Recent Changes to the FMLA Regulations. March 3, 2009

Transcription

1 Recent Changes to the FMLA Regulations March 3, 2009

2 Contents Seminar Materials... Tab 1 Introduction... pg 1 Eligibility... pg 3 Qualifying Reasons for Leave... pg 4 Qualifying Exigency and Military Caregiver Leave... pg 5 Intermittent & Reduced Schedule Leave... pg 9 Employee Notice Requirements... pg 12 Notices to be provided by Employers... pg 15 FMLA Certifications: Serious Health Condition... pg 21 FMLA Certifications: Exigency Leave, Military Caregiver Leave, and Fitness for Duty / Return to Work... pg 26 Additional Noteworthy Changes and Clarification of FMLA Regulations... pg 34 Summary of New FMLA Regulations... Tab 2 FMLA Regulations... Tab 3 Speaker Profiles... Tab 4

3 Recent Changes to the FMLA Regulations March 3, 2009 AGENDA Panel 1 Panel 2 Panel 3 Panel 4 Panel 5 Panel 6 Panel 7 Registration and Continental Breakfast Introduction Eligibility Qualifying Reasons for Leave Serious Health Condition Qualifying Reasons for Leave (continued) Qualifying Exigency Military Caregiver / Serious Injury or Illness of a Covered Servicemember Intermittent and Reduced Schedule Leave Notice Provided by Employee Notices Provided by Employer Break Certifications of Need for Leave Medical Certification of a Serious Health Condition Certifications of Need for Leave (continued) Certification of Exigency Leave Certification of Military Caregiver Leave Fitness for Duty / Return to Work Certification Miscellaneous Issues Conclusion Evan Pontz Kristina Klein Rebecca Shanlever Jana Korhonen Prashant Khetan Lindsay Marks Ashley Hager Daniel Rashtian Richard Gerakitis Tevis Marshall Kevin Kieffer Matt Almand Ben Briggs Theresa McDaniel

4 Summary of New FMLA Regulations PRESENTED BY Labor & Employment Group Troutman Sanders LLP 1 Topics Covered I. Eligibility II. Qualifying Reasons for Leave Serious Health Condition Qualifying Exigency Military Caregiver / Serious Injury or Illness of a Covered Service Member 2 Topics Covered III. Intermittent and Reduced Schedule Leave Servicemember s Illness or Injury Exigency Leave Transfer for Intermittent Foreseeable Military Caregiver Leave Physical Impossibility 3 1

5 Topics Covered IV. Employee Notice Requirements Foreseeable Leave Subsequent Requests Procedures 4 Topics Covered V. Notices to be Provided by Employers Poster Policy Eligibility Notice Rights and Responsibilities Notice Designation Notice 5 VI. Certifications Topics Covered Medical Certification of a Serious Health Condition Certification of Exigency Leave Certification of Military Caregiver Leave Fitness for Duty / Return to Work Certification 6 2

6 Topics Covered VII. Additional Noteworthy Changes & Clarifications of FMLA Regulations Holiday as FMLA Hourly Equivalent Overtime Substitution of Paid Leave Light Duty Bonuses Releases of Claims 7 Eligibility Qualifying Reasons for Leave PRESENTED BY Evan Pontz Kristie Klein Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Eligibility Requirements Employers need not count employment prior to a break in service of 7 years when determining if the employee has the required 12 months of service 9 3

7 Qualifying Reasons for Leave Serious Health Condition Continuing Treatment If an employee's "serious health condition" is based on three consecutive calendar days of incapacity plus two or more visits to a healthcare provider, the treatment must be within 30 days of the first day of incapacity If an employee's "serious health condition" is based on three consecutive calendar days of incapacity plus a "regimen of continuing treatment," the employee must visit a healthcare provider within 7 days of the first day of incapacity 10 Qualifying Reasons for Leave Serious Health Condition Periodic Visits If an employee's "serious health condition" is based on "periodic visits to a healthcare provider" for a chronic serious health condition, the employee must make at least two visits to a healthcare provider per year 11 Qualifying Reasons for Leave Needed to Care Employee taking leave to care for a family member with a serious health condition or a covered servicemember with a serious injury or illness need not be the only person available to care for the individual 12 4

8 Qualifying Reasons for Leave Definition of a Health Care Provider Changed to include physician assistants Clarified to include nurse practitioners, nurse-midwives, and clinical social workers 13 Qualifying Exigency and Military Caregiver Leave PRESENTED BY Rebecca Shanlever Jana Korhonen Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Qualifying Exigency NEW PROVISION: twelve weeks of leave for qualifying exigency arising out of fact that employee s spouse, son or daughter (of any age), or parent is on active duty or call to active duty status. Must be in support of a contingency operation. How to determine? Check military orders. Applies to National Guard and Reserves and certain retirees. Does NOT apply to members of the Regular Armed Forces. Refers to federal (not state) call to active duty. 15 5

9 Qualifying Exigency 1. Short-notice deployment ANY issue arising from call or order 7 calendar days or less before deployment date. Leave limited to 7 calendar days. 2. Military events and related activities attending ceremonies and programs related to call to active duty. 3. Childcare and school activities arranging for alternative childcare; providing childcare on an urgent basis; enrolling in new school or daycare; or attending meetings at school or daycare. Must be necessitated by active duty status. 16 Qualifying Exigency 4. Financial and legal arrangements preparing power of attorney form, updating will, and obtaining military identification cards. Must be directly related to military member s absence NOT for routine matters like paying bills. Includes acting as military member s representative for certain military benefits proceedings. 5. Counseling provided by someone other than a health care provider for employee, covered military member, or military member s child. Need for counseling must be due to the call to active duty. 6. Rest and recuperation to spend time with a military member who is on short-term, temporary, or rest and recuperation leave. Leave limited to 5 days. 17 Qualifying Exigency 7. Post-deployment activities attending official ceremonies and programs sponsored by military within 90 days after termination of active duty status. Includes issues arising from death of military member while on active duty. 8. Additional activities ( CATCHALL ) addressing other issues arising out of military member s active duty status. Employer and employee must agree that leave qualifies and to timing and duration of leave. 18 6

10 Military Caregiver Leave NEW AND DIFFERENT: 26 workweeks in a single 12-month period To care for a current member of Armed Forces (including National Guard and Reserves) with a serious injury or illness incurred in the line of duty on active duty 19 Military Caregiver Leave Serious injury or illness is one that may render the servicemember medically unfit to perform duties and for which he or she is undergoing medical treatment, recuperation, or therapy; otherwise in outpatient status; or otherwise on temporary disability retired list. NOTE: different from serious health condition for other FMLA leave. 20 Military Caregiver Leave Leave available to spouse, son/daughter (of any age), parent, or next of kin of servicemember. Next of kin is nearest blood relative other than spouse, son, daughter, or parent in this order: Blood relatives with legal custody Brothers/sisters Grandparents Aunts/uncles First cousins UNLESS the servicemember has specifically designated in writing another blood relative for purposes of military caregiver leave. 21 7

11 Military Caregiver Leave 26 workweeks in a single 12-month period Single 12-month period begins the first day of leave, regardless of how employer calculates 12-month period for other FMLA leave (i.e., rolling or calendar). Limited to a combined total of 26 workweeks for military caregiver leave and other (i.e., nonmilitary caregiver leave) in 12-month period. Military caregiver leave and other types of FMLA leave need to be tracked separately. 22 Military Caregiver Leave One-time entitlement, but applied on a per servicemember, per injury basis. Where leave qualifies as military caregiver and other FMLA leave, must designate as military caregiver leave. Unused leave does not carry over from year to year. Eligible spouses employed by same employer limited to a combined total of 26 workweeks during the single 12- month period for military caregiver leave or a combination of military caregiver leave and leave for birth/adoption or parent with serious health condition. 23 Military Caregiver Leave Leave for birth of child from Jan. 5 to Mar. 27, 2009 (12 weeks). Military caregiver leave begins April 1. How much military caregiver leave is available? Military caregiver leave from Jan. 5 to May 8, 2009 (18 weeks). How much leave is available for birth of newborn child in July 2009? Military caregiver leave for employee s husband from Mar. 16 to July 20 (18 weeks). In Aug. 2009, employee s son is seriously injured in the line of duty. How much leave is available to care for son? 24 8

12 Intermittent & Reduced Schedule Leave Employee Notice Requirements PRESENTED BY Prashant K. Khetan Troutman Sanders LLP 401 9th Street, N. W. Suite 1000 Washington, D.C Lindsay S. Marks Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Intermittent & Reduced Schedule Leave An employee may take intermittent or reduced schedule leave for a servicemember s illness or injury if there is: a medical need for leave and such medical need can be best accommodated through an intermittent or reduced leave schedule. 26 Intermittent & Reduced Schedule Leave An employee who takes intermittent leave for planned medically necessary treatment must make a reasonable effort to schedule treatment so as not to unnecessarily disrupt the employer s operations. 27 9

13 Intermittent & Reduced Schedule Leave An employee may also take intermittent or reduced schedule leave for a qualifying exigency. This regulation regarding servicemembers is new to the FMLA but is similar to treatment of other types of FMLA leave. 28 Intermittent & Reduced Schedule Leave If an employee needs intermittent leave that is foreseeable based on planned medical treatment for a servicemember, the employer may require the employee to transfer temporarily during the period of intermittent leave to an available alternative position. 29 Intermittent & Reduced Schedule Leave If a temporary transfer is made, the employee must be reinstated to the original position upon completion of the recurring leave period. This regulation is new but similar to previous regulations allowing transfer for other types of foreseeable intermittent leave. No provision in the new regulations allows employers to transfer an employee to an alternative position if he or she is taking unscheduled or unforeseeable intermittent leave

14 Intermittent & Reduced Schedule Leave Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way through a shift, the entire period that the employee is forced to be absent is designated as FMLA leave. The physical impossibility exception is a new FMLA regulation. 31 Intermittent & Reduced Schedule Leave Examples of employees for whom it is a physical impossibility to join or leave a shift mid-way through: A train engineer who operates a train that is 300 miles away from the starting point. A flight attendant who works on an airplane that is en route from New York to Los Angeles. A laboratory technician who works in a clean room that must remain sealed for the entire work shift. 32 Intermittent & Reduced Schedule Leave The physical impossibility exception is to be narrowly applied: It is limited to the period of time in which the physical impossibility remains. Only the amount of leave used will be counted against the employee s FMLA leave entitlement

15 Intermittent & Reduced Schedule Leave The FMLA does not require employers to provide alternative work to employees when they are unable to return due to physical impossibility. However, employers may offer alternative work. If the employer offers alternative work for employees returning from short periods of non-fmla leave, it must offer such work in these circumstances. Employers may not use the physical impossibility exception to prevent employees taking intermittent FMLA leave from beginning work late or leaving work early when there is no physical impossibility preventing employees from access to workplace. 34 Employee Notice Requirements (Foreseeable Leave) Timing of Notice Starting point employee must provide at least 30 days advance notice. If 30 days not practicable, then must give notice as soon as practicable. º Defined to take into account all facts and circumstances in the individual case. º It should be practicable to provide notice the same day or next business day. 35 Employee Notice Requirements (Foreseeable Leave) Timing of Notice Clarification: If it is not practicable for the employee to give 30 days notice of the need for leave, the employer may require the employee to explain why 30 days notice was not practicable

