THE FAMILY AND MEDICAL LEAVE ACT

Transcription

1 THE FAMILY AND MEDICAL LEAVE ACT Copyright 2012, National Seminars Training

2 Workshop Agenda Module One: Who Is Covered and Who Is Not? How the FMLA Relates to State and Federal Laws Employer Obligations and Responsibilities Who Is Covered and Who Is Not? Employers and the FMLA Educational Agencies and the FMLA Congress and the FMLA Module Two: Qualifying Conditions General Requirements Serious Health Condition Leave for Pregnancy, Birth, Adoption, and Foster Care Spouses Employed by the Same Employer Health Care Provider (HCP) Qualifying Exigency Leave Military Caregiver Leave Module Three: Intermittent Leave and Managing the Leave Process Determining the 12-Month Period Intermittent or Reduced Schedule Leave Substitution of Paid Leave Module Four: Reinstatement of Employees on Leave and Notifications Reinstatement of Employees on Leave Employer Notice Requirements Employee Notice Requirements

3 Workshop Agenda, continued Module Five: Managing Certifications and Employee Benefits Certification Recertification Intent to Return to Work Fitness-for-Duty Certification Maintenance of Group Health Benefits Employee Rights to Other Benefits While on Leave COBRA, ERISA, and FMLA Health Benefits of Civil Service Employees Employer Record-keeping Requirements Module Six: Untangle the Triangle and Legal Liability Leave as a Reasonable Accommodation Under the ADA Workers Compensation and the FMLA Beware Unlawful Discharge Penalties for Noncompliance Burden of Proof Actual and Liquidated Damages Costs and Fees Liability Appendix

4 How the FMLA Relates to State and Federal Laws The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 workweeks (26 workweeks of military caregiver leave in a single 12-month period) of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. The FMLA and State Law The FMLA does not replace or supplant any state or local laws that offer greater employee protections than the FMLA. If a state or local law offers better protections to an employee, that takes precedence over the FMLA. The U.S. Department of Labor (DOL) doesn t enforce state and local law; state or local agencies enforce their legislation or regulations. The FMLA and the Americans with Disabilities Act of 1990 (ADA), as Amended in 2008 Any family leave or medical leave policy must comply with the ADA and the FMLA. Many ADA-covered disabilities will be covered under the FMLA as serious health conditions ; FMLA serious health conditions often do not rise to the level of an ADAcovered disability. Inevitable conflicts have arisen, such as: ADA-covered employees may be transferred to a light-duty position as a reasonable accommodation. If that same employee is FMLA eligible and does not want to take light duty, he or she can t be forced to do so. ADA-covered employees who are transferred to a part-time position as a reasonable accommodation may no longer be benefit eligible. If that same employee is FMLA eligible and takes intermittent or reduced schedule leave, he or she retains benefit coverage. When reviewing the status of an employee who may have coverage under multiple laws, the law that provides the best protections controls. Each law must be examined individually to determine the extent of application. 4

5 How the FMLA Relates to State and Federal Laws, continued The FMLA and the Pregnancy Discrimination Act of 1978 (PDA) PDA Requirements 1. Employers must treat pregnancy no differently than any other temporarily disabling injury or illness. 2. Employers are prohibited from firing, not hiring, or not promoting a woman because she is pregnant or terminating a pregnancy. 3. Since the FMLA has employment requirements (12 months of service, 1,250 hours, etc.), a pregnant short-service employee may not qualify under the FMLA. She is entitled under the PDA to be treated the same as any employee applying for or returning from a temporary disability leave. 4. Any paid or unpaid maternity or parental leave provided by an employer can be considered as leave under the FMLA, and leave can be taken concurrently. 5. Maternity leave may be established to benefit women; parental leave must not discriminate against men. 6. Twelve weeks of unpaid leave provided by the FMLA includes prenatal medical treatment, a serious health condition related to the pregnancy of the mother that occurs before or after the birth of the child, or bonding leave for either parent beginning on the date of the birth or adoption of the child. 7. A husband may also qualify for FMLA leave to care for his pregnant spouse who has severe morning sickness or other prenatal complications and to accompany her to prenatal doctor appointments. This includes driving the spouse to appointments and delivering psychological care. Such leave is not available to a non-spouse father of the child (e.g., same-sex domestic partner or boyfriend). 5

6 How the FMLA Relates to State and Federal Laws, continued The FMLA and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Employees are provided with job reinstatement to the job they left (same employer) and benefit protection rights for up to five years after active duty ends. Active duty time for reservists is credited toward the eligibility (time worked) requirements of the FMLA. The employee must be away from work because of service in the uniformed services. Employees on USERRA leave are given the same benefits as employees on any other kind of leave. When an employee returns from USERRA leave, he or she is restored to the same seniority and other rights as if the employee had been working continuously (the escalator principle). Medical coverage must continue under the Comprehensive Omnibus Budget Reconciliation Act of 1985 (COBRA). FMLA and State Workers Compensation Laws Workers compensation is enacted as a federal law but effectuated on a state-by-state basis. With a few exceptions, most state laws don t require reinstatement at the end of a workers compensation leave; accordingly, employees who also qualify under the FMLA may choose to take concurrently their workers compensation leave with FMLA leave to receive the guarantee of reinstatement. 6

7 Employer Obligations and Responsibilities The FMLA permits employers to require that employees document their need for leave on the basis of a military caregiver leave, a military exigency leave, a pregnancy-related condition, their own serious health condition, as well as leave to care for a seriously ill covered family member by providing medical certification from a qualified health care provider (HCP) or other appropriate documentation. The employer must communicate: 1. The General Notice both posted and distributed to all employees and new hires (WH Publication 1420) 2. The employer s designated 12-month FMLA period 3. Whether the leave will be counted against the employee s annual FMLA leave entitlement. If the leave is denied, at least one reason for the denial of such leave must be provided. Subsequent changes to eligibility must be communicated at the time the employee makes a request for leave during the same FMLA leave year (WH Publication 381). 4. If not required by the employer, the employee has a right to substitute paid leave and to follow the usual and reasonable policies and procedures of the employer for the substitution of paid leave. 5. Any requirements for the employee to furnish medical certification of a serious health condition or other qualifying circumstances, a copy of the form to be completed, and the consequences of failing to do so 6. Any requirement for the employee to make any premium payments to maintain health benefits, the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse) 7. Whether periodic reports on status and intent to return to work are required 8. Any requirement for the employee to present a fitness-for-duty (FFD) certificate to be restored to employment 9. 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 10. The employee s right to restoration to the same or an equivalent job upon return from leave 11. The employee s potential liability for payment of health insurance premiums paid by the employer during the employee s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave 7

8 Who Is Covered and Who Is Not? Employee is defined under the FMLA in the same manner as under the Fair Labor Standards Act (FLSA). Hours worked is defined generally as under the FLSA. Eligible Employees Have worked for the organization for at least 12 months Twelve months need not be consecutive. If there is a break in service longer than seven years, service of more than seven years need not be counted unless: 1. The break was due to National Guard or Reserve military service, or 2. There is a written agreement (including collective bargaining agreements) of the employer s intention to rehire the employee after the break in service. The employee can notify the employer of the need to take leave before his or her eligibility begins. Have worked at least 1,250 hours before leave begins an average of 24 hours per week over the previous 12 months Excluded Employees Federal officers and employees covered by Title II of the FMLA Employees of federal agencies who are not subject to civil service rules Elected and appointed officials Independent contractors working on the organization s premises Included Employees Employees of employers with more than 50 employees Distance requirement 50 employees within 75 miles of work site 75 miles are not as the crow flies, but miles traveled on roads If employees have no fixed work site, then the work site is the place from which the employee s work is assigned. In cases of joint employment, the primary employer s office to which the employee is assigned or reports is the work site, except if the employee has physically worked for at least one year at a facility of the secondary employer. Once eligibility is established, any change in the 50 employees within 75 miles requirement does not change eligibility. 8

9 Who Is Covered and Who Is Not?, continued Key or Highly Compensated Employees A salaried and FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee s work site Not excluded from most provisions of the FMLA, but can be denied job restoration if to do so would result in substantial and grievous economic injury to the employer s operations The employer must notify the employee of any restrictions before the key employee takes leave and if on leave, provide an opportunity to return Congressional Employees FMLA protection was extended to employees of Congress in All employees are covered the 50 employees within 75 miles requirement does not apply. 9

10 Employers and the FMLA An employer includes any person who acts directly or indirectly in the interest of an employer to any of the employer s employees. (This means that individual officers, managers, and supervisors can be held personally liable for FMLA violations.) The FMLA Affects Almost All Employers Any person engaged in commerce or industry employing at least 50 employees during each of 20 or more calendar weeks in the preceding year Any public agency as defined by the FLSA Local educational agencies and private schools Employer Must Have 50 Employees Working 20 or More Weeks Each Working Year Within 75 Miles of the Employee s Work Site Counting the 50 Employees Part-time employees, temporary employees, and employees on leave are counted, provided they are on the payroll for each day of the workweek. Employees on leave, leave of absence, or disciplinary suspension are counted. Employees on layoff are not counted. Seasonal employees are counted if they work at least 20 weeks of the year. Seasonal employees are not counted if they are employed for less than 20 weeks. Temporary employees hired through an agency are employees of the contracting company, not the agency, if they work a full workweek. Integrated Employment Relationships An organization with several departments is considered one employer. If an organization owns several companies, then each company is a separate employer unless the separate companies satisfy the FMLA definition of integrated employer : Common management Interrelation among operations Centralized control of labor relations A high degree of common ownership or financial control 10

11 Employers and the FMLA, continued Joint Employment Relationships When an employee in the same job has two or more employers, the act lists the issues that should be considered to determine FMLA employer accountability: Type of control over employees Type of supervision over employees How employees are paid and who decides pay rates Ability to employ and terminate Who prepares and pays the wages The primary employer is responsible for FMLA compliance. The secondary employer is responsible for compliance with prohibited acts of the FMLA. In cases of joint employment, the primary employer s office to which the employee is assigned or reports is the work site, except if the employee has physically worked for at least one year at a facility of the secondary employer. For the most part, a Professional Employer Organization (PEO) that contracts with clients and merely performs administrative functions is not a joint employer; if the PEO has the right to hire, fire, assign, or direct and control employees, or benefits from the work the employees perform, the PEO would be a joint employer. The determination as to whether a PEO is a joint employer also turns on the economic realities of the situation and must be made based on all the facts and circumstances. Successors in Interest Employer means any successor in interest or succeeding owner(s) of the organization. When an organization is purchased, employees of the preceding and the succeeding companies are considered as being in continuous employment. Should the employee be on leave during the transition, when the employee returns, he or she must be restored to the same or an equivalent job as provided by the FMLA. Various factors are considered when determining if an employer is a successor in interest. 11

