The Family and Medical Leave Act (FMLA) JENNIFER MILLER-LOUW SANDBERG PHOENIX & VON GONTARD, P.C....
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The Family and Medical Leave Act (FMLA) JENNIFER MILLER-LOUW SANDBERG PHOENIX & VON GONTARD, P.C. 2015 West Main, Suite 111 Carbondale, IL 62901 (800) 875-0794 [email protected]
The Family and Medical Leave Act (FMLA) JENNIFER MILLER-LOUW SANDBERG PHOENIX & VON GONTARD, P.C. 2015 West Main, Suite 111 Carbondale, IL 62901 (800)
The Family and Medical Leave Act (FMLA) JENNIFER MILLER-LOUW
SANDBERG PHOENIX & VON GONTARD, P.C. 2015 West Main, Suite 111
Carbondale, IL 62901 (800) 875-0794
[email protected]
Slide 2
This law requires certain employers to grant an eligible
employee up to 12 weeks of unpaid leave during any 12-month period
for one or more qualifying reasons.
Slide 3
Does the Act apply to you? The Act applies to employers IF they
are: Engaged in commerce or in any industry or activity affecting
commerce Who employs 50 or more employees for each working day
during each of 20 or more calendar workweeks in the current or
preceding calendar year
Slide 4
Which Employees are Covered? Eligibility for FMLA 12 months of
employment during the past seven years 1,250 hours worked in the 12
months immediately preceding the date leave is to begin Maximum
Length of Leave Up to 12 weeks of medical and/or qualifying
exigency FMLA leave in a fiscal year Up to 26 weeks of military
caregiver leave in a 12 month period Continuous, intermittent or
reduced schedule leave
Slide 5
Qualifying Reasons Qualifying Reasons for FMLA Leave Birth of a
son or daughter and to care for the newborn child Placement of a
son or daughter for adoption or foster care Care for the employees
spouse, son, daughter or parent with a serious health condition If
an adult son or daughter is determined to be incapable of self-
care because of a disability, he or she will be considered a son or
daughter under the FMLA. In order for a parent to take FMLA leave
to care for an adult child, the son or daughter must also: 1. have
a serious health condition, and 2. need care because of the serious
health condition. Serious health condition that makes the employee
unable to perform the functions of the employees job Qualifying
exigency for covered military member Care for ill or injured
covered servicemember
Slide 6
Required Posting Employee Rights And Responsibilities Under The
Family And Medical Leave Act Provided to each employee when hired
Printed and posted for employees that do not have access to
computers at work WHD Publication 1420 (Rev. Feb. 2013)
http://www.dol.gov/whd/regs/complianc e/posters/fmlaen.pdf
Slide 7
Employee Notice Obligations Employers may require that
employees follow usual and customary procedures for requesting
leave, absent unusual circumstances Such requirements may include
written notice or notice to a specific individual (i.e., HR
professional or Leave Administrator) Employer policies for timing
of notice cannot be more stringent than timing for FMLA notice
Exception for unusual circumstances
Slide 8
Notice Requirements For foreseeable leaves, 30 days. birth or
placement for adoption/foster care; planned medical treatment for
serious health condition; planned medical treatment for serious
injury or illness of covered service member. For foreseeable leaves
when less than 30-days notice is not possible, notice must be given
as soon as practicable and employee must explain why 30-days notice
was not practicable if employer requests As soon as practicable
when employee becomes aware of the need for FMLA leave, should give
employer notice the same day or the next business day, taking into
account the individual facts and circumstances
Slide 9
Notice Requirements (cont.) For non-foreseeable leaves, as soon
as practicable Normal policy for reporting off work.
Slide 10
Required Employer Notices Two Notices: 1.Notice of Eligibility
and Rights & Responsibilities Provided to an employee within 5
business days of the date An employee requests FMLA; or Employer
becomes aware that an employees leave may be FMLA qualifying
Request for medical certification (and consequences) Form WH-381
(revised February 2013) 2.Designation Notice Provided to an
employee once employer has sufficient information or knowledge to
determine that is FMLA covered, paid, unpaid Employee must be
notified within 5 business days that the leave has been designated
as FMLA Designate retroactively? If in doubt, designate
provisionally Form WH-382 (Revised February 2013)
Slide 11
Does the Employee have to Mention FMLA LEAVE? NO!! An employee
is obligated only to tell you enough facts which indicate potential
FMLA coverage. It is UP TO YOU to properly investigate the
circumstances and designate leave as FMLA leave if applicable.
