What Qualifies as a “Serious Health Condition” for FMLA?

July 27, 2015

One of the biggest concerns our clients express is determining “what is a serious health condition in accordance with the requirements for a medical leave of absence under the FMLA.

Well, let’s start with the term “serious” is intended to exclude minor ailments, like colds, earaches, flus, and headaches.

Now, I want you to keep in mind, whether a health condition is serious depends on its origin or effects. For example, a cold is typically not a serious health condition, but it could become one if it leads to pneumonia. The health care provider will make the determination of whether a condition is serious; it is not at the discretion of the employer so do not try to become doctors!

So, the question is, “what counts as a serious health condition?” Let’s explore some options on how you can you tell whether an employee qualifies for this type of leave.

Types of serious health conditions

Under the FMLA, a serious health condition must fall into one of the following categories:

  • Inpatient care
  • Incapacity for more than three days with continuing treatment by a health care provider
  • Incapacity relating to pregnancy or prenatal care
  • Chronic serious health conditions
  • Permanent or long term conditions
  • Conditions requiring multiple treatments

Inpatient Care

Conditions requiring an overnight stay at a hospital facility (examples, hospice, or residential care facility) are automatically considered a serious health condition under the FMLA including subsequent treatment connected to that care.

Incapacity for more than three days plus continuing treatment

This is the category of serious health condition that has proven to be the most confusing – and perhaps the most likely to lead to legal claims. Someone who is incapacitated (unable to perform regular daily activities, such as working) for more than three days also has a serious health condition, but only if the person requires continuing treatment from a healthcare provider. The three days must be consecutive, but they can include weekends and holidays; they do not need to be business days. 

Note: An employee who simply takes a week off due to illness without seeking treatment does not have this type of serious health condition.

Pregnancy or prenatal care

An employee who is unable to work or perform other regular, daily activities due to pregnancy, has a serious health condition. An employee incapacitated because of pregnancy, perhaps morning sickness, can take FMLA leave for the condition even if she doesn’t see a doctor and isn’t incapacitated for more than three consecutive calendar days. The employee doesn’t have to be incapacitated or suffering from medical complications to qualify; leave can be used even for regular check-ups.

Chronic serious health conditions

Certain long-term or otherwise chronic impairments require time off, but the employee isn’t always incapacitated or being seen by a doctor. These chronic conditions qualify as serious health conditions covered by the FMLA if: 

    • The employee requires periodic visits for treatment, defined as at least two visits per year with a health care provider or nurse acting under a provider’s supervision;
    • The condition continues over an extended period of time; or
    • The condition may cause episodic, rather than continuing, incapacity

Conditions that may qualify in this category include diabetes, epilepsy, or asthma

Permanent or long term conditions

The FMLA covers a period of incapacity that is permanent or long term because of a condition for which treatment may not be effective (e.g., Alzheimer’s, stroke, terminal disease).

Military leave

The Family Medical Leave Act was amended to provide two important leave entitlements that benefit military families.

The following is a brief summary of these provisions. Additional eligibility requirements may apply.

  • A “qualifying exigency” arising out of a covered family member’s active duty or call or order to active duty in the National Guard or Reserves (or from retirement from certain military service) in support of a contingency operation.  A qualified exigency may include attending military events, arranging for alternative childcare, addressing financial and legal arrangements, seeking counseling, attending post-deployment activities, and other similar circumstances.

A leave of absence of up to 26 weeks in any single 12 month period and will be granted to eligible employees for the following purpose:

  • To care for an injured or ill covered family member  or next-of-kin (nearest blood relative) who is injured or recovering from an injury or illness suffered in the line of duty while on active duty as a current member of the Armed Forces, including the National Guard or Reserves, provided that such injury or illness renders the covered service member unfit to perform his/her duties  and for which the member is (1) undergoing medical treatment, recuperation or therapy; (2) in outpatient status; or (3) on the temporary disability retired list.

Note: Leave to care for an injured or ill service member, when combined with other FMLA qualifying leave, may not exceed 26 weeks in any single 12-month period.