12 Employers and the FMLA, continued Public Employees The FMLA considers public agencies as covered employers, including: U.S. government State, city, county, and local governments Any agency of the United States Any interstate governmental agency The 50-employee threshold does not apply. The 50 employees within 75 miles of the work site threshold does apply. One state, county, or city is considered one employer. 12

13 Educational Agencies and the FMLA Under the FMLA, there are special rules for public and private elementary and secondary schools due to a need to balance the educational needs of children with the family leaves of teachers. Special Rules The 50 employees and 50 employees within 75 miles threshold does not apply. Requirements for employees for FMLA protection do apply. Should an employee take FMLA leave, the school will not violate the ADA or Title VII. Intermittent Leave for Instructional Employees Instructional employees include teachers, education assistants, coaches, and driving instructors. If an instructional employee requests foreseeable leave and the instructional employee would be gone for more than 20 percent of the working days during the period of leave, then the school may require that the employee: Take leave for periods of a particular duration not to exceed the duration of the planned leave, or Transfer temporarily to another position with the same pay and benefits that is a better fit with the requirements of the leave Leave Requested Near the End of an Academic Term If the instructional employee wants to take leave more than five weeks before the end of the term, then the school may require that the instructional employee continue the leave until the end of the term if: The leave period is at least three weeks, and The employee wants to return to work within the three-week period before the end of the term. If the leave is requested within the five weeks before the end of the term, then the school may require that the instructional employee stay on leave until the end of the term, if: The leave is longer than two weeks, and The employee wants to return to work within the two-week period before the end of the term. If an instructional employee wants to take FMLA leave for a period of more than five days that begins in the three-week period before the end of the term, then the school may require that the employee extend the leave until the end of the term. Note: This provision does not apply if the leave is for the employee s own serious health condition. 13

14 Congress and the FMLA Congress has provided modified FMLA coverage for its own employees. Section 501 applies to Senate employees. Unlike private sector employees, congressional employees must exercise the rights and remedies provided by the Government Employee Rights Act of 1991 (GERA). Special Rules for Congress 1. The Congressional Accountability Act of 1995 (CAA) It applies 11 labor and civil rights statutes to congressional employees. The FMLA, Title VII, the ADA, the Age Discrimination in Employment Act, and the FLSA are included, among others. Unless good cause is proven, the FMLA applies to Congress, with certain exceptions. 2. Complaint procedures under the CAA Congress is not under the jurisdiction of the DOL. The Office of Compliance was established to implement CAA and to handle complaints and disputes. The Office of Compliance educates, issues rulings, and provides a forum for disputes. 3. If an employee works for one congressional office and moves to work at another congressional office, the employee does not have to reestablish the 1,250 hours worked within 12 months provision. 4. Time served in a previous office counts toward time worked in the new office. 5. Differences between the FMLA for Congress and for private employers Complaint procedures must go through the Office of Compliance. All congressional employees are covered by the FMLA, no matter how many employees are in one particular office. Posting requirements do not apply. Record keeping is not required but is strongly suggested. The complaint procedure requires counseling and mediation before any other action. Congressional offices cannot be fined for an FMLA violation. 14

15 General Requirements Eligible employees are entitled to 12 weeks of unpaid FMLA leave each year for certain qualifying events. (Note: Military caregiver leave is 26 weeks of leave.) Qualifying Events Birth of a son or daughter and care of a newborn child Adoption or foster care placement of a child Care of the employee s spouse, son, daughter, or parent with a serious health condition The employee s own serious health condition A qualifying military exigency arising from the employee s spouse, son, daughter, or parent s active military duty or impending call or order to active duty 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 Note: The FMLA does not distinguish between male and female parents. Leave may be taken by both parents concurrently or sequentially. Special rules apply for spouses employed by the same employer. Definition of Son or Daughter Son or daughter is defined as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis... With the exception of the two forms of family military leave, a covered son or daughter must be: Under 18 years of age, or 18 years of age or older but incapable of self-care because of a mental or physical disability Incapable of self-care means that the person cannot provide three or more Activities of Daily Living (ADL) for himself or herself. Mental or physical disability means an impairment that limits one or more major life activities as defined by the ADA. FMLA impairment does not need to be long lasting. Incapable of self-care is the important factor. For military caregiver or qualifying exigency leaves: the covered son or daughter may be of any age. 15

16 General Requirements, continued Definition of Parent Parent is defined as a biological, adoptive, step-, or foster care mother or father or someone who stands or stood in loco parentis to the employee when the employee was under the age of 18 or incapable of self-care. In loco parentis means the individual who has or had day-to-day responsibility for the child. Legal guardians are included. Grandparents or any other relative are included. Parents-in-law are not included under the FMLA. Some states have a broader definition under state FMLA policies and specify that parents-in-law are included. The employer may require reasonable documentation that the requisite family relationship exists. Signed statement Birth certificate Court document Definition of Spouse Spouse means a husband or wife as defined or recognized under the state law for the purposes of marriage in the state where the employee resides, including common-law marriages in states where it is recognized. Definition of Next of Kin Next of kin of a covered servicemember means the nearest blood relative other than the covered servicemember s spouse, parent, son, or daughter in the following order of priority: If the covered servicemember has designated in writing another blood relative, that person shall be the covered servicemember s only next of kin. If no designation is made, and there are multiple family members with the same level of relationship, all are considered next of kin and may take leave to provide care either consecutively or simultaneously. Blood relatives granted legal custody by a court decree or statutory provisions Brothers and sisters, grandparents, aunts and uncles, and first cousins 16

17 Serious Health Condition A serious health condition means an illness, injury, impairment, or physical or mental condition that involves: Inpatient care an overnight stay in a hospital, hospice, or residential medical care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care, or Continuing treatment by a health care provider (HCP). Definitions Incapacity means inability to work, attend school, or perform other regular daily activities due to the serious health condition, treatment, or recovery. Treatment includes examinations by a HCP to determine if a serious health condition exists and evaluations of the condition. Routine eye, dental, or physical exams are not considered treatment. A regimen of continuing treatment includes a course of prescription medications or therapy requiring special equipment (e.g., oxygen). This does not include taking over-the-counter drugs, bed rest, or drinking fluids, since these can be initiated without a visit to a HCP. Cosmetic treatments are not included (e.g., treatments for acne or plastic surgery) unless inpatient hospital care is required or complications develop. Not-Serious Health Conditions Short-term conditions requiring only brief treatment and recovery are not included as serious health conditions. Examples: cold, flu, earache, stomach upset, or routine dental work These are usually covered under the organization s sick leave policies. 17

18 Serious Health Condition, continued Definition of Continuing Treatment Incapacity and treatment A period of incapacity due to pregnancy or prenatal care Incapacity or treatment for a chronic serious health condition Incapacity that is permanent or long-term and doesn t respond to treatment A period of absence to receive multiple treatments for an injury or condition, such as restorative surgery after an accident or other injury or a condition that would result in an incapacity of more than three consecutive, full calendar days if not treated Absences attributable to the incapacity of points (2) or (3) above, even though the individual may not have visited a HCP and even if the absence doesn t last for three consecutive, full calendar days (e.g., an asthma attack or severe morning sickness) Incapacity and Treatment Incapacity and treatment means a period of incapacity for three consecutive, full calendar days and any subsequent treatment or incapacity relating to the same condition, and: Treatment two or more times by a HCP [or by a nurse under direct supervision of a HCP or by a provider of health-care services (e.g., a physical therapist) under the orders of or by referral from a HCP] within 30 days of the first day of incapacity, unless extenuating circumstances exist, and Treatment by a HCP on at least one occasion that results in a regimen of continuing treatment under the supervision of the HCP, and The first or only in-person visit to a HCP must occur within seven days of the first day of incapacity. Note: Extenuating circumstances means circumstances beyond the employee s control that prevent the follow-up visit from occurring as planned by the HCP (e.g., the HCP doesn t have appointment times available within the 30-day period). Multiple ailments, none of which alone would satisfy FMLA requirements, may, if taken together, satisfy the serious health condition requirement. Chronic Conditions A chronic serious health condition is one that requires periodic visits for treatment by a HCP (or a nurse under the direct supervision of an HCP) at least twice a year. The condition continues over an extended period of time, including recurring episodes of a single underlying condition, and The condition may cause episodic rather than a continuing period of incapacity. 18

19 Serious Health Condition, continued Permanent or Long-term Conditions Permanent or long-term conditions are those for which treatment may not be effective. While the employee or family member is under the continuing supervision of a HCP, they need not be receiving active treatment by a HCP (e.g., severe stroke or terminal stages of a disease). Substance Abuse as a Serious Health Condition Treatment for substance abuse may be a serious health condition if all the requirements of a serious health condition are met with respect to continuing treatment. Treatment must be under the care of a HCP or a provider of health services as referred by the HCP. Absence due to an employee s use of substances rather than for treatment is not covered by the FMLA. Employers may not take disciplinary action against an employee for use of FMLA leave; employers may, however, take action against an employee even if on FMLA leave if: There is an established policy against substance abuse, and It is applied in a nondiscriminatory manner, and It is communicated to all employees. Employees may use the FMLA to care for a family member who is receiving treatment for substance abuse, and employers may not take disciplinary action against employees for this use of FMLA leave. 19

20 Leave for Pregnancy, Birth, Adoption, and Foster Care Pregnancy and Bonding Leave Both the mother and the father are eligible for FMLA leave for the birth of their child. 1. This includes time to be with a healthy newborn bonding leave during the 12- month period beginning on the date of the child s birth. State law may allow or an employer may permit additional time for bonding leave following the 12-month expiration. This extra time does not constitute FMLA leave. 2. State pregnancy disability laws: May provide a period of disability leave before or after the child s birth Are considered leave for the mother s serious health condition and are not subject to the 12-week combined limit 3. An expectant mother may take FMLA leave before the birth of the child for prenatal care or because her condition makes her unable to work. The mother is entitled to FMLA leave for incapacity due to pregnancy even if she does not receive treatment from a HCP during the absence and even if the absence does not last for more than three consecutive calendar days (e.g., morning sickness). 4. The husband is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or to care for her during her prenatal stage or following the birth of the child if the spouse has a serious health condition. 5. Both spouses are entitled to FMLA leave if needed to care for their newborn with a serious health condition. (If both spouses are employed by the same employer, see the following pages. They must not have exhausted their entitlements during the applicable 12-month leave period.) 6. Intermittent/reduced schedule leave: An eligible employee may use intermittent or reduced schedule leave after the birth of a healthy newborn only if the employer agrees. If the employer agrees to permit intermittent/reduced schedule leave, the employee can be required to transfer temporarily to an available alternative position for which the employee is qualified and that better accommodates recurring periods of absence. Such a transfer must comply with a collective bargaining agreement, federal law, and state law. 7. The employer s agreement is not required for intermittent leave required by the serious health condition of the mother or a newborn child. 8. The employer s agreement is not required for continuous bonding leave following the birth of the child. 20