16 Employee Notice Requirements (Foreseeable Leave) Content of Notice Must provide at least verbal notice to make employer aware that employee needs FMLAqualifying leave and anticipated timing/ duration of leave. If taking FMLA leave for first time, need not assert rights under FMLA or even mention FMLA. 37 Employee Notice Requirements (Foreseeable Leave) Subsequent Request Clarification: When employee seeks FMLAqualifying leave for which employer previously provided FMLA leave, employee must reference qualifying reason for leave or need for FMLA leave. Previously: No burden on employee to identify leave as FMLA leave. 38 Employee Notice Requirements (Foreseeable Leave) Procedures Change: An employer may require an employee to comply with the employer s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances, unless the employer s policy requires notice to be given sooner than as provided by the regulations. Previously: Did not contain exception for unusual circumstances

17 Employee Notice Requirements (Foreseeable Leave) Procedures Change: If employee fails to follow procedures, FMLA leave can be delayed or denied. Previously: Prohibited employer from delaying or denying leave due to failure to follow procedures. 40 Employee Notice Requirements (Unforeseeable Leave) Timing: Employee must provide notice as soon as practicable. Defined as employer s usual and customary notice requirements for such leave. Content: Same as for foreseeable leave. Procedures: Same as for foreseeable leave. 41 Employee Notice Requirements Consequences for failure to provide notice: Foreseeable leave (30 days): May delay coverage until 30 days after notice provided. Foreseeable leave (<30 days): Depends on facts of particular case. Unforeseeable leave: Depends on facts of particular case

18 Employee Notice Requirements Employer may waive FMLA notice obligations or employer s own internal rules on leave notice requirements. 43 Notices to be Provided by Employers PRESENTED BY Ashley Z. Hager Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Daniel Rashtian Troutman Sanders LLP 5 Park Plaza Suite 1200 Irvine, CA Notices to be Provided by the Employer The regulations have divided employer notice requirements into four separate notice sections: General Notice º Poster º Policy Eligibility Notice Rights and Responsibilities Notice Designation Notice 45 15

19 General Notice Requirements - Poster The Department of Labor has developed a new poster that reflects the new FMLA regulations see Appendix C. Electronic posting is sufficient to meet the posting requirement as long as it meets the requirements of the section regarding content and accessibility. Must be accessible to all employees and all applicants. Maintains requirement that the employer post general notices at a facility, even if no employees at that facility are eligible for FMLA leave. If a significant portion of employees are not literate in English, the employer must still provide notice in the language employees are literate in. 46 General Notice Requirements - Policy If an FMLA-covered employer has any eligible employees, it must provide the general notice to each employee by including it in an employee handbook (or, if there is no handbook, by distributing a copy of the general notice to each new employee upon hiring). Distribution can be electronic. Employers may duplicate the text of the Department of Labor s notice found at Appendix C to the regulations or may develop their own policy, but the policy must include all of the information contained in the Department of Labor s notice. 47 Eligibility Notice The Eligibility Notice is a notice that employers must give employees who request leave or need leave informing them whether they meet the eligibility requirements of the FMLA (e.g. length of employment, number of employees within a 75-mile radius). It does not inform the employee whether or not the reason for leave has been approved (e.g. whether or not the employee s condition is a serious health condition or whether the employee has a qualifying exigency)

20 Eligibility Notice - Timing The employer must notify the employee of his or her eligibility to take FMLA leave within five business days of when the employer learns of the need for leave, absent extenuating circumstances. Employee eligibility is determined, and notice must be provided, at the beginning of the first instance of leave for each FMLA qualifying reason in the applicable 12 month period. If employee provides notice of a subsequent need for FMLA leave for a different FMLA-qualifying reason during the applicable 12- month period, no additional eligibility notice is required if eligibility status has not changed. If eligibility status has changed, the employer must notify the employee of the change in eligibility status with five business days, absent extenuating circumstances. 49 Eligibility Notice - Content A sample Eligibility Notice is attached as Appendix D, but an employer may develop its own notice. The notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible for FMLA leave, the eligibility notice must state at least one reason why the employee is not eligible. Notification of eligibility may be oral or in writing. The employer must translate the notice where workforce is comprised of a significant portion of workers who are not literate in English. 50 Rights and Responsibilities Notice The Rights & Responsibilities Notice is a notice that provides employees who need leave with general information about their rights and responsibilities under the FMLA

21 Rights and Responsibilities Notice - Timing An employee must be given a Rights and Responsibility Notice each time an Eligibility Notice is given. If the specific information provided by the Rights and Responsibilities Notice changes, the employer shall, within five business days of receipt of the employee s first notice of need for leave after any change, provide written notice referencing the prior notice and setting forth any of the information in the notice that has changed. 52 Rights and Responsibilities Notice - Content A sample Rights and Responsibilities Notice can be found at Appendix D, but an employer may develop its own notice. The following information must be included in the notice: That leave may be designated and counted against the employee s annual FMLA leave entitlement if qualifying. The applicable 12-month period for FMLA entitlement. Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency, and the consequences of failing to do so. The employee s right to substitute paid leave, whether the employer will require the substitution of paid leave, conditions related to any substitution, and the employee s entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave. 53 Rights and Responsibilities Notice - Content Information that must be included in the notice (continued): Any requirement for the employee to make any premium payments to maintain health benefits, arrangements for making such payments, and the consequences of failure to make such payments on a timely basis. The employee s status as a key employee and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial. The employee s rights to maintenance of benefits during the FMLA leave and restoration into the same or an equivalent job upon return from FMLA leave. The employee s potential liability for payment of health benefits paid by employer during employee s unpaid FMLA leave if the employee fails to return to work after leave

22 Rights and Responsibilities Notice - Content The Rights and Responsibilities Notice may include other information, like whether the employee will be required to submit periodic reports during leave. Information about whether the employee will be required to present a fitness for duty certification before returning to work is not included in the Rights and Responsibilities Notice it is now included in the Designation Notice. 55 Designation Notice The Designation Notice is a notice that the employer must give employees who have requested or need FMLA leave informing the employee whether that leave has been approved and will be counted as FMLA leave. 56 Designation Notice - Timing When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee whether the leave will be counted as FMLA leave within five business days, absent extenuating circumstances. Only one Designation Notice is required for each FMLA qualifying reason per applicable 12-month period, regardless of whether leave taken is in a continuous block, intermittent, or reduced schedule. If information in the Designation Notice changes (e.g. the employee exhausts FMLA leave), the employer must provide written notice of the change in designation within five business days of receipt of the employee s first notice of need for leave after any change

23 Designation Notice Content A sample Designation Notice is attached as Appendix E, but an employer may develop its own notice. The Designation Notice must be in writing. The Designation Notice must include the following information: Designation as FMLA Leave: The employer must notify the employee that the employer has determined that the leave does or does not qualify for FMLA. Substitution of Paid Leave: If employer requires paid leave to be substituted for unpaid FMLA leave, or that paid leave be taken under existing leave plan be counted as FMLA leave, the employer must inform the employee of this designation at the time of designating the FMLA leave. 58 Designation Notice - Content Information that must be included in the notice (continued): Fitness for Duty Certification: º If the employer will require the employee to present a fitness for duty certification in order tor return to work, the employer must provide notice of such requirement with the Designation Notice, and must include a list of essential job functions. º If the employee handbook describing the leave policy clearly provides that a fitness for duty certification is required in specific circumstances, an employer can provide oral notice of the fitness for duty requirement instead of written notice, but no later than with the Designation Notice. 59 Designation Notice - Content Information that must be included in the notice (continued): Amount of Leave Counted as FMLA: º The employer must notify the employee of the amount of leave that will be counted against the employee s FMLA leave entitlement. º If the amount of leave needed is known at the time of the designation, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee s FMLA leave entitlement. º If it is not possible to determine the amount of leave that will be counted against the employee s leave entitlement, then the employer must provide notice of the amount of leave counted when requested by the employee, but no more than once in a 30-day period and only if leave was taken in that period. º The notice of the amount of leave can be oral or in writing. If oral, it shall be confirmed in writing, not later than the following payday (or subsequent payday if payday is less than one week after the oral notice). Written notice can be provided in any form, including a notation on the employee s pay stub

24 No Provisional Designation Designation Notice Previously, the regulations allowed employers to preliminarily designate leave as FMLA-covered while obtaining medical certification or second/third opinions. The new regulations eliminate the concept of provisional designation. Retroactive Designation The employer may retroactively designate FMLA leave with appropriate notice to the employee provided that the failure to timely designate leave does not cause harm or injury to the employee. An employer and employee also can mutually agree that leave be retroactively designated as FMLA leave. 61 Consequences of Failure to Provide Proper Notices An employer s failure to follow any of the notice requirements may constitute interference with, restraint, or denial of the exercise of an employee s FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered. 62 FMLA Certifications: Serious Health Condition PRESENTED BY Richard Gerakitis Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Tevis Marshall Troutman Sanders LLP Troutman Sanders Building 1001 HaxallPoint Richmond, VA

25 Timing of Request Employers must request certification within 5 business days after receiving notice of the need for FMLA leave. In the case of unforeseen leave, employers must request certification within 5 business days after the leave commences. Employee must provide certificate within 15 calendar days after request (unless not practicable despite the employee s diligent, good faith efforts). 64 Time to Cure Deficiency Employers must allow 7 calendar days (unless not practicable despite the employee s diligent, good faith efforts) for employees to cure deficiencies only if the certification is: Incomplete one or more entries have not been completed Insufficient information is vague, ambiguous or non-responsive When requesting certification, employers must advise employees of the anticipated consequences for failing to provide or cure certification. Failure to provide no right to cure and leave may be denied. Failure to cure leave may be denied. 65 Annual Medical Certification When need for leave lasts beyond a single leave year, employers may require an employee to provide a new medical certification in each subsequent year

26 Certification Forms Form WH-380-E for employee s serious health condition. Form WH-380-F for family member s serious health condition. Employers are not required to use these forms, but cannot request more information than what is contained in these forms. 67 Relationship with ADA The FMLA does not prevent employers from following the procedures for requesting medical information under the ADA. e.g. - requesting a medical examination of an employee that is job-related and consistent with business necessity. Any information received pursuant to these procedures may be considered in determining the employee s entitlement to FMLA leave. 68 Authentication and Clarification If employee submits complete and sufficient certification, employers may not request additional information from the HCP. However, employer may contact HCP after employee has been given opportunity to cure any deficiencies in order to authenticate or clarify certification

27 Authentication and Clarification Authentication providing the HCP with a copy of the certification and requesting verification that the information contained therein was completed and/or authorized by the health care provider who signed the document. Clarification contacting the HCP to understand the handwriting on the certification or to understand the meaning of the response. 70 Authentication and Clarification 71 Authentication and Clarification Employer may only contact employee s HCP through: HCP hired by employer Human Resources Professional Leave Administrator Management Official NEVER through employee s direct supervisor! 72 24

28 Authentication and Clarification HIPAA Employers must comply with HIPAA in authenticating and clarifying certifications. If employee refuses to provide a HIPAA release, and does not otherwise clarify certification, employer may deny FMLA leave if certification is unclear nd and 3 rd Opinions Leave may be denied if employee fails to authorize his or her HCP to release all medical records to HCP providing a second or third opinion. Upon request, employers must provide an employee with copies of second and third opinions within 5 business days. 74 Recertification Timing 30-Day Rule: Employers may request recertification no more often than every 30 days. More than 30 Days: If the certification indicates that the minimum duration of the condition is more than 30 days, employers cannot request certification until that period expires unless: Employee requests extension of leave Circumstances described by previous certificate have changed significantly Employer receives information that casts doubt upon the employee s stated reason for the absence or the continuing validity of the certification 75 25

