9/29/2014. By: S. Whitney Rahman. Starting The Journey The Basics (A Long And Winding Road) A Journey Toward FMLA Proficiency.

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1 A Journey Toward FMLA Proficiency A Journey Toward FMLA Proficiency By: S. Whitney Rahman FMLA Provides: Starting The Journey The Basics (A Long And Winding Road) Up To 12 Weeks Leave For Family And Medical Leaves Up To 12 Weeks Leave For Military Exigency Leave Up To 26 Weeks Leave For Military Caregiver Leave Medical Benefits Maintained During Leave Return To Same Or Substantially Equivalent Position 1

2 What Employers Are Covered By The FMLA? Public Agencies Private Employers If: They Employ 50 Or More Employees In Offices Within A 75-Mile Radius Separate But Related Entities May Be Counted Together If They Meet Certain Criteria Separate Employers May Be Considered Joint Employers For Purposes Of Coverage If They Jointly Control Employees What Employees Are Covered By The FMLA? To Be Eligible, An Employee Must: Work For A Covered Employer Have Worked For That Employer For A Total Of At Least 12 Months Have Worked At Least 1,250 Hours Over The Previous 12 Months Work At A Location Where At Least 50 Employees Are Employed Within A 75-Mile Radius What Leave Does The FMLA Require? Family And Medical Leave Armed Services Exigency Leave Armed Services Caregiver Leave 2

3 Family And Medical Leave Requires Leave For: Birth Or Placement Of Child Through Adoption Or Foster Care To Care For Immediate Family Member With A Serious Health Condition The Employee s Own Serious Health Condition Serious Health Condition Illness, Injury, Impairment Or Physical Or Mental Condition That Involves: Inpatient Care OR Continuing Treatment By Health Care Provider, Which Requires: Period Of Incapacity Of More Than 3 Consecutive Days And: Treatment 2 Or More Times By Health Care Provider OR Treatment Once By Health Care Provider With A Regimen Of Continuing Treatment Under The Supervision Of Health Care Provider Serious Health Condition (contd.) Period Of Incapacity Due To Pregnancy Or For Prenatal Care Period Of Incapacity Or Treatment For Chronic Serious Health Condition 3

4 Armed Services Exigency Leave Up To 12 Weeks Leave For Family Members Of Armed Services Personnel For Qualifying Exigencies Exigency Arises From The Covered Active Duty, Or Notification Of Impending Call Or Order To Covered Active Duty Armed Services Exigency Leave (contd.) Examples: Issues With Short-Term Deployments Military Events And Related Activities Child Care And School Activities Financial And Legal Arrangements Counseling Rest And Recuperation Post-Deployment Activities Parental Care Additional, Agreed Upon Activities Military Caregiver Leave To Be Eligible, Employee Must Be Family Member Or Next Of Kin To A Covered Service Member Covered Service Member Is: Current Member Of Armed Forces, Including National Guard Or Reserves Undergoing Medical Treatment, Recuperation, Therapy, Outpatient Status, Or Otherwise On Temporary Disability Retired List For Serious Injury Or Illness 4

5 Military Caregiver Leave (contd.) Must Be Incurred In The Line Of Duty On Active Duty Must Render Service Member Medically Unfit To Perform Duties Of His Or Her Office, Grade, Rank Or Rating Single 12-Month Period For Military Caregiver Leave Begins On First Day Of Leave And Ends 12 Months Later No Matter What Period Employer Uses For Other Eligibility Purposes Under FMLA Eligible Employee May Have Combined 26 Workweeks Of Leave For Any Type Of FMLA Leave During This Period Only 12 Weeks May Be For Other FMLA Reasons Leave Is Per Service Member, Per Injury, So Employee May Have More Than One Entitlement Remedies For Non-Compliance With FMLA Back Wages, Including Benefits Actual Monetary Loss Sustained Due To The FMLA Violation Interest Liquidated Damages Up To Double The Damages Awarded Reinstatement Reasonable Attorneys And Experts Fees And Costs Of Litigation Monetary Penalties For Failure To Post FMLA Notice 5

6 The Journey Continues Tricky Issues Under The FMLA (Take It Easy) Recognizing A Request For FMLA The No Request Request When May A Routine Absence Become An FMLA-Qualifying Event? Training For Managers And First-Line Supervisors Notice Requirements - Employee Family Or Medical Leave 30 Days Advance Notice Or As Soon As Practicable Must Be Sufficient To Put Employer On Notice Of FMLA Request Must Comply With Employer s Policies 6

