Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, “The Family Medical Leave Act for Justice Professionals.” Here are a few of his responses.
Audience Question: Can an employee turn down taking FMLA?
Rick Hodsdon: No. That’s another myth that employees have the right to choose or not choose the Family Medical Leave Act. The employer, if the employee comes to you and asks you for it and they meet the criteria, then they’re entitled to it. If you have an employee, who comes with a signal and says, “I’m going to have to be out for two weeks for surgery,” you tell them that’s a Family Medical Leave Act event and they said, “I don’t want it to be,” they don’t get that call. They can be required to make this a Family Medical Leave Act event.
Audience Question: Can the agency require that the employee exhaust all annual leave and sick leave first before using FMLA intermittent leave?
Rick Hodsdon: No, you can require using it at the same time. But require them to burn off leaves, at least if they otherwise qualify for Family Medical Leave. Let’s say the person comes to you and says, “I need to do kidney dialysis and I’m going to be gone.” The employer says, “For Family Medical leave, they submit the documentation.” If the employer would say, “Well, you’ve got a whole lot of sick time on the books, you’ve got a lot of vacation and comp time, you can’t use Family Medical Leave until you burn all that off,” that’s going to be a violation. If they say, “Ok you’re going to burn off your sick, vacation, and comp, while you are doing an intermittent Family Medical Leave?” That’s permissible.
Audience Question: Do you recommend FMLA training strictly for supervisors or is it appropriate for all law enforcement staff?
Rick Hodsdon: In the ideal world, I think rank-and-file, just like you do bloodwork pathogens, how to fill out a worker’s count for his report of injury. You do some basic training of that sort. A little class like this, an hour of presentation, screening the PowerPoint, and having local training on these issues or having your HR person come over. I think we’d go a long way. There’s a lot of suspicions, “What’s the boss doing to me now?” that I have experienced in a lot of law enforcement agencies. And when the rank-and-file is told “This is intended to help you not to get you,” my experience is that’s reduced anxiety a lot and I’ve done classes for rank-and-file and they’ll go “Gee, I never thought of it that way, thanks.”
Audience Question: Beyond this webinar, do you have a website for agencies to contact within their state or maybe at least a website they can start with to help them understand this information more regarding training?
Rick Hodsdon: I would strongly encourage and suggest you go to the United States Department of Labor. They cover not only the Family Medical Leave Act but they cover fair labor standards act, which is also a major topic. And they have pamphlets, frequently asked questions, I’ve seen some training type material, some resources, inside the federal level, that’s a great resource. At the state level, if you’re trying to figure out if you have unique or special Family Medical Leave Act type of state laws, usually your State Department of Economic Security, State Department of Labor, Labor and Industry, whatever they’re called, are also a really good source for that information.
Audience Question: You mentioned that an employee can be reassigned to a different role as long as there isn’t economic harm or impact. But what about professional harm or career impact? I’m thinking of, I’m sensing out from this question, the person is thinking about professional trajectory, professional advancement, those kinds of things.
Rick Hodsdon: Well, that’s more nebulous because if the economic conditions are not negative, let’s say for example somebody was, and I’ve seen these issues come up, somebody’s assigned to the Detective Bureau and they’re going to be gone for three months, twelve weeks. Those cases just can’t sit idle, so a new detective, somebody’s brought in, is trained and is now performing that detective function. The employee comes back and says, “Ok, I am ready to go” and it ends up “Ok, right now, the detective function is full, we’ll put you back but you’re going to come back and work patrol.” And then, “Yeah, but in terms of career advancement, chances for promotion, I got a better shot at it as a detective, than I do as a patrol, so, therefore, that’s really…” I suspect that’s the kind of scenario that somebody might be concerned about. I think to neutralize or counter-blunt that type of claim, you make sure that that person is not going to have a disadvantage in the promotional process because if they are, let’s say you have to do x number of months or years as a detective before you’re eligible to apply for sergeant. If you take that person out of the running, so now they’re in patrol, they’re not in the position to accumulate that benefit, then I think that is a problem, that’s not an equivalent position.
Audience Question: Can an employer require an employee or employee’s position to provide specific medical information for which they are seeking the FML? So, in other words, shouldn’t be a physician stating that the employee has a qualifying condition under FMLA? Shouldn’t that be sufficient information for the employers? So, it sounds like, how much information is enough information?
Rick Hodsdon: The regulations and the forms that were updated, revised, and adapted as part of the 2009 regulations give more responsibility, a greater detail I guess, the old write on the back prescription pad, this guy’s going to be gone for four months no longer has to be accepted. Yes, the physician can provide more details about what the condition is, the expected date of return, more detailed information. Again, as part of that, however, the tradeoff in the regulations, well, now employers can require more detailed information, they should make sure that that detailed documentation is not in the hands of that first line supervisor that it should be given to whoever the organization is going to cover Family Medical Leave, whether it’s human resources, the captain in-charged of personnel, a third party vendor. They are the ones who should have that information and process it, that is permissible now to require more detailed discussion. And this is especially true when we deal with intermittent leave to explain what type of leave, what that’s going to involve, and the idea is requiring that more detailed analysis and information so the employer can reduce the disruption of the intermittent leave.