29 Recertification Timing Employer must allow at least 15 calendar days for employee to provide recertification, unless not practicable. Employers may provide the HCP with a record of the employee s absence pattern and ask the HCP if the serious health condition and need for leave is consistent with such a pattern. Any recertification is at employee s expense unless employer provides otherwise. No 2 nd or 3 rd opinion may be required. 76 FMLA Certifications: Exigency Leave, Military Caregiver Leave, and Fitness For Duty / Return to Work PRESENTED BY Kevin F. Kieffer Troutman Sanders LLP 5 Park Plaza Suite 1200 Irvine, CA Matthew R. Almand Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Certification of Exigency Leave The FMLA permits an employer to require that an employee submit a timely, complete and sufficient certification to support a request for FMLA leave due to a qualifying exigency 78 26

30 Form WH-384 Employer can either use the Form WH-384 or create their own form, provided, the employer does not ask the employee to provide more information than required under the FMLA regulations 79 Form WH-384 terms such as unknown or indeterminate may not be sufficient to determine FMLA coverage While an employee is not required to provide this information, an employer may deny the employee s request for FMLA leave for failure to provide the requested information 80 Form WH-384 Proof of active duty or call to active duty While an employee is not obligated to recertify the active duty or call to active duty status of covered military member, an employee is obligated to separately certify each exigency resulting from such status 81 27

31 A signed statement or description of appropriate facts describing the type of qualifying exigency for which leave is needed Form WH-384 Written documentation which supports the need for leave, which may include: A copy of a meeting announcement for informational briefings sponsored by the military A document confirming an appointment with a counselor or school official A copy of a bill for services for the handling of legal or financial affairs 82 Form WH-384 Approximate start date of exigency and probable duration of exigency For continuous leave, start and end dates for leave For intermittent leave, estimate schedule of leave (including estimate dates, frequency, and duration of scheduled meetings, appointments, or other leave events) 83 Form WH-384 Certification of exigencies involving third parties 84 28

32 Certification of Military Caregiver Leave Automatic Emergency Certification A DOD-issued ITO or ITA constitutes automatic certification of the serious injury or illness An employer may not require additional or separate certification 85 Certification of Military Caregiver Leave An employer may require certification completed by certain authorized health care providers that contains certain specified information necessary to support the request for military caregiver leave to care for a covered servicemember with a serious injury or illness. Certification to support the request is permissible under following scenarios: Emergency situations where ITO or ITA not issued Emergency situations that extend the duration specified in ITO or ITA Non-emergency situations 86 Form WH-385 Employer can either use the Form WH- 385 or create their own form, provided, the employer does not ask the employee to provide more information than required under the FMLA regulations 87 29

33 Form WH-385 While an employee is not required to provide this information, an employer may deny the employee s request for FMLA leave for failure to provide the requested information Employer must give employee at least 15 calendar days to return certification form to employer 88 Form WH-385 The following health care providers may complete this certification: DOD health care provider; A United States Department of Veterans Affairs health care provider; A DOD TRICARE network authorized private health care provider; or A DOD non-network TRICARE authorized private health care provider terms such as lifetime, unknown, or indeterminate may not be sufficient to determine FMLA coverage 89 Whether covered servicemember is a current member of the Armed Forces, the National Guard, or Reserves, and, if so, military branch, rank, and current unit assignment Form WH-385 Whether covered servicemember is assigned to a military medical facility or to a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients Is servicemember on Temporary Disability Retired List? 90 30

34 Form WH-385 Description of the care covered servicemember needs for employee to perform Due to low threshold, leave should probably be granted as long as employee provides some description of need for leave 91 Form WH-385 Health Care Provider Information Name, address, contact information Type of medical practice Medical specialty Type of health care provider 92 Form WH-385 Medical Condition (VSI) Very Seriously Ill/Injured (SI) Seriously Ill/Injured OTHER Illness/Injured NONE OF THE ABOVE Whether injury incurred in line of duty Approximate date condition commenced, and probable duration of condition and/or need for care Description of medical treatment, recuperation, or therapy 93 31

35 Form WH-385 For continuous leave, start and end dates for leave For intermittent or reduced schedule leave for planned medical treatment, estimated treatment schedule For intermittent or reduced schedule leave other than for planned medical treatment (e.g., episodic flare-ups of a medical condition), estimated frequency and duration of periodic care 94 Fitness for Duty Certification -- Some Rules Haven t Changed FMLA regulations have always permitted an employer to have a uniformly-applied policy or practice that requires all similarly-situated employees who take leave for his/her own serious health condition to obtain and present certification from the employee s health care provider that the employee is able to return to work This includes providing a complete and sufficient certification or providing sufficient authorization to the health care provider to provide the information directly to the employer Certification limited to only the particular health condition that the caused the employee s leave Second or third opinions are still not allowed for fitness-for-duty certifications 95 Fitness for Duty Certification Essential Job Functions If an employer requires that an employee produce a fitness-for-duty certification that will address the employee s ability to perform the essential functions of the job, the employer must: Indicate requirement in the designation notice, and Include a list of the essential job functions 96 32

36 Fitness for Duty Certification Intermittent Leave Employer is not entitled to a certification of fitness to return to duty for each absence taken on an intermittent or reduced leave schedule. Employer is entitled to a certification of fitness to return to duty for such absences up to once every 30 days if reasonable safety concerns exist regarding the employee s ability to perform job duties based on the serious health condition for which the employee took such leave. Employer must inform employee at the same time it issues the designation notice that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the last 30 days. Employer can set a different interval for requiring a fitness-for-duty certification as long as it does not exceed once every 30 days and as long as the employer advises the employee of the requirement in advance of the employee taking the intermittent or reduced schedule leave. 97 Fitness for Duty Certification Intermittent Leave Reasonable Safety Concern A reasonable belief of significant risk of harm to the individual employee or others Employer should consider the nature and severity of the potential harm and the likelihood that potential harm will occur Examples (Roofer vs. Cashier) 98 Fitness for Duty Certification Certifications By Employer HCP An employer cannot require a fitness-for-duty evaluation by employer health care provider as a condition to returning to work. However, after employee returns from FMLA leave, an employer can require an employee to undergo a medical examination at an employer s expense by the employer s health care provider; provided, the examination is job-related and consistent with business necessity

37 Fitness for Duty Certification ADA Considerations Qualified Individual? Direct Threat? Employment Decision Job Related and Consistent with Business Necessity? 100 Additional Noteworthy Changes and Clarification of FMLA Regulations PRESENTED BY Benjamin D. Briggs Theresa Y. McDaniel Troutman Sanders LLP Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Topical Overview of Additional Noteworthy Regulations Holidays Hourly Equivalent Overtime Substitution of Paid Leave Light Duty Bonuses Release of Claims

38 When a Holiday Counts Against FMLA Time If an employee s FMLA leave is for less than a full week, a holiday that falls within the week will not count against the employee s FMLA entitlement. If an employee s FMLA is for more than a full week, a holiday that falls within the week may be counted against the FMLA leave entitlement. Previous FMLA regulation did not address how employers should count holidays when an employee takes less than a full week of FMLA time. 103 Hourly Equivalent of FMLA Leave If an employer wants to track the hours of an employee who does not work a typical workweek, he or she may convert FMLA weeks to their hourly equivalent as long as the conversion equitably reflects the employee s total normally scheduled hours. Employer must calculate the number of hours an employee typically works in a week based on an average of how much she actually worked over the previous 12 weeks. If an employee works a schedule that drastically changes from week to week, the employer can calculate a weekly average over the 12 months prior to the leave period. Previous FMLA regulation did not address how to convert FMLA leave from weeks to hours. 104 Hourly Equivalent of FMLA Leave NOTE: FMLA leave is still accrued by weeks, not hours (an eligible employee is entitled to 12 workweeks of leave or 26 workweeks in the case of military caregiver leave) Therefore a week is based on how many hours an employee would normally work, not the number of days it takes to reach (for example) 40 hours. EXAMPLE: An employee who normally works 25 hours a week, would have used one week of FMLA leave after missing 25 hours of work. If an employee takes leave intermittently, an employee who works 5 hours a day would use one day of FMLA leave after missing 5 hours of work in a day

39 Overtime If an employee who would normally be required to work overtime is unable to do so because of an FMLA-qualifying reason, the hours that the employee would have been required to work may be counted against the employee s FMLA entitlement. Failure to work overtime is not calculated on an hour-for-hour basis, but rather based on the percentage of the employee s workweek. EXAMPLE: An employee who regularly works 40 hours per week is required to work 10 additional hours of overtime one particular week. If she cannot work the 10 hours of overtime due to an FMLA condition, she would be missing 1/5 th of a week of work and so should be charged for 1/5 th of a week of FMLA. Failure to work overtime does not count against FMLA leave if working overtime is voluntary. DOL s original position was that unworked overtime could not be FMLA leave. 106 Substitution of Paid Leave An employee may choose or an employer may require the substitution of accrued paid leave (e.g. vacation, sick time) for FMLA leave pursuant to established policies of the employer. If paid leave is not substituted for unpaid FMLA leave, the employee remains entitled to all accrued paid leave. Paid leave used for purposes not covered by the FMLA cannot count against the employee s FMLA leave entitlement. The employer must inform the employee of any conditions contained in the policy that must be satisfied before obtaining paid leave. Earlier regulations prohibited employer from imposing any limits on the substitution of paid vacation or personal leave in any manner. 107 Substitution of Paid Leave An employer may inform the employee of the additional requirements for the use of paid leave in the following ways: Including the notice with the rights and responsibilities notice Including the information in the text of the rights and responsibilities notice itself Attaching a copy of the paid leave policy to the notice Providing a cross-reference to a leave policy in an employee handbook or other source available to employees, where paid leave policies are customarily set forth

40 Worker s Compensation Light Duty An employee being treated for a workers compensation injury may be put on light duty when her health-care provider certifies that she is able to return to work only in a light-duty job If the employee declines to work the light-duty job and is unable to return to work to the same or equivalent job, she may lose workers compensation payments, but she is entitled to remain on unpaid FMLA leave until her FMLA leave entitlement is exhausted. The period of time employed in a light duty assignment cannot count against the 12 weeks of FMLA leave. An employee on light duty maintains the right to be restored to her previous position or to an equivalent position. The employee s right to restoration ceases at the end of the twelvemonth period that the employer uses to calculate FMLA leave. Earlier regulations were silent on whether light duty counted towards FMLA leave, but some courts held that light duty counted against FMLA time. 109 Light Duty EXAMPLE An employee takes 4 weeks of FMLA leave, then accepts a 10-week light-duty assignment. If at the end of the 10-week light-duty assignment she is unable to return to her same or equivalent position, she is entitled to take her remaining 8 weeks of FMLA leave and she maintains her right to be restored to her same or equivalent position. If the light-duty assignment is for an indefinite period of time, the employee loses her right to be restored at the end of the 12-month FMLA period and the employer is not obligated to return the employee to her same or equivalent position. 110 Bonuses If a bonus or other payment is based on achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. Example: If an employee who used paid vacation leave for a non- FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must also receive the payment. Note: FMLA leave still cannot be counted under no fault attendance policies and it cannot be a negative factor in employment actions such as hiring, promotion or discipline. Earlier regulations prohibited employers from denying bonuses based on attendance for FMLA leave

