BASIC FAMILY MEDICAL LEAVE ACT
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Allen C. Dobson Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, Arkansas 72201 (501) 371-9999 PowerPoint PPT Presentation


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BASIC FAMILY MEDICAL LEAVE ACT ARKANSAS SCHOOLS BOARD ASSOCIATION Embassy Suites May 1, 2013. Allen C. Dobson Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, Arkansas 72201 (501) 371-9999 [email protected] www.cgwg.com. Important Goals.

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Allen C. Dobson Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, Arkansas 72201 (501) 371-9999

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Allen c dobson cross gunter witherspoon galchus p c 500 president clinton avenue suite 200 little rock arkansas 72201 501 371 9999

  • BASIC FAMILY MEDICAL LEAVE ACT

  • ARKANSAS SCHOOLS BOARD ASSOCIATION

  • Embassy Suites

  • May 1, 2013

Allen C. Dobson

Cross, Gunter, Witherspoon & Galchus, P.C.

500 President Clinton Avenue, Suite 200

Little Rock, Arkansas 72201

(501) 371-9999

[email protected]

www.cgwg.com


Important goals

Important Goals

  • Don’t Try To Be A Doctor!

  • Some obligations under FMLA conflict with prohibitions under ADA!

  • Eliminate “Disability” from Vocabulary!

    • This is for lawyers, judges, and juries

  • Be Patient!


Family medical leave act

FAMILY MEDICAL LEAVE ACT


Allen c dobson cross gunter witherspoon galchus p c 500 president clinton avenue suite 200 little rock arkansas 72201 501 371 9999

SUPERVISORS CAN BE HELD INDIVIDUALLY LIABLE!


Covered employers

Covered Employers

  • 50 or more employees in 20 or more calendar weeks in the current or previous year


Covered employers and employees

Covered Employers and Employees

  • The FMLA entitles eligible employees to take up to twelve (12) weeks of unpaid, job protected leave during a twelve month period as a result of the employee’s serious health condition, or to take care of an immediate family member who has a serious health condition


Employee eligibility

Employee Eligibility

  • Just being employed does not establish eligibility!

  • Employee must:

    • Be employed for at least 12 months

    • Performed at least 1,250 hours of service during past 12 months

    • Be employed within 75 miles of 50 employees


Employee eligibility1

Employee Eligibility

  • Must have one year of service which need not be continuous; if employee has 7-year break in service, service that is more than 7 years old does not need to be counted unless:


Employee eligibility2

Employee Eligibility

  • Break was due to National Guard or Reserve military Service (which service also counts as service for FMLA); or

  • Written agreement (including CBA) exists regarding employer’s intention to rehire employee after the break in service


Employee eligibility3

Employee Eligibility

  • Burden on employee to prove employment more than 3 years old, since an employer only has to keep FMLA records for 3 years*

    • * Lilly Ledbetter Fair Pay Act


Employee eligibility while on leave

Employee Eligibility While on Leave

  • If employee meets one-year service requirement while on non-FMLA leave, employee becomes eligible on that date; leave prior to one-year service date is non-FMLA leave and leave on or after one-year service date is FMLA leave


Serious health condition

Serious Health Condition

  • A serious health condition that is not an overnight stay in a facility requires “two visits to a health care provider”

  • The new rules provide that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider must take place within seven (7) days of the first day of incapacity


Medical definitions

Medical Definitions

  • “Period of incapacity” exists if:

    • Duration of incapacity lasts more than 3 full consecutive calendar days;

    • There is an in-person treatment at least once within 7 days of first day of incapacity; and

    • There is either is a regimen of continuing treatment initiated by HCP during first treatment or there is a second in-person visit for treatment (the necessity of which is determined by HCP) within 30 days of first day of incapacity


Chronic health condition

Chronic Health Condition

  • “Periodic visits” for the purposes of a chronic serious health condition means at least two visits to a health care provider per calendar year


Fmla examples of serious health conditions

FMLA: Examples of Serious Health Conditions


Real examples of serious health conditions

Real Examples of Serious Health Conditions

  • In-patient care

  • Prenatal care

  • Heart Attacks

  • Strokes


Examples of serious health conditions

Examples of Serious Health Conditions

  • Pneumonia

  • Severe Arthritis

  • Back surgery/therapy

  • Serious accidental injuries


Examples of serious health conditions1

Examples of Serious Health Conditions

  • Ongoing pregnancies

  • Severe morning sickness

  • Miscarriages

  • Childbirth and recovery

  • Allergies

  • Stress

  • Drug/Alcohol abuse


Non serious health conditions

Non-Serious Health Conditions

  • Short-term conditions

  • Out-patient surgical procedures

  • Voluntary or cosmetic treatments

  • (Unless any of the above require in-patient care)


