Family Medical Leave Act (FMLA)

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1 Family Medical Leave Act (FMLA) The purpose of the FMLA is to address employee morale and enhance employee productivity. The FMLA provides unpaid leave to eligible employees for a variety of personal reasons while protecting their employment. The FMLA applies to employers who have 50 or more employees within a 75 mile radius of the work site and work in the United States or in a territory of the United States. Effective as of January 16, 2009, employers must implement and comply with the new FMLA regulations. The new general notice (FMLA poster or electronic posting or handout prepared by the employer) must be posted in a common area on the work site. Eligibility The employee must have worked at least 12 months and 1,250 hours to be eligible for FMLA. The 12 month period does not have to be continuous but the 12 months must have been worked in the last seven (7) years for the same employer who the employee has requested FMLA leave. For example: Jamie Smith worked 5 months in 2006, returned to work for 7 months in 2008 and requests FMLA leave; Jamie Smith would be eligible, provided that the requirement of 1,250 work hours had also been met. Length of leave Leave of absence for serious health conditions (non-military) is limited to 12 work weeks in any 12 month period. For exigency leave (military related): unless otherwise noted, an employee is entitled to 26 workweeks of leave to care for a covered service member in a single 12 month period. Intermittent Leave: Employees who take intermittent FMLA leave have a statutory obligation to make a reasonable effort to schedule the leave so as not to disrupt the employer s operations. Serious health condition of employee or immediate family member A serious health condition is one that means illness, injury, impairment, or condition that lasts more than 3 full consecutive calendar days and requires one of the following: inpatient care in a hospital, hospice or residential medical-care facility or period due to incapacity (the inability to work, attend school or perform other regular daily activities), OR treatment by a health care provider due to incapacity related to: 1. A health condition or treatment of condition lasting more than 3 full consecutive days and any subsequent treatment that requires: 2. Treatment by a health care professional within 7 days of due to incapacity and requiring a second visit within 30 days of due to incapacity. Leave for the birth or adoption of a child Leave requested for birth or adoption must conclude within 12 months of birth or adoption placement. Visits to health care providers are not necessary for each absence of the employee. 1

2 Exigency Leave (Non-medical military service related) This type of leave allows the employee to take leave to take care of non-medical situations for their spouse, son, daughter, next of kin (closest blood relative of the service member), or parent on active duty or called to active duty. The amount of leave for an eligible employee is limited to 12 workweeks of FMLA leave. There are eight types of military leave that qualify: 1. Short term deployment seven days or less prior to the date of deployment. 2. Military events/activities this allows the employee to attend any military ceremony, program, event, family support/assistance and informational briefings related to active or call to active duty status. 3. Childcare and school activities allows the employee to arrange for childcare and school related activities. 4. Financial and legal arrangements leave to update financial and or legal matters. 5. Counseling to attend counseling as a result of active duty or call to active duty status. 6. Rest and Recuperation leave to spend time with a covered military member for up to five days while the military member is on leave. 7. Post-deployment activities--leave to attend arrival ceremonies including funeral or memorial services including briefing and events sponsored by the military for up to 90 days following active duty status. 8. Additional activities- This leave is designated for any other military situations that have been agreed upon between the employer and employee. Caregivers for military members An employee may take up to 26 work weeks in any 12 month period to care for a covered service member who has a serious health condition or has an injury incurred during active military duty. Certification/Recertification The original medical certification must be submitted to the employer within 15 days after the employer requests medical documentation. In most cases leave can be denied if the employee fails to submit the information within the 15 days. The employer is not obligated to notify the employee that the information has not been received. The employer is permitted to contact the healthcare provider to authenticate information with the employee s consent. If the healthcare provider will not complete the certification without authorization from the employee, the employer cannot require the employee to provide consent. If the employee fails to provide consent then the employee may be denied FMLA leave. The employer s representative is limited to human resources professionals, a leave administrator, management official or third party administrator. The employee s immediate supervisor is NOT allowed to contact the employee s health care provider. Recertification can be requested every six months for ongoing conditions but only for the original condition that made the FMLA leave necessary. A recertification may be required at any time if an extension of leave is requested by the employee. Other reasons a recertification may be requested would be that the circumstances outlined in the original request have changed, or if the activities of the employee are inconsistent with the need for time off due to the certified condition. For example, the employee is on leave due to back surgery; however the employee is only absent around the holidays or takes leave Fridays and Mondays. In this case the employer may contact 2

