Navigating the FMLA Maze

Presented by

Kim Kavanagh, SPHR

Senior HR Consultant

Moderator

Rebecca Ward

Marketing Writer

(303) 219-7802

rward@kpaonline.com

Presenter

Kim Kavanagh, SPHR, SHRM-SCPSenior HR Client Consultant(303) 802-3095kkavanagh@kpaonline.com

Questions

If you have questions during the presentation, please submit

them using the “Questions” feature

Questions will be answered at the end of the webinar

What is FMLA

Who is eligible for FMLA

When do you offer FMLA

Employer Responsibilities under FMLA

Employee Responsibilities under FMLA

What to do if the Employee doesn’t return

Things to remember

Questions

FMLA

Federal Law that allows eligible employees of covered employers to take up to 12 weeks off for unpaid, job protected leave for specified family and medical reasons within a 12-month period.

Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

The Family Medical Leave Act of 1993

Count backwards 12 months to determine if the employee has taken any FMLA leave in the past year.

Example - Employee requests FMLA to begin on October 1, 2014. The employer needs to look back to the time period of September 30, 2013 up to September 30, 2014 and if the employee has taken any FMLA leave during this time it would count into the 12 weeks allotted.

The 12 Weeks

An employee that works for a covered employer, which is an employer that employs 50 or more employees within a 75 mile radius. The 50/75 Rule

And

An employee that has worked for the employer for a minimum of 12 months before taking FMLA leave, and worked at least 1,250 hours during those 12 months. The 1250 hours is approximately 24 hours a week

Who is Eligible for FMLA?

The 12 months of employment don't have to occur all at once, but the clock does reset if there is a gap of seven years or more between periods of employment.

Service members fulfilling National Guard or Reserve obligations are exempt from this rule. As are employees subject to a written agreement that expresses an employer's intent to rehire the employee at the end of the gap in employment.

Who is Eligible for FMLA?

Only certain situations trigger the right to take FMLA leave.

Any "qualifying exigency" arising out of the active duty or imminent active duty in the National Guard or Reserve in support of a contingency operation of the employee's spouse, child or parent. (The employee is entitled to 26 weeks of leave in this situation).

When to Offer FMLA?

The birth and care of the employee’s newborn child- the leave must be taken within one year of the birth

The adoption or foster care of the employee’s newly placed child- the leave must be taken within one year of placement

To care for the employee’s spouse, child or parent who has a serious health condition

Situations That Trigger FMLA

A serious health condition that makes the employee unable to perform the essential functions of their job

Any qualifying exigency arising out of the fact that the employee’s spouse, child or parent is a covered military member on “covered active duty”

Situations That Trigger FMLA

Employers covered by FMLA must post an approved notice that explains FMLA rights and responsibilities. This must also be included in an employee handbook or other written resources concerning benefits

When creating a policy or the approved notice on FMLA, it must include information on:

• FMLA’s military family leave provisions• Information on the right to take FMLA leave

on an intermittent or reduced schedule basis

Employer Responsibilities under FMLA

Upon receiving an employee’s request or inquiry about FMLA leave, an employer must provide the employee with:

1) An eligibility notice with rights and responsibilities

2) A designation notice to comply with the FMLA’s individualized notice requirements- this information in your handbook is not sufficient

Employer Responsibilities under FMLA

Notice of Eligibility and Rights and Responsibilities is a 3 page form that you as the employer must complete and provide to the employee.

The eligibility notice must indicate whether the employee is eligible for leave. If the employee is not eligible, the notice must state at least one of the reasons why not (for example, that the employee has not yet worked for the employer for 12 months). This notice must be provided within five business days after the employee's request.

Notice of Eligibility

The Rights and responsibilities section provides a variety of information about FMLA leave, including whether the employer will require a medical certification and/or fitness for duty certification, payment of healthcare premiums and using paid leave.

Notice of Eligibility

Designation Notice is a 1 page form that you as the employer must complete and provide to the employee.

This form designates time off as FMLA leave or notifies the employee that time off will not be designated as FMLA leave.

• For FMLA leave, the notice must indicate how much leave will be counted against the employee's 12-week entitlement, if the amount of leave is known.

• If the amount of leave is unknown, the employee can request a written statement of how much leave has been counted against his or her entitlement no more often than every 30 days. This written statement can be a notation on the employee's pay stub.

Designation Notice

Require medical certification for a request for leave resulting from a serious health condition of the employee or the employee's spouse, child or parent;An employee's direct supervisor cannot verify a

medical certification of a serious medical condition, but employers may use a health care provider, a human resource professional, a leave administrator or a management official to do so.

Require second or third opinions (paid for by the employer) of a serious medical condition, as well as periodic recertification of the condition

Employers Can Require Certain Items

Require certification that an employee returning from FMLA leave for a serious health condition can safely resume work.

Require the employee to provide the requested certification within 15 calendar days after the employer’s request “unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts…” Many employers view the 15 days as a hard-and-fast rule without considering the “impracticable” exception.