Definition of spouse

Definition of “Spouse”

  • Husband or wife, under state law

  • It does not include unmarried domestic partners


Definition of children

Definition of “Children”

  • Biological, adopted, foster child, stepchild, legal ward, or a child for whom the employee acts as parent; and:

    • Under 18; or

    • If over 18, is not capable of self care because of mental or physical disability


Fmla leave to care for adult children

FMLA: Leave to Care for Adult Children

  • Employees may take FMLA leave to care for a child age 18 or older who is “incapable of self-care because of a mental or physical disability”

  • The child must meet both requirements:

    • Incapable of self-care AND

    • Have a mental or physical disability


Incapable of self care

Incapable of Self-Care

  • Requires active assistance or supervision to provide daily self-care in 3 or more “activities of daily living” (ADLs)

    • Includes caring appropriately for grooming and hygiene, bathing, dressing and eating; or

  • “Instrumental activities of daily living” (IADLs)

    • Includes cooking, shopping, taking public transportation, paying bills, maintaining a residence, using phones and directories, using post offices, etc.


Physical or mental disability

Physical or Mental Disability

  • Physical or mental impairment that substantially limits one or more of the major life activities of an individual

  • Includes: developmental disabilities, brain damage, paralysis, long term serious illness

  • Does NOT include temporary conditions, such as pregnancy and routine out-patient surgery


Definition of parent

Definition of “Parent”

  • Biological parents

  • Person who filled a parental role for the employee when the employee was a child


Job restoration rights

Job Restoration Rights

  • The same position; or

  • An equivalent position

    • Same benefits, pay and other terms and conditions of employment

    • Same or substantially similar duties and responsibilities

      • (skill, effort, responsibility, and authority)


Paid time off

Paid Time Off

  • Employer may enforce its normal rules for use of vacation, sick days, PTO and other paid time off benefits even if they are less or more stringent than FMLA requirements


Paid time off1

Paid Time Off

  • If employee does not comply with employer’s rules, employee can still take FMLA leave, but without using paid time off benefits while on leave

  • (unless employer waives its normal rules, which would be required in order to force an employee to use the paid time off benefits) – Employer needs to be consistent.


Paid time off2

Paid Time Off

  • Example: Under employer’s policy, vacation can only be used in 8-hour increments, but employee has 2-hour FMLA absence

  • Employee can choose to take 8 hours of FMLA leave and receive 8 hours of vacation pay for it or take 2 hours of unpaid FMLA leave

  • Comment to § 825.207


Paid time off3

Paid Time Off

  • If employer requires or permits use of paid time off benefits while on leave, the employer must notify employee (in or with new Notice of Eligibility and Rights and Responsibilities WH-381) of employer’s requirements for using paid time off and of employee’s right to still take FMLA leave even if employee fails to meet those requirements

  • § 825.307(a)


Medical certification process

Medical Certification Process

  • The new Regulations acknowledge that HIPAA privacy rules apply to employees’ health care providers (HCPs) when dealing with certification

  • The Regulations now allow specific employer representatives to contact a HCP for clarification and authentication

  • § 825.307(a)


Medical certification process1

Medical Certification Process

  • The new forms are:

    • WH-380E – Certification of Health Care Provider for Employee’s Serious Health Condition

    • WH-380F – Certification of Health Care Provider for Family Member’s Serious Health Condition


Medical certification process2

Medical Certification Process

  • Medical certification for a particular condition is in effect for duration of leave as specified on the certification

  • If certification indicates that employee needs leave for that condition beyond a single leave year (e.g., intermittent or reduced schedule leave), a new certification can be required annually

  • § 825.305(e)


Medical recertification

Medical Recertification

  • Permitted at any time:

    • If extension to leave needed

    • If significant change in certification (complications, duration/frequency of absences, nature/severity of illness)

    • If employer receives information casting doubt upon continuing validity of certification


Medical recertification1

Medical Recertification

  • Language added to

  • (b) “significant change” includes pattern of absences before/after scheduled days off, or longer duration of absences than specified on certification for most recent two or more episodes of incapacity


Medical recertification2

Medical Recertification

  • If employer receives information casting doubt upon employee’s stated reason for absence

  • (“doubt” could include reliable information that employee’s off-duty activities are inconsistent with need to FMLA leave)