3 the health care provider and request the provider evaluate whether the employee s attendance pattern is consistent with the treatment requirements. The employer must notify the employee in writing if the medical certification is incomplete or insufficient and provide the employee up to seven (7) calendar days to complete the information. If the employee fails to provide the additional information within the 7 days, leave can be denied. Healthcare Provider A healthcare provider is defined as: Doctors of medicine or osteopathy licensed to practice medicine in the state the physician practices Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice within the scope of their practice under state law Nurse Practioners, nurse midwives, and clinical social workers or any healthcare provider recognized by the employer or the employer s group health plan benefits Paid or unpaid Leave Generally FMLA leave is unpaid; however employers may require employees to take any time accrued concurrently with FMLA leave. Employers must be consistent with current time off procedures for similar but non-fmla-related absences and apply normal procedural rules for paid leave. Employers may require certification even though the employee is taking paid leave as well as leave for the employee or family member s condition. Employer Notice Obligations The employer has four mandatory notices to issue to employees: 1. A copy of the general notice of the FMLA (the notice is available on the Federal Department of Labor website) or an employer-prepared notice. If the poster or handbook is unavailable the notice must be given to each new employee upon hire. 2. Eligibility notice -- this notice must be given to an employee within 5 days after a request or learning of a leave that may be covered by the FMLA. 3. Rights and responsibilities notice must be given to the employee at the same time of the eligibility notice 4. Designation notice (this is the document that lets the employee know if FMLA leave has been granted or not) within five days after receiving information to determine if the leave is FMLA leave or non-fmla leave. This notice must include whether or not the employee is eligible. If the employee is not eligible the employer must state at least one reason why. If the employee is eligible the employer must state the amount of time being counted as FMLA leave, whether paid time off benefits will be used, whether a fitness for duty certificate will be required and a job description. Note: the employer may not count any leave against an employee s leave until the employer has provided all required notices! Employee notice 3

4 The request for FMLA leave only needs to be verbal. If the employee is aware of any need to take FMLA leave, the employee should provide a request for leave as soon as they become aware of it. The employee must follow the employer s usual and customary call-in procedures for reporting an absence for any unscheduled FMLA-related reasons. Requirements may include providing a written notice with the reason for the leave request including the beginning and ending dates. Maintenance of Health Benefits A covered employer is required to maintain group health insurance coverage for an employee on FMLA leave whenever the group health insurance was provided before the leave was taken and on the same terms as if the employee had continued to work. Arrangements with the employer will need to be made for employees to pay their share of health insurance premiums while on leave. If the employee does not return to work the employer may be able to recover any premium payments due while the employee was out on leave, UNLESS the reason the employee did not return to work was due to a serious health condition of the employee or family member. Light Duty/Return to work certification If the employee is working light duty, the time working light duty does not count against the employee FMLA-allowed time allotment. Return to work Regular duty The employer may require a statement from the health care provider addressing the employee s ability to perform essential job functions safely. If the employer does not have a policy in place for fitness of duty certifications the employer must provide the employee with a list of essential job functions no later than five days after learning the employee is able to return to work. The employer may require this documentation prior to letting the employee return to work if reasonable safety concerns exist. The fitness for duty certification must be given to the employer at the time the employee returns to work or within 15 days after the employee would have returned to work. If the fitness for duty certifications is not returned at all within the 15 days and the employee has not provided the employer with information about good faith efforts to obtain the information the employer may terminate the employee. Upon return from leave the employee must be given his or her original job or a job equivalent to the original job with equivalent pay, benefits, and any other original conditions of employment. The period no longer considered FMLA-related is at least 30 calendar days upon the employees return to work. If the employee must take additional time the leave period would qualify as part of the original FMLA leave period. An employer may not take away any benefits that the employee earned or was entitled to prior to taking FMLA leave. The employer is allowed to disqualify an employee from any bonus or award as long as the disqualification applies to all forms of leave. However, the employee is not entitled to accrue any additional seniority or benefits during leave. Under very limited circumstances when restoration will cause substantial and grievous economic injury to the employer s operations, an employer may refuse to reinstate certain KEY employees if the employer: 4

5 1. Notifies the employee of his/her status as a KEY employee in response to the employee s intent to take FMLA leave, OR 2. Notifies the employee as soon as the employer decides job restoration will be denied and explains the business reasons behind the decision. NOTE: Key employees are the highest paid 10% of employees who are salaried and located within a 75 mile radius of the work site. Termination of Job and Benefits Protection All FMLA obligations terminate when the employee s job is eliminated in a non-discriminatory reduction in work force, the employee elects not to return to work after leave expires, or the employee fails to return to work after leave expires or is exhausted. The employer may also terminate benefits in cases of fraud. For example: if the employee violates an established policy regarding outside employment or is unable to perform the essential function of their original job the employer may terminate benefits. (In the latter example, the employer may still have to provide accommodations under the Americans with Disabilities Act.) The employer may also have to offer COBRA benefits depending upon the group health insurance contract. Summary of Military Family Leave: 1) Military Caregiver Leave (also known as Covered Service member Leave): An eligible employee who is a family member of a covered service member will be able to take up to 26 workweeks of leave in a single 12-month period to care for a covered service member with a serious illness or injury incurred in the line of duty. 2) Qualifying Exigency Leave: An eligible employee with a family member of covered military member on active duty or called to active duty status in support of a contingency operation while serving in the National Guard or Reserves may use Military Family Leave for any qualifying exigency, such as: (1) Short-notice deployment; (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation; (7) Postdeployment activities; and (8) Additional activities not encompassed in the other categories, but agreed to by the employer and employee. 5