Conditions requiring multiple treatments

An employee has protected absences to receive multiple treatments by healthcare providers and also to recover from the treatment, (e.g. chemotherapy). This would include reconstructive surgery after an accident or injury or a condition that would likely have an outcome of incapacity of more than three consecutive full calendar days if left untreated.

To find out whether a particular condition is protected by the FMLA, employers need employees to complete a medical certification: a form to be completed by the employee and the doctor, which provides details about the employee’s situation. REMEMBER, it’s not up to the employer to diagnose or to provide medical opinions about an employee’s health. Instead, by using a certification form the medical professionals will make this judgment, and the company can meet its legal obligations to employees who are protected under the FMLA.

As always, I will remind you do not terminate an employee who fails to return timely from a leave of absence without consulting with your attorney or other experienced professional.

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Amendments to the New Sick Leave Policy are Effective Immediately!!

July 20, 2015

Last week, California’s Governor signed into law urgency legislation passed by the legislature (AB 304) to amend California’s recently enacted paid sick leave law.  These amendments take effect immediately and are intended to clarify some areas of ambiguity in the law as originally enacted.  While the amendments do provide clarification in some areas, they nonetheless create added confusion and burden for employers that have already adopted or modified paid time off policies to take effect July 1, 2015, based on their best interpretations of the paid sick leave law in its originally enacted form.  The following is a summary of the amendments:

Exempted Employees

The original law included several exemptions for certain types of employees, including in-home supportive care workers, employees covered by collective bargaining agreements (provided certain conditions are met), air carrier employees, and certain employees in the construction industry.  The amendments create a new exemption for certain public-sector retired annuitants.  The amendments also modify the construction worker exemption by eliminating the requirement (set forth in the original statute) that the construction worker perform “onsite work.”  A related bill (AB 11) would have eliminated the exemption for in-home supportive care workers, but that bill failed.

Requirement that Out of State Employee Work in California for at Least 30 Days in a Year

The original paid sick leave law included a provision stating that the law applies to out-of-state employees who work in California for at least 30 days in a year.  The amendments retain this coverage provision, but clarify that the employee must work at least 30 days in California for the same employer.  The amendments, however, leave unanswered the outstanding ambiguity concerning whether 30 days means 30 actual work days, or 30 calendar days.

How Much Paid Leave Must Be Provided and Which Methods Employers May Use to Comply

As originally enacted, the paid sick leave law stated that beginning July 1, 2015, employees must begin accruing paid sick leave at the rate of at least 1 hour for every 30 hours worked.  However, employers may prohibit use of paid sick leave until the 90th day of employment, may limit annual use of paid sick leave to 3 days or 24 hours, and may impose an overall cap on accrual of 6 days or 48 hours.  Additionally, an employer may satisfy the paid sick leave requirement through a general paid time off policy or sick leave policy that satisfies at least the minimum accrual, carry over, and use requirements of the paid sick leave law, or that frontloads no less than 24 hours or 3 days of paid time off for employee use at the beginning of each year.

The amendments make substantial changes to these provisions, which now state the following:

  • Employers who use the accrual method (as opposed to frontloading paid sick leave) may provide for accrual of paid sick leave at a rate other than 1 hour for every 30 hours worked, provided that the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year or in each 12-month period.
  • Employers may satisfy the accrual requirements by providing not less than 24 hours or 3 days of paid sick leave that is available to the employee to use by the completion of his or her 120th calendar day of employment.  [This reference to the 120th calendar day of employment is entirely new and confusing, and inconsistent with the immediately preceding section stating that alternative accrual methods are okay as long as the employee accrues as least 24 hours of paid leave in a year (not within the first 120 days of employment).]
  • Employers satisfy the paid sick leave requirement if they frontload the full amount of leave and make it available for employee use at the beginning of each year of employment, calendar year, or 12-month period.  The amendments further clarify that the term “full amount of leave” means 3 days or 24 hours.
  • An employer is not required to provide additional paid sick leave to employees if the employer has a paid leave policy or paid time off policy, the employer makes available an amount of leave that may be used for the same purposes and under the same conditions provided for under the paid sick leave law, and the policy satisfies one of the following:
    • Satisfies the accrual, carryover, and use requirements of the new law; OR
    • For policies in existence prior to January 1, 2015, the policy must have provided for regular accrual of paid sick leave or paid time off of at least 1 day or 8 hours within 3 months of employment of each calendar year or each 12-month period, with the employees being eligible to earn at least 3 days or 24 hours of sick leave or paid time off within 9 months of employment.  [This is a grandfather provision that allows employers to retain paid leave policies without change in these specified limited circumstances.]  However, if the employer modifies the accrual method used in the policy it had in place prior to January 1, 2015, the employer shall comply with the accrual methods allowed under the paid sick leave law or provide the full amount of leave at the beginning of each year of employment, calendar year, or 12-month period.

