordingly, you may provide us with such information
to the extent necessary for you to complete this certification. However, you should not provide any
other type of genetic information as defined by GINA, which would include the results of an
individual’s or family member’s genetic tests, the fact that an individual or an individual’s family
member sought or received genetic services, and genetic information of a fetus carried by an
individual or an individual’s family member or an embryo lawfully held by an individual or family
member receiving assistive reproductive services.
10

11. GINA and the DOL Forms
• Designation Notice (WH-382)
– This language can either be added into the middle of the first
page of the form, where the information on the fitness-for-duty
certificate is referenced, or can be a separate page to be used
with an attached list of essential functions:
• Important Notice to Employee:
• The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and
other entities covered by GINA Title II from requesting or requiring genetic information
of an individual or family member of the individual, except as specifically allowed by
this law. To comply with this law, we are asking that you not provide any genetic
information when responding to any request for a fitness-for-duty certificate referenced
in the attached Designation Notice. ‘Genetic information’ as defined by GINA, includes
an individual’s family medical history, the results of an individual’s or family member’s
genetic tests, the fact that an individual or an individual’s family member sought or
received genetic services, and genetic information of a fetus carried by an individual or
an individual’s family member or an embryo lawfully held by an individual or family
member receiving assistive reproductive services. 11

12. Pre-Eligibility FMLA Requests
• This may protect the requesting employee
– Pereda v. Brookdale (11th Cir., 2012)
12

13. Intermittent Leave
13

14. The Terminology
• Intermittent leave: FMLA leave taken in
separate blocks of time due to a single
qualifying reason.
• Reduced schedule leave: a leave
schedule that reduces an employee’s
usual number of working hours per
workweek, or hours per workday.
14

15. Must be “Medically Necessary”
• Periodic appointments
• Several days for treatments or incapacity
(e.g. chemotherapy)
• Prenatal examinations, morning sickness
• Flare-ups of a chronic condition
15

16. Managing Intermittent Leave at the
Approval Stage
• Ensure the employee is eligible for
intermittent leave
– Is intermittent leave “medically necessary”
• Make sure the employee’s doctor provides
sufficient information
• You may “disagree” with providing
intermittent leave in certain circumstances
16

17. Managing Intermittent Leave at
the Approval Stage
• Authenticate / Verify Certification
• Only once “complete and sufficient”
• No employee authorization required
• ‘‘ ‘Authentication’ ’’ means providing the health care
provider with a copy of the certification and requesting
certification that the information contained on the
certification form was completed and/or authorized by
the health care provider.” 29 CFR §825.307(a)
• “Verification” of military exigency active duty orders and
certification also permitted. 29 CFR §825.309(d)
17

18. Managing Intermittent Leave at
the Approval Stage
• Scrutinize the Certification
• Must be “complete and sufficient [i.e., clear].”
• First step: Designation Notice explaining specific portions
that are incomplete or unclear.
• 7-day time limit, unless not practicable despite
employee’s “diligent good faith efforts.”
• Second step: Option to seek authorization to speak to
medical provider re: clarification.
• Be careful regarding medical provider claims of inability
to estimate duration and/or frequency. 18

19. Managing Intermittent Leave After
Approval
• Is the employee satisfying notice his or her
requirements?
– Does your policy specify these obligations?
• Is temporary reassignment an option?
– Careful – available only with regard to
intermittent/reduced-schedule leave for planned
medical treatment. 29 CFR §825.204(a)
• Is the employee making a “reasonable effort” to schedule
his or her intermittent leave?
• Are periodic fitness-for-duty certifications appropriate?19

20. Managing The Real Gamesplayers
• Recertification where appropriate
– Do you have information that “casts doubt” on need
for leave?
• FMLA generally should not insulate employees
with legitimate performance issues
• Require annual review
• Surveillance?
20