Slide 12
How Much Notice is Required? Employees are required only to
place employers on notice of the probable basis for an FMLA to
qualify. Issues have arisen over how much notice is required.
General reference to being sick is not enough, but specifics
provided to an employer about serious medical concerns is often
sufficient. 2 recent 7 th Circuit cases regarding notice.
Slide 13
Nicholson v. Pulte Homes Corp. The court held casual comments
to a supervisor about a parents poor health did not constitute
adequate notice. Nicholson informed her supervisor that she might
need off work on the possibility her father would need
chemotherapy. Around the same time, plaintiff had another informal
conversation with her supervisor about only working during normal
business hours due to the need to care for her mother. Court
determined that the plaintiffs indication that she might need time
off in the future if her father needed chemotherapy was too
indefinite to put the employer on notice that she might qualify for
FMLA leave. Further, plaintiffs statements about her mothers
condition did not convey the seriousness of her mothers illness or
that the time she needed out of the office was sufficient to put
the employer on notice of the possible FMLA leave.
Slide 14
Pagel v. TIN, Inc. Court found the employer was on notice due
to the employers knowledge of an employees own health condition. In
2006, the plaintiff experienced chest pain and labored breathing.
He had various tests performed and was admitted to the hospital.
His employer knew of the plaintiffs chest pain and hospital
admission. The court concluded, it is difficult for us to imagine a
scenario where [the plaintiffs] notice of hospitalization did not
include an implicit demand for leave.
Slide 15
Content of Notice first-time vs. subsequent leaves First-Time
Leave: when seeking FMLA leave for the first time, the employee
need not expressly assert rights under the FMLA or even mention the
FMLA Subsequent Leave: when seeking FMLA leave for a reason for
which the employer has previously provided FMLA leave, the employee
must specifically reference the qualifying reason for leave or the
need for FMLA leave
Slide 16
Employee Medical Certification Form Provides space for
employees essential job functions Check off to indicate that the
employees job description is attached Due back within 15 calendar
days Employee allowed 7 calendar days to provide the additional
information if the certification is incomplete or insufficient
Certification of Health Care Provider for Employees Serious Health
Condition (Form WH-380-E Jan. 2009)
Slide 17
Family Member Medical Certification Form Certification of
Health Care Provider for Family Members Serious Health Condition
(WH-380-F, Jan 2009) Asks for detailed information about the family
members condition Amount of time the employee might need to care
for the family member Employee allowed 7 calendar days to provide
additional information if the certification is incomplete or
insufficient
Slide 18
Incomplete or Insufficient Certification Employers may deny
FMLA leave if the certification is incomplete or insufficient
Incomplete: one or more entries have not been completed
Insufficient: information is vague, ambiguous, or nonresponsive
Employers must give employees at least 7 calendar days to cure the
deficiencies Failure to cure deficiencies may result in the denial
of FMLA leave
Slide 19
Clarification and Authentication Employer may contact the
health care provider to Clarify information on medical
certification form Authenticate medical certification form Limited
to contacting health care provider to: understand handwriting on
the certification understand the meaning of a response request
verification that information on the certification form was
completed and/or authorized by the health care provider who signed
the document No additional medical information may be
requested
Slide 20
Clarification and Authentication HIPAA requirements must be
satisfied when employee health information is shared with an
employer by a HIPAA covered health care provider Employees
responsibility to provide complete and sufficient certification and
to clarify if necessary If employee does not provide a required
HIPAA release, and; If employee does not authorize employer to
clarify the certification with the health care provider, and does
not otherwise clarify the certification, FMLA leave may be
denied
Slide 21
Clarification and Authentication Employer contact must be made
by Health care professional Human resources professional Leave
administrator Management official As determined by the employing
department Under no circumstances may the employees direct
supervisor contact the employees healthcare provider
Slide 22
Second/Third Certification Opinions Employer may not
unilaterally reject a properly completed certification form by a
healthcare provider that is timely submitted by an employee. If
dispute certification that health condition qualifies as serious
may seek second opinion at own expense. Employer can designate
healthcare provider, but not one employed on a regular basis. If 1
st and 2 nd opinion conflict, get 3 rd final/binding opinion.
Selection of provider approved by both employer and employee.
Slide 23
Re-Certification Pregnancy and Chronic or Permanent/Long Term
Conditions Employer may request no more often than every 30 days,
and in connection with absence. In cases of a medical condition
lasting longer than 30 days, as noted on FMLA certification, an
employer may not require re-certification before the minimum
duration expires, unless an exception applies.
