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FAMILY AND MEDICAL LEAVES: CLARITY OR MORE CONFUSION?
Presented By:Helen A. PalladenoKaren M. Morinelli
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U.S. Government photo of Quonset huts as seen in front of Laguna Peak, Point Mugu, in 1946
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1. Employer Notice Requirements
Old: Must have poster and written policy $100 a day fine for violation
New: Covered employer must post general notice for
applicants and employees even if there are no eligible employees
Posting can be by hard copy, electronically or combination
$110 a day fine for violation
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2. “12-Month” Eligibility Requirement
Old:One year of service required; need not be continuousDetermined on the “date the leave commences”
New:Service prior to a 7-year break in service is not counted unless: Break was due to National Guard/Reserve military
service, or Written agreement (CBA) exists stating employer’s
intention to rehire employee after break in service
Determined on the “date the FMLA leave commences”
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Old: Employee must notify employer of need for leave as
soon as practicable, usually within 2 business days
New: Foreseeable: 30 days notice or as soon as practicable,
normally within 2 business days of learning of leave need
Unforeseeable: as soon as practicable Unforeseeable: can require compliance with usual call
in procedures, absent emergency circumstances
3. Employee Notice Obligations
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4. Timing of Doctor Visits
Old: For leave, no time requirement for two visits or visit
+ continuing regimen For chronic, “regular” but undefined visits
New: First visit within 7 days; twice within 30 days of
absence For chronic, twice each year
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Old: Company has 2 business days to: (a) orally notify
worker of eligibility; (b) give certification forms; (c) determine coverage
New: Must notify employee if eligible or not within 5
business days after leave is requested Notice must state specific reason for ineligibility Must give “Notice of Eligibility and Rights &
Responsibilities” Form (WH-381) 5 business days to give certification forms
5. Employer Obligations
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6. Designation Notice
Old: Implied rule that you were to tell an employee
whether absences were covered (or not) New:
Requires written notice of determination within 5 days of receipt of sufficient information
Must tell employee how much FMLA they will use (if possible)
Must give again if designation changes (e.g., when the employee runs out of leave)
Must “document” any conversations where the employee challenges the designation
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Old: If incomplete or incomprehensible, company could
either: (a) send back and give “reasonable” amount of time,
or (b) get written permission for company doctor to call employee’s doctor
New: Can give 7 day deadline to fix incomplete or
incomprehensible certification form If still insufficient, company may call doctor directly
(not direct supervisor) HIPAA must be satisfied – if employee refuses,
may deny leave
7. Certification
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8. Recertifications
Old: Once every 30 days, unless circumstances warrant
requiring one sooner
New: Same rule, subject to exceptions (which become the
rule) If the certification suggests the condition will last
longer, then recertification not permitted until the time period runs out
For conditions lasting longer than 6 months, then once every six months
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9. Intermittent Leave
Old: Must grant leave in the smallest increment you use for
pay purposes Amount of leave used for intermittent leave was based
upon the employee’s regular work schedule averaged over the past 12 weeks
New: May require employee to take leaves in minimum
increments of one hour Regular work schedule determined on the date of notice Regular work schedule determined by looking back
12 months
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10. Alternate Positions Old:
Only for foreseeable treatment scheduled in advance New:
For foreseeable treatment Other conditions
If allow intermittent or reduce leave related to bonding leave
Periods of recovery for one’s own serious health condition For a first degree relative’s serious health condition For an injury/illness of a covered servicemember
Time working an alternate position does not count as FMLA leave, but reinstatement right ceases after one year
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11. Return to Work Certifications
Old: May require return to work or fitness-for-duty
certifications
New: May require employee to present a return to work
certification that states employee can perform essential functions of job (if told in writing at leave designation)
Employer can contact doctor to authenticate or clarify Failure to submit may cause job restoration delay Intermittent leave – can ask only once every 30 days
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Old: Attendance bonuses can be prorated, not denied,
due to FMLA absences
New: Goal-oriented bonuses (i.e., paid for hours
worked, widgets created, etc.) can be denied if failure to achieve due to FMLA leave
Must treat all leave the same (i.e., cannot single out FMLA leave)
12. Work-Related Bonuses
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2010 National Defense Authorization Act (NDAA)-
What it Does Gives employees that are parents/spouses/children
of Covered Active Duty Members (as defined in the 2010 NDAA) another basis to take leave; Members of the “Regular Component” – duty during
employment of the member with the Armed Forces to a Foreign Country
Members of the US National Guard and Reserves – duty during deployment of the member with the Armed Forces to a Foreign Country under a call or order to active duty .
13. Active Duty Leave
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13. Active Duty Leave
How it Works If there is a “qualifying exigency” the employee
gets to take up to 12 weeks off of work each year
Qualifying Exigency - definition remains unchanged from prior amendment
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Qualifying Exigencies:
Short-Notice Deployment (7 days or less) Military Events Childcare/School Activities Financial/Legal Arrangements Non-medical counseling for employee or kids R&R when servicemember home (5 days) Post-deployment activities (including issues dealing
with a posthumous return) Anything else company and employee agree to
13. Active Duty Leave (cont’d)
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2010 National Defense Authorization Act
What it Does Gives eligible employees leave to care for covered service
member whose injury/illness was incurred in line of duty while on active duty and extends to families of veterans
How it Works Eligible employee gets up to 26 weeks per injury, per family
member to care for covered service member Creates separate “leave year” that is distinct from standard
“leave year”
14. Caregiver Leave
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How Caregiver Leave Works (cont’d): Covers employees that have parents, spouse,
children, or “next-of-kin” that need care Can only have maximum of 26 weeks of leave once
“caregiver leave year” starts, but possible to have more than 26 weeks of leave in one calendar year
Married couples must combine the 26 weeks of leave in event child is injured
14. Caregiver Leave (cont’d)
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Old: Real question of whether FMLA claims could be
released as part of settlement and/or severance without court or DOL approval
New: DOL reaffirms that companies can settle FMLA
cases without involvement by the DOL or a court Not prospectively; cannot ask employee to give up
future FMLA benefits
15. Settlement of FMLA Claims
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What it Does Gives employee or “Family Member” who requires
care due to domestic and sexual violence time off
How it Works Applies to employers with 50 or more employees Allowance of 3 working days’ leave in a 12-month
period With or without pay Eligible after 3 months of employment
16. Florida’s Domestic and Sexual Violence Leave Act
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Who it Covers: Victim of domestic/sexual violence, whether it be:
The employeeor
Family memberor
Household member
Confidentiality: Employers must maintain Certain Fla. Stat § 119 et seq Exceptions
16. Florida’s Domestic and Sexual Violence Leave Act (cont’d)
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So Now What???
Immediate Action to Take:
Amend company policies and notify employees
Update Company Handbooks
Utilize New DOL Forms
Train your managers!