21 Leave for Pregnancy, Birth, Adoption, and Foster Care, continued Adoption or Foster Care Placement Similar rules to those related to the birth of a child apply to adoption or foster care placement. FMLA leave is provided before the actual placement or adoption if an absence is required for adoption or foster care placement to proceed. The source of an adopted child is not a factor in granting FMLA leave. Foster care placement, which is defined as 24-hour care for children in substitution for, and away from, their parents or guardian, requires state action. The entitlement for FMLA leave expires at the end of the 12-month period beginning at the date of placement. If state law allows or the employer permits, leave may be taken beyond this 12-month period and does not qualify as FMLA leave. The rules applied to spouses employed by the same employer apply to placement or adoptions in terms of a combined total of 12 weeks of leave. 21

22 Spouses Employed by the Same Employer In order to forestall the incentive to an employer not to hire married couples, the FMLA includes specific language concerning spouses employed by the same employer. Spouses Who Work for the Same Employer Spouses limit their combined leave to a total of 12 weeks during any 12-month period for the birth of a child or to care for a child after birth, placement of a child for adoption or foster care or to care for a child after placement, or to care for each employee s parent with a serious health condition. If one spouse was ineligible for FMLA leave, the other eligible spouse would have a full 12 weeks of FMLA. When the husband or wife uses a portion of the total 12-week FMLA leave entitlement as outlined above, each spouse remains entitled to use the difference between the amount he or she has individually taken and 12 weeks of leave for other forms of FMLA leave. Exercise If each spouse employed by the same employer has taken six weeks to care for a healthy newborn child, how many weeks of FMLA leave would each of them have left? For what purposes could they use the remaining FMLA time? Unmarried Domestic Partners The FMLA defines spouse as a husband or wife, as defined or recognized under state law for purposes of marriage, including common-law marriage in states where it is recognized. This means an employer does not have to give FMLA leave to an employee to care for an unmarried domestic partner. In states that recognize common-law marriages, the FMLA would apply to employees as spouses. Some states have included under the state family and medical leave laws domestic partners, including homosexual domestic partners. Some states have included sexual orientation as a protected class under state civil rights laws. Employers must follow the law that provides the greatest benefit and protections to employees. 22

23 Health Care Provider (HCP) Definition Doctor of medicine or osteopathy, or Any other person determined by the Secretary of Labor to be capable of providing healthcare services, including: Podiatrists, dentists, social workers, clinical psychologists, optometrists, and chiropractors who are authorized to practice in the state Nurse practitioners, nurse-midwives, clinical social workers, and physician s assistants Christian Science practitioners A HCP listed above who practices in a country other than United States who is authorized to practice in accordance with the law of that country. Needed to Care For Physical and/or psychological care for an immediate family member who is receiving inpatient or home care Includes situations when the employee fills in for others Includes transferring a relative to needed care facilities The employee need not be the only family member available. Intermittent/reduced schedule leave is allowed. Unable to Perform Functions of the Job This means any one of the essential job functions within the meaning of the ADA. Unlike the ADA, temporary illnesses are covered by the FMLA. Employers have the option when requiring certification from a HCP to provide a statement of the essential functions of the employee s position for the HCP to review. In return, a sufficient medical certification from that HCP must specify what functions the employee is unable to perform. The employee s position is the one held at the time notice for the FMLA leave is given or when FMLA leave commenced, whichever is earlier. 23

24 Qualifying Exigency Leave The National Defense Authorization Act of 2008, the statutory amendment signed into law by former President Bush, permits an employee to take FMLA leave for a qualifying exigency. That exigency arises out of a spouse, son, daughter, or parent s ( the covered military member s ) active duty or because the covered military member has been notified of an impending federal (not state) call or order to active duty in the armed forces in support of a contingency operation. Definitions Note the use of the term military member for exigency leave not servicemember as with military caregiver leave. A military member must be a member of the National Guard or Reserve not the regular armed forces, except for certain retired members of regular armed forces. The active duty orders of a covered military member will generally specify if the servicemember is serving in support of a contingency operation. Child of a military member is defined as the son or daughter of the employee who is on active duty and is of any age. Family members may use all or part of the regular allotment of 12 weeks of FMLA leave during the employer s designated 12-month period. Eight Nonmedical Qualifying Exigencies This is an exhaustive list; no additions are permitted unless by mutual agreement of the employer and employee. (See point eight below.) It must be related to active duty or a call to active duty. 1. Short-notice deployment of less than seven days The employee can take up to seven calendar days; leave can extend beyond the military member s deployment date. 2. Military events and related activities e.g., official ceremonies, programs, or events, family support or assistance programs, or informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross related to active duty or a call to active duty 24

25 Qualifying Exigency Leave, continued 3. Child care and school activities To arrange for alternative child care To provide child care on an urgent and immediate basis To enroll a child in or transfer to a new school or day care To attend meetings with staff at school or day care 4. Financial and legal arrangements e.g., preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, or enrolling in the Defense Enrollment Eligibility Reporting System (DEERS) Acting as the covered military member s representative before a federal, state, or local agency to obtain, arrange, or appeal military service benefits The power to act in a representative capacity continues for 90 days following the termination of the covered military member s active duty status 5. Counseling (nonmedical) for the employee, covered military member, or child of the covered military member 6. Rest and recuperation of up to five days each time the covered military member is given short-term, temporary rest and recuperation leave 7. Post-deployment activities of 90 days following termination of the military member s active duty e.g., arrival ceremonies, reintegration briefings, or issues arising from death of covered military member (recovering the body, funeral arrangements) 8. Additional activities where the employer and employee agree to the leave, timing, and duration 25

26 Qualifying Exigency Leave, continued Certification Form WH-384 The DOL created a prototype certification form, WH-384, certifying both active duty and qualifying exigency requirements. The first time an employee requests FMLA leave because of a qualifying exigency, the employer may require the employee to provide a copy of the covered military member s active duty orders or other military documentation and the dates of active duty service. This information only needs to be provided once unless there is a new call to active duty. Employers may contact the appropriate unit of the Department of Defense to verify active duty status. No additional information may be asked, and the employee s permission is not required. Employers can require the following information be provided by the employee: facts that support the need for an exigency leave and any available documentation, the beginning and end dates, if leave is needed on an intermittent or reduced schedule basis, and the frequency and duration of the qualifying exigency. If in meetings with a third party, Form WH-384 requests names, phone and fax numbers, titles, organizations, addresses, and addresses of all third parties that the employee will be meeting because of a qualifying exigency. Employers may contact third parties to verify a meeting or appointment. No additional information may be asked, and the employee s permission is not required. Other Considerations A qualifying exigency leave may be taken continuously, intermittently, or on a reduced schedule. The employee may not be transferred to an alternative job. The minimum increment rule of one hour or less and physical impossibility may be applied. The mandatory overtime rule may be applied. The use of paid time off rule may be applied (required by the employer; if not, elected by the employee if the employee complies with or the employer waives its requirements for paid-time-off benefits). 26

27 Military Caregiver Leave The National Defense Authorization Act of 2008 also created a caregiver leave that permits a spouse, son or daughter, parent, or next of kin to take up to 26 workweeks of FMLA leave. Caregiver leave is to care for a current servicemember of the regular armed forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list for a serious injury or illness. Definitions The injury or illness must have occurred while on active duty in the line of duty and must render the servicemember medically unable to perform the duties of his or her office. Former servicemembers are not covered. The servicemember must be on outpatient status. The definitions of son, daughter, and parent are the same as those used for FMLA qualified exigency leave. Next of kin may be any blood relative designated by the servicemember in writing in the absence of designation, multiple family members of the same level are next of kin and may take leave consecutively or concurrently (see previous definition in this workbook). Employers may require the employee to provide confirmation of the covered family relationship to the covered servicemember. 26 Weeks in a Single 12-Month Period There is a maximum of 26 weeks of FMLA leave in a single 12-month period on a per covered servicemember, per injury basis. Aggravation or complication of an earlier injury/illness is still the same injury/illness. When an eligible employee takes leave to care for more than one covered servicemember or for a subsequent serious injury or illness of the same covered servicemember, and the single 12-month period corresponding to the different leaves overlap, the employee is limited to taking no more than 26 workweeks in each single 12-month period. During the single 12-month period, the caregiver leave and others forms of FMLA leave (serious health condition of employee or immediate family member, pregnancy, or exigency leave) are combined for a maximum of 26 weeks (not 38). The 12 months are measured forward from the date the employee first takes the leave (regardless of other calculations of 12 months used for other forms of FMLA leave e.g., rolling 12 months or calendar year). 27

28 Military Caregiver Leave, continued Unused caregiver leave is forfeited at the end of each single 12-month period the employee may still be eligible, however, for other forms of FMLA leave (e.g., serious health condition of employee or immediate family member, pregnancy, or exigency leave). Employees whose FMLA leave qualifies under more than one type of FMLA leave take caregiver leave first, then serious health condition FMLA leave (no double count). Certification Form WH-385 The DOL has created a prototype Certification Form, WH-385, certifying military status and serious injury/illness. The regulations list four types of HCPs authorized to complete the certification: U.S. Department of Defense (DOD) HCP, U.S. Department of Veterans Affairs HCP, a DOD TRICARE network HCP, and a DOD non-network authorized private HCP. Information that may be obtained includes: whether the injury occurred in the line of duty during active duty, the date of the injury and probable duration, a description of the medical facts sufficient to support the need for the leave, the medical necessity for an intermittent or reduced schedule leave if such is requested, and the relationship of the employee to the covered servicemember. Employers may seek authentication or clarification of the certification, but second and third opinions are not permitted, nor is recertification. Employers must accept as sufficient certification invitational travel orders (ITOs) or invitational travel authorizations (ITAs) in lieu of the WH-385 or the employer s own certification form issued to any family member. During the time specified in an ITO, the employee may take FMLA leave on a continuous or intermittent basis. Authentication and clarification may be sought of an ITO or ITA, along with proof of the covered family relationship, but no second or third opinions or recertification requirements are allowed. Employers can request that leave extensions beyond the time specified in the ITO or ITA be supported with information from the appropriate military HCP on WH-385 or the employer s certification form. 28

