Alexis, who offered his intermittent leave tips during BLR’s Advanced Employment Issues Symposium, held recently in Las Vegas, is with the Kinaga Law Firm in Los Angeles.
1. Insist on Complete Certs
Make sure the medical certification is fully completed, urges Alexis. As the employer, you are entitled to a complete and sufficient certification document. If the certification is not complete, send it back to the employee.
HR.BLR.com® notes: FMLA’s regulations require that an employer advise an employee whenever the employer finds a certification incomplete or insufficient, and the employer must state in writing what additional information is necessary to make the certification complete and sufficient.
If the deficiencies specified by the employer are not fixed in the resubmitted certification, the employer may deny the FMLA leave. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification, if necessary. If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the healthcare provider, and does not otherwise clarify the certification, the employer may deny the FMLA leave if the certification is unclear.
2. Question by Authentication
Authenticate questionable certs by communicating with the medical provider’s office to ask only, “Did this document originate from your office?” No permission is necessary to make this inquiry.
3. Make Employees Clarify
Don’t accept vague responses! says Alexis. Have the employee clarify or seek permission to clarify.
4. Seek Second and Third Medical Opinions
If you doubt the validity of the certification, exercise the second and third medical opinion process to challenge the certification, says Alexis.
Trouble in HR’s Bermuda Triangle? Get it right with an extended webinar, ADA, FMLA, and Workers’ Compensation Summit: Understanding Your Intersecting Leave Law Obligations. Join us August 20, 2013. Learn More.
5. Do Salary Deductions
Do deduct from exempt employees’ salaries. HR.BLR.com notes: Under the FMLA, an employer may deduct hourly amounts from an employee’s salary when providing FMLA leave without affecting the employee’s exempt status under the FLSA. Thus, an employer may “dock” the pay of otherwise salaried employees for family and medical leave-related absences of less than 1 full day without affecting their exempt status.
6. Recertify Often
Conduct recertifications when you are allowed to and when they are appropriate.
7. Recertify Effectively
It’s important to show medical providers the attendance patterns, says Alexis. Some experts suggest actually “X”ing out the dates on calendar pages, so the practitioner can see, for example, the obvious pattern of back pain or migraines that appear only on Mondays and Fridays.
8. Require Employees to Schedule Leave for Your Convenience
Require employees to work with you in scheduling treatments and absences. It is their obligation to attempt to schedule treatment at times and places that cause minimal disruption to your work.
The intersections of ADA, FMLA, and workers’ compensation are no doubt one of the most frustrating things ever invented. And it never stops. Just one quick example:
In June 2013, a federal court ruled against UPS for their inflexible leave policy. The EEOC claims that the package delivery company violated the ADA by allowing only a 12-month leave of absence, failing to provide disabled employees further reasonable accommodations, and firing them if they exceeded those parameters.
And then earlier this year, the EEOC also issued revised publications on the rights of employees protected under the ADA—specifically, four documents addressing employees with cancer, diabetes, epilepsy, and intellectual disabilities.
With cases like this as well as new ADA revisions, it’s clear that the EEOC is targeting employer leave policies like never before. So, how can you make sure you’re in compliance and that your policies are up to date?
Complicated questions arise all the time because the line separating employee FMLA rights, applicable workers’ comp coverage, and employee rights under the ADA is blurred. Employer obligations can get murky, so it’s imperative that you know how to determine precisely what you can and can’t do when facing the treacherous triangle of disability and leave laws.
How to figure it all out? Fortunately, there’s timely help in the form of BLR’s new webcast—ADA, FMLA, and Workers’ Compensation Summit: Understanding Your Intersecting Leave Law Obligations.
In this 5-hour summit, you’ll learn how to manage the admittedly complex interweaving of the three leave laws.
Register today for this interactive webinar or get more information.
Awash in the Bermuda Triangle? Join us for an extended webinar, ADA, FMLA, and Workers’ Compensation Summit: Understanding Your Intersecting Leave Law Obligations. Earn up to 5 hours in HRCI Recertification Credit. Register Now.
By participating in this interactive webcast, you’ll learn:
- How intersecting ADA, FMLA, and workers’ comp regulations impact your policies and procedures and what you MUST do to adapt
- What the leave and disability laws require
- The order in which the laws should be applied
- Key differences between a “serious health condition,” a “disability,” and a “workplace injury”
- How to tell if someone with cancer is disabled under the ADA and the documentation you may request
- What to do when you suspect issues related to an employee’s performance may be due to mental illness
- How to tell if a temporary transfer or change in duties/hours is the answer
- The game plan for returning a workers’ compensation claimant to work
- What your leave policy should never state
- How to have difficult conversations with protected employees about attendance, conduct, or performance-based issues
- And much, much more!
August 20, 2013
11:00 a.m. to 4:45 (Eastern)
10:00 a.m. to 3:45 (Central)
9:00 a.m. to 2:45 (Mountain)
8:00 a.m. to 1:45 (Pacific)
Approved for Recertification Credit
This program has been approved for up to 5 recertification credit hours through the Human Resource Certification Institute (HRCI).
Join us on August 20—you’ll get the in-depth ADA, FMLA, and Workers’ Compensation Summit: Understanding Your Intersecting Leave Law Obligations webcast AND you’ll get all of your individual questions answered by our experts.
Train Your Entire Staff
As with all BLR/HR Hero® webcasts:
- Train all the staff you can fit around a conference phone.
- You can get your (and their) specific phoned-in or e-mailed questions answered in Q&A sessions that follow each segment of the presentation.
Salary deductions may seem like a hassle, but they’re very effective at deterring abuse.