Employers Can Require Certain Items

When you request certification, you, as the employer must also advise the employee of the anticipated consequences of an employee’s failure to provide adequate certification-the leave being denied.

Employers Can Require Certain Items

If possible, the employee must provide 30 days notice to the employer concerning their intention to take FMLA leave.

When 30 days notice is not possible, the employee must provide notice whenever practicable.

Employees must also give their employer enough information for the employer to determine whether the type of leave requested would fall under FMLA.

Employee Responsibilities

If the employee is requesting FMLA leave for the first time, they do not have to declare their intention to take FMLA leave.

The second request for FMLA leave for the same reason, however, requires the employee to refer to the qualifying reason for the leave or the need for FMLA leave specifically.

Employee Responsibilities

After an employee requests FMLA leave or the employer determines that leave might fall under the FMLA, the employer must inform the employee of their eligibility to take the leave and their rights and obligations under the FMLA .

Once the employer has enough information to conclusively determine that the leave falls under the FMLA, the employer must inform the employee of the determination and notify them that the leave will count towards their FMLA allowance.

Employee Responsibilities under FMLA

Confirm the 12 weeks have elapsed

Confirm that HR has spoken to the Employee about their intentions to return or if they may need additional leave

Consider any extenuating circumstances that may prevent an employee from returning and decide leave extension requests on a case by case basis and if the extension will create an undue hardship for the employer

A reasonable accommodation on the part of the employer for an employee to return to work may be necessary and legal under the ADA

Always take into consideration why the employee is not able to return, treat all employees in similar situations the same and determine if assistance from the employer is needed for the employee to return sooner

What if the Employee Doesn’t Return

A leave under the FMLA does not insulate an employee from the consequences of misconduct if the employer would have taken the action anyway, regardless of the leaveProceeding with an investigation into the

misconduct while the employee is on leave is often the better option than waiting the employee’s return and then beginning the investigationThe employer needs to have enforced the policy

violation consistently- key element, otherwise it could be viewed as retaliation

Terminating an Employee on Leave

If covered employers provided group health insurance to an employee before the employee went on FMLA leave, FMLA requires that the employer continue providing that coverage on the same terms while the employee is on leave.

Employees who paid a portion of the health insurance prior to FMLA leave must make arrangements to continue paying this portion while on leave.

Maintaining Benefits

An employer’s obligation to maintain health insurance coverage ceases under FMLA if an employee’s premium payment is more than 30 days late, unless the employer has a policy providing for a longer grace period.

Employees Failure to Pay Premiums

In order to cancel coverage for an employee whose premium payment is late, you must send written notice to the employee that the payment has not been received.

The notice must be mailed to the employee at least 15 days before coverage is to cease. The notice must advise that coverage will be dropped on a specific date at least 15 days after the date of the letter unless payment is received.

Employees Failure to Pay Premiums

If coverage lapses due to unpaid premiums, once the employee returns from FMLA the employer must restore the employee’s coverage/benefits equivalent to those the employee would have had if the leave had not been taken and the premium payment(s) had not been missed.

Employees Failure to Pay Premiums

Don’t Make an Employee Perform Substantive Work while on FMLA Leave. Not ever. Never

Don’t Abandon Your Obligation to Return the Employee to the Same or Equivalent Position

Be exceedingly careful when returning an employee to a different position upon their return from FMLA leave. Confirm it is a position requiring identical skills, effort, responsibility, authority and pay.

Remember…

If the leave qualifies as FMLA, the employer can require the employee to use FMLA time. The employee can't choose to "save" their FMLA for later.

The employer can also require the employee to use available vacation, sick or PTO time. However this requirement must be defined in the FMLA policy.

Remember…

An employee is not automatically disqualified from receiving FMLA protections for failing to provide a return-to-work date.

Providing "care" under FMLA may include activities that are not directly related to the employee's spouse, child, or parents.

The employee could provide "psychological" or "physical assistance" to a family member, this would be considered “care” under FMLA.

Remember…

Do you have 50 or more

employees?

IF No- STOP

IF Yes – Go to Next Step

Has the employee requesting FMLA been working for you for at least 12

months?

IF No- STOP

IF Yes – Go to Next Step

Has the employee requesting FMLA been worked at

least 1250 hours in the last months?

IF No- STOP

IF Yes – Go to Next Step

Has the employee requesting FMLA taken any time

under FMLA in the last 12 months?

If Yes- Calculate Amount of LOA

remaining IF NO –Go to Next Step

The employee is entitled to 12

weeks off

Confirm initial reason for leave falls under FMLA

guidelines

Provide paperwork to employee to complete and

return

Confirm documents are completed and

leave does qualify for FMLA

Maintain position and health

coverage for employee on leave

Maintain regular contact with

employee and intent to return to

work

Before the 12 weeks expire,

notify employee when protected leave will expire

Welcome employee back

FMLA Flowchart

Questions

Forms can be found at

http://www.dol.gov/whd/fmla/

To Locate Required Forms