41 Release of Claims Employers may settle or employees may release FMLA claims based on past employer conduct without the approval of the DOL or a court. There has been a split of authority among courts. Some required Department of Labor or court approval for a settlement of FMLA claims

42 Summary of New FMLA Regulations Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Eligibility 12 months of service (b)(1); Change Employment periods prior to a break of service of seven years or more need not be counted in determining whether employee has been employed by the employer for at least twelve months, with some exceptions (i.e., break due to military service or a written agreement or CBA indicating employer s intention to rehire after break). Also, the time served performing military service must be counted in determining whether the employee has been employed for at least 12 months. Any service with the employer counted towards the twelve months, regardless of breaks in service. Did not count time in military service towards 12-month requirement. Incorporate into calculation of FMLA eligibility May need to change any algorithm used to calculate eligibility Eligibility 12 months of service (d) Clarification An employee may be on non-fmla leave at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirements would be FMLA leave. N/A Incorporate into calculation of FMLA eligibility Serious Health Condition Continuing Treatment (a)(3) Change In order to meet the requirements of a serious health condition under the provision relating to period of incapacity of more than three days and treatment two or more times, the treatment must be within thirty days of the first day of incapacity, unless extenuating circumstances exist. The health care provider, not the employee, determines whether treatment is required. No prior specification of when treatment must have occurred. Incorporate into determination

43 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Serious Health Condition Continuing Treatment (a)(1), (3), and (4) Change To meet the requirements of a serious health condition under the provision relating to period of incapacity of more than three days and treatment either two or more times or once with regimen of treatment, the treatment by the health care provider must be in-person and the first (or only) in-person treatment visit must take place within seven days of the first day of incapacity. No prior specification that the treatment must be in person or when the treatment must have occurred. Incorporate into determination Serious Health Condition Periodic Visits (c)(1); Change The periodic visits required for a chronic condition to meet the definition of a serious health condition is defined as at least twice a year. No prior specifications of how often visits must be. Incorporate into determination Needed to Care for a Family Member or Covered Servicemember (b) Clarification The employee taking leave to care for a family member with a serious health condition or a covered servicemember with a serious injury or illness need not be the only person available to care for the individual. Unclear as to whether employee had to be the only available person. Incorporate into determination Definition of Health Care Provider (b); (a)(1) Clarification Change Clarifies that the term health care provider to include nurse practitioners, nurse-midwives, clinical social workers, and physician assistants who are authorized to practice under State law and who are performing within the scope of their practice. Physician assistants can provide treatment for a serious health condition under orders of or on referral by a health care provider. Unclear, particularly with respect to physician assistants. Physician assistants could only provide treatment under the direct supervision of health care provider. Incorporate into determination 2

44 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Qualifying Reasons for Leave (a)(5-6) New Employers must grant FMLA leave to eligible employees (1) because of any qualifying exigency arising out of the fact that the employee s spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation, and (2) to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember. N/A Train managers and HR on new types of FMLA leave May need to change HRIS system to track military caregiver leave separately Exigency Leave New Leave must be granted while the employee s spouse, son, daughter, or parent is on active duty or call to active duty status for one or more qualified exigencies. N/A Train on requirements The term active duty or a call to active duty status means duty under a federal call or order to active duty (not a call to active duty by a state or governor, unless by order of the President) in support of a contingency operation. Such active duty or call/order to active duty is only made to members of the National Guard or Reserve components or a retired member of the Regular Armed Forces or Reserves. An employee may NOT take exigency leave if the servicemember is a member of the Regular Armed Forces. Qualified exigencies include: (1) short notice deployment to address any issue arising from call or order seven or less calendar days prior to date of deployment (limited to seven days); (2) military events and related activities; (3) childcare and school activities (for a child of the servicemember, not employee s own child); (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation (limited to five days); (7) post-deployment activities (up to ninety days 3

45 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law after return); and (8) additional activities, provided employer and employee agree activity qualifies and agree to timing and duration. Practical Steps Military Caregiver Leave (a); New Leave is available to an eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember to care for the servicemember. Covered servicemember means a current member of the Regular Armed Forces and National Guard or Reserves with a serious injury or illness incurred in the line of duty on active duty for which he is (1) undergoing medical treatment, recuperation, or therapy; (2) otherwise in outpatient status; or (3) otherwise on the temporary disability retired list ( TDRL ). Former members of the Regular Armed Forces and National Guard or Reserves and those on the permanent disability retired list are not covered. N/A Train on requirements Covered Servicemember Next of Kin (b)(3); New Next of kin means the nearest blood relative, other than the servicemember s spouse, parent, son or daughter, in the following order of priority: blood relatives who have been granted legal custody of the servicemember, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave. N/A Train on requirements 4

46 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Military Caregiver Leave Twenty-six weeks (c)(1) and (2) New The single twelve-month period begins on the first day of leave (not date of injury or illness) and ends twelve months after that date, regardless of method used by employer (e.g., calendar or rolling) for twelve-week leave entitlements. If an employee does not take all of his or her twenty-six workweeks during this single twelve-month period, the remaining part is forfeited. Leave is applied on a per-covered servicemember, per-injury basis, so an employee may be entitled to take more than one period of twenty-six workweeks if leave is to care for different servicemembers or to care for same servicemember with a subsequent serious injury or illness, except that no more than twenty-six workweeks may be taken within any single twelve-month period. N/A Train on calculations; develop system for tracking 26-week period in addition to 12-week period Military Caregiver Leave Twenty-six weeks (c)(3) New An employee is entitled to a combined total of twenty-six workweeks of leave for both servicemember leave and any other type of FMLA leave during a single twelve-month period, provided that the employee is entitled to no more than twelve weeks of leave for one or more other types of leave. N/A Develop system for tracking 26-week period in addition to 12-week period For example, an employee may during the single twelve-month period take sixteen weeks of FMLA leave to care for a servicemember and ten weeks to care for a newborn child. However, the employee may not take more than twelve weeks of FMLA leave to care for the newborn child during the single twelve-month period, even if the employee takes fewer than fourteen weeks of FMLA leave to care for a covered servicemember. 5

47 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Military Caregiver Leave Leave for Family Member with Serious Health Condition New If leave qualifies as both military caregiver leave and leave to care for family member with a serious health condition during the single twelve-month period, employer must designate leave as military caregiver leave. N/A Train on requirement (c)(4) Military Caregiver Leave Husband and Wife (d) New Husband and wife who are both eligible for leave and who are both employed by the same employer may be limited to a combined total of 26 workweeks of leave during the single 12- month period if leave is taken to care for a covered servicemember or a combination of leave to care for a covered servicemember, for the birth or placement of a healthy child, or to care for a parent with a serious health condition. N/A Decide whether to require and then incorporate into policy Intermittent and Reduced Leave Schedule (b), (d) New An employee may take intermittent or reduced schedule leave for a servicemember s illness or injury if there is a medical need for leave and such medical need can be best accommodated through an intermittent or reduced leave schedule. N/A (Similar to treatment of other types of FMLA leave) N/A An employee may take intermittent or reduced schedule leave for a qualifying exigency. Transfer for Intermittent Foreseeable Military Caregiver Leave (a) New If employee needs intermittent leave that is foreseeable based on planned medical treatment for a servicemember, the employer may require employee to transfer temporarily during the period of intermittent leave to an available alternative position. N/A (Always allowed transfer for other types of foreseeable intermittent leave). Apply existing process to military caregiver leave 6

48 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Intermittent or Reduced Leave Sc (a)(2) New Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work midway through a shift, the entire period that the employee is forced to be absent is designated as FMLA leave. N/A Consider whether provision might be applicable to any jobs. Employee Notice Requirements for Foreseeable Leave (a) Clarification If it is not practicable for the employee to give 30-days notice of the need for leave, the employer may require the employee to explain why 30-days notice was not practicable. N/A Incorporate into process Employee Notice Requirements Subsequent Request (c) Clarification When an employee seeks leave due to an FMLAqualifying reason for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave. No burden on employee to identify leave as FMLA leave N/A Employee Notice Requirements Procedures (c) and (d) Change An employer may require an employee to comply with the employer s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances, unless employer s policy requires notice to be given sooner than as provided by the regulations. If employee fails to follow procedures, FMLA leave can be delayed or denied. Prohibited employer from delaying or denying leave due to failure to follow procedures; did not contain exception for unusual circumstances Consider whether policy requires notice procedures and whether they may be applied to FMLA leave General Notices to Employees Poster (a)(3); Appendix C New / Clarification General FMLA notice must be posted. May be posted electronically, as long as accessible to all employees and applicants. Previously unclear whether could post electronically. Post new FMLA poster. Consider whether can be posted electronically. 7

49 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps General Notices to Employees Policy (a)(3); Appendix C New FMLA policy must be included in handbooks or written guidance if such materials exist or, if they do not exist, must be given to all employees upon hiring. Distribution may be accomplished electronically. Policy must include, at a minimum, all of the information contained in the DOL s sample notice at Appendix C. No previous option for distributing at hiring, had to distribute when leave was requested. Previously unclear whether could distribute electronically. Revise policy to include all information in DOL notice or include DOL notice in handbook. Consider whether can be distributed electronically. No requirement that the policy contain specific information. Eligibility Notice Timing (b)(1) Change Employer must notify the employee of eligibility to take FMLA leave within five business days after employer acquires knowledge that leave may be for an FMLA-qualifying condition, absent extenuating circumstances. One or two business days. Change process Eligibility Notice Content (b)(2) Appendix D New If the employee is not eligible, the notice must state at least one reason why, including as applicable the number of months the employee has been employed, the number of hours of service, and whether the employee is employed at a covered worksite. Notification may be oral or in writing. No previous requirement. Develop new eligibility notice or use DOL form. Incorporate completion of form into process. Sample Notice of Eligibility and Rights & Responsibilities attached as Appendix D. 8

50 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Rights and Responsibilities Notice Timing and Content (c); Appendix D New Each time eligibility notices are given the employee must also receive a Rights and Responsibilities notice. The Rights and Responsibilities notice must include specified information, including but not limited to the applicable twelve month leave period. Sample Notice of Eligibility and Rights and Responsibilities attached as Appendix D. Similar information required to be provided. Develop new rights & responsibilities notice or use DOL form. Incorporate completion of form into process. Designation Notice Timing and Content (d)(1); Appendix E Change The employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days (absent extenuating circumstance) of when the employer has enough information to determine FMLA qualifying reason exists. Sample Designation Notice attached as Appendix E. Two business days. Develop new designation notice or use DOL form. Incorporate completion of form into process and change process to reflect new deadline. Designation Notice Fitness for Duty Certification (d)(3); (b) Appendix E New If the employer will require that the employee produce a fitness-for-duty certification that will address the employee s ability to perform the essential functions of the employee s position, the employer must so indicate in the Designation Notice, and must include a list of the essential job functions. No requirement to include list of essential job functions. Consider whether will require fitness for duty certification in all or most instances; incorporate development or confirmation of essential job functions into process. Designation Notice Notification of Change (d)(5) Appendix E New If information in the Designation Notice changes (e.g., the employee exhausts FMLA leave), the employer shall provide, within five business days of receipt of the employee s first notice of need for leave subsequent to any change, written notice of change. N/A Incorporate into process. 9