29 Military Caregiver Leave, continued Other Considerations Caregiver leave may be taken continuously, intermittently, or on a reduced schedule. The employee may be transferred to an alternative job if the leave is foreseeable and is for planned medical treatment. The minimum increment rule of one hour or less and the physical impossibility rule may be applied. The mandatory overtime rule may be applied. The use of paid time off rule may be applied (required by the employer; if not, elected by the employee). A husband and wife who are eligible for FMLA leave and are employed by the same employer may be limited to a combined total of 26 workweeks during the single 12-month period for the birth, adoption, or foster care placement of a child (before and after), to care for a parent with a serious health condition, or to care for a covered servicemember. 29

30 Determining the 12-Month Period Except in the case of leave to care for a covered servicemember, the DOL has provided employers with four different methods to calculate the 12-month period in which employees may take leave. Option 1: Calendar Year The 12-month period begins on Jan. 1 and ends on Dec. 31. The new 12-month period starts each Jan. 1. Option 2: Any Fixed 12-Month Period The organization s fiscal year Any other year A year required by state law An employee s anniversary date Option 3: Look Forward Twelve weeks of leave during the year beginning on the first date FMLA leave is taken. (This is the only method to be used for military caregiver leave.) The cycle repeats as needed in following years. Option 4: Rolling Year or Look Back The 12 months are measured backward from the date the employee uses any FMLA leave. The amount of time left to the employee is the balance of the 12 weeks that was not used in the past 12-month period. On each day of the year, the amount of FMLA leave for a specific employee is calculated by how much of the 12-week entitlement was consumed during the 12 months before that day. The first three options permit stacking of the 12 weeks from one year on to the next. The Rolling Year method eliminates that possibility. 30

31 Determining the 12-Month Period, continued Other Considerations The 12-month period method chosen by the employer must be applied consistently and uniformly (unless a multistate employer follows the state law in a given state and uses another method uniformly and consistently for the rest of the organization). When changing the 12-month period, the employer must provide at least 60 days notice; employees whose leave falls during the transition retain the full benefit of 12 weeks under whichever method affords the greatest benefit to the employee. If an employer doesn t select a method, then the option that provides the greatest benefit for the employee may be used. When a holiday occurs during a week when a full week of FMLA leave is taken, the holiday is counted against the employee s FMLA entitlement. When a holiday occurs during an intermittent/reduced schedule leave, the holiday doesn t count against the employee s FMLA entitlement unless the employee was scheduled to work on the holiday. When an employer s business is closed (e.g., school is closed for vacation or a plant is closed for retooling), the days on which an employer s activities have ceased don t count against the employee s FMLA leave entitlement. 31

32 Intermittent or Reduced Schedule Leave Definition Intermittent leave is defined as leave taken in separate blocks of time due to a single illness or injury. A reduced schedule leave is a schedule that reduces an employee s usual number of working hours per week or per day. It is a change in the employee s schedule over time, normally from full-time to part-time. Medical Necessity Intermittent or reduced schedule leave due to the employee s or an immediate family member s serious health condition or servicemember s serious illness or injury must be based upon medical need requiring that an intermittent or reduced schedule leave best accommodates the medical need. Intermittent and reduced schedule leave may be taken for a servicemember s serious illness or injury, a serious health condition, medical treatment (planned or unanticipated), or recovery from illness or treatment. E.g., medical appointments for a serious health condition, chemotherapy and recovery, prenatal exams, or morning sickness Intermittent and reduced schedule leave may be taken to provide care or psychological comfort to a covered family member or a servicemember. Intermittent leave or reduced leave taken after the birth or adoption/placement of a healthy child may only be undertaken with the agreement of both the employer and employee. Continuous leave under these circumstances is an FMLA entitlement. Intermittent or reduced schedule leave may be taken for the serious health condition of a son or daughter. Employers can require that medical certification verify that intermittent leave or reduced leave is medically necessary. Qualifying Exigency Leave due to a qualifying exigency may be taken on an intermittent or reduced schedule basis. 32

33 Intermittent or Reduced Schedule Leave, continued Intermittent Leave Notice Foreseeable intermittent leave Employees must attempt to schedule their leave so as not to disrupt unduly the employer s operations. Employees must provide 30 days advance notice. If 30 days advance notice is not given, the employee must give notice of the need for leave as soon as practicable, which usually means the same or the next business day. Unanticipated need for intermittent/reduced schedule leave Notice must be given as soon as practicable, or If the employer has a usual and customary leave of absence notification policy, within such reasonable time frame as established by that policy. Transfer to an Alternative Position The employer may require employees taking intermittent or reduced schedule leave that is foreseeable based upon planned medical treatment to temporarily transfer to another position that better accommodates the periods of absence during the time that the intermittent or reduced schedule leave is required. The position must be one for which the employee is qualified. The position must be one that accommodates recurring periods of leave better than the employee s regular position. The position must comply with the ADA, federal and state laws, and collective bargaining agreements. The alternative position must have equivalent pay and benefits. The new position does not necessarily have equivalent job duties, but must not be one that is designed to discourage the employee from taking leave or impose a hardship on the employee. If the employee is transferred to a part-time job, the employee can t be forced to take more leave than is medically necessary. Employees must retain their benefits, even if part-time employees don t enjoy those benefits; however, an employer may proportionately reduce benefits, such as vacation, where the normal practice is to base such benefits on the number of hours worked. After the period of intermittent leave or reduced leave is finished, the employee must be returned to his or her old position immediately. 33

34 Intermittent or Reduced Schedule Leave, continued Calculating Increments of Intermittent or Reduced Schedule Leave 1. Intermittent leave and reduced leave increments must be calculated based upon the shortest period of time that the employer uses to account for the use of other forms of leave, provided that the basis is not greater than one hour and is not greater than the amount of time actually taken by the employee. 2. An employer may account for FMLA leave in shorter increments than used for other forms of leave. 3. Physical impossibility rule: If it is physically impossible for the employee to access the work site after a shift begins due to an intermittent/reduced schedule absence, the entire period that the employee is forced to be absent from the work site may be charged against FMLA (e.g., a flight attendant missing the departure of an airline flight the entire flight is counted against the FMLA entitlement). 4. Hours in the workweek The FLSA defines the workweek as all the time during which an employee is necessarily required to be on the employer s premises, on duty or at a prescribed workplace. For FMLA purposes, an employee s workweek is the number of hours he or she usually works. 5. Part-time employees intermittent leave is prorated based on the employee s schedule. 6. The workweek of employees with varying work schedules is calculated based upon the weekly average of hours worked over the 12 months prior to the beginning of the leave. Required overtime missed due to an employee s intermittent or reduced schedule FMLA leave counts as FMLA leave (does not apply to voluntary or rotational OT). 7. Any hours worked by the employee while on FMLA leave are not counted as part of the 12-week entitlement. Designation Notice The Designation Notice must state the amount of leave being counted as FMLA, if known. If the amount of leave needed is known, the employee must be notified of the number of hours, days, or weeks that will be counted against the employee s FMLA leave entitlement. The employee can t request the information more often than every 30 days (if leave was taken during the prior 30 days). Note: This means employees on intermittent leave can become something of a problem, requiring the employer to respond with how many days of leave they have left. 34

35 Intermittent or Reduced Schedule Leave, continued Paid Leave and the FLSA s Pay Docking Policy The FMLA provides that pay deductions from exempt employees for any hours taken as intermittent leave or reduced leave within a workweek do not affect the exempt status of the employee. The employer must convert pay to hourly pay to deduct for FMLA leave. The employer may pay the exempt employee only for hours worked. 35

36 Substitution of Paid Leave Substitution of Paid Leave for Unpaid Leave 1. Under the FMLA, an employee may choose or be required by the employer to substitute his or her accrued paid vacation, personal, sick, or family leave for unpaid leave. Substituted paid leave runs concurrently with unpaid FMLA leave. 2. Employers are not required to provide paid leave in any circumstance in which it would not normally provide such paid leave. 3. An employee s ability to substitute accrued paid leave is determined by the terms of the employer s normal leave policies, which may be more or less stringent than FMLA requirements. 4. Whether the employee chooses or the employer requires substitution, the employer must inform the employee that he or she must satisfy any procedural requirements of the paid leave policy in order to receive those payments. If procedural requirements are not satisfied, the employee may still take FMLA leave, unpaid, or If the employer reserves its right to waive those procedural requirements, it can still require the employee to substitute paid leave. 5. When other types of paid leave are exhausted, the employee is still entitled to the remainder of the 12 weeks of unpaid FMLA leave. 6. Leave under a disability plan would count as FMLA leave for a serious health condition, and since it is paid, there can be no required substitution of other forms of paid leave (double dipping). Where state law permits and there is agreement between the employer and employee, paid leave can be used to supplement the disability plan benefits (i.e., where a plan only provides a percentage of replacement income, not full salary) 7. Leave under workers compensation may count as FMLA leave for a serious health condition, and since it is paid, there can be no required substitution of other forms of paid leave (double dipping). Where state law permits and there is agreement between the employer and the employee, paid leave can be used to supplement workers compensation benefits (i.e., where workers compensation only provides a percentage of replacement income, not full salary). 36

37 Substitution of Paid Leave, continued If the employee s workers compensation HCP certifies the employee as able to return to a light-duty job, but the employee is unable to return to the same or an equivalent job, the employee may decline the employer s light-duty job offer. Under these circumstances, the employee may remain on FMLA leave until leave time is exhausted but may lose workers compensation payments. When workers compensation payments cease, the substitution provision becomes applicable and either the employer or the employee can substitute accrued paid leave. 8. The employer may not require the employee to substitute paid leave not yet available to the employee. 9. Public employees may request and may be permitted or public employers may require the substitution of accrued compensatory time off in conjunction with FMLA leave. 37