Slide 24
Re-Certification Exceptions: If the employee requests an
extension of the leave If the situation described in the earlier
certification has changed significantly If employer has information
that casts doubt on the employers stated reason for the absence or
the continuing validity of the certification.
Slide 25
Re-Certification Intermittent Certified Condition An employer
may require a re-certification of a medical condition requiring
intermittent leave every six months. May require more than every 30
days in instances where there is a pattern of absences occurring on
Mondays and/or Fridays.
Slide 26
Intermittent Leave Scruggs v. Carrier Corp. Court held that an
employer may terminate an employee based on an honest belief that
an employee is misusing FMLA benefits. P worked at a plant and
filed for FMLA 5 times. The last certification requested leave to
take his mother to the Dr. every 6 months. D hired a private
investigator and found that P did not leave the house on the day he
requested leave and P was fired. On Ps FMLA interference claim, the
appellate court ruled that an employee is entitled to reinstatement
under the FMLA only if he takes leave for the intended purpose. An
employer can defeat an interference claim by showing the employee
didnt take leave for the intended purpose.
Slide 27
Intermittent Leave Danek v. County of Cook District court
disposed of P-employees FMLA interference claim in part because the
court determined the employees medical trip to Mexico was partly a
vacation. In addition to not giving the required 30 day notice
without an emergent reason, it was revealed that P was in Mexico
and retreated with friends and went to several vacation
destinations. The employer could not have interfered with the
plaintiffs FMLA reinstatement because the P was not entitled to
FMLA leave due to improper notice and misuse of leave.
Slide 28
Military Family Leave NDAA, signed by President Bush on January
28, 2008, created two new leave entitlements for family of military
servicemembers Qualifying Exigency Leave National Defense
Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) Military
Caregiver Leave National Defense Authorization Act for Fiscal Year
2010 (FY 2010 NDAA)
Slide 29
Military Family Leave Qualifying Exigency Leave A covered
employer must grant an eligible employee up to 12 workweeks of
unpaid, job-protected leave during any 12-month period for
qualifying exigencies that arise when the employees spouse, son,
daughter, or parent is on covered active duty or has been notified
of an impending call or order to covered active duty. Military
Caregiver Leave Leave taken by an eligible employee to care for a
covered servicemember with a serious injury or illness.
Slide 30
Military Family Leave
Slide 31
Qualifying Exigency Qualifying Exigencies Include Short notice
deployment up to 7 days Military events and related activities
Childcare and school activities not routine child care Financial
and legal arrangements up to 90 days after service ends Counseling
Rest and recuperation short term only, up to 15 days (new) Post
deployment activities up to 90 days after service ends Parental
Care Parent of military member must be incapable of self-care when
the care is necessitated by the members covered active duty.
Additional activities as agreed upon by employer and the
employee
Slide 32
Qualifying Exigency Leave Maximum Length of Leave 12 weeks of
qualifying exigency leave Covered Military Member Employees spouse,
son, daughter or parent who is on active duty or call to active
duty Covered active duty means: for members of the Regular Armed
Forces, duty during deployment of the member with the Armed Forces
to a foreign country; or for members of the Reserve components of
the Armed Forces (members of the 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 in support of a
contingency operation.
Slide 33
Request Qualifying Exigency Leave Certification of Qualifying
Exigency for Military Family Leave (Form WH-384 Feb. 2013) An
employee must provide notice of the need for qualifying exigency
leave as soon as practicable
Slide 34
Military Caregiver Leave Serious Injury or Illness Injury or
illness incurred in the line of duty on active duty that may render
the servicemember medically unfit to perform the duties of the
members office, grade, rank or rating. A serious injury or illness
also includes injuries or illnesses that existed before the
servicemembers active duty and that were aggravated by service in
the line of duty on active duty.
Slide 35
Military Caregiver Leave Covered Servicemember Member of Armed
Forces (including National Guard or Reserve) Undergoing medical
treatment, recuperation, or therapy In outpatient status Temporary
disability retired list Serious injury or illness Incurred in the
line of duty on active duty
Slide 36
Military Caregiver Leave Covered Servicemember Covered veteran
who is undergoing medical treatment, recuperation or therapy for a
serious injury or illness. Covered veteran: Individual who was a
member of the Armed Forces, and was discharged or released under
conditions other than dishonorable, at any time during the 5-year
period prior to the first date the eligible employee takes FMLA
leave to care for the covered veteran.
