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© Business & Legal Reports, Inc. 0901
Session ObjectivesYou will be able to:
Identify the purpose and benefits of FMLARecognize when and to whom it appliesUnderstand key provisions of the lawAssist employees in handling leaves appropriatelyProtect yourself and our organization from liability
© Business & Legal Reports, Inc. 0901
• Purpose, benefits, basic provisions of FMLA
• Coverage and eligibility for leave
• Notice and recordkeeping requirements
• How rules affect benefits and hiring
• Prohibitions and potential liabilities
• Intermittent leaves and reinstatement
Session Outline• Purpose, benefits, basic provisions of FMLA
• Coverage and eligibility for leave
• Notice and recordkeeping requirements
• How rules affect benefits and hiring
• Prohibitions and potential liabilities
• Intermittent leaves and reinstatement
© Business & Legal Reports, Inc. 0901
• Allows leave for family and medical issues
• Provides for the maintenance of benefits
• Guarantees reinstatement to the same or an equivalent position
How FMLA Helps Employees• Allows leave for family and medical issues
• Provides for the maintenance of benefits
• Guarantees reinstatement to the same or an equivalent position
© Business & Legal Reports, Inc. 0901
FMLA History• Federal law enacted
in 1993• Military family leave
provisions added in 2008• Final revised regulations
issued in 2008• Helps employees
balance work and family• Federal law allows
states to include more expansive provisions
© Business & Legal Reports, Inc. 0901
Amount of Leave AllowedFMLA allows 12 weeks of unpaid leave for the care of:
• A newly born, adopted, or foster-placed child
• A spouse, child, or parent with a “serious health condition”
• Your own serious health condition
© Business & Legal Reports, Inc. 0901
• 12 weeks of leave during a 12-month period due to a qualifying exigency arising out of a call to active duty
• 26 weeks of leave during a 12-month period to care for a family member injured or ill as a result of service in the military
2008 Family Military Leave Amendment• 12 weeks of leave
during a 12-month period due to a qualifying exigency arising out of a call to active duty
• 26 weeks of leave during a 12-month period to care for a family member injured or ill as a result of service in the military
© Business & Legal Reports, Inc. 0901
FMLA allows substitution of paid leave for unpaid FMLA leave including:
• Vacation, personal, or sick leave
• Paid leave
• Short-term disability insurance
• Workers’ compensation leave
Substituting Paid Leave For Unpaid FMLA LeaveFMLA allows substitution of paid leave for unpaid FMLA leave including:
• Vacation, personal, or sick leave
• Paid leave
• Short-term disability insurance
• Workers’ compensation leave
© Business & Legal Reports, Inc. 0901
Substituting Paid Leave (cont.)
Substitution rules for family military leave
• Qualifying exigency leave
• Serviceperson caregiver leave
© Business & Legal Reports, Inc. 0901
Reasons for Leave: Serious Health Condition• Physical or
mental condition
• Pregnancy or prenatal care
• Chronic, serious condition
• Multiple medical treatments
© Business & Legal Reports, Inc. 0901
Reasons for Leave: Bonding With a Child“Bonding” leave may be taken by an employee for the:
• Birth of his or her own child, or
• Placement of a child with the employee for adoption or foster care
© Business & Legal Reports, Inc. 0901
Employees may take leave to care for a covered family member in the armed forces who is:
• Undergoing medical treatment, recuperation, or therapy
• In military outpatient treatment
• On the temporary disability retired list
Employees may take leave to care for a covered family member in the armed forces who is:
• Undergoing medical treatment, recuperation, or therapy
• In military outpatient treatment
• On the temporary disability retired list
Reasons for Leave: Caring for a Servicemember
© Business & Legal Reports, Inc. 0901
Qualifying exigencies include:• Short-notice deployment• Military events and related activities• Childcare and school activities• Counseling• Financial and legal matters• Periods of rest and recuperation• Post-deployment activities• Other activities
Qualifying exigencies include:• Short-notice deployment• Military events and related activities• Childcare and school activities• Counseling• Financial and legal matters• Periods of rest and recuperation• Post-deployment activities• Other activities
Reasons for Leave: Qualifying Exigency
© Business & Legal Reports, Inc. 0901
Would You Approve These Requests?Employee requests 12 weeks of leave:
• Wife has cancer and needs home care
• Employee used 3 weeks of leave 6 months ago for surgery
Would you approve this leave?
© Business & Legal Reports, Inc. 0901
Would You Approve These Requests? (cont.)
Employee requests 12 weeks of leave:
• Husband was injured on active duty
• Employee used 12 weeks of leave 9 months ago
Would you approve this leave?
© Business & Legal Reports, Inc. 0901
Would You Approve These Requests? (cont.)
Employee requests 30 days of leave:
• Needs inpatient treatment for alcoholism
• Has never requested leave before
Would you approve this leave?
© Business & Legal Reports, Inc. 0901
Certification includes:
• Healthcare provider contact information
• The starting date and expected duration
• Medical facts
• A statement of the need for time off
• Information on the ability to perform essential functions
Certification includes:
• Healthcare provider contact information
• The starting date and expected duration
• Medical facts
• A statement of the need for time off
• Information on the ability to perform essential functions
Medical Certification of Serious Health Condition
© Business & Legal Reports, Inc. 0901
• We may contact the healthcare provider
• Privacy requirements must be met
• More information may be needed
• We may contact the healthcare provider
• Privacy requirements must be met
• More information may be needed
Medical Certification (cont.)
© Business & Legal Reports, Inc. 0901
Medical Certification (cont.)