51 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Designation Notice Notice of Leave Counted as FMLA (d)(6) Appendix E New The employer must notify the employee of the amount of leave counted against the employee s FMLA leave entitlement. If the amount of leave needed is known at the time the employer designates the leave as FMLAqualifying, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee s FMLA leave entitlement in the Designation Notice. No requirement to provide periodic notice of amount of unforeseeable leave at request of employee. Decide on method for notifying of amount of leave counted as FMLA. Incorporate notification of amount of leave into process. If it is not possible to provide the hours, days, or weeks that will be counted against the employer s FMLA leave entitlement (e.g., unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted upon request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period. Notice can be oral or in writing. If oral, then it must be confirmed in writing no later than the following payday (or subsequent payday if payday is less than one week after the oral notice). Written notice can be provided in any form, including a notation on the employee s pay stub. 10

52 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Deleted Provisional Designation New [The concept of provisional designation has been eliminated from the final regulations] Employer should preliminarily designate leave as FMLA-covered while obtaining medical certification or second/third opinion Eliminate provisional designation from process Retroactive Designation (d) Clarification The employer may retroactively designate FMLA leave with appropriate notice to the employee provided that the employer s failure to timely designate leave does not cause harm or injury to the employee. An employer and employee can mutually agree that leave be retroactively designated as FMLA leave. Changed previous regulation that was held by courts to be invalid. N/A Medical Certification of SHC Timing of Request (b) Change Employer should request that an employee furnish medical certification of a serious health condition at the time the employee gives notice of the need for leave or within five business days thereafter, or in the case of unforeseeable leave, within five business days after the leave commences. Two business days. Employers should be prepared to issue Form WH-380-E (for employee s serious health condition) or Form WH-380-F (for family member s serious health condition) as soon as possible after learning of the need for leave Incorporate 5-day requirement into process 11

53 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Medical Certification of SHC Time to Cure Deficiency (c) New The employer must provide the employee with seven calendar days (unless impracticable) to cure deficiencies in the medical certification and must notify the employee of the specific deficiencies. Employees may only cure deficiencies if the certification is incomplete (one or more of the applicable entries have not been completed) or insufficient (information provided is vague, ambiguous or nonresponsive). Reasonable opportunity to cure. Incorporate opportunity to cure into process An employee who fails to provide a certification has no right to cure. If an employee fails to provide or cure a certification within the time allowed, employers may deny the taking of FMLA leave. Medical Certification of SHC Annual (e) Clarified Where employee s need for leave due to serious health condition lasts longer than a single leave year, employer may require new certification in each subsequent year, which is subject to second and third opinions. Not specified in regulations but was in DOL opinion letter. Consider whether to require new certification each year Medical Certification of SHC Form (a)(1) and (3); Appendix B New Type of medical practice or specialization may be included. Medical facts requested may include symptoms and diagnosis, but DOL position continues to be diagnosis may not be specifically requested and is left to discretion of HCP when completing certification. An employer may use its own form but cannot require anything other than what is on the DOL sample form. Specialization of HCP not listed. Modify existing forms or use Form WH- 380-E for employee s serious health condition and Form WH-380-F for family member s serious health condition 12

54 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Relationship Between FMLA and ADA (d) Clarification If the employee s serious health condition may also be a disability under the ADA, the employer may follow its ordinary procedures for requesting medical information under the ADA, and any information received pursuant to these procedures may be considered in determining whether the employee is entitled to FMLA leave. Not specifically stated. Train Clarification and Authentication of Medical Certification of SHC (a) Change Clarification Change Clarification The employer may contact the HCP for purposes of clarification and authentication of the medical certification of a serious health condition after the employee has given the employee an opportunity to cure any deficiencies (i.e., seven calendar days). Authentication defined as requesting verification that the information on the form was completed or authorized by the HCP. Clarification defined as contacting the HCP to understand the handwriting or to understand the meaning of a response. Employers are not permitted to ask HCPs for additional information beyond that required by the certification form. To make such contact, the employer must use a HCP, a human resources professional, a leave administrator, or a management official, but NOT the employee s direct supervisor. Employers must comply with the Health Insurance Portability and Accountability Act before clarifying a certification. If employee does not consent to the contact under HIPAA and the form is unclear, the employer may deny FMLA leave. No cure process. No definition of authentication and clarification in regulations. Only employer s HCP may contact employee s HCP. Not specified in regulations. Incorporate opportunity to cure into process Ensure compliance with strict limits on authentication and clarification. Consider who will contact employee s health care provider Consider using separate HIPAA release (not on form). 13

55 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Second and Third Opinions-Copies of Opinions (d) New An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second or third opinion at the employer s expense. Copies of second and third opinions must be provided to employee, upon request, within five business days. Two business days. Incorporate new time limit into process Recertification Timing (a), (b) and (c) New and Clarification In all cases, an employer may request a recertification of a medical condition every six months in connection with absence by the employee. An employer may request recertification no more often than every 30 days and only in connection with an absence by the employee, unless otherwise stated below. Six month provision is added and no previous example of extenuating circumstances. Consider new recertification options when appropriate. If the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification, except in the situation stated below. An employer may request recertification in less than 30 days if: (1) the employee requests an extension of leave; (2) circumstances described in previous certification have changed; or (3) the employer receives information that casts doubt upon the employee s stated reason for the absence or the continuing validity of the certification. 14

56 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Certification of Exigency Leave ; Appendix G New An employer may require a copy of military member s active duty orders or other documentation issued by the military. An employer may also require certification of the exigency by requesting the following information: (1) statement of relevant facts; (2) approximate dates of exigency; (3) estimate of intermittent leave; (4) contact information for third parties involved in the exigency leave; and (5) other information included in DOL Form WH-384. N/A Develop new form for Certification of Exigency Leave or use DOL Form WH- 384 Recertification is not permitted for the same exigency. Sample Form available at Appendix G. Certification of Military Caregiver Leave ; Appendix H New Except in emergency situations, an employer may require certification completed by certain authorized health care providers that contains certain specified information. Second and third opinions are not allowed. Recertification is not permitted. N/A Develop new form for Certification of Military Caregiver Leave or use DOL Form WH-385 Sample Form available at Appendix H. 15

57 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Fitness for Duty Certification (b) New An employer may require that the fitness for duty certification specifically address the employee s ability to perform the essential functions of the employee s job. (But as noted above, in order to do this, the employer must provide the employee with a list of the essential functions no later than with the designation notice.) Only allowed employer to obtain a simple statement of whether the employee could return to work. Decide whether to require that the fitness for duty certification address the employee s ability to perform EJFs If so, develop list of EJFs of each position or incorporate into process on an asneeded basis Change process to provide list of EJFs with designation notice Fitness for Duty Certification Intermittent Leave (f) New An employer is entitled to a certification of FFD for intermittent or reduced leave schedule up to once every thirty days IF reasonable safety concerns exist regarding the employee s ability to perform duties, based on the serious health condition for which the employee took such leave. Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others (considering the nature and severity of the potential harm and the likelihood that it will occur). The employer shall inform the employee at the time of the designation notice that for each subsequent instance of intermittent leave, the employee will be required to FFD certify unless one has already been submitted within the past thirty days. Not allowed. Evaluate employees on intermittent or reduced leave schedule on a caseby-case basis to determine whether reasonable belief that return to work may cause a reasonable safety concern Change process to provide notice of requirement with designation notice 16

58 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Holiday as FMLA (h) Clarification If employee uses FMLA leave in increments of less than a full week, a holiday that falls within the week will not count against the employee s FMLA entitlement. If the holiday falls within a full week, the holiday may be counted against the FMLA leave entitlement. Only addressed full week with holiday. Ensure that process counts holidays as FMLA leave when an employee is out for a full week, but not if the employee is out for less than a week Hourly Equivalent to Calculating Leave Entitlement (b) Clarification An employer may convert weeks and fractions of weeks to their hourly equivalent so long as the conversion equitably reflects the employee s total normally scheduled hours. The employer must calculate the number of hours an employee typically works in a week based on the average of how much she actually worked over the previous 12 weeks. N/A Ensure that amount of leave is properly calculated for parttime employees Overtime (c) Clarification If an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason that limits the employee s ability to work overtime, the hours that the employee would have been required to work may be counted against the employee s FMLA entitlement. Note that failure to work overtime is not calculated on an hour-for-hour basis, but rather based on the percentage of the employee s workweek. FMLA leave is not exhausted if an employee elects not to work voluntary overtime. DOL s original position was that unworked overtime could not be FMLA leave. DOL changed position in preamble to proposed regulations. Train on proper calculation (NOT an hour-for-hour exhaustion) Substitution of Paid Leave ; (c) Change Employee may choose or employer may require to substitute accrued paid leave (e.g. vacation, sick time) for FMLA leave pursuant to established policies of the employer. The employer must inform the employee of any conditions contained in the policy that must be satisfied before obtaining paid leave. This can be done by referencing existing policies. Prohibited employer from imposing any limits on the substitution of paid vacation or personal leave in any manner. Make sure existing policies clearly indicate conditions that must be satisfied before employees can substitute paid leave for FMLA leave 17

59 Topic/Section New Reg. Cite Clarification, Substance of Final Regulation Previous Regulation or Change or New Rule of Law Practical Steps Light Duty (e); (d) Clarification If the health care provider treating the employee for a workers comp injury certifies the employee is able to return to work in a light duty job but is unable to return to work to the same or equivalent job, the employee may decline the employer s offer to a light duty job. As a result, the employee may lose workers comp payments, but is entitled to remain on unpaid FMLA leave until the employee s FMLA leave entitlement is exhausted. Some courts held light duty counted against FMLA time. Continue to track light-duty work so you will know when an employee has reached the end of her applicable FMLA allotment An employee s acceptance of light duty assignment does not constitute a waiver of the employee s prospective rights, including the right to be restored to the same position the employee held at the time of leave commenced or to an equivalent position. The employee s right to restoration, however, ceases at the end of the applicable twelve-month FMLA leave year. Bonuses (c)(2); (c) Change If a bonus or other payment is based on achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. Bonus could not be denied based on attendance for FMLA leave. Ensure that any bonus or incentive plans comply with requirements; may need to modify plans or communications to employees (But note that FMLA leave still cannot be counted under no fault attendance policies and it cannot be a negative factor in employment actions such as hiring, promotion or discipline). Releases of Claims (d) Clarification Nothing prevents the settlement or release of FMLA claims by employees based on past employer conduct without the approval of DOL or a court. Split of authority among courts some required DOL or court approval for a settlement. No change. 18

60 Calculating Leave Exhaustion Under Calendar Method When Military Caregiver Leave is Used Rules: (1) The single twelve-month period within which an employee may take twenty-six weeks of military caregiver leave begins on the first day of leave and ends twelve months after that date, regardless of the fact that the employer has elected to use the calendar year method for calculating entitlement to other types of FMLA leave. (2) If an employee does not take all of his twenty-six workweeks during the single twelve-month period, the remaining part is forfeited. (3) The allotment of twenty-six weeks of servicemember leave is applied on a per-covered service member, per injury basis. (4) An employee is entitled to a combined total of twenty-six workweeks of leave for both military caregiver leave and any other type of FMLA leave during the single twelve-month period, provided that the employee is entitled to no more than twelve weeks of leave for one or more other types of FMLA leave. (5) Leave that qualifies for both military caregiver leave and leave to care for family member with a serious health condition, is to be designated as military caregiver leave. Examples: The following example explains how an employer would calculate an employee s entitlement to military caregiver leave when it utilizes a calendar year method for other FMLA qualifying reasons: The employer uses the calendar year method (January 2009-December 2009) for determining an employee s leave balance for FMLA leave taken for all qualifying reasons other than military caregiver leave. An employee first takes military caregiver leave in June Between June 2009 and June 2010 (the single twelve-month period for military caregiver leave), the employee can take a combined total of twenty-six workweeks of leave, including up to twelve weeks for any other qualifying FMLA reason if he has not yet taken any FMLA leave in If, however, the employee had already taken five weeks of FMLA leave for his own serious health condition when he began taking military caregiver leave in June 2009, he would then be entitled to no more than seven weeks of FMLA leave for reasons other than to care for a servicemember during the remainder of the 2009 calendar year (i.e., the twelve weeks yearly entitlement minus the five weeks already taken). Although his entitlement to FMLA leave for reasons other than military caregiver leave is limited by his prior use of FMLA leave during the calendar year, the employee is still entitled to take up to twenty-six weeks of FMLA leave to care for a servicemember from June 2009 to June 2010, which he could take between June 2009 and December Beginning in January 2010, the employee is entitled to an additional twelve weeks of FMLA leave for reasons other than to care for a servicemember. If the employee takes four weeks of FMLA leave for his own serious health condition in January 2010, this would reduce both the number of available weeks of FMLA leave remaining in calendar year 2010 (i.e., the twelve weeks yearly entitlement 19

