FMLA UPDATE: ARE YOU COMPLIANT?
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1 FMLA UPDATE: ARE YOU COMPLIANT? DISCLAIMER: The principles and suggestions in this handout and the FMLA UPDATE: ARE YOU COMPLIANT? webinar are presented to apply to diverse personal and company situations. These materials and the overall seminar are for general informational and educational purposes only. The materials and the seminar, in general, are presented with the understanding that CareerTrack is not engaged in rendering legal advice. You should always consult an attorney with any legal issues CareerTrack, a division of PARK University Enterprises, Inc. Registered U.S. Patent & Trademark Office and Canadian Trade-Marks office. Except for the inclusion of brief quotations in a review, no part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from PARK University Enterprises, Inc.
2 ONE Eligibility, Entitlement and Types of Leave Private Employers The FMLA is applicable to any employer in the private sector who is engaged in commerce or in any industry or activity affecting commerce, and who has 50 or more employees within a 75-mile radius each working day during at least 20 calendar weeks or more in the current or preceding calendar year. Who is also covered? Entitlement: Gives employees three basic guarantees: 1. the right to take 2. the right to continuation of 3. reinstatement to 2 Employee Eligibility To be eligible for FMLA benefits, an employee must: 1. Work for a covered employer; 2. Have worked for the employer for a total of months; 3. Have worked at least hours in the immediately preceding 12 months; and, 4. Work at a location in the US or in a territory or possession of the US where at least 50 employees are employed by the employer within 75 miles.
3 ONE Employee Eligibility In addition, FMLA covers eligible employees who have a spouse, parent, or child in the Reserves or National Guard who is on or has been called to active duty in the Armed Forces. These workers may take up to 12 weeks of FMLA leave when they experience any qualifying exigency. And, eligible employees who have a spouse, parent, or child or a family member for whom they are next-of-kin that has been injured or disabled while on active military duty are eligible to take 26 weeks of FMLA leave to care for that family member. Amount of Entitlement: Generally: 12 work weeks of leave during any 12 month period. Qualifying Reasons: Calculating The Work Week The employee s schedule (hours/days per week) prior to the start of FMLA leave. The normal schedule is the controlling factor when determining how much leave employee is entitled to use when taking intermittent FMLA leave or a reduced work week schedule. Overtime Case Law Updates: Your organization can be held liable for interference with FMLA leave for improper calculations of an employee s eligibility. 3
4 TWO Eligible Reasons for Leave and the Impact of the ADAAA on the FMLA The Legal Test of Serious Health Condition: Best Practices for Determining Serious Health Conditions Familiarize yourself with the definitions in the regulations. Consult your company physician if you have one. If you don t have a company physician, find a local medical person who can serve as an expert adviser when you need help. Consult the DOL website or advisers. 4
5 TWO The Impact of the ADAAA on the FMLA ADAAA: Disability Redefined: New EEOC recognized disabilities under the ADAAA: How might the updated law make an impact on how you administer FMLA leave? Practical Application: An employee takes 12 unpaid work weeks of FMLA leave for cancer treatment, a serious health condition as defined under the FMLA. The employee contacts the HR professional to announce she has been cleared by her physician to return to work, but must return on a modified, reduced-hour schedule. How should the HR professional respond? 5
6 THREE Notice Requirements Update: Where can you find forms? DOL has created several new certification forms Certification of employee s own serious health condition Certification of a family member Certification for a qualifying exigency Certification for caregiver leave 2012 changes to FMLA Notice Forms GINA Safe Harbor Provision: Add this language from the EEOC to your medical certification forms: General Notice Employers must provide all employees with a general notice of their FMLA rights. Suggestion: Use. 6 If the employer has a handbook, the notice must be included in it. If the employer does not have a handbook, it must provide this notice to employees when they are hired. This notice may be provided electronically, but paper copies should also be posted if some employees do not have access to a computer.
7 THREE Other Employer Notices Employers must also provide the following three notices when an employee requests FMLA leave: 1. Eligibility Notice: 2. Rights and Responsibilities Notice: 3. Designation Notice: Case Law Update: Changes to your FMLA policy without notice can be costly! Employee Notice: CAVEAT: Protecting the medical certification form under the new FMLA: 7
8 FOUR Best Practices Required Best Practices Job Restoration: What is an Equivalent Position? 8
9 FOUR Maintenance of Benefits: What records must an employer keep to comply with the FMLA? FMLA Prohibits Interference With: An employee s rights under the law; and, Legal proceedings or inquiries relating to an employee s rights. Caution: A hot spot at the DOL is a company treating similarly situated employees differently THAT looks like discrimination! This type of discrimination is Case Law Update FMLA Interference Rulings: 9
10 FIVE Policies, Tips, Tools and Techniques Develop Your FMLA Checklist 1. Policies 2. Procedures 3. Documentation 4. Granting of leave 5. Coordination of leave 6. Joint employment issues 7. Benefit continuation 10. Posting 11. Employer notice Requirements: 12. Employee notice Requirements: 13. Medical certification Requirements during leave: 8. Intermittent leave 9. Reduced leave 14. Reinstatement practices and the ADAA Uniform Application Method must be applied to all employees. An employer who wants to change to another method must: give at least 60 days notice to all employees; and, transition in such a way that employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to them. 12 weeks of leave under whichever method affords the greatest benefit to them. Resources: Reminders: Reinforcers: 10
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