Medical recertification3

Medical Recertification

  • Employer may also provide employee’s doctor with a record of employee’s absence pattern and ask doctor if the condition and need for leave are consistent with such a pattern


Fitness for duty

Fitness for Duty

  • The new rules provide that an employer may now require that the Certification (WH-380E) specifically address the employee’s ability to perform the essential functions of the employee’s job


Fitness for duty1

Fitness for Duty

  • For intermittent leave - allows an employer to require a fitness-for-duty certification before an employee may return to work where reasonable job safety concerns exist, and if the employer:


Fitness for duty2

Fitness for Duty

  • Informs the employee that each subsequent instance of intermittent leave will require a fitness-for-duty certification unless one has been submitted within the past 30 days

    • This notice must be provided at the same time as the designation notice


Substitution of paid leave

Substitution of Paid Leave

  • Previously there were different procedural requirements for different types of paid leave (personal, vacation, sick, etc.)

  • Under new Regulations all forms of leave are treated the same

  • Employee electing to use paid leave concurrently with FMLA must follow employer’s policy regarding that type of paid leave


Employee notice requirements

Employee Notice Requirements

  • When requesting leave first time for a particular FMLA-qualifying reason, an employee must provide sufficient information, depending on the situation (e.g., state a qualifying reason, explain reason leave is needed, provide anticipated timing and duration of leave if foreseeable), for an employer to reasonably determine whether FMLA may apply


Employee notice requirements1

Employee Notice Requirements

  • Calling in “sick” is not enough


Employee notice requirements2

Employee Notice Requirements

  • When subsequently requesting leave for the same FMLA-qualifying reason for which leave has previously been provided, the employee should specifically reference the qualifying reason or state “FMLA” leave


Employee notice requirements3

Employee Notice Requirements

  • When sufficient notice provided that time off may be for an FMLA purpose:

    • Employer required to ask employee for any additional necessary information

    • Employee must respond to the request


Employee notice requirements4

Employee Notice Requirements

  • Employee must consult with employer in advance to make “reasonable effort” to schedule planned treatment so as not to unduly disrupt operations

  • Employee must advise employer as soon as practicable when dates of leave change or become known


Employer notices

Employer Notices

  • Employer must notify employee in writing of eligibility or non-eligibility within 5 business days (absent extenuating circumstances) after the first time in the employer’s FMLA leave year that an employee requests leave for a particular qualifying reason, and thereafter during the same FMLA leave year, only if the employee’s eligibility status changes (even if a subsequent request is for a different qualifying reason)


Updated fmla forms

Updated FMLA Forms

  • WH-380 E – Certification of Health Care Provider for Employee’s Serious Injury

  • WH-380 F – Certification of Health Care Provider for Family Member’s Serious Health Condition

  • WH-381 – Notice of Eligibility and Rights & Responsibilities

  • WH-382 – Designation Notice

  • WH-384 – Certification of Qualifying Exigency for Military Family Leave

  • WH-385 – Certification for Serious Injury or Illness of Covered Servicemember


Fmla amendments

FMLA Amendments

  • Passed in January 2008 as part of the National Defense Authorization Act

  • Provide that employees may take leave:

    • To care for an injured servicemember with a serious injury or illness incurred in the line of duty; or

    • For a “military exigency”


Regulations

Regulations

  • The Regulations provide guidance on how to implement the military provisions

  • The Regulations also clarify, update, and alter the existing FMLA rules


Fmla amendments1

FMLA Amendments

  • Passed in January 2008 as part of the National Defense Authorization Act

  • Provide that employees may take leave:

    • To care for an injured servicemember with a serious injury or illness incurred in the line of duty; or

    • For a “military exigency”


Regulations1

Regulations

  • The Regulations provide guidance on how to implement the military provisions

  • The Regulations also clarify, update, and alter the existing FMLA rules


Injured servicemember leave

Injured Servicemember Leave

  • Family members of covered servicemembers can take up to 26 workweeks of leave in a “single 12-month period”

  • The servicemember has to have been injured in the line of duty

  • Extends the right to leave to additional family members or “next of kin”


Injured servicemember leave1

Injured Servicemember Leave

  • Who is a covered servicemember?

    • A “current member of the Armed Forces, including a member of the National Guard or Reserves, or a member of the Armed Forces, the National Guard, or Reserves


Injured servicemember leave2

Injured Servicemember Leave

  • Who is a covered servicemember?

    • One who is on the temporary disability retired lists, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or otherwise in outpatient status; or otherwise on the temporary disability retired list”


Injured servicemember leave3

Injured Servicemember Leave

  • What is a serious injury or illness?