61 minus the four weeks already taken) and the number of weeks of FMLA leave available for either military caregiver leave or other FMLA qualifying reasons during the single twelve-month period of June 2009-June Once the employee exhausts his or her twenty-six workweek entitlement, he may not take any additional FMLA leave for any reason until the single twelve-month period ends. Thus, for example, if the employee took twenty workweeks of military caregiver leave from June-December 2009, four workweeks of leave in January 2010 for his own serious health condition, and another two workweeks of military caregiver leave in March 2010, the employee will have exhausted his twenty-six workweek entitlement for the single twelve-month period of June 2009-June While the employee would still have eight weeks of FMLA leave available in calendar year 2010, the employee could not take such leave until after June 2010, when the single twelve-month period ends. THIS MATERIAL IS SUBJECT TO U. S. COPYRIGHT LAW. FURTHER REPRODUCTION IN VIOLATION OF THAT LAW IS PROHIBITED. DISTRIBUTION OF THIS MATERIAL OUTSIDE YOUR COMPANY IS EXPRESSLY PROHIBITED v4 20

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124 Matthew R. Almand Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Matthew represents employers in a wide variety of employment matters, including wage and hour litigation and audits, collective action litigation, employment discrimination litigation, breach of employment contracts, enforcement of employee agreements, protection of confidential employer information and trade secrets, traditional labor arbitrations and OSHA matters. He also counsels employers on all aspects of employment law, including compliance, employment policies, employment contracts, and litigation prevention. Practice Areas Labor & Employment Education University of Georgia (A.B.J., magna cum laude, 2000) University of Georgia School of Law (J.D., cum laude, 2004) Bar and Court Admissions United States District Court for the Northern District of Georgia United States District Court for the Middle District of Georgia Georgia Supreme Court Georgia Court of Appeals Presentations and Speaking Engagements «Interviewing 101: How To Make A Great Hire (And Avoid Getting Sued In The Process), January 17, 2006 «When The Government Comes Knocking: Preparing For An On-Site Investigation Troutman Sanders LLP Labor and Employment Seminar, November 7, 2007

125 Publications «Editor, Employment & The Law, Summer 2007 to present «When My Cherie Amour is an Office Paramour: Considerations When Dealing with Consensual Relationships in the Workplace, Employment & The Law, Summer 2007 «Legislative Update, OSHA Legislation Responds To Recent Mining Accidents, Employment & the Law, Spring 2006 «Legislative Update, New Laws Provide Employment Assistance to Victims of Hurricane Katrina, Employment & the Law, Fall 2005 «Legislative Update, Genetic Bias Bill Gaining Steam In Congress And Getting Heat From Employees, Employment & the Law, Summer 2005 Memberships Georgia Bar Association State Bar of Georgia (Labor and Employment Section) Professional Experience Associate, Troutman Sanders LLP, 2004-present

126 Benjamin Ben D. Briggs Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Ben is a partner in the firm s Labor & Employment practice group. His practice focuses on employment discrimination litigation, wage and hour collective action litigation, OSHA matters, union campaigns, collective bargaining, unfair labor practice charges, whistleblower claims, nuclear regulatory matters, agency proceedings, compliance advice and preventative counseling. Practice Areas Labor & Employment Education Georgia State University College of Law (J.D., with honors, 1999) Member Law Review, Business Law Society University of Miami (B.B.A., 1990) Bar and Court Admissions Georgia, 1999 Representative Experience «Represents Fortune 500 building and consumer products company in OSHA and traditional labor matters. «Represents large paper, packaging and facility supplies company in employment litigation, OSHA matters and restrictive covenants. «Principal outside employment counsel for U.S. arm of Japanese automobile parts manufacturing company. «Principal outside employment counsel for U.S. arm of French cookware manufacturing and distribution company. Publications Defending the Mixed-Motive Retaliation Case, ALI-ABA Practical Litigator (March, 2006)

127 Other Distinctions Selected as a Georgia "Rising Star" in Labor & Employment by Law & Politics and Atlanta Magazine, 2007 Memberships American Bar Association State Bar of Georgia (Labor & Employment Section) Georgia State University College of Law Graduate Leadership Council Professional Experience Associate, Troutman Sanders LLP, Partner, Troutman Sanders LLP, Present

128 Richard Gerakitis Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Richard is a partner with 27 years experience in litigation, mediation and arbitration. He has previously handled complex construction, business tort and criminal antitrust litigation. He is the Practice Group leader for the law firm s Labor and Employment Practice Group. Richard handles all types of employment matters, representing management in both union and non-union settings. His specialties include noncompetition covenants, employee breach of fiduciary duty claims, individual and class actions involving Title VII sex discrimination, religious discrimination and race discrimination claims, age discrimination claims (ADEA), retaliation claims, Sections 1981, 1983 civil rights claims, Fair Labor Standards Act (FLSA) and disability discrimination claims (ADA). Practice Areas Labor & Employment Education Walter F. George School of Law, Mercer University (J.D., 1981) Member, Moot Court Board Member State Bar YLS Intrastate Moot Court Team Intrastate Competition Best Oralist, 1980 Member, National Moot Court Team Order of Barristers University of Georgia (A.B., magna cum laude, 1978) Bar and Court Admissions Georgia, 1981 Georgia Court of Appeals Supreme Court of Georgia United States District Courts for the Northern, Middle, and Southern Districts of Georgia Eighth Circuit Court of Appeals Tenth Circuit Court of Appeals Eleventh Circuit Court of Appeals United States Tax Court United States Supreme Court

129 Bar Activities and Legal Associations State Bar of Georgia (Labor and Employment and Trial Practice Sections) National College of Trial Advocacy, Instructor ( ) ICLE Seminar Speaker ( present) Old War Horse Lawyers Club (2004 present) Chairman, State Bar of Georgia Client Security Fund ( ) Atlanta Bar Association Professional Memberships Board Member, Metropolitan Atlanta YMCA Board of Directors (2008 present) Director, Atlanta Enterprise Center ( ) Counsel, Christian Council of Metropolitan Atlanta ( ) Director, Northside Youth Organization ( ) Director, Boys & Girls Clubs of Metropolitan Atlanta ( ) Director, Atlanta Outdoor Activity Center ( ) Board Member, Mercer University - Walter F. George School of Law Alumni Board ( ) ( present) Board of Trustees, Canterbury Court Continuing Care Retirement Center ( present) Representative Experience «Counsel to numerous companies on a regional and national basis in employment discrimination litigation involving individual and class and collective actions for wage and hour, sex, race, age and disability discrimination, public accommodations and state law tort claims, as well as counseling on corporate policies and practices involving restrictive covenants, duty of loyalty, privacy and business interference «Represented nationwide motel developer on franchise litigation with motel franchisors in multidistrict litigation «Represented nationwide commercial lender in lender liability litigation in numerous federal trials «Represented national residential builder at dozens of trials in Florida and Georgia in connection with claims for construction disputes, Truth-in-Lending violations «Represented telephone equipment manufacturer at trial in defense of claims of tradedress violations «Represented industrial supplier in defending Justice Department indictment and trial for bid-rigging and price-fixing charges Honors and Other Distinctions «Recognized in The Best Lawyers in America in Labor and Employment Law in the editions.

130 «Recognized as one of America's Leading Lawyers for Employment Law by Chambers USA ( ). «Selected as Super Lawyer by Law & Politics and Atlanta Magazine for Employment Litigation excellence. «Named to Georgia Trend magazine s Legal Elite in labor/employment ( , 2008). Professional Experience Partner, Troutman Sanders LLP, 1998 present Partner, Cashin, Morton & Mullins, Associate, Cashin, Morton & Mullins,

131 Ashley Z. Hager Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Ashley specializes in employment and labor law matters, including employment discrimination litigation, unemployment compensation matters, employee and manager handbooks, employment contracts, separation agreements, severance plans, employee selection and testing, and general human resources consulting. Ashley is also a member of the firm s Privacy and Data Security Team and the Nuclear Regulation practice group. Practice Areas Labor & Employment Law Compensation & Employee Benefits Education University of Virginia Law School (J.D., 1994) Dartmouth College (A.B., magna cum laude, 1990) Bar and Court Admissions Superior Courts of Georgia, 1994 Georgia Court of Appeals, 1995 Supreme Court of Georgia, 1995 United States District Court, Northern District of Georgia, 1995 United States District Court, Middle District of Georgia, 1996 United States Court of Appeals, Eleventh Circuit, 1997 Bar Activities and Legal Associations State Bar of Georgia American Bar Association

132 Representative Experience «Counsel to Georgia Power Company and Southern Company for employment discrimination litigation (including race class action) and human resources counseling, including advice regarding policies, downsizing and severance plans «Counsel to Mohawk Industries, Inc. for employment discrimination litigation and state law tort claims, as well as counseling regarding employment-related policies and practices «Counsel to Chick-fil-A, Inc. providing counseling on a variety of employment-related issues and litigation «Counsel to Mizuno, USA concerning employment decisions, employment, consulting and severance agreements, employee classifications and other human resources issues Presentations and Speaking Engagements «Employment Agreements and Restrictive Covenants, Troutman Sanders University, April, «Crafting Employee Handbooks and Personnel Policies, The Cambridge Institute Annual Southern Employment Law Conference, November «The Hiring Process: How to Avoid Common Legal Pitfalls, Breakfast Seminar at Troutman Sanders LLP, May «Conducting Effective Employment Investigations, Breakfast Seminar at Troutman Sanders LLP, September «Workplace Violence The Catch 22 s Associated with Confronting Violence in the Workplace and Tips on Avoiding Liability, Breakfast Seminar at Troutman Sanders LLP, February Publications «Defamation by Conduct: Workplace Expulsion of the Terminated Employee, Georgia Bar Journal, December «Employer Administration of Severance Pay Plans: Avoiding Misrepresentation Liability on Plan Modifications, ERISA and Benefits Law Journal, Volume 4, Issue 1, Public Service Summer Economics Institute, Board of Directors (1996 to present) United Way Campaign, Troutman Sanders Chair (2004) Honors and Other Distinctions Named to Georgia Trend magazine s Legal Elite in labor/employment (2004, 2008)

133 Professional Experience Partner, Troutman Sanders LLP, present Member, Associate Review Committee Associate, Troutman Sanders LLP,