Audience Question: Does the Pregnancy Discrimination Act, and these various different acts that you just talked about, do they apply to incarcerated persons?
Rick Hodsdon: People who are inmates are not considered employees for any of these departments of labor discussions. It’s a pretty clear case law that says they’re not employees for ADA purposes, they are not employers for Family Medical Leave or fair labor standards. They may be covered by the ADA but not as employees. They are covered because a jail or a prison is considered a service or a facility for ADA purposes. Inmates will be covered for ADA under a whole different theory but definitely not employment. Then, under fair labor standards, Family Medical Leave, no they’re not employees.
Audience Question: Can an employer require or force an employee to provide private information such as social security number, date of birth, etc. to an outside contractor they are using for processing FML paperwork in order to get FML approval?
Rick Hodsdon: That may well depend in part on the laws of your state and if there any pick-your-privacy protections. But the short answer in states like mine, where we have a public records law, the short answer is yes, so long as the employer has complied with whatever is the records laws. So, in my state, any outside contractors by law in the contract has to agree to be bound by the same privacy protection laws that we as the employer had. So, if we have a third party vendor in my particular county, we do, we have a third party vendor, who processes a lot of our Family Medical Leave Act information. But if they were to violate that employee’s privacy rights, they can be held just as liable, if not more, as if the county itself did. So, in most jurisdictions, the answer’s that’s going to be a clear yes. There might be some exotic state where the answer is no but for the most part, yes, they can be required as long as the contract and provisions of state law have been met.
Audience Question: And then, some follow up questions for that. Can FML be denied if that private information is not provided?
Rick Hodsdon: Well, if the employee does not cooperate, whether if it’s giving the information to a third party or to the employer, if the employee does not comply with the requirements of the Family Medical Leave Act, then it can be denied. And if they go out on unpaid leave, they are not protected into the act by virtue they are not in compliance.
Audience Question: Our agency requires employees to return from FMLA with no restrictions. If an employee is clear to return to duty with limited restrictions, without having exhausted all FMLA time, should the restriction be considered as an accommodation under the ADA? Is it reasonable?
Rick Hodsdon: That would probably depend on the level of the restrictions, and a person, not everybody who’s out on Family Medical Leave Act is going to come back and be ADA covered. They may not be disabled. For something to be a disability for ADA purposes, it typically requires it to be lifetime or long established. If somebody comes back after having been diagnosed with some chronic condition like diabetes, then when they come back, yes, the rest of their life as an employee, they’re going to be meeting the criteria of being ADA covered. If they went out because they broke a wrist and now the wrist is healing just fine, it’s mending, they can come back on duty with a cast on their wrist, then I don’t think they’re ADA covered from a reasonable accommodation standpoint. Whether your agency chooses to have a light duty position, a lot of them don’t, that is a wholly separate and distinct issue and that’s something we’re going to talk about in my return, they talk about the ADA, so everybody should come back and listen to that discussion.
Audience Question: Does the FMLA docs separation requirement apply within the correctional system for incarcerated individuals?
Rick Hodsdon: FMLA applies to employees and inmates are not treated as employees for FMLA purposes.
Audience Question: Many correctional facilities outsource medical care and treatment. What are the requirements for the storage and handling of confidential medical records?
Rick Hodsdon: FMLA does not deal with inmates but under other statutes there is usually a requirement to protect the privacy of medical records. If the medical record is stored electronically HIPAA might apply and usually there are state laws dealing with medical data privacy protections.
Audience Question: An employee is on FMLA for the birth of a child. He has a second job at another agency and worked shifts here and there at that agency. We were told he is allowed to do that because he was given FMLA and we cannot dictate what he does with his time. Is this correct?
Rick Hodsdon: That may depend on when he is working the other job. If it is during times he would not be working for you then he is likely protected. If he is working during times that he would have been on shift for you then that may be FMLA leave abuse you can act on.
Audience Question: How long initially do you have to be out to qualify for FMLA?
Rick Hodsdon: This is fluid and depends on the medical condition. Many agencies use a three-day factor but it really depends on the medical issues.
Audience Question: How long does an employer hold intermittent leave as a reduction of the 12 weeks? Does it “reset” after 1 year?
Rick Hodsdon: It can reset each year so an employee could be on intermittent leave for years as long as they work enough hours to continue to qualify for FMLA.
Audience Question: We keep medical files separate from the rest of the personnel file. Would FML paperwork need to be kept in another separate file from the medical file?
Rick Hodsdon: If you keep medical separate FMLA can stay there.
Audience Question: If on FML, should an employee be allowed to work other jobs outside regular employment from which they are on leave?
Rick Hodsdon: If the other job is different work hours then they can probably do that. If they are working that job when they would otherwise work for you then they have an issue.
Audience Question: Can the agency require that the employee exhaust all annual leave and sick leave before using FMLA intermittent leave?
Rick Hodsdon: No, but you can require paid leave and FMLA be taken at the same time.
Click Here to Watch a Recording of “The Family Medical Leave Act for Justice Professionals.”