38 Reinstatement of Employees on Leave A key element of the FMLA is the restoration clause after taking FMLA leave, an employee is entitled to be returned to the same position the employee held when the leave began or to an equivalent position. Reinstatement is guaranteed even if the employee has been replaced or the position has been restructured to accommodate the employee s absence. Equivalent Position An equivalent position is virtually identical to the employee s former position in terms of benefits, pay, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. If the employee is no longer qualified for the position because of the employee s inability to attend a course or renew a license, the employee must be given a reasonable opportunity to fulfill the conditions upon return to work. Equivalent Pay Employees are entitled to unconditional pay increases that occurred during FMLA leave (e.g., cost of living). Pay increases conditioned upon seniority, length of service, or work performed must be treated the same way the employer treats others on equivalent non-fmla leaves. The opportunity for pay premiums (e.g., shift differentials), normally worked amounts of overtime, and discretionary and nondiscretionary bonuses must be restored upon return from FMLA leave. Bonuses or other payments based upon achievement of a goal (hours worked, products sold, or perfect attendance) not achieved by the employee due to FMLA leave need not be paid unless paid to employees on equivalent non-fmla leave (i.e., If an employee on paid vacation leave is paid the bonus, then an employee using vacation substitution while on FMLA leave must be paid the bonus). Equivalent Benefits Benefits must be resumed in the same manner and at the same level as provided when the leave began, subject to changes affecting the entire workforce. (See previous section, Employee Rights to Other Benefits While on Leave) An employee can t be required to re-qualify for any benefits, even if coverage lapsed. Benefits include group life, health, and disability insurance, sick leave, annual leave, educational benefits, and pensions. 38

39 Reinstatement of Employees on Leave, continued Equivalent Terms and Conditions of Employment The employee must be reinstated to the same work site or one that is geographically approximate to that where he or she had been employed (not a significant increase in commuting time or distance). The employee is ordinarily entitled to return to the same shift and to the same or an equivalent work schedule. An employer may accommodate an employee s request to be restored to a different shift, schedule, or position that better suits the employee s personal needs on return from leave, or offer a promotion to a better position. The employee must have the same or an equivalent opportunity for bonuses, profitsharing, and other similar discretionary and nondiscretionary payments. Suggestions for Maintaining an Absent Employee s Job Reorganize other jobs within the remaining staff. Use overtime. Hire a temporary worker. Potential Grounds for Denial of Reinstatement The FMLA creates no greater right to reinstatement or other benefits than if the employee had been continuously employed during the leave. Employees can be denied reinstatement if: The employee s position is eliminated (layoff). A shift has been eliminated or overtime has been decreased. The employee was hired for a specific time period or only to work on a discrete project. A fitness-for-duty (FFD) certificate is required and not provided (job restoration may be denied or delayed). The employee can no longer perform one of the essential tasks of the position he or she formerly held. 39

40 Reinstatement of Employees on Leave, continued The ADA may apply in terms of reasonable accommodation. The employee gives the employer unequivocal notice of the intent not to return to work. The employee fraudulently obtains FMLA leave (including in violation of the uniformly applied policy prohibiting outside employment). The employee would have been terminated for cause regardless of FMLA leave. The employee does not comply with the employer s leave policies. Exemption for Key Employees A key employee is defined as one who is salaried and paid in the top 10 percent percent of all employees (salaried and non-salaried) employed within 75 miles of the employee s work site. 1. Key employees may take FMLA leave, but the employer may deny reinstatement if: The denial of restoration is necessary to prevent substantial and grievous economic injury to the operations of the employer (not due to the employee s absence), and The employer notifies the employee in writing (in person or by certified mail) at the time the employee gives notice of the need for FMLA leave or when such leave commences, whichever is earlier, that restoration may be denied as a key employee. 2. If there is a need to determine whether the employee is a key employee, the employer must give notice as soon as practicable. 3. The notice must include information about the potential consequences with respect to reinstatement and maintenance of health benefits. 4. Failure to provide timely notice will eliminate the right to deny restoration even if substantial and grievous economic injury will result from reinstatement. 5. The notice must explain the basis for the employer s finding that substantial and grievous economic injury will result. 6. If the leave has begun, the employee must be given a reasonable time to return to work. If the employee elects not to return to work after receiving such notice, the employee continues to be entitled to maintenance of health benefits, and the employer may not recover its cost of health benefit premiums at the end of the leave. FMLA rights continue until the employee gives notice that he or she no longer wishes to return to work or the employer actually denies reinstatement at the conclusion of the leave period. 40

41 Reinstatement of Employees on Leave, continued 7. Key employees are still entitled to request reinstatement at the end of the leave period, and the employer must again determine whether there will be substantial and grievous economic injury based upon reinstatement under the facts at the time. If restoration is again denied, the employer must notify the key employee in writing (in person or by certified mail). 8. Grievous economic injury is not the same as undue hardship as defined by the ADA the standard is more stringent under the FMLA. Grievous economic injury would result if the reinstatement of the key employee threatens the economic viability of the organization. Minor inconveniences and costs that the employer would experience in the normal course of doing business do not qualify as grievous economic injury. 41

42 Employer Notice Requirements Note: In the Appendix, relevant DOL notice prototype forms have been included. The DOL does not require employers to use the prototype forms; employers may adapt the forms as appropriate to meet their business needs, provided the employer s adapted form does not seek prohibited information. General Notice WH-1420 Every employer covered by the FMLA must post on its premises in conspicuous places where employees are employed a notice explaining the act s provisions and providing information concerning the procedures for filing complaints of violations of the act with the DOL Wage and Hour Division. The General Notice WH-1420 (see Appendix) meets the FMLA poster and policy distribution requirements. A copy must be posted and distributed to employees by covered employers even if there are no FMLA-eligible employees. Posting and distribution can be done electronically or by paper or a combination of the two. Notice must be included in the handbook or other materials given to all employees, and new hires must receive a copy upon hire if not included in the employee handbook or other summary of leave rights. If a significant portion of the workforce doesn t speak English, the communication must be in a language they understand. Eligibility Notice WH-381 Part A When an employee requests FMLA leave or when the employer acquires knowledge that an employee s absence may be for FMLA-qualifying reasons, the employer must notify the employee within five business days (absent extenuating circumstances) of the employee s eligibility to take FMLA leave. (See Appendix for WH-381.) Employers must notify employees in writing of eligibility or non-eligibility within five business days after the first time in the employer s FMLA leave year that an employee requests leave for a particular qualifying reason. All FMLA absences for the same qualifying reason are considered a single leave, and employee eligibility as to that reason for leave does not change during the applicable 12-month period. 42

43 Employer Notice Requirements, continued The Eligibility Notice either: States that the employee is eligible, or If not, why not (at least one reason: e.g., lacks 1,250 hours, one year of service, or 50 employees/75-mile radius). The notice must include as applicable: 1. The number of months the employee has worked for the employer 2. The number of hours of service worked for the employer during the 12-month period 3. Whether the employee is employed at a work site with 50 or more employees within a 75-mile radius of that work site If, at the time an employee provides notice of a subsequent need for FMLA leave during the applicable 12-month period due to a different FMLA-qualifying reason, the employee s eligibility status has not changed, no additional eligibility notice is required. If that employee requests leave and the eligibility status has changed, the employer must notify the employee in writing of the change in eligibility status within five business days, absent extenuating circumstances. (e.g., the employee drops below 1,250 hours or there are fewer than 50 employees within a 75-mile radius). If the employee has exhausted the 12-week FMLA entitlement, that is not a reason for ineligibility instead, a new Designation Notice (see following section) should be used to deny leave. Rights & Responsibilities Notice WH-381 Part B Employers must provide written notice detailing the specific expectations and obligations of the employee seeking leave and the consequences of failure to meet those obligations. (See Appendix.) Employers must provide a written Rights & Responsibilities (R&R) Notice: Each time an eligibility notice is required Thereafter, if any information on it changes after the employee s first request for leave, within five business days after changes occur. This must reference the prior notice and the information that has changed (e.g., if paid leave becomes unpaid or the method of collecting premiums that will be used). 43

44 Employer Notice Requirements, continued Information that must be included: 1. That leave may be designated and counted against the employee s FMLA leave entitlement if qualifying 2. Employer s designated 12-month FMLA year 3. Whether certification or other documentation will be required and that the certification/documentation to be completed may be attached 4. Whether substitution of paid-time-off benefits use is mandated, those terms and conditions, and the employee s entitlement to take unpaid FMLA leave even if the employee does not meet the conditions for paid leave 5. Whether a fitness-for-duty (FFD) certification will be required 6. Benefit continuation obligations, including arrangements for making payments and the possible consequences for failure to do so (including liability for payment of health insurance premiums paid by the employer during the employee s unpaid leave if the employee fails to return to work) 7. Key employee status, the potential consequence that restoration may be denied following leave, and an explanation of the conditions required for such denial 8. Not mandated but may be included: whether periodic reports on status and intent to return to work are required Designation Notice WH For each FMLA-qualifying reason within the employer s designated 12-month FMLA leave year, the employer must give written designation that leave qualifies or not as FMLA leave, including a calculation as to the amount of leave. (See Appendix.) A Designation Notice must be delivered within five business days after acquiring enough information to determine if the employee qualifies for FMLA leave, absent extenuating circumstances. Only one Designation Notice is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave will be taken as continuous, intermittent, or reduced schedule. 2. If the information provided by the employer in the Designation Notice changes (e.g., the employee exhausts FMLA leave), the employer must provide written notice of the change within five business days of receipt of the employee s first notice of need for leave subsequent to any change. 3. The employer can provide a written designation at any time later as long as the employee is not harmed (the Ragsdale rule). This means provisional designation is gone and the employer has nothing to lose by designating leave late. 44

45 Employer Notice Requirements, continued 4. The Designation Notice must contain: A statement that leave is being designated as FMLA If not, notice must be given that the leave is not FMLA qualifying (e.g., the employee s FMLA leave has been exhausted). This may be in the form of a simple written statement. The amount of leave being counted as FMLA, if known If the amount of leave needed is known, the employee must be notified of the number of hours, days, or weeks that will be counted against the employee s FMLA leave entitlement. If the amount of leave is not known (e.g., due to a chronic condition), the Designation Notice still must be given. The employee can t request the information more often than every 30 days (if leave was taken during the prior 30 days). The notice of the amount of leave counted against the employee s FMLA leave may be oral or in writing. If given orally, it must be confirmed in writing no later than the following payday, unless the payday is in less than one week; then notice must be not later than the subsequent payday. Notice may be written in any form, including a paycheck notation. Whether paid-time-off benefits will be used during the leave and if so, that paid leave will count as FMLA leave Whether a fitness-for-duty (FFD) certification will be required that addresses whether the employee can perform the essential job functions of the employee s position 5. A list or job description of essential duties must be attached for the HCP to use for the FFD certification. 6. If the handbook or other written documents describing the employer s leave policy clearly provides that a FFD certification will be required in specific circumstances (e.g., back injuries), the employer doesn t have to include information on the FFD certification in the Designation Notice, but must provide oral notice at the same time or earlier than providing the Designation Notice. 7. If more information is required and the employer is unable to determine if the leave is FMLA qualifying, the employer must notify the employee that: The medical certification is incomplete or insufficient (provide a written list of deficiencies and an opportunity to cure them) A second or third opinion is required 8. In summary, a Designation Notice can do one of four things: designate leave, require more information from a HCP, require a second or third opinion, or deny FMLA leave. 45