134 Prashant K. Khetan 2001 K Street, NW Washington, DC Direct: Fax: prashant.khetan@troutmansanders.com Prashant s practice focuses on commercial and insurance coverage litigation. With regard to his commercial litigation practice, his experience includes representing corporations in complex commercial disputes and employment matters. He also has represented individual plaintiffs in a variety of commercial matters, including IDEA-related cases. Prashant s insurance coverage litigation experience includes mass tort, general liability, title insurance, and professional liability matters. In addition, he has significant experience in appellate work, in both commercial and insurance coverage matters. Prashant also is active in the firm s pro bono practice, having worked on matters ranging from adoption to appellate amici briefs. Practice Group D&O and Professional Liability Insurance & Reinsurance White Collar & Government Investigations Labor & Employment Products Liability Complex Litigation Education George Washington University Law School (J.D., cum laude, 2000) Dean s Fellow Managing Editor, The Environmental Lawyer Case Western Reserve University (B.S., summa cum laude, 1997) Bar and Court Admissions 2002 District of Columbia 2000 Maryland U.S. District Court for the District of Columbia U.S. District Court for the District of Maryland U.S. Court of Appeals for the Fourth Circuit U.S. Court of Appeals for the Sixth Circuit U.S. Court of Appeals for the Eleventh Circuit U.S. Court of Appeals for the District of Columbia Circuit U.S. Supreme Court

135 Bar Activities and Legal Associations American Bar Association Maryland State Bar Association Association of Trial Lawyers of America Representative Experience «Obtained a jury verdict in an age discrimination case on behalf of The Mills Corporation in Connolly v. The Mills Corporation, No. 1:06CV179 (E.D. Va.). «Representing former Unabomber suspect, after achieving successful remand from D.C. Circuit, involved in litigation under Freedom of Information Act. «Obtained recovery from insurer after achieving successful reversal of judgment against client insurer before 11th Circuit, under other insurance clauses in policies. «Representing water sports association, obtained dismissal in lawsuit by injured spectator. «Negotiated minimal settlement on behalf of construction company in lawsuit by injured construction worker. «Obtained favorable settlement for patron injured in movie theater in lawsuit in Maryland State Court. «Successfully represented a national automobile insurer in Florida state court against a claim of bad faith. «Represented Motorcycle Safety Foundation in the prosecution of copyright infringement claims resulting in a favorable settlement. «Represented amici groups supporting parents of a child with special needs in Supreme Court case involving the Individuals with Disabilities Education Act. «Represented foster parents and obtained adoption of child in custody dispute by natural grandparent after trial in D.C. Family Court. Presentations and Speaking Engagements Traversing the Due Process/Litigation Process Parents for Autistic Children s Education s Ask the Advocate Conference (October 4, 2008) Publications «Post-Winkelman v. Parma: Ensuring Good Education for Special Needs Children, Autism Asperger s Digest Magazine (November-December 2007) «Under the IDEA, Will the Supreme Court Prohibit Reimbursement for Private School Tuition Unless it is Precluded by Public School Enrollment (Even if Such Enrollment Would be Under an Inadequate IEP)? Ross, Dixon & Bell, LLP (October 3, 2007) «Mold: It Isn t Pretty, But is It a Nuisance?, Mealey s Litigation Report: Mold (April 1, 2003)

136 «A Proposal for a Contract Write-Off Rule, For the Defense (January 2003) Professional Experience Partner, Troutman Sanders LLP, 2009 present Of Counsel, Ross, Dixon & Bell, LLP, 2008 Adjunct Faculty Member, George Washington University School of Law, 2006 present Adjunct Faculty Member, University of Maryland School of Law, Associate, Ross, Dixon & Bell, LLP, Associate, Miles & Stockbridge, PC, Law Clerk, The Honorable John M. Steadman, U.S. Court of Appeals for the District of Columbia, Intern, Public Defender s Service, Intern, The Honorable Deborah K. Chasanow, U.S. District Court for the District of Maryland, 1997 Languages Hindi

137 Kevin F. Kieffer 5 Park Plaza Suite 1200 Irvine, CA Direct: Fax: kevin.kieffer@troutmansanders.com Kevin has represented national, regional, and local clients in a variety of complex litigation matters in federal and state courts at both the trial and appellate level. As first or second chair, Kevin has tried several cases and has successfully handled breach of contract, securities, valuation, construction, antitrust, fraud, professional liability, malicious prosecution and environmental matters in federal and state courts throughout the western United States. Kevin also litigates all types of labor and employment matters, including wrongful termination, discrimination, harassment, violation of public policy, retaliation, wage and hour, and noncompetition covenants. Kevin has also counseled companies on corporate polices and practices. Kevin has also litigated complex insurance coverage issues arising under a variety of third and first party policy policies, including professional liability, directors and officers liability, comprehensive general liability, and employment practices liability. He has successfully defended several insurance companies against claims of bad faith. Kevin also has collaborated on several pro bono matters with the American Civil Liberties Union of Southern California and the Orange County Public Law Center. Practice Group Complex Litigation Construction Labor & Employment Insurance & Reinsurance Professional Liability and D&O Education University of the Pacific (J.D., magna cum laude, 1997) Articles Editor, Pacific Law Journal Order of the Coif Traynor Honor Society

138 Student Body Vice President University of California, Irvine (B.A., 1993) Bar and Court Admissions 1997 California 1999 Nevada U.S. District Court for the Central District of California U.S. District Court for the Eastern District of California U.S. District Court for the Northern District of California U.S. District Court for the Southern District of California Bar Activities and Legal Associations Association of Business Trial Lawyers, Orange County Chapter American Bar Association Orange County Bar Association Nevada State Bar Association Representative Experience «First chaired six month jury trial involving breach of contract, fraud, and construction claims. «Represented an electrical subcontractor in the appeal of a pretrial writ of attachment, resulting in the first published decision in California regarding the interplay between Public Contract Code 4107 and breach of contract. «Represented relators in a novel False Claims Act case that obtained $76.25 million in recoveries based upon allegations of price fixing for carbon fiber. «Served as lead counsel in the resolution of a $5 million breach of contract, fraud dispute involving the failed sale of a commercial building. «Served as lead trial counsel and negotiated $2 million settlement in derivative suit involving an allegedly fraudulent stock purchase. «As lead trial counsel, prevailed on numerous motions for summary judgment and secured $3.75 million settlement in lawsuit involving breach of contract and breach of fiduciary duty claims. «As lead trial counsel, successfully obtained a preliminary injunction and negotiated $4 million settlement on behalf client, a large pharmaceutical company. «Successfully represented inventor of product in arbitration involving copyright, trademark and breach of contract claims. «Obtained summary judgments in favor of insurance companies in bad faith and breach of contract lawsuits. «Obtained a significant victory for a pro bono client and a published opinion in the California Court of Appeal on California s Anti-SLAPP statute.

139 «Negotiated a waiver of costs settlement for a company in defense of a serious motorcycle accident personal injury case. «Negotiated a wavier of costs settlement on behalf of one client and a nuisance value settlement on behalf of others in an environmental lawsuit brought against several clients. Presentations and Speaking Engagements Hot Topics in Insurance Coverage and Bad Faith Litigation in California, Lorman Education Services (December 3, 2004) Professional Experience Partner, Troutman Sanders LLP, 2009-present Partner, Ross, Dixon & Bell, LLP, Associate, Ross, Dixon & Bell, LLP Kevin has taught labor and employment law at Cerritos College

140 Kristina Klein Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Kristie specializes in advising and representing employers in a broad range of employment matters arising under federal and state law. She represents employers in all types of employment litigation, including claims of discrimination, sexual harassment, wage and hour violations, trade secret violations and other employmentrelated causes of action. Kristie also counsels employers on various topics including the ADA, FLSA, FMLA, and non-compete issues, provides training, and regularly reviews and drafts employment agreements, policies, and handbooks. Practice Areas Labor & Employment Education Florida State University (J.D., 2006) Order of the Coif Order of the Barristers Member, Law Review Member, Moot Court Team Best Oral Advocate, selected by the Florida Supreme Court Florida International University (M.S., 2002) University of Nebraska (B.A., 1995) Bar and Court Admissions Georgia Presentations and Speaking Engagements «Overview of Federal Laws Affecting the Employment Relationship, Interviewing and Hiring for Managers, Evaluating, Disciplining and Terminating Employees, and Workplace Discrimination, Harassment and Retaliation Training for Managers, July 2008 «Update on Harassment, Discrimination and Retaliation Law, November 2007 «Volunteers & The Law: The Legal Issues of Working with Volunteers, October 2006

141 Publications «Recent Sixth Circuit Court Decision Recognizes Associational Retaliation Claims, Employment & The Law (November 2008) «Telecommuting: 10 Legal Considerations, Employment Benefit Plan Review, Vol. 63, No. 3 (September 2008) (co-author) «FMLA Expansion for Military Families Signed Into Law, E-Alert (January 2008) «Revisions to the EEO-1 Report, Employment & The Law (Winter 2007) «EEOC Issues New Guidance on Discrimination of Workers with Caregiver Responsibilities, Employment & The Law (Winter 2007) «House Education and Labor Committee Approves Bill that Would Make it Easier for Unions to Become Certified, E-Alert (February 2007) «Oasis or Mirage, Desert Palace and Its Impact on the Summary Judgment Landscape, 33 Fla. St. U.L. Rev (2006) Professional Experience Associate, Troutman Sanders LLP, 2006-present Member, Recruiting Committee Former U.S. Peace Corps Volunteer, Central America

142 Jana Korhonen Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Practice Areas Labor & Employment Education The John Marshall Law School Chicago, IL (J.D., cum laude, 2004) Editor-in-Chief, The John Marshall Law Review The University of Iowa (B.A., 2000) Member, A. Craig Baird Debate Team Bar and Court Admissions Georgia, 2006 Illinois, 2004 United States District Court for the Northern District of Georgia United States District Court for the Northern District of Illinois Supreme Court of Illinois Georgia Supreme Court United States District Court for the Middle District of Georgia Bar Activities and Legal Associations Member, Georgia Association for Women Lawyers (Programs Committee) Member, Atlanta Bar Association (Labor and Employment and Women in the Profession Sections) Publications Family Leave Policies Trump States Rights: Nevada Department of Human Resources v. Hibbs and Its Impact of Sovereign Immunity Jurisprudence, 37 J. MARSHALL L. REV. 599 (2004).