21. Extended Leave
Scenarios
21

22. What Are The Employee’s
Reinstatement Rights?
• Reinstatement to the Same or “Equivalent”
Position... “even if the employee has been
replaced or his or her position has been
restructured to accommodate the
employee’s absence”
– 29 CFR 825.214
22

23. What Limitations Exist On An Employer’s
Obligation To Reinstate?
• Under the FMLA, an employer does not have an obligation to
reinstate an employee to another position if “the employee is unable
to perform an essential function of the position because of a
physical or mental condition, including the continuation of a serious
health condition or an injury or illness also covered by workers’
compensation.” 29 C.F.R. § 825.216(c) . . . BUT:
• The FMLA also provides that an “employer’s obligations may,
however, be governed by the Americans with Disabilities Act (ADA) .
. . state leave laws, or workers’ compensation laws.” 29 C.F.R. §
825.216(c).
23

24. Can Companies Use Bright-Line
“No-Fault” Leave Policies?
• The relevant EEOC Enforcement Guidance states as follows:
– May an employer apply a “no-fault” leave policy, under which employees
are automatically terminated after they have been on leave for a certain
period of time, to an employee with a disability who needs leave beyond
the set period?
– No. If an employee with a disability needs additional unpaid leave as a
reasonable accommodation, the employer must modify its "no-fault"
leave policy to provide the employee with the additional leave, unless it
can show that: (1) there is another effective accommodation that would
enable the person to perform the essential functions of his/her position,
or (2) granting additional leave would cause an undue hardship.
– Modifying workplace policies, including leave policies, is a form of
reasonable accommodation.
24

25. Can Companies Use Bright-Line
“No-Fault” Leave Policies?
• Since this Enforcement Guidance, the
EEOC has brought a series of class action
cases against the following employers for
utilizing “no-fault” policies:
– Sears, N.D. Illinois, Case No. 04-c-7282 (involving “inflexible” one year workers’
compensation leave policy which did not provide for reasonable
accommodation);
– Denny’s, D. Maryland, Case No. 1:06-cv-02527-WDQ;
– SuperValu, N.D. Illinois, Case No. 1:09-cv-05637;
– United Parcel Service, N.D. Illinois, Case No. 1:09-cv-05291 (“inflexible 12-month
leave policy which did not provide for reasonable accommodation and which
instead provided for termination of employment.”). 25

26. The ADA & Leave Requests
• Practical Points:
– Finding a balance between providing allowances that
are fair and reasonable without going too far . . .
• The more leave that is granted the harder it may be to later
claim that granting such leave causes an undue burden
– Where the leave is sought as an accommodation, the
company can seek medical information to support that
request but must be careful to avoid a “regarded as”
claim by asking for specific medical documentation to
support isolated absences
• These are extremely fact-sensitive issues:
– Legal counsel should be consulted to best understand
your risks and options
26

27. What If the Employee Is Not Able To Return at the
Conclusion of the 12 Week FMLA Entitlement?
• Before terminating or permanently replacing
employee consider...
– Do additional leave rights exist under state law?
– Is the employee entitled to additional leave as an
accommodation under the ADA?
• Is there a return to work date specified?
– Could the employee return to work if a reasonable
accommodation was provided “on the job” if covered
by the ADA?
27

28. Questions?
Do you have a question that you
would like answered during the
Q&A session?
Simply follow the instructions below.
• To ask a question, please press *1 on your touchtone
phone.
• If you are using a speaker phone, please lift the
receiver and then press *1.
• If you would like to withdraw your question, press *1.

29. THANK YOU
Dana Connell, Esq.
Michael Congiu, Esq.
Littler Mendelson, PC
dconnell@littler.com
mcongiu@littler.com

30. This presentation is intended solely to provide
general information and does not constitute
legal advice. Attendance at the presentation or
later review of these printed materials does not
create an attorney-client relationship with the
presenter(s). You should not take any action
based upon any information in this presentation
without first consulting legal counsel familiar with
your particular circumstances.