7 Notice Requirements Employee (contd.) Exigency Leave As Soon As Practicable Employer May Require Documentation Or Certification Military Caregiver Leave 30 Days Advance Notice Or As Soon As Practicable Employer May Require Certification Notice Requirements - Employer General Notice In Handbook If Employer Has One, Or Given To Each New Employee Posting Specific Notice Notification Of Eligibility For FMLA Leave If Requiring Certification, Employer Must Inform Of The Consequences Of Not Providing Certification Notice Requirements Employer (contd.) Rights And Responsibilities Send Notice By Method Providing Proof Of Receipt If Employer Will Require Fitness For Duty Certification, Provide List Of Essential Functions To Employee When Leave Is Designated As FMLA Leave Retroactive Designation Only With Proper Notice Only If It Does Not Cause Harm Or Injury To Employee 7

8 Use Of Paid Time Off Employer Can Require Use Of Paid Time Off Only When Employee s Leave Would Otherwise Be Unpaid Not If Employee Is On Worker s Compensation Not If Employee Is Receiving Short-Term Disability Benefits Intermittent Leave (The Magical Mystery Tour) Available For The Birth Or Placement Of A Child Only With Employer Approval Available Without Employer s Approval For All Other Reasons If The Leave Is Foreseeable, Employer Can Require Employee To Transfer Temporarily To Available Alternative Position Intermittent Leave Certification and Recertification Employer Can Require Certification For Intermittent Leave May Not Seek Recertification More Often Than Every 30 Days Only In Conjunction With An Absence May Only Seek Recertification After The Minimum Duration Time Noted In Certification, Or 8

9 Intermittent Leave Certification and Recertification (contd.) Every Six Months In Conjunction With An Absence May Seek Recertification In Less Than 30 Days If: Employee Seeks Extension Of Leave Conditions Have Changed Significantly Employer Has Received Information Casting Doubt On Employee s Reason For Leave Intermittent Leave - Special Problems If For Planned Medical Treatment, Employee Must Consult Employer Attempt To Schedule Treatment So No Undue Interruption Of Employer s Business (Section 302(e)) Intermittent FMLA Leave Increments: Not More Than Smallest Increment For Which Employer Keeps Time Return To Same Or Substantially Similar Position Substantially Similar Position Should Be Very Close To Position That Was Left No Need To Return To Same Or Similar Position If Position Would Have Been Lost Regardless Of FMLA Leave Employer Has Burden To Prove 9

10 Interplay With Americans With Disabilities Act Under ADAA, A Serious Health Condition May Also Be A Disability Covered By ADA Leave Can Be a Reasonable Accommodation Under ADA If Employee Cannot Return At End Of FMLA Leave, There Are No Further Requirements Under FMLA But Employer May Still Have Obligations Under ADA Testing The Waters (Homeward Bound) Scenario #1 Jenny Is Pregnant. She Has Worked, Full-Time, For Her Employer For The Last Five Years. Which Of The Following Is True? How Much Leave Is Jenny Entitled To? Is Jenny Entitled To Take Leave For Maternity Doctor Appointments? What About For Morning Sickness? Is She Entitled To Take All 12 Weeks, Even If She Is Not Disabled From Working For The Entire Period? 10

11 Scenario #2 Congratulations! Your Company Just Hired Its 50 th Employee. You Do Not Yet Have Your FMLA Policy In Place, But One Week After Your 50 th Employee Is Hired, A Savvy Employee Who Has Worked For Your Company For Years Requests FMLA Leave. Do You Need To Allow This Employee To Take FMLA Leave? Do You See Any Other Problems With This Situation? Scenario #3 Mary Works Part-Time, 20 Hours Per Week. She Will Need Intermittent Leave For Medical Treatment Over The Next 12 Months. She Will Be Off For 4 Hours Per Week For 52 Weeks. Will All Of This Leave Be Covered Under FMLA? Scenario #4 Alice Usually Works A 48-Hour Workweek. You Have Received Certification From Her Medical Provider That She Cannot Currently Work More Than 40 Hours Per Week. Are There Any FMLA Implications? 11

12 Scenario #5 Your Company Used To Calculate Leave On A Calendar Year Basis. You Recently Switched To A 12-Month Look-Back Period. Brenda Took 12 Weeks Of Continuous FMLA Leave That Ended On September 30, She Has Indicated That She Needs To Take Another 12 Weeks Beginning January 1, Does She Have Sufficient Time To Use? Scenario #6 Carrie Has Informed Your Company That She Will Need To Take 6 Weeks Off For An FMLA-Qualifying Event Beginning In December. However, Carrie Is Not A Good Employee, And The Decision Is Made To Terminate Her Employment On November 30. Are There Any Potential FMLA Problems With This Situation? CONGRATULATIONS!! You Have Reached FMLA Proficiency (What A Long, Strange Trip It s Been) 12