143 Professional Experience Associate, Troutman Sanders LLP, 2006-present Law Clerk, Hon. Walter E. Johnson, Magistrate Judge, United States District Court for the Northern District of Georgia, Extern, Hon. Charles P. Kocoras, Chief Judge, United States District Court for the Northern District of Illinois, 2003

144 Lindsay S. Marks Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Lindsay represents and advises employers in all aspects of labor and employment litigation arising under federal and state law, including claims of discrimination and harassment based on sex, race, national origin, religion, age, and disability, wage and hour violations, and restrictive covenant violations. She counsels a wide array of clients regarding employment matters, including reductions in force, employment and severance agreements, employee handbooks, corporate policies and practices, wage and hour issues, employee leave laws, non-competition and other restrictive covenants, and trade secrets. Lindsay also provides corporate training on various employment-related topics. Practice Areas Labor & Employment Education University of Georgia, J.D., cum laude, 2002 Notes Editor, Journal of Intellectual Property Law Member, Student Bar Association Vanderbilt University, B.A., cum laude, 1999 Communications and Spanish Bar and Court Admissions Georgia Bar Activities and Legal Associations American Bar Association Georgia Bar Association Representative Experience «Served as counsel to companies of various sizes in employment litigation, mediation, and arbitration, including individual and collective actions «Successfully represented clients in commercial litigation, including breach of fiduciary duty, business conspiracy, and breach of contract defense

145 «Obtained defense verdict for national electric company in federal jury trial of race discrimination claims «Received summary judgment rulings in favor of employers in sex, race, age, and disability discrimination and harassment cases «Negotiated beneficial settlements of discrimination and harassment EEOC claims and federal lawsuits «Advised human resources and management personnel on compliance with labor and employment laws and regulations, reviewed and revised internal corporate policies and codes of conduct «Investigated and counseled employers in response to complaints of harassment, employment and public accommodation discrimination, and whistleblower complaints Presentations and Speaking Engagements «Workplace Harassment and Discrimination Training for Managers, April 2008 «USERRA Overview and Update, November 2007 «Dealing with the Problem Employee/Potential Plaintiff, March 2006 Publications «Supreme Court Further Protects Employees from Retaliation, Troutman Sanders Advisory, January 2009 «Recent IRS Section 409A Regulations: Deferred Compensation Under Employment and Severance Agreements, Employment & The Law, Summer 2007 «The Appropriate Use of Video Surveillance in the Workplace, Fall 2005 «Same-Sex Harassment: What Constitutes Treatment Because of Sex?, Employment & The Law, Spring 2005 «Despite Employers Best Efforts, Sexual Harassment Claims Continue to Rise, Employment & The Law, Spring 2004 «EEOC Updates Guidance on Prevention of National Origin Discrimination, Employment & The Law, Winter 2003 «Displaying Symbols of Political Expression in the Workplace: Race Discrimination or Protected Free Speech?, Employment & The Law, Summer 2003 Professional Experience Associate, Troutman Sanders LLP, 2002-present Summer Associate, Troutman Sanders LLP, 2001

146 A. Tevis Marshall Troutman Sanders Building 1001 Haxall Point Richmond, VA Direct: Fax: Practice Area Labor & Employment Education College of William and Mary, (J.D., 2004) University of Virginia, (B.A., 1998) Bar and Court Admissions Virginia U.S. District Court for the Eastern District of Virginia U.S. District Court for the Western District of Virginia Representative Experience «Practice in all areas of labor and employment law including Title VII, Employee Retirement Income Security Act of 1974 (ERISA), Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), Fair Labor Standards Act (FLSA), Family Medical Leave Act (FMLA), breach of employment contracts, restrictive covenants, wrongful termination, and other general employment litigation in federal and state court. «Employee benefits litigation experience under ERISA and state law. «Commercial litigation experience including breach of fiduciary duty, business conspiracy, breach of contract, covenants not to compete, trade secrets, Fair Credit Reporting Act (FCRA), Truth in Lending Act (TILA), fraud, and tort defense. «General representation of musicians and talent management companies with respect to contract negotiation and intellectual property rights.

147 Memberships Richmond Bar Association American Bar Association Speaking Engagements «Speaker at Troutman Sanders LLP s November 2008 Labor and Employment Seminar The Impact of Recent Changes to the Family Medical Leave Act «Speaker at Troutman Sanders LLP s November 2007 Labor & Employment Seminar - Wage Wars: 2004 and Hour Law and its Impact Three Years Later. «Speaker at July 2006 employment law seminar on Pandemic Influenza Preparing For Avian Bird Flu in the Workplace. Other Distinctions Member of the Richmond Bar Association Publications Committee, Present Member of the Board of Directors for Human Resources, Inc., present Professional Experience Associate, Troutman Sanders LLP, 2006 Present Associate, LeClair Ryan,

148 Theresa Y. McDaniel Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Practice Areas Labor & Employment Law Education University of Georgia (J.D., magna cum laude, 2000) Order of the Coif Bryant T. Castellow Scholarship State Bar of Georgia Section Award for Excellence in Labor Law Custer Tuggle Award for Excellence in Family Law Georgia Law Review Editorial Board, Notes Editor Georgia Institute of Technology (B.S., with highest honors, 1997) Certificates in Economics and Psychology Judith Priddy Scholarship Award for Senior Woman with the Highest GPA Bar and Court Admissions Georgia, 2000 Northern District of Georgia, 2001 Middle District of Georgia, 2002 Eleventh Circuit Court of Appeals, 2002 Bar Activities and Legal Associations State Bar of Georgia (Labor and Employment Section) American Bar Association Representative Experience «Represents companies such as Georgia-Pacific, Waffle House, Inc., Chick-fil-A Inc., Hillcrest Foods, Inc. and Georgia Power Company in employment discrimination litigation involving sex, race, age, disability, and sexual harassment claims «Represents companies such as Georgia Power Company, Alabama Power Company, Gulf Power Company, Southern Nuclear Operating Company, and Savannah Electric and Power Company in litigation involving labor law

149 «Represents companies such as Waffle House, Inc. and Chick-fil-A, Inc. in employment discrimination and public accommodations discrimination litigation against franchisor for alleged misconduct of franchisee «Represents companies such as Waffle House, Inc. in public accommodations discrimination litigation involving race and religious claims «Represents companies such as Unisource Worldwide, Inc. and Yantra Corporation in restrictive covenants litigation «Provides training and counseling for management and non-management employees of Georgia Power Company for complying with laws against sexual harassment Public Service The United Way, Ambassador (2001) Habitat for Humanity ( , 1999, 2002) The Atlanta Project ( ) Atlanta Legal Aid Contributor Atlanta Volunteers Legal Foundation (Saturday Lawyers Program) Atlanta Volunteers Legal Foundation and Troutman Sanders Wills for Firefighters Project Truancy Intervention Program Professional Experience Associate, Troutman Sanders LLP, 2002-present Associate, Seyfarth Shaw,

150 Evan H. Pontz Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Practice Areas Labor & Employment Law ERISA Litigation Education University of North Carolina at Chapel Hill School of Law (J.D., with honors, 1996) University of Pennsylvania (M.G.A., 1994) Emory University (B.A., 1992) Bar and Court Admissions Georgia, 1996 United States Supreme Court Eleventh Circuit Court of Appeals Fifth Circuit Court of Appeals Northern District of Georgia Middle District of Georgia Georgia Supreme Court Georgia Court of Appeals Bar Activities and Legal Associations State Bar of Georgia (Labor & Employment and Litigation Sections) American Bar Association (Labor & Employment and Litigation Sections) Society of Human Resource Management Representative Experience «Represents companies such as AT&T, Georgia-Pacific, Cable News Network, Turner Broadcasting System, Waffle House, Zale Corporation and Georgia Power Company in employment discrimination litigation involving sex, race, age, disability, sexual harassment and state tort law claims «Counsels clients such as Cable News Network, Georgia Power Company, Turner Broadcasting System, and Cousins Properties on various issues of labor and employment law

151 «Provides training and counseling for management employees of companies such as Georgia Power Company, Cable News Network, Cousins Properties, Emory Hospitals, and Southern Nuclear Operating Company in complying with federal and state employment laws and regulations Publications «What a Difference ADEA Makes: Why Disparate Impact Theory Should Not Apply to the Age Discrimination in Employment Act, 74 North Carolina Law Review 267 (1995) «The Cost of Union-Management Cooperation: Criminal Sanctions for Employer Business Entertainment of Union Officials, Labor Law Journal, December 1997, pp (co-authored with Christopher S. Miller, Ph.D.) Honors and Other Distinctions Selected as a Georgia Rising Star in Employment Litigation by Law & Politics and Atlanta Magazine (2005) Professional Experience Partner, Troutman Sanders LLP, 2004-present Associate, Troutman Sanders LLP,

152 Daniel Rashtian 5 Park Plaza Suite 1200 Irvine, CA Direct: Fax: daniel.rashtian@troutmansanders.com Daniel enjoys a diverse litigation practice, including representation of a variety of national, regional, and local clients in complex commercial litigation, construction, and bad faith litigation. Daniel appears regularly before state and federal courts. Daniel has represented numerous contractors, subcontractors, and owners in various public and private construction matters, including matters involving allegations of fraud, breach of contract, conspiracy, and unfair business practices. Daniel has also monitored and litigated a variety of complex insurance coverage issues, including directors and officers and professional liability matters. In addition, he has defended several insurance companies against claims of bad faith. Practice Group Complex Litigation D&O and Professional Liability Construction Labor & Employment Education University of California, Berkeley (J.D., 2003) Executive Editor, Berkeley Technology Law Journal Member, Berkeley Journal of International Law and Boalt Sports and Entertainment Law Society University of California, Los Angeles (B.A., summa cum laude, 2000) Bar and Court Admissions 2003 California U.S. District Court for the Central District of California U.S. District Court for the Eastern District of California U.S. District Court for the Northern District of California U.S. District Court for the Southern District of California

153 U.S. District Court of Colorado U.S. Court of Appeals for the Ninth Circuit Representative Experience «Second chaired six month jury trial involving breach of contract, fraud, and construction claims. «Represented an electrical subcontractor in the appeal of a pretrial writ of attachment, resulting in the first published decision in California regarding the interplay between Public Contract Code 4107 and breach of contract. «Represented surfware trademark owner of Rusty brand in a dispute over the termination of a worldwide License Agreement. «Represented pharmaceutical company in recovery of over $4 million from former officer. «Obtained summary judgment on behalf of insurance client in complex litigation matter in the Northern District of California. «Represented leasing company in various matters involving fraud and breach of contract claims. Obtained dismissal on behalf of client in the District Court of Colorado. «Represented insurer in bad faith litigation over alleged failure to settle in Arizona. «Represented mortgage broker in fraud, unfair lending practices, and unfair business practices action. «Represented supplier of mobile offices and office trailers in employment dispute alleging wrongful termination and violation of Family and Medical Leave Act. Professional Experience Associate, Troutman Sanders LLP, 2009-present Associate, Ross, Dixon & Bell, LLP, Summer Associate, Ross, Dixon & Bell, LLP,

154 Rebecca Williams Shanlever Bank of America Plaza 600 Peachtree Street, NE Suite 5200 Atlanta, GA Direct: Fax: Rebecca has been with the firm since 2001 and is a member of the firm s Labor and Employment practice group. Her practice focuses on handling a wide variety of employment disputes arising under both state and federal law. These disputes include harassment and discrimination claims under Title VII and 42 U.S.C. 1981, as well as employment contract disputes (including pay issues, enforcement of non-compete agreements, protection of confidential employer information and trade secrets), wage and hour law issues, and workplace drug and alcohol testing issues. Additionally, she handles disputes arising under the Family Medical Leave Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Shanlever also has significant experience defending employers against claims of customer race discrimination. Shanlever has successfully defended numerous employment discrimination and related lawsuits, both through motion practice and in jury trials. In addition to her litigation practice, Shanlever regularly gives day-to-day legal advice to human resources and management personnel and provides anti-discrimination and anti-harassment training for all levels of employees. Shanlever was recognized by Law & Politics and Atlanta Magazine as a Rising Star in the area of employment litigation, first in 2005 and again in Practice Areas Labor & Employment Education Emory University School of Law, Atlanta, Georgia (J.D., with honors, 1998) University of Georgia, Athens, Georgia (B.A., Cum Laude, Political Science, 1995) Bar and Court Admissions Alabama Georgia U.S. Court of Appeals for the Eleventh Circuit U.S. Court of Appeals for the Second Circuit U.S. District Courts for the District of Alabama U.S. District Court for the Middle District of Georgia U.S. District Court for the Northern District of Georgia Georgia Supreme Court Georgia Court of Appeals