46 Employee Notice Requirements Employees seeking FMLA leave don t have to mention the FMLA or even assert rights under the act; they only need to state a qualifying reason for the needed leave and comply with the notice requirements outlined below. Timing If leave is foreseeable, at least 30 days advance notice or as soon as practicable, normally the same or next business day if the employee is off work when learning of the need for leave, absent unusual circumstances If less than 30 days notice is given, the employer can require an explanation about why 30 days wasn t practicable. If timely notice is not given, the period of delay can count as non-fmla absence, subject to the employer s normal attendance requirements, provided such requirements are no more stringent than the 30-day or as soon as practicable requirements outlined above. If leave is foreseeable but the time frame is less than 30 days, employees can still be required to give notice as soon as practicable, and leave can be delayed to the extent that notice wasn t given in a timely fashion. For qualifying exigency leave, notice must be provided as soon as practicable, regardless of how far in advance such leave is foreseeable. Whether FMLA leave is taken continuously or on an intermittent or reduced schedule basis, notice need only to be given once, but the employee must advise the employer if there is a date change, leave needs to be extended, or if leave dates were initially unknown and become known. If leave is unforeseeable, either as soon as practicable or if the employer has a usual and customary leave of absence notification policy, within such reasonable time frame as established by that policy, absent unusual circumstances If timely notice is not given, the period of delay can count as non-fmla absence, subject to the employer s normal attendance requirements. 1. If the employee doesn t provide sufficient information to establish that the leave is FMLA-qualifying, leave can be denied. 2. If the employee uses paid time off for an FMLA qualifying reason and the employee subsequently learns of the need for the leave, that paid time off can be substituted for FMLA time and counted against the employee s FMLA leave entitlement. Retroactive designation is appropriate when it does not cause harm or injury to the employee. Notice may be given by any electronic means. Notice may come from the relative or responsible party. 46

47 Employee Notice Requirements, continued Method Notice may be oral unless the employer has a usual and customary policy on leave notification procedures (e.g., advance written notice, sent to specific person, or call designated phone number), provided the policy doesn t require more advance notice than FMLA permits. Employers can t require written notice for unforeseeable leave. If the policy isn t followed, the period of delay can count as a non-fmla absence, subject to the employer s normal attendance requirements. Content When requesting FMLA leave for the first time for a particular FMLA-qualifying reason, the employee must provide sufficient information (e.g., state the qualifying reason, provide anticipated timing and duration of leave if foreseeable) for an employer to reasonably determine that the FMLA may apply. Calling in sick is not sufficient. When subsequently requesting leave for the same FMLA-qualifying reason for which leave was previously provided, the employee must specifically reference the qualifying reason or state FMLA leave. No Undue Disruption FMLA requires that, in the case of foreseeable leave, the employee must consult with the employer and make a reasonable effort to schedule the leave so as not to disrupt unduly the employer s operations. If the employee does not consult with the employer, the employer may require such consultation. All such agreements and the appointment schedule must include the approval of the employee s HCP. The employer may require that the employee follow established procedures for requesting leave without pay. Employer Delays Employee s Leave An employer may delay FMLA leave when an employee needs to take a foreseeable leave, knows about FMLA notice requirements, and does not follow them. Posting the required notice in the workplace suffices to notify employees of notice requirements. 47

48 Certification An employer may require that an employee s leave be supported by a certification issued by the health care provider (HCP) of the employee, the employee s ill family member, or the servicemember. (Employers also can request that qualifying exigencies and caregiver leave be supported by a certification.) Medical Certification If the employer wants certification, it must be requested: Within five business days after the foreseeable leave is requested, or Within five business days after unforeseeable leave commences, or At a later date, if the employer has reason to question the appropriateness or duration of the leave Written notice to employees of the medical certification requirement must be provided on the Rights and Responsibilities (R&R) Notice. (See Appendix.) Subsequent requests for recertification of the same condition during the same FMLA year may be oral. The R&R Notice may include the actual form to be completed by the HCP, the time period for returning the form which must be at least 15 full calendar days, excluding the day that the employee is given the notice and the consequences for failure to return the form. The 15-calendar-day time frame is used for both foreseeable and unforeseeable leaves, and the only exception to the timely return of the certification is if it is not practicable despite the employee s diligent, good faith efforts. The DOL has created two prototype medical certification forms one for the employee s own serious health condition, WH-380-E, and the other for a family member s serious health condition, WH-380-F. (See Appendix.) The HCP is asked to provide medical facts sufficient to support the need for leave, including symptoms, diagnosis, hospitalization, medication prescribed, regimen of continuing treatment, as well as sufficient information on the employee s inability to perform the essential job duties (based upon a list provided by the employer). 1. The employer may not ask for the employee s medical records. 2. The employer may not request an overall history of visits to the HCP. If the employee is the patient, the form requests information sufficient to establish that the employee can t perform the essential functions of the job, as well as any other work restrictions and the likely duration of such inability. If intermittent or reduced schedule leave is requested for planned treatment, the form requests information on why there is medical necessity for the leave and an estimate of the duration of incapacity, treatment, and recovery periods. 48

49 Certification, continued In addition to the above, WH-380-F, the Family Member form, requires sufficient information be provided to establish that the family member is in need of care and an estimate of the frequency and duration of leave needed for such care. The employer can also request proof of the covered family relationship. Complete and Sufficient Certification Forms Employers can require that forms be complete (not missing one or more applicable entries) and sufficient (not vague, ambiguous, or nonresponsive). This requirement applies to initial certifications, a recertification, a second or third opinion, or a FFD certificate, including any clarification necessary to determine if such certifications are authentic and sufficient. If the certification/recertification is returned but is incomplete or nonresponsive, the employer must use the Designation Form or provide written notice of what specific information is still required. Employees must be given seven calendar days to cure the deficiencies, unless the seven days is not practicable under the particular circumstances despite the employee s diligent, good faith efforts. Annual Medical Certification In situations in which the serious health condition of the employee or family member lasts beyond a single leave year, the employer may require a new medical certification in each subsequent year. Such new certifications are subject to the provisions for authentication and clarification, including second and third opinions. FMLA Intersection With HIPAA An employer may not require HIPAA consent authorizing the employee s or a family member s HCP to communicate with the employer or to send the certification directly to the employer. If a HIPAA consent is required by the HCP, however, the employee/family member must furnish it; if the employee/family member does not, the employer can deny leave. This forces the employee to make a choice about cooperation in providing necessary information or foregoing the leave. 49

50 Certification, continued Contact With HCP If medical certification/recertification is complete and sufficient, the employer s HR staff, leave administrator, a management official, or the employer s HCP may contact the employee s HCP to authenticate or clarify the form (for both initial and recertification). The employee s immediate supervisor may not speak to the employee s HCP. Authentication means verification that the information was provided or authorized by the employee s HCP. No additional medical information may be requested. No employee or HIPAA consent is required. Clarification means understanding the handwriting or the meaning of something written but not asking for information beyond that required by the form. Second and Third Opinions An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second medical certification at the employer s expense. Pending receipt of the second (or third) opinion, the employee is provisionally entitled to the benefits of the act, including maintenance of health insurance benefits. The second HCP must not be employed on a regular basis by the employer. The employer must reimburse the employee for any travel expenses and generally can t require travel outside the normal commuting area. A third opinion, if needed to resolve differences, is binding on the employee and the employer. A third opinion is at the employer s expense as well. The third HCP must be jointly approved or designated by the employer and employee. The party who fails to cooperate in the selection of the third HCP will be bound by the opinion adverse to their position. Upon employee request, the second or third opinion must be provided to the employee within five business days. Employers are free to request second or third opinions on certifications, with the same HIPAA qualifications outlined previously. (Second or third opinions are not allowed on a recertification.) 50

51 Certification, continued Failure to Provide Certification Foreseeable leave If the employee fails to provide certification, then the employer can deny FMLA coverage until the required certification is provided (e.g., the employee does not provide the certification for 45 days; the employer can deny FMLA protections for the 30-day period following the expiration of the normal 15-day grace period if the employee takes leave during the 30-day period). Unforeseeable leave If the employee fails to provide certification within 15 calendar days from receipt of the request for certification (unless not practicable due to extenuating circumstances), the employer may deny FMLA coverage for the requested leave until sufficient certification is provided. If no certification is produced, the leave is not FMLA leave. 51

52 Recertification Recertification for Serious Health Conditions 30-Day Rule: An employer may request recertification no more often than every 30 days and only in connection with an absence by the employee unless the following applies: If an initial leave certification is 30 days or more (taken continuously, intermittently, or on a reduced schedule), an employer must wait until that minimum duration expires before requesting recertification unless: 1. Every six months in connection with an absence, or 2. A leave extension is requested, or 3. A significant change in circumstances described by the certification (complications, duration/frequency of absences, nature/severity of illness) or a pattern of absences before or after scheduled days off or longer duration of absences than specified on the certification for the most recent two or more episodes of incapacity, or 4. If the employer receives information casting doubt upon the employee s stated reason for absence (i.e., information that an employee s off-duty activities are inconsistent with the need for FMLA leave) An employer can request recertification for a leave of less than 30 days if: 1. A leave extension is requested, or 2. A significant change in circumstances described by the certification (complications, duration/frequency of absences, nature/severity of illness) or a pattern of absences before or after scheduled days off or longer duration of absences than specified on the certification for the most recent two or more episodes of incapacity, or 3. The employer receives information casting doubt upon the employee s stated reason for absence (i.e., information that an employee s off-duty activities are inconsistent with the need for FMLA leave). Employers may also provide the employee s HCP with a record of the employee s absence pattern and ask the HCP whether the condition and the need for leave are consistent with such a pattern. If the certification indicates that the employee may need leave beyond a single leave year (e.g., for intermittent or reduced schedule leave), the employer can require a new certification annually. Employees must provide recertification within the time set by the employer, but the employer must give at least 15 calendar days. Recertification is at the employee s expense. (No second or third opinions are allowed.) 52

