FMLA/MFLA ISSUES What a Supervisor Needs to Know March 2010
Objectives Overview of the FMLA Identify the purpose and benefits of the FMLA Recognize when and to whom it applies Assist employees in handling leaves appropriately Protect yourself and your county from liability
Family Medical Leave Act Department of Labor Wage and Hour Division Effective August 5, 1993 Revised 1995 Revised 2008, 2009, 2010
Family Medical Leave Act FMLA applies to all public agencies All Counties with 50 or more employees employed with 75 miles of workplace must grant FMLA to covered employees. TIP: Seasonal and temps count toward the 50 employees, but not Elected Officials
Family Medical Leave Act FMLA applies to all public agencies All Counties are required to post the FMLA poster, even if they have below 50 employees.
Employee Eligibility Employee has worked for county for at least 12 months (break > 7 years not counted unless military call up; > 3 years burden on employee ); and Has worked at least 1250 hours during the last 12 months prior to FMLA leave (part-timers might qualify)
What is FMLA? FMLA = Leave Entitlement Can be paid leave but the law does not require it to be paid. County policy dictates when to pay FMLA. TIP Require in policy use of all paid time off to be used under FMLA
What is FMLA? FMLA entitles employees to have 12 weeks of job protected leave (paid or unpaid) in a 12-month period for specified family and medical reasons.
Reasons for FMLA For the birth, adoption or foster care placement of a child
Reasons for FMLA To care for an immediate family member with a serious health condition. Spouse, Child or Parent
Reasons for FMLA When the employee is unable to work because of their own serious health condition.
Military Qualifying Exigency Leave 1) Qualified employee: 12 weeks of leave in a 12 month period for: Spouse, child or parent of the employee is on or called to active duty in the armed forces. Reserves National Guard Retired Does Not Extend FMLA 12 weeks
Military Qualifying Exigency Leave Defined as: 1. Short term deployment (7 days) 2. Military events and related activities 3. Childcare and school activities 4. Financial and legal arrangements 5. Counseling 6. Rest and recuperation (5 days) 7. Post deployment activities (during first 90 days home) 8. Any additional agreed upon activities
Military Care Giver Leave 2) Qualified employee: up to 26 weeks of leave in a single 12 month period to care for: Spouse, child, parent or next of kin recovering from a serious injury or illness sustained while on active duty in the military. Leave is applied per-service member, per-injury basis but no more than 26 weeks in single 12 month period. Does extend FMLA 12 weeks to up to 26 weeks.
Military Care Giver Leave Reasons for leave: Undergoing medical treatment, recuperation, or therapy that was incurred in the line of duty In military outpatient treatment On the temporary disability retired list for a serious illness or injury that occurred in the line of duty.
Intermittent Leave May be taken when medically necessary to care for a seriously ill family member or because of the employees own serious health condition. Usually Chronic Conditions
Intermittent Leave May be taken to care for a newborn, newly adopted or newly placed foster child with county approval.
Serious Health Condition Def. Physical or mental condition Pregnancy or prenatal care Chronic, serious health condition (2 visits/year) Lasts for > 3 full days 2 visits to health care provider within first 30 days of incapacity 1 visit to health care provider within first 7 days and a regimen of continuing treatment (prescription)
Medical Certification A county may require that the need for leave for a serious medical condition be supported by a certification from health care provider. The county must allow 15 calendar days to obtain.
Medical Certification Medical recertification s for intermittent leave can only be required every 6 months and in connection with an absence Employer must provide written notice of requirement to provide fitness for duty
What is a Health Care Provider? Doctor, Podiatrist, Dentist, Clinical Psychologist, Optometrist, Chiropractor and the list goes on
Employee Protections A covered employee: Maintains county-paid benefits Be restored to their original job or equivalent job in terms of pay, benefits and other conditions of employment.
Employee Notification No magic language needed just sufficient information for county to understand the employee needs leave for an FMLA qualifying event. 30 day notice for foreseeable leave or as soon as practicable when leave is not foreseeable. Tip: I m having surgery action required.
Employer Notification Post the notice approved by the Secretary of Labor Include information about employee rights in handbook Must provide written notice designating leave as FMLA
FMLA Supervisor Duties Recognize the need to designate a leave as Family Medical Leave Cooperate with employees seeking leave Be cautious when dealing with attendance problems
FMLA Supervisor Duties Be consistent!!!! Make certain employees understand their rights Don t retaliate against employees who request or take FMLA
DOL FORMS New forms Notification and Designation WH-381 Notice of Eligibility and Rights and Responsibilities WH-382 Designation Notice www.dol.gov
DOL Forms New forms Medical Certification WH-380-E Certification of Health Care Provider for Employee s Serious Health Condition WH-380-F Certification of Health Care Provider for Family Member s Serious Health Condition
DOL Forms New forms Military Family Leave WH-384 Certification of Qualifying Exigency for Military Family Leave WH-385 Certification for Serious Injury or Illness of Covered Service member for Military Family Leave
Summary of FMLA/MFLA Regulatory Changes Substitution of paid leave can include: Vacation, Sick, Personal Leave, Worker s Compensation Leave, Short-term Disability, Compensatory Time
Summary of FMLA/MFLA Regulatory Changes Can deny perfect attendance awards based on taking FMLA leave, as long as you treat all other absences the same way Count FMLA leave allotment in weeks or fraction of weeks for altering schedules Must provide written notice of eligibility and rights within 5 business days (WH-381) Must provide written designation notice within 5 business day (WH-382)
Summary of FMLA/MFLA Regulatory Changes Employer never the immediate supervisor may contact the health care provider regarding information provided on the medical certifications (WH-380-E or WH-380-F) but to authenticate or clarify what is written on the form If certification is incomplete, you must notify the employee in writing and give them 7 days to correct
Summary of FMLA/MFLA Regulatory Changes Must provide information regarding how to report a complaint regarding FMLA/MFLA to the DOL in your employee handbook Employee may reject light duty and elect FMLA/MFLA leave instead, however, if the employee accepts light duty it may not be counted toward FMLA/MFLA TIP Place poster in employee handbook
Summary of FMLA/MFLA Regulatory Changes May track leave increments as small as 1 hour, but may not charge for any time spent working. If it is physically impossible for employee to access the worksite after start time, entire period employee is forced to be absent is counted as FMLA leave.
Summary of FMLA/MFLA Regulatory Changes Holidays that occur during a full week of FMLA count as FMLA, but if the employee works during the holiday week and is not scheduled to work on the holiday, the holiday is not counted as FMLA leave. If employer requires or permits use of paid time off while on leave, employer must notify employee of their requirements in writing.
Summary of FMLA/MFLA Regulatory Changes Poster must be posted where all employees and all applicants have access, $110 fine for failure to do so. Needed to care for a family member with a serious health condition does not require that the employee be the only person available to provide the care care does include psychological care
What now? Don t interfere with an employees rights to FMLA/MFLA Don t retaliate against any employee for taking or asking for FMLA/MFLA Remember as a supervisor if you violate an employee s rights under the FMLA, you may be personally liable.
What now? Make certain your FMLA/MFLA policies are up to date Make certain you use the new FMLA/MFLA forms Make certain you have the new FMLA/MFLA posters up and available to all employees and applicants Make sure all supervisors in your county understands the changes to the FMLA/MFLA
QUESTIONS?
FMLA/MFLA ISSUES What a Supervisor Needs to Know