For employers who use the accrual method, rather than the frontloading method, the amendments continue to allow employers to impose a cap on accrual of 6 days or 48 hours.  The amendments also do not alter the permissible uses of paid sick leave.

Unlimited Paid Time Off Policies

As originally enacted, the paid sick leave law was silent about the subject of “unlimited” paid time off policies and whether these policies would satisfy the requirements of the law.  The amendments suggest that unlimited paid time off policies will satisfy the requirements of the law, specifically stating that employers with unlimited paid time off policies may simply note “unlimited” on employee wage statements with reference to the amount of paid leave they have available.

Rate of Pay for Sick Leave

The amendments significantly change how employers should calculate pay for an employee’s use of sick leave, now providing that an employer may use any of the following methods:

  • Paid sick time for nonexempt employees may be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek;
  • Paid sick time for nonexempt employees may be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;
  • Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Notice of Available Paid Sick Leave With Each Paycheck

The amendments generally retain the requirement that employers provide employees written notice of the amount of paid leave they have available with each wage statement.  However, the amendments make an exception for employers covered by Wage Orders 11 and 12 (motion picture and broadcasting industries), delaying the effective date of the notice requirement for these employers until January 21, 2016.

Reinstating Sick Leave for Rehired Employees

As originally enacted, the paid sick leave law stated that employees who terminate employment and are rehired within one year are entitled to have previously accrued, but unused, sick leave reinstated.  The amendments clarify that paid sick leave does not have to be reinstated if it was paid out on termination of employment (which is required if the sick leave is provided as part of a general PTO policy).  The amendments also clarify that use of reinstated leave is subject to the “use and accrual limitations” of the statute.  In other words, if the employer limits use of accrued leave to 3 days or 24 hours per year and the employee’s reinstated leave causes the employee to have more than 3 days or 24 hours of leave. This does not mean that the employee has to be permitted to use more leave than allowed under the employer’s policy.

Duty to Track Use of Paid Sick Leave

As originally enacted, the paid sick leave law stated that employers must retain for at least 3 years records reflecting the amount of paid sick leave accrued and used by employees.  This led to many questions on the part of employers with general PTO policies as to whether they have to track use of PTO for a sick leave purpose (as opposed to for other purposes).  The amendments clarify that an employer need not inquire into or record the purposes for which an employee uses paid leave or paid time off.


Restricting Transgender’s Use of Restroom May Now be Problematic!

July 13, 2015

For those of my followers on my “Podcast” (www.pottsandassociates.com or on iTunes with Jim Potts) I discussed Caitlyn Jenner and the impact on the work environment when employees decide to make a gender transition. Logically, it can create employee relations issues for employers and whether there is a best way to handle the situation.

Well first let’s look at what the government “now” says.  The Equal Employment Opportunity Commission (EEOC) found on April 1, 2015 that restricting a transgender employee (transitioning from male to female) from using the common women’s restroom was sex discrimination under Title VII! The agency also ruled that the continued refusal by one of her supervisors to use her changed name and appropriate gender pronouns established a hostile work environment because it was deliberate and openly practiced in the workplace.

The individual, a civilian employee working for the US Army as a software quality assurance lead, began discussing her gender identity issues with the quality division chief in 2007, began the process of transitioning her gender expression in 2010, and officially changed her name with the state.  She was also successful in getting the government to change her name and sex on all her personnel records. She met with her supervisor and his supervisor in October of that year to request time off for medical procedures and announced her transition to her co-employees in November.