Slide 37
Next of Kin Nearest blood relative other than spouse, parent,
son, or daughter, in order of priority: Blood relatives who have
been granted legal custody of the covered service member by court
decree or statutory provisions Brothers and sisters Grandparents
Aunts, uncles and first cousins Unless service member has
designated a single blood relative as next of kin
Slide 38
Military Caregiver Leave Maximum Length of Leave Up to 26 weeks
of military caregiver leave in a 12 month period 12 month period
starts on the first day the employee takes military caregiver leave
Any combination of absences in the 12 month period, including
medical FMLA, may not exceed 26 weeks Healthcare providers
authorized to complete a certification for military caregiver leave
is expanded to include healthcare providers Could have second or
third opinion
Slide 39
Request Military Caregiver Leave Certification for Serious
Injury or Illness of Covered Servicemember/Veterant for Military
Family Leave (Forms WH-385 and WH-385V) Must provide 30 days
advance notice for planned medical treatment for a serious injury
or illness of a covered servicemember. When 30 days advance notice
is not possible, the employee must provide notice as soon as
practicable When the need for leave is unforeseeable, an employee
must comply with an employers normal notice or call in procedures,
absent unusual circumstances.
Slide 40
Paid or Unpaid? What does your policy say? FMLA is generally
unpaid. By policy, an employer can require employees to take any
accrued paid vacation, personal, family or medical or sick leave as
offered by the employer. Employee can elect to use paid time
off.
Slide 41
Effect of FMLA Leave on Bonuses An employer is permitted to
disqualify an employee from a bonus or other payment based on the
achievement of a specified goal Hours worked, products sold,
perfect attendance Be careful! Employers should not disqualify
employees on FMLA leave while allowing employees on non-FMLA leave
to qualify for bonuses or other awards
Slide 42
Health Insurance Maintain coverage under Group Health Plan On
same conditions as pre-leave Employees share of Premium Deduct from
any pay Submit by certain date Failure to Pay within 30 days of due
date 15 days before coverage to cease Employee Does not return to
work Can collect premiums employer paid in some circumstances
Slide 43
Returning to Work Upon notice to the employer that the employee
is ready to return to work, an employee is entitled to immediately
return to the - same position or to an equivalent position with
equivalent benefits, pay and other terms and conditions of
employment even if the employee has been replaced or the position
has been restructured to accommodate the employees absence.
Exceptions: Unable to perform essential functions, fraud,
moonlighting, key employees, substantial and grievous economic
injuries.
Slide 44
Relationship Between FMLA and other Leaves
Slide 45
DURATION OF LEAVE ISSUES FMLA12 weeks in 12 months Leave is
replenished assuming continued eligibility ADAIndeterminate leave
may be a reasonable accommodation Absent undue hardship Lengthy,
indefinite leave generally is not reasonable WCAnti-retaliation
provisions apply
Slide 46
ATTENDANCE ISSUES FMLAAbsences while on FMLA leave may not be
counted against Employee ADASatisfactory attendance is an essential
function of job Poor attendance may mean employee is not qualified
Reasonable accommodation requirement WCAnti-retaliation provisions
apply
Slide 47
LIGHT DUTY ISSUES FMLAEmployer cannot require employee to work
a light duty job rather than take FMLA leave Exception of
intermittent FMLA leave FMLA leave not reduced by time on light
duty ADA Light duty assignments may constitute a reasonable
accommodation Employer not required to create job WCEmployer can
force employee to accept light duty assignment Can limit light duty
for only workers compensation injuries
Slide 48
RETURN TO WORK ISSUES FMLAEmployee entitled to same or
equivalent job if timely returns from FMLA leave Perform essential
functions Unless job would otherwise be eliminated ADAEmployee
entitled to same job if qualified to perform essential functions
Reasonable accommodation required Must consider reassignments to
vacant positions WCNo right to reinstatement Retaliation for
exercising WC rights prohibited
Slide 49
Employees Receiving Disability or Workers Comp Benefits Neither
employees nor employers may require the use of accrued paid leave
to supplement an employees disability or workers compensation
income employees and employers can voluntarily agree to this though
An employees 12-week FMLA leave entitlement is calculated without
regard to whether an employee and employer agree to supplement the
employees pay with accrued paid leave
Slide 50
FMLA Remedies and Enforcement Potential for administrative
enforcement by the DOL or in civil suit by any individual adversely
affected. Against employer and supervisor. Damages: employee
entitled to an amount equal to the amount of any denied or lost
wages, salary, employment benefits, or other compensation.
Equitable relief available. Liquidated damages for willful
violation amount equal to the doubling of actual damages awarded to
an aggrieved individual. Litigation Costs/Expenses attorneys fees,
reasonable expert fees, and other costs of the action.