    • An “injury or illness incurred by a covered servicemember in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of his or her office, grade, rank or rating”


Injured servicemember leave4

Injured Servicemember Leave

  • “Next of kin” is defined as the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority:

    • blood relatives who have been granted legal custody of the covered servicemember

    • brothers and sisters

    • grandparents

    • aunts and uncles, and first cousins


Injured servicemember leave5

Injured Servicemember Leave

  • Unless the servicemember has designated another blood relative, then that person is the next of kin

  • If no designation, more than one next of kin may take leave consecutively or simultaneously


Injured servicemember leave6

Injured Servicemember Leave

  • The single “12-month period” begins on the first day the employee takes leave and ends 12 months after that date

  • It is the only method that can be used for calculation of servicemember leave


Qualifying exigency

“Qualifying Exigency”

  • Must arise out of the fact that family member was on active duty or notified of a call to active duty

  • Must be Reserve or National Guard component of the military


Exigencies

Exigencies

  • An exhaustive list of 8 items

    • If the situation is not on the list, then it is not an exigency


1 short notice deployment

#1 Short Notice Deployment

  • To address any issue that arises from the fact that a covered military member is notified of an impending call to active duty seven or less calendar days prior to the date of deployment

  • Leave taken for this purpose can be used for a period of seven calendar days beginning on the date a covered military member is notified of an impeding call to duty


2 military events and related activities

#2 Military Events and Related Activities

  • To attend any official ceremony, program, or event sponsored by the military that is related to the active duty or call to active duty status of a covered military member

  • To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status


2 military events and related activities1

#2 Military Events and Related Activities

  • Intended to cover (among other things) the following:

    • Leave taken for arrival and departure ceremonies

    • Pre-deployment briefings

    • Briefings for the family during the period of deployment

    • Post-deployment briefings


3 childcare and school activities

#3 Childcare and School Activities

  • To arrange for alternative childcare when the active duty status of a covered military member necessitates a change in the existing childcare arrangement of a child, foster child, legal ward, etc.


3 childcare and school activities1

#3 Childcare and School Activities

  • To provide childcare on an urgent, immediate need basis

  • To enroll in or transfer a child if necessitated by the active duty

  • To attend meetings with staff, teachers, etc. when necessitated by the active duty


3 childcare and school activities2

#3 Childcare and School Activities

  • Examples:

    • Leave to enroll child in summer camp if covered military member is still on active duty

    • Leave to care for the sick child of a covered military member that needs to immediately be picked up from daycare

      • Not for routine everyday situations


3 childcare and school activities3

#3 Childcare and School Activities

  • Attend school meetings that are necessary due to the circumstances arising from the active duty

    • Not for routine meetings such as PTA or for academic concerns


4 financial and legal arrangements

#4 Financial and Legal Arrangements

  • To make or update financial or legal arrangements to address the covered military member’s absence

  • To act as the military member’s representative for the purpose of obtaining military service benefits

  • Intended to address issues directly related to the military member’s absence

    • Not routine matters such as paying bills


5 counseling

#5 Counseling

  • To attend counseling provided by someone other than a healthcare provider for the employee, military member or children or legal ward of the military member

    • The need for counseling must arise from the active duty status


5 counseling1

#5 Counseling

  • Intended to cover counseling not already covered by the FMLA because provider is not recognized as a health care provider

  • Includes counseling provided by a military chaplain, pastor, or minister, or counseling offered by the military or a military service organization


6 rest and recuperation

#6 Rest and Recuperation

  • To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment

  • Eligible employees may take up to five days of leave for each instance of rest and recuperation


7 post deployment activities

#7 Post-deployment activities

  • To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony for a period of 90 days

  • To address issues that arise from the death of a military member while on active duty


7 post deployment activities1

#7 Post-deployment activities

  • The 90-day time frame is intended to cover any programs considered to be 90-day reintegration programs sponsored by the Department of Defense

  • An event that is part of that reintegration program should be considered a qualifying exigency even though it might fall a few days outside the period of 90 days


8 additional activities

#8 Additional Activities

  • To address anything else that requires leave which arises out of the military member’s active duty

  • The employer and employee must agree to both the timing and duration of the leave

  • Intended to provide some flexibility for both employees and employers to address unforeseen circumstances


Exigency leave

Exigency Leave

  • Changes the definition of “son or daughter”

    • Normal FMLA definition

      • Under 18 years of age; or

      • 18 years of age or older and incapable of self-care


Exigency leave1

Exigency Leave

  • New Definition

    • “An employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on active duty or call to active duty status, and who is of any age”


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