53 Recertification, continued Employee s Diligent and Good Faith Efforts Employees have two opportunities to provide complete and sufficient certification. 1. If certification/recertification is not returned at all within 15 calendar days and the employee has not provided information about his or her diligent, good faith efforts, leave can be denied. 2. If certification/recertification is not returned at all within any required seven-day cure period and the employee has not provided information about his or her diligent, good faith efforts, or certification is returned on a timely basis but does not cure the deficiencies, leave can be denied. The employer has no obligation to notify an employee that a certification/recertification has not been received within the 15- or seven-day period. Failure to Provide Recertification An employee must produce recertification within the time frame requested by the employer (at least 15 calendar days after the request) or as soon as practicable under the circumstances. The employer can deny continuation of the FMLA leave protections until the employee produces a sufficient recertification. If no certification is produced, the leave is not FMLA leave. Recertification may not be required for leave taken for a qualifying exigency or military caregiver leave. 53

54 Intent to Return to Work Employers may require employees to periodically report on their status and intent to return to work. If the employee states unequivocally he or she won t be returning, the employer has no obligation to maintain health benefits or provide job restoration. If the employee indicates that he or she may be unable to return but still wishes to do so, the employer must maintain benefits and job restoration obligations. Once on leave, an employee may need more or less time than originally anticipated. If the employee requires less time, he or she can t be required to take more FMLA leave than necessary to resolve the circumstance that precipitated the need for the leave. In either circumstance (more or less time needed), the employer can require that the employee provide reasonable notice (i.e., two business days) of the changed circumstance where foreseeable. 54

55 Fitness-for-Duty Certification As a condition of restoring an employee whose FMLA leave was for his or her own serious health condition, an employer may have an uniformly applied policy that requires all similarly situated employees (i.e., same occupation or same serious health condition) to present a fitness-for-duty (FFD) certification from their HCP that the employee is able to resume work. The same cooperation and complete and sufficient information obligations for employees and their HCPs apply as discussed with respect to initial certifications. FFD certification is only allowed in terms of the original need for the FMLA leave. The Essential Functions of the Job 1. The employer can require that the HCP s certification specifically addresses the employee s ability to perform the essential functions of the job. The employer must provide the employee with a list of the essential job functions with the Designation Notice and indicate that the FFD certification must address the employee s ability to perform the essential functions. The employee s HCP must then certify that the employee can perform the essential functions. 2. If medical certification/recertification is complete and sufficient, the employer s HR staff, leave administrator, a management official, or the employer s HCP may contact the employee s HCP to authenticate or clarify the form (for both initial and recertification). The employee s immediate supervisor may not speak to the employee s HCP. The employer may not delay the return to work while this contact is pending. 3. There are no second or third opinions on FFD certifications. 4. The cost of the FFD certification must be borne by the employee, and there is no entitlement for pay for the time spent or travel costs associated with obtaining the FFD certification. 5. If the employer complies with the above requirements and the employee fails to provide a FFD certification or request additional FMLA leave, the employee is no longer entitled to reinstatement and may be terminated. 55

56 Fitness-for-Duty Certification, continued 6. An employer is not entitled to a FFD certification for each absence taken on an intermittent or reduced schedule basis, except: If reasonable safety concerns exist regarding the employee s ability to perform his or her duties based upon the serious health condition for which the employee took FMLA leave, the employer may require an FFD certification for such absences up to once every 30 days. When the employer issues the Designation Notice, the employee must be informed that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a FFD certification, unless one has already been submitted within the past 30 days. The employer may not terminate an employee while awaiting the FFD certification for an intermittent or reduced schedule leave. Reasonable safety concerns mean a reasonable belief of significant risk of harm to the individual employee or others. 7. Collective bargaining agreements or state law provisions that govern an employee s return to work must be applied. 56

57 Maintenance of Group Health Benefits Group Health Plan Coverage The FMLA requires all employers (including public) to maintain employee coverage under any group health plan at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. Group health plans don t include insurance programs under which employees voluntarily purchase individual policies (no money contributed by the employer, only an administrative role in collecting premiums). If the employee chooses not to be covered by the organization s plan while on FMLA leave, he or she must be reinstated at the same level upon returning to work without the need to re-qualify. Employee Payment of Health Premiums 1. If the employee had paid for some part of the premium before FMLA leave, he or she must continue to pay that premium while on leave. 2. If premium amounts change, then the employee must pay new premium rates. 3. If on substituted paid leave, the employee s share of premiums are paid by the method normally used during any paid leave (presumably payroll deduction). 4. If an employee is on unpaid leave, the employer has a number of options for obtaining payment from the employee. This includes requiring the employee to remit directly to the carrier, having payment due at the same time as if by payroll deduction, due on same schedule as COBRA payments, or prepaid to a cafeteria plan, or following the employer s existing rule for leaves without pay, provided such rules don t require prepayment prior to the beginning of leave or a higher premium. The employee can voluntarily agree to prepayment. 5. The employer must provide the employee with advance written notice of payment terms and conditions. 6. The employer may elect to pay the employee s premium and can recover that cost from the employee once the employee returns to work. 7. The employer may not require more of employees using unpaid FMLA leave than employees on other types of unpaid leave. 57

58 Maintenance of Group Health Benefits, continued Maintenance of Benefits Under Multiemployer Health Plans Under multiemployer health plans: More than one employer is required to contribute to it. The terms are created by collective bargaining agreements. The employer s contributions to these plans must continue at the same rate and in the same amount as if the employee had not taken leave until: FMLA leave is exhausted, or The employer can show that the employee would have been laid off or had his or her hours reduced during the period of leave, or the employee states clearly that he or she is not going to return to work. Employer s Obligation to Maintain Coverage Under a Single Employer Plan In the absence of an established policy of a longer grace period, an employer s obligation to maintain health coverage ends if the employee is more than 30 days late in making payments. The employer must provide written notice at least 15 days before terminating coverage on a specified date. If the employer has a policy for other forms of unpaid leave that allow for retroactive termination of coverage to the date the unpaid premium was due, the employer may drop the employee s coverage retroactively. All other obligations under the FMLA remain in force. The employer may recover any missed employee premiums it paid on behalf of the employee. If coverage lapses due to a missed premium, the employer must still restore the employee to coverage/benefits upon return from leave. Since the employer is required to provide equivalent benefits when an employee returns from FMLA leave, from the standpoint of avoiding an administrative issue, the employer may want or need to make payments to avoid any lapse in coverage. 58

59 Maintenance of Group Health Benefits, continued Premium Recovery When an Employee Quits The employer may recover any payments it made on behalf of the employee on unpaid FMLA leave if the employee does not come back to work, unless: The employee did not return because of the continuation, recurrence, or onset of a serious health condition (of the employee or family member) that would otherwise entitle the employee to FMLA leave, or There are other circumstances beyond the employee s control. If the failure to return is due to a serious health condition, the employer may request that the employee provide HCP certification, which must be returned within 30 days of the employer s request. Absent meeting either test above or failure to provide certification, the employer can recover 100 percent of premiums it paid on the employee s behalf. Recovery can come from deductions from any amounts of money still owed to the employee, provided federal/state wage payment laws are complied with. The employer may also sue the employee for recovery. An employee who returns to work for at least 30 calendar days is considered to have returned to work. 59

60 Employee Rights to Other Benefits While on Leave The Employer s Established Policy Controls An employee s entitlement to benefits other than group health benefits during FMLA leave (e.g., holiday pay) is determined by the employer s established policy for providing such benefits for employees on other forms of leave (paid and unpaid). If the employee had been responsible for paying for some or all of these other benefits, the employer must follow the organization s policy regarding how those payments are handled during other types of leave. Employers can elect to maintain benefits on behalf of the employee on unpaid FMLA leave to ensure that the employer can provide equivalent benefits upon return. If the employee fails to return, the employer can recover only the cost incurred for paying the employee s share of the premiums. Accrued Benefits and Continuing Service Employers may not deprive an employee of any accrued benefits the employee had already earned prior to taking FMLA leave. Accrued benefits are reinstated after the FMLA leave as though the employee had been continuously employed. Employees are entitled to accrue hours of service during paid leave. An employee may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave. If a benefit plan s eligibility is predicated on working a preestablished number of hours each year and the employee does not have sufficient hours worked due to unpaid FMLA leave, the employee is no longer entitled to the benefit. FMLA leave, paid or unpaid, must be treated as continued service for vesting and pension/retirement plans. For plans that require employees to be employed on a specific date for vesting, contribution, or participation purposes, employees on FMLA leave shall be deemed employed on that date. 60

61 Employee Rights to Other Benefits While on Leave, continued Additional Information An employer may request additional information in accordance with a paid leave policy or disability plan that requires greater information to qualify for benefits than for leave under the FMLA only. The employer must inform the employee that the additional information only needs to be provided in connection with the receipt of such benefits or payments. Any information received pursuant to such policy or plan may be considered in determining the employee s FMLA entitlement. If the employee fails to provide the information required for these other plans or benefits, the failure does not affect the employee s entitlement to take unpaid FMLA leave. 61

62 COBRA, ERISA, and FMLA The Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) 1. The COBRA provides continued health insurance coverage for employees and beneficiaries who lose their group coverage. 2. Every employer-sponsor of a group health plan must continue coverage for employees who lose their health insurance because of a qualifying event. 3. Qualifying events include termination, layoff, and reduction of hours. 4. Employees can continue on the employer health plan for 18 months. 5. The employee pays the COBRA premium, which may not exceed 102 percent of the total premium paid by the employer and employee prior to the qualifying event. 6. Being on FMLA leave is not a qualifying event since the employee is still employed. COBRA qualifying events related to FMLA: The employee is laid off while on leave, notifies the employer of the intent not to return from leave before the leave starts, or does not return to work after FMLA leave or continues on leave after exhausting FMLA entitlement. 7. The 18-month COBRA coverage begins on the last day of FMLA leave (and the employee has not returned to work), or when the employee notifies the employer that he or she will not be returning to work. Key Employee Intersection With COBRA If a key employee does not return from leave when notified by the employer that substantial and grievous economic injury will result from reinstatement, the key employee s entitlement to group health continues until (1) the employee advises the employer that reinstatement is no longer sought, (2) FMLA leave entitlement is exhausted, or (3) reinstatement is actually denied. COBRA Notice Period The employer must notify the plan administrator within 30 days of qualifying events. Employer-provided COBRA notices should also include information regarding its interaction with the FMLA. The Employee Retirement Income Security Act (ERISA) of 1974 The FMLA modifies the ERISA in one significant way: The ERISA only requires that employers maintain an employee s health coverage while on a leave at the employee s expense. The FMLA requires that if the employer had paid for any portion of the health coverage before leave, it must continue to pay during FMLA leave. 62