One of the first dilemmas employers face in these transitioning processes is which restroom does the person use? In this particular case, it was understood that the individual would use a “single-user” restroom until she had undergone “final surgery”.  The EEOC stated that an employer cannot restrict access to facilities until surgery was completed determining the individual’s sexual identity.

Another issue in this case dealt with the use of male gender pronouns. The employee claimed that her supervisor intentionally referred to her by her former male name and used male pronouns when referring to her in front of other employees (this was corroborated by witness testimony during the agency’s investigation). The EEOC found that continued refusal to use an employee’s correct name and gender may be sex-based harassment and create a hostile work environment.

While is it understandable that a supervisor persistently calling the individual by her former male name and using male pronouns when referring to her in front of her peers creates a hostile work environment, it is disappointing that the EEOC did not thoroughly consider the major employee relations issues generated by a male transitioning to a female using female restrooms. This could create issues not only with the female employees, but also with the female employees’ spouses and or their significant others.

OSHA has also recently put out guidance for employers on accommodating transgender employees’ restroom preferences. OSHA’s core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

We frequently receive calls from members about the restroom issue.  What should you do?  First, we believe it’s important to keep an open dialogue with the transitioning employee (gender reassignment).  If available and reasonably accessible, single-occupancy or unisex facilities can serve as a temporary facility for transitioning employees during the transition process, but should not be a permanent solution.  If you don’t have such facilities, discuss the sensitive nature of the situation with the transitioning employee.  Suggest that restroom breaks be taken at low traffic times to reduce awkward moments, adding that the transition affects not only the individual going through the process but all other employees of the person’s desired gender.  If none of these options will work, you might also consider requiring the transitioning employee to use the bathroom that matches their biology.  Of course, as noted earlier, the EEOC doesn’t support this option, and it does pose other risks, but sometimes you have to do what’s in the best interests of all employees and not just one.  Especially if you are faced with an employee relations problem with a large group of female employees (and their spouses), or vice versa, who don’t want to use the restroom alongside this transitioning employee.

On my Podcast this week I am also discussing this topic. Please tune in for an additional discussion regarding this important, but sensitive issue. Look, there are people who are not going to be happy for one reason or another with the changes that are coming. It is not for you to decide the “rights and wrongs” of how someone chooses to live their life. If the law supports individuals in whatever the protected class may be we have to abide by it.


Doubling the Salary Requirement for Overtime Exemption?

July 6, 2015

Recently, the Obama Administration unveiled a long-anticipated proposed rule increasing the threshold amount required to be paid to certain salaried workers before they are exempt from receiving overtime. The current rule is that any salaried worker who earns below $455 a week or $23,660 per year must receive overtime. The proposed rule would more than double that to $50,440 (i.e. close to the median household income)—a number that the administration believes would encompass many workers now classified as managers—and would increase automatically in future years.

Under the current rule, the white collar exemption excludes “executive, administrative and professional” employees from receiving overtime pay if they earn over $23,660. The proposed rule seeks to dramatically increase the salary threshold, but leaves open the question whether the duties tests in the current regulations should be revised.

This is quite significant for a rule that has been updated only once since 1975 and is not indexed for inflation. The administration hopes that the proposed change will improve wages for nearly 5 – 10 million people and put an additional $1.2 billion to 1.3 billion “in their pockets.” But, some experts and legislators predict negative effects.

John Boehner’s spokesman was quoted as saying that the new rule “will limit opportunities and increase costs.” Business groups are saying that employers will be forced to cut back on workers’ hours or workers, period. In many instances reducing employees’ hours worked may endanger their eligibility for benefits. The National Retail Foundation said that “most workers would be unlikely to see an increase in take-home pay, the use of part-time workers could increase, and retailers operating in rural states could see a disproportionate impact.”

The rule is expected to be especially tough for small businesses in small markets. According to the senior legal counsel with the National Federation of Independent Business, “Promoting someone to manager is going to be an expensive proposition for many small businesses and the result will be less mobility and fewer opportunities for workers at the bottom.”

Remember, this is only being proposed, however, certain states may pick up on the concept. California, one example, is already aggressively changing the minimum wage requirements with each coming year which will automatically change the threshold amount for exempt employee status.