by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
December 22, 2022
I was debating a fun little Rudolph-based blog post (Is that red nose a disability? Was it an ADA violation for his co-workers to exclude him from the reindeer games?) but then Helen Applewhaite dropped a note in my inbox telling me about some new Family and Medical Leave Act (FMLA) materials. Ms. Applewhaite is the Director of the U.S. Department of Labor's (DOL) Division of FMLA and Section 14(c) (what's that?) so when she speaks, I listen.
Cancer is a weighty topic for this time of year but it knows no season, so we turn to this subject and hope some of you – employers and employees alike – find some helpful guidance. Earlier this month, as part of the Cancer Moonshot week of action, the DOL published several new resources designed to help employees and their family members living with cancer understand and make use of their rights under the FMLA. These resources include
- Fact Sheet #28P on taking FMLA leave from work when you or your family member has a serious health condition. This Fact Sheet explains when a mental or physical condition meets the FMLA's criteria of a serious health condition. It's a primer on FMLA coverage so a good Lesson #1 for those new to the topic and a good reminder of key coverage points.
The new Fact Sheet is not specifically geared toward cancer but there should be no doubt that cancer is a serious health condition in virtually all situations. A serious health condition is defined as "an illness, injury, impairment, or physical or mental condition that involves either [overnight] inpatient care or continuing treatment by a health care provider."
Pointer – diagnosis not needed: An employee or family member may have a condition that satisfies the FMLA definition of "serious health condition" even before a diagnosis is made. The regulations allow employers to receive "appropriate medical facts" which may include a diagnosis, but the FMLA does not allow an employer to require a diagnosis. 92 C.F.R. § 825.306(a)(3).
In turn, "continuing treatment by a health care provider" may include incapacity plus treatment, chronic conditions, permanent or long-term conditions, and conditions requiring multiple treatments. These terms are explained in the Fact Sheet in more detail. The only serious health condition category that doesn't have possible applicability to cancer situations is pregnancy.
Pointer – it's not always 3 days: Many of these categories of serious health condition may involve episodic periods of incapacity of short duration. "Incapacity plus treatment" is the only definition of serious health condition that specifically requires more than 3 consecutive full days of incapacity. Many employers mistakenly believe this 3+ days is always required for FMLA coverage. Failure to consider an employee's FMLA rights during shorter or episodic periods of incapacity can result in interference with an employee's FMLA rights and a DOL claim or a lawsuit.
- An overview of workplace protections for individuals impacted by cancer. As with so many employment and leave laws these days, employees have many sources of workplace protections for their needs as a cancer patient or family caregiver. Employers need to be aware of these rights for their employees. Check out the new webpage which helps workers with cancer, cancer survivors, and their family members navigate federal and state worker protections and employer-provided benefits to get time off work while dealing with cancer. Links are provided to all resources on the webpage:
- Leave Under the Federal Family and Medical Leave Act: Whether an employee has cancer or is caring for a family member who does, the employee may be eligible to take job-protected leave under the FMLA. The employee may also be able to take time off from work when the employee or a family member is ill and receiving medical care prior to a cancer diagnosis or receiving ongoing care when the cancer is in remission.
- Leave Under State Family and Medical Leave or Temporary Disability Laws: Many states have job-protected leave laws similar to the federal FMLA. In addition, each year more states are implementing paid family and medical leave laws, many of which also carry job protections or coordinate with a state’s existing job-protected leave laws.
- Matrix’s StatPlans document can help you keep track of all these paid laws here: Statutory Disability and Paid Family Leave Laws | Matrix/Reliance Standard.
- Leave as a Reasonable Accommodation Under the Americans with Disabilities Act (ADA): In addition to workplace accommodations, the ADA may require employers to provide leave of absence as a reasonable accommodation if the leave will enable the employee to return to work, with or without any other accommodation, in the foreseeable future.
- Paid Sick Leave for Federal Contractors Under Executive Order 13706: Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, requires certain employers that contract with the federal government to provide employees working on or in connection with the contracts with up to 7 days of paid sick leave annually. This paid sick leave can be used by an employee to care for themselves, a family member, or a non-family member if the relationship is equivalent to a family relationship.
- Paid Leave Provided by the Employer: Don’t forget about your own company leave policies, paid and unpaid! These may or may not run concurrently with the statutory leaves, depending on how your policy is written, what it covers, and the conditions of each leave law.
- State and Local Paid Sick Leave: Not mentioned in the DOL’s resource but not to be forgotten, many states, municipalities, and counties have laws requiring employers to provide paid sick leave to workers on an accrual basis, usually 1 hour of paid sick time per 30 or 40 hours worked. You can find a great chart summarizing all these laws at Paid Sick Time - A Better Balance.
- A guide for talking to your employer about taking time off for family and medical reasons. The DOL's new guide provides practical guidance for employees to have conversations with their employers about taking time off work to care for themselves or their loved ones. It's a great resource to help workers find the words to say during potentially difficult conversations.
Pointer – educate your employees: Consider providing the guide to employees so they know when to ask and what to ask for. Another good resource for sharing with employees is the DOL's Family and Medical Leave Act Employee Guide | U.S. Department of Labor (dol.gov), which can be downloaded and shared electronically or in hard copy. Could help avoid problems caused by lack of communication about the employee's needs.
And finally . . .
- Help for health care providers. This flier guides healthcare providers through FMLA rules concerning medical certifications. It's a handy tool that medical professionals can use to make sure patients' and family caregivers' employment is protected as they deal with serious health conditions. This is a good document but there is no mechanism for ensuring that providers receive and read the guidance. Maybe someday I'll blog about that . . .
MATRIX CAN HELP!
Matrix offers FMLA and state leave law management for our employer clients. We keep up to date on all things FMLA, the state law equivalents, and the new paid family and medical leave laws. Plus, we can integrate leave management with your short-term disability plans and company leave policies. All in one place! Give your employees a New Year's gift of an easy, consolidated process for leave and pay benefits requests and administration. Contact your Matrix or Reliance Standard account manager or send us an email to [email protected].