• DOL forms
• In most cases, employees must return form within 15 days
• Certification may be required for family military leave
© Business & Legal Reports, Inc. 0901
Second and Third Opinions• We may request an
independent medical examination
• We may also request a third opinion
• Third opinion is binding and final
• We pay for these opinions
© Business & Legal Reports, Inc. 0901
FMLA: Basic ProvisionsDo you understand:• The purpose of FMLA?• The amount of leave
FMLA allows?• What a “serious health
condition” is?• When “bonding” leave
is available?• What a “qualifying
exigency” is?• The requirements for medical
certification and consultation?
© Business & Legal Reports, Inc. 0901
Who’s Covered?• Private employers
• State and local governments and most federal employers
© Business & Legal Reports, Inc. 0901
Eligible Employees• Worked for 12 months
for our organization
• Worked for a total of 1,250 hours in the most recent 12 months
© Business & Legal Reports, Inc. 0901
Eligible Employees (cont.)
• Consecutive months of service not required—can be 7-year break in service
• All employees on payroll count toward 50 employee requirement
• Worksite count made at time of leave request
• 50 employee requirement site-specific
© Business & Legal Reports, Inc. 0901
Employees must:
• Give at least 30 days’ notice or reasonable notice where leave is foreseeable
• Give notice under employer’s usual and customary notice requirements where leave is not foreseeable
• Give notice “as soon as possible” if the need for military leave is foreseeable
• Provide certification as required
Notice RequirementsEmployees must:
• Give at least 30 days’ notice or reasonable notice where leave is foreseeable
• Give notice under employer’s usual and customary notice requirements where leave is not foreseeable
• Give notice “as soon as possible” if the need for military leave is foreseeable
• Provide certification as required
© Business & Legal Reports, Inc. 0901
We must provide:
• Eligibility notice (within 5 days)
• Rights and responsibilities notice (within 5 days)
• Designation notice
Notice Requirements (cont.)
We must provide:
• Eligibility notice (within 5 days)
• Rights and responsibilities notice (within 5 days)
• Designation notice
© Business & Legal Reports, Inc. 0901
Recordkeeping Requirements• We must retain
records for 3 years
• We must keep records confidential
© Business & Legal Reports, Inc. 0901
FMLA and Benefits• We must maintain:
• Group health benefits
• Other benefits according to company policy
• We may count FMLA leave against employees for attendance or bonuses
© Business & Legal Reports, Inc. 0901
• Premiums must continue to be paid
• Employees are entitled to new benefits
• Changes of benefits notices must be given to employees on FMLA leave
• Benefits must pick up where they left off if employee stops them during leave
FMLA and Benefits (cont.)
• Premiums must continue to be paid
• Employees are entitled to new benefits
• Changes of benefits notices must be given to employees on FMLA leave
• Benefits must pick up where they left off if employee stops them during leave
© Business & Legal Reports, Inc. 0901
FMLA: Basic ProvisionsDo you understand:
• Covered employees?
• Eligible employees?
• Notice and recordkeeping requirements?
• Requirements concerning benefits?
© Business & Legal Reports, Inc. 0901
Prohibitions and LiabilitiesUnder FMLA, we may not:• Interfere with employee
rights• Retaliate against any
employee • Discriminate against or
discharge employees who oppose unlawful practices
• Discharge an employee for filing charges
© Business & Legal Reports, Inc. 0901
• We may be liable for damages if we violate employees’ FMLA rights
• You could also be liable
• We may be liable for damages if we violate employees’ FMLA rights
• You could also be liable
Prohibitions and Liabilities (cont.)
© Business & Legal Reports, Inc. 0901
Special Cases• Current substance abuse
treatment is covered• Spouses in same workplace:
• Do not each get 12 weeks’ leave for bonding or to care for a parent with a serious health condition
• Are limited to a total of 12 weeks for family members on active duty or called to active duty
• Caring for injured or ill servicemember
© Business & Legal Reports, Inc. 0901
Intermittent Leave• Permitted for serious
health conditions
• Permitted for family military leave
• Prohibited for bonding leave unless employer allows it
© Business & Legal Reports, Inc. 0901
Light-Duty LeaveAlternate duty arrangements:
• Nonintermittent leave
• Alternate duty hours
© Business & Legal Reports, Inc. 0901
• Qualified employees keep same or equivalent job
• We may deny reinstatement if employees:
• Would not have remained employed
• Announce intent not to return
• Have taken leave fraudulently or violated policy
• Are no longer qualified to perform the job
• Qualified employees keep same or equivalent job
• We may deny reinstatement if employees:
• Would not have remained employed
• Announce intent not to return
• Have taken leave fraudulently or violated policy
• Are no longer qualified to perform the job
Reinstatement
© Business & Legal Reports, Inc. 0901
Reinstatement (cont.)
• We may deny reinstatement to “key employees”
• We may delay reinstatement until an employee provides a fitness-for-duty certificate
© Business & Legal Reports, Inc. 0901
FMLA Leave:True or False?
A second and third medical opinion may be required before approving a request for leave for an employee’s or family member’s serious health condition.
An employee must give 30 days’ notice to request any FMLA leave.
Our organization must pay insurance premiums while an employee is on leave, but the employee must continue to pay copayments.
Employees who take leave are guaranteed to be reinstated to their previous job.
FMLA applies to all private employers.
© Business & Legal Reports, Inc. 0901
Key Points to Remember
Their own serious health condition;
To care for a family member with a serious health condition;
Due to a qualifying exigency; or
For the birth or placement of a child with the employee for adoption or foster care
Eligible employees can take up to 12 weeks of leave in a 12-month period for:
© Business & Legal Reports, Inc. 0901
Eligible employees can take up to 26 weeks of leave in a 12-month period to care for a family member who has become injured or ill while on active duty
Leave can be taken intermittently
Workers generally receive benefits while on leave and are reinstated when leave expires