63 Health Benefits of Civil Service Employees Federal employees are covered under the Federal Employees Health Benefits (FEHB) Program. These employees may continue FEHB coverage while on FMLA leave but must make appropriate contributions on a timely basis. They must make payments or incur a debt to be repaid upon returning to work. Coverage for employees in a non-pay status continues for 365 days. The FMLA cannot supersede laws that provide greater rights, so: Federal employees can also be on leave for 365 days and maintain health coverage. 63

64 Employer Record-keeping Requirements Record keeping under FMLA is very similar in form, content, and intent to the FLSA. Required FMLA Records Generally, the DOL may only request records once in every 12-month period. Employers must be able to document the entire leave cycle. FMLA records must maintained for a minimum of three years. Records include: Basic payroll and identifying data Dates of properly designated FMLA leave Hours of leave in the case of less-than-full-day increments Copies of employee notices to the employer and copies of employer notices to employees Internal documents regarding benefits and policies concerning paid and unpaid leave How any premium payments will be handled during times of leave Documentation regarding any disputes concerning whether leave is properly designated as FMLA leave Privacy Requirements Certain records must be kept separate and treated as confidential. Medical certifications Medical recertifications Medical histories of employees or their families Access to these records must be limited to: Supervisors and managers who need to know of any restrictions placed on employees First aid and safety personnel Government officials as needed ADA requirements for record-keeping privacy must also be implemented. 64

65 Leave as a Reasonable Accommodation Under the ADA The ADA and the FMLA often overlap and sometimes are seemingly at odds with each other. Reasonable Accommodation and Undue Hardship The ADA requires reasonable accommodation for mental and physical disabilities, unless it would create an undue hardship. A disability is not the same as a serious health condition serious health conditions may be temporary in nature and a disability is usually a long-term, perhaps chronic condition. Undue hardship is defined as an action requiring significant difficulty or expense, when considered in the light of (certain) factors. An employee who qualifies for FMLA leave may not be denied leave because such leave would constitute an undue hardship. (Note: key employee exception, grievous and substantial harm ) The ADA includes part-time or modified work schedules as a reasonable accommodation. Employees who qualify for FMLA leave may not be coerced into taking a light-duty position in lieu of taking FMLA leave. Other Considerations Under the ADA, an employer does not have to provide time off for an employee to care for a disabled family member; FMLA provides for this coverage. When an employee is ADA-covered and FMLA eligible, the FMLA does not prevent an employer from following the procedures for requesting medical information under the ADA. Any information received pursuant to these procedures may be considered in determining the employee s FMLA entitlement. ADA requires reasonable accommodation of qualified individuals with various disabilities. This may require additional ADA-protected leave beyond the 12-week FMLA entitlement. The employee can perform the essential functions of the job upon returning from FMLA leave, but needs reasonable accommodation to do so. Employers who require FFD certification for FMLA leaves must still comply with the ADA requirement that an FFD physical be job-related and consistent with business necessity. 65

66 Workers Compensation and the FMLA Job Restoration If an employee s on-the-job injury is a serious health condition as defined by the FMLA, the employee may qualify for workers compensation benefits and for FMLA leave. With few exceptions, most state workers compensation laws do not create an entitlement to reinstatement; most state laws prohibit only retaliation for requesting or using workers compensation benefits. When an employee elects or an employer requires the stacking of workers compensation and FMLA leave (taken concurrently), the employee is given reinstatement rights and the employer reduces the total amount of time that the employee can be out on leave and retain reinstatement rights. Light Duty The FMLA prohibits employers from requiring that the employee return to work in a lightduty position before the employee s 12 weeks of FMLA leave has expired. Employees may elect to temporarily transfer to a light-duty job in lieu of taking FMLA leave while recovering from a serious health condition. Such a decision must be voluntary and uncoerced. The decision to take a light-duty job doesn t constitute a waiver of the employee s prospective FMLA rights. The employee s right to restoration while on a light-duty job ceases at the end of the 12-month FMLA year. If the employee s HCP for workers compensation certifies that the employee is able to return to work in a light-duty position, the employer offers one, and the employee does not elect to take it, the employee may no longer be eligible for workers compensation payments. The employee will be still be entitled to continue on unpaid FMLA leave until the 12- week leave entitlement is exhausted or the employee is able to return to the same or an equivalent job. Substituting Paid Leave With Workers Compensation and FMLA Leave Employees who receive paid leave from workers compensation benefits can t be compelled to substitute their employer-provided paid leave (double dipping), except to the extent that workers compensation does not provide full wage replacement. 66

67 Workers Compensation and the FMLA, continued Additional Information From the Employee s Workers Compensation HCP The FMLA doesn t prevent the employer from following the workers compensation provisions. When state law permits, employers or their representatives may request additional information from the employee s workers compensation HCP. Information received under these provisions may be considered by the employer in determining the employee s FMLA entitlement. 67

68 Beware Unlawful Discharge The FMLA clearly provides that any employee who asserts rights under the act has no greater rights to reinstatement or other conditions of employment including continuing employment than if the employee had never requested or taken the leave. This means that an employer may terminate an employee regardless of leave status provided that there is a legitimate, nondiscriminatory reason for termination. The FMLA makes it unlawful to discharge or discriminate against any person for opposing or complaining about any unlawful practice under the act. Protected Activities by Employees Opposing any practice made unlawful by the FMLA Filing a charge or instituting a proceeding under the FMLA Giving information in connection with an inquiry or proceeding relating to a right provided under the FMLA Testifying in an inquiry or proceeding related to a right provided under the FMLA Unlawful retaliation: firing or not promoting an employee who engages in any of these activities Documentation Any adverse action taken against a protected employee should be well documented, establishing the legitimate business reason(s) for taking such action. Documentation must show that the adverse action was not related to an FMLA provision or right to take leave. Employers should: Keep accurate and up-to-date attendance records, clearly demarcating excused and unexcused absences. Note: FMLA leave cannot be counted under no fault attendance policies. Ensure that all personnel actions are documented and kept in each employee s personnel file. Ensure that all persons responsible for supervising employees record all disciplinary actions taken against individual employees. Ensure that personnel documentation is retained for at least three years following the end of the employee s employment. 68

69 Penalties for Noncompliance The FMLA is administered and enforced by the Department of Labor (DOL). An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any rights provided by the act. Legal Action by DOL Civil actions for damage can brought by the DOL. The DOL can sue or seek an injunction on behalf of the employee. If the DOL seeks an injunction, the employer cannot be held liable for liquidated damages. If the employee sues, he or she may recover attorney s fees; the DOL cannot. Employees can recover: Lost wages Salary or employment benefits Actual monetary losses An employee can bring action against the employer in any federal or state court. Once the DOL files suit, the employee no longer can. Employees cannot waive nor can employers induce employees to waive their prospective FMLA rights. Employees have the right to settle or release past FMLA claims without obtaining court or agency approval. This means severance pay provided in exchange for a release of liability may include FMLA claims up to the date the release is signed. 69

70 Burden of Proof The FMLA provides two theories of recovery entitlement and retaliation. Entitlement Entitlement violations are based on the rights given to employees under the FMLA. The employee must show that he or she was denied rights to which the FMLA entitles him or her. The employer cannot defend itself by showing lack of intent or that there was some good business reason for the denial of rights. Retaliation The employee claims discrimination for exercising his or her rights under the FMLA. The employer s intent in these cases is very important. The employee must show that: 1. He or she exercised a right protected under the FMLA, 2. He or she was adversely affected by an employment decision, and 3. There was a connection between the two events. If the employee can show a causal connection, then the burden of proof is on the employer to evidence there was no causal connection (a legitimate business reason). If the employer can rebut these things, then the employee must show that the proffered business reason was a pretext for unlawful discrimination. Courts are influenced by temporal proximity (timing of the events) between the first two events to decide cases of retaliation. 70

71 Actual and Liquidated Damages If an employer violates an employee s FMLA rights, then the organization could be held liable for damages that equal wages or salary, employment benefits, and other monetary damages lost as a result. Monetary Losses This includes the cost of providing care for a family member, and/or an amount equal to as much as 12 weeks of the employee s wages or salary. Interest at prevailing rates may also be awarded. The employee could also potentially collect damages in place of reinstatement. Liquidated Damages The employee may also receive liquidated damages equaling or even greater than the amount of other recovered amounts. The only way the employer can avoid this decision is if it can prove that the violation was made in good faith. The employer establishes good faith by proving: Honesty of intention and no knowledge of circumstances which ought to put him on inquiry The employer must also objectively show that it acted as a reasonable, prudent organization would have under similar circumstances. Prejudgment Interest This is restitution for losing the use of money from the time of injury until vindication in court. An employer who violates the FMLA is liable for interest on wages, salary, employment benefits, or any other compensation the employee did not have access to because of the violation. Prejudgment interest may still be awarded even if liquidated damages are not. 71

72 Actual and Liquidated Damages, continued Equitable Relief An employee may also seek reinstatement or promotion to the position he or she should have had but for the action of the employer when he or she exercised FMLA rights. This is in addition to all other monetary recoveries. Front Pay This is a cash award for any future loss of earnings that results from some discriminatory job action. Front pay is used when reinstatement is not possible or desirable. Front pay terms can last years, even decades. 72

73 Costs and Fees Liability If the employee wins the suit against the employer, he or she can also be awarded reasonable attorney s fees, expert witness fees, and other reasonable costs incurred in the litigation. If Employer Wins Should the employer prevail, each side pays its own fees. The employer cannot recover attorney s fees from the employee. This could be overturned if the employer can prove that the suit was frivolous or brought in bad faith. Individual Liability The FMLA states that all persons (whether or not employers) are prohibited from discharging or in any other way discriminating against any person (whether or not an employee) Statute of Limitations Lawsuits must generally be brought within two years of the event, but: If the employee can prove that the violation was willful, suit may be brought within three years. Civil Actions Under the ADA The ADA is enforced by the Equal Employment Opportunity Commission (EEOC) and uses the same procedures as Title VII of the Civil Rights Act of 1964, as amended. An employee who feels that his or her ADA rights were violated must first file a charge with the EEOC. Filing must take place within 180 days, or 300 days in states with an approved fair employment practices agency. The EEOC investigates the charge. If it determines that the charge has merit, it will either sue or issue a right to sue letter to the employee. The employee then has 90 days to file suit in federal or state court. Damage awards are capped, based on the size of the employer, from $50,000 to $300,

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