LEGAL UPDATE March 11, 2009

1. AKRON SOCIETY FOR HUMAN RESOURCE MANAGEMENT Understanding the New FMLA Regulations/Military Leave Provisions and How to Administer Them LEGAL UPDATEMarch 11, 2009

2. Presented by: Gina A. Kuhlman Partner 1375 E. Ninth Street 222 South Main StreetOne Cleveland Center Akron, OH 44308 Ninth Floor 330.849.6768Cleveland, OH 44114 330.376.4577 fax 216.820-4202 216.623.0134 fax Email: gkuhlman@ralaw.comwww.ralaw.com

3. The Intent Behind the FMLA • The FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons • Amendments provide for new military leave entitlements to care for a covered servicemember and to take protected leave due to a qualifying exigency

4. Qualifying Reasons for Leave • 12 weeks for Family and Medical Reasons: • to care for the employee’s child after birth, or placement in the employee’s home for adoption or foster care • to care for the employee’s spouse, child or parent who has a serious health condition • for a serious health condition that makes the employee unable to perform the functions of his or her position

5. Qualifying Reasons for Leave • Leave to Care for a Covered Servicemember • up to 26 weeks of leave during a single 12-month period to care for a spouse, child, parent or next of kin who is a covered servicemember • who has a serious injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform his or her duties for which the servicemember is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list

6. Qualifying Reasons for Leave • Military Exigency • eligible employees with a spouse, son, daughter or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week FMLA entitlement for certain qualifying exigencies

7. Military Caregiver Leave • A covered servicemember is: • a current member of the Armed Forces, including a member of the National Guard or Reserves • “Next of kin” means: • in addition to spouse, parent, son or daughter • a blood relative designated in writing by the servicemember as his or her nearest blood relative for purposes of military caregiver leave, or, if no designation, • all family members with the same nearest level of relationship to the covered servicemember

8. Military Caregiver Leave • Certification of “next of kin”: • employers may require confirmation of a covered family relationship; • however, • the regulations also provide that the documentation may take the form of a simple statement from the employee.

9. Military Caregiver Leave • Right to intermittent leave includes: • situations in which the condition of the servicemember is itself intermittent, and also • situations in which the employee is needed only intermittently, including when care responsibilities are shared with another family member or third party

10. Qualifying Exigency Leave • Qualifying exigencies include: • short notice deployment; • military events and related activities; • childcare and school activities; • financial and legal arrangements; • counseling; • rest and recuperation; • post-deployment activities; and, • additional activities to address other events arising out of the servicemember’s active duty or call to active duty status, provided the employer and employee agree that such leave shall qualify as an exigency and agree to the timing and duration of such leave.

11. Qualifying Exigency Leave • Certification: • Documentation to confirm active duty or call to active duty • a copy of the servicemember’s active duty orders • other documentation from the military certifying active duty, or notification of a call to active duty, in support of a contingency operation

12. Qualifying Exigency Leave • Certification • Documentation supporting need for leave due to exigency may include, for example: • copy of a meeting announcement for briefings sponsored by the military • document confirming an appointment with a counselor or school official • copy of a bill for services for handling of legal or financial affairs • contact information for individual or entity with whom the employee is meeting, if leave is due to meeting with a third party • estimated period of exigency and, if for periodic absences, estimated dates of scheduled appointments

13. FMLA Coverage Basics • Who is covered? • Employees who work for an employer with 50 or more employees in a 75-mile radius and who have 12 months of service and have worked at least 1250 hours • Update: Where an employee has not met both requirements of 12 months of service and 1250 hours worked, any leave provided by the employer but preceding the eligibility threshold: • will not be counted as FMLA leave • will be counted toward 12-month eligibility criteria

14. How are the time periods calculated? • The 1250 hours eligibility requirement is for the prior 12 months as of the date leave commences. For example, if an employee needs leave beginning June 15, 2007, the inquiry is whether the employee has worked 1250 hours from June 15, 2006 through June 14, 2007. • Determined under FLSA principles for actual hours worked. For exempt/salaried employees for whom no record of hours worked is kept, the employer has the burden of establishing the employee has not worked 1250 hours.

15. How are the time periods calculated? • The entitlement to 12 weeks of leave within a 12-month period is calculated under one of four options chosen by the employer. • the calendar year • any fixed 12-month “leave year” such as a fiscal year or year starting from employee’s anniversary date

16. How are the time periods calculated? • The 12-month period measured forward from the date any employee’s first FMLA leave begins; or • an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12- month period would begin the first time FMLA leave is taken after completion of any previous 12-month period

17. How are the time periods calculated? • A “rolling” 12-month period measured backward from the date the employee uses FMLA leave • each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 1994, four weeks beginning June 1, 1994, and four weeks beginning December 1, 1994, the employee would not be entitled to any additional leave until February 1, 1995. However, beginning on February 1, 1995, the employee would be entitled to four weeks of leave, on June 1 the employee would be entitled to an additional four weeks, etc.

18. How are the time periods calculated? • Military Caregiver Leave: • eligible employees are entitled to take 26 weeks to care for a covered servicemember in a 12-month period beginning on the date the employee first takes leave to care for a covered servicemember • this “rolling” method will govern regardless of the employer’s method for determining the employee’s 12-week leave entitlement for other FMLA-qualifying reasons • total FMLA leave need not exceed 26 weeks in a twelve month period

19. Do Holidays Count? • Holidays will not be counted against an employee’s FMLA leave when the employee requires less than a full week of FMLA and a holiday falls within that partial week of leave • Employees on leave an entire week may be charged with a full week of FMLA leave, even if the employer is closed for a holiday during that week

20. Serious Health Condition • An illness, injury, impairment, or physical or mental condition that involves either: • Any period of incapacity or treatment connected with inpatient care (i.e., 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 involving a period of incapacity of more than three (3) consecutive full calendar days that involves:

21. Serious Health Condition • (Continuing Treatment continued) • treatment two (2) or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health services (e.g. physical therapist) under orders of, or on referral by, a health care provider when the first in-person visit takes place within seven (7) days of the first day of incapacity; or,

22. Serious Health Condition • (Continuing Treatment continued) • treatment by a health care provider on at least one (1) occasion within seven (7) days of the first day of incapacity that results in a regimen of continuous treatment • Any period of incapacity due to pregnancy or prenatal care

23. Serious Health Condition • Any period of incapacity or treatment for incapacity due to a chronic serious health condition, which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g. asthma, diabetes). • Update: “periodic visits” for chronic serious health conditions is defined as at least two (2) visits per year

24. Serious Health Condition • A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or • Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).

25. New Certification Forms • Notice of Eligibility and Rights and Responsibilities • Designation Notice • Certification of Employee’s Serious Health Condition • Certification of Family Member’s Serious Health Condition • Certification for Serious Injury or Illness of Covered Servicemember • Certification of Qualifying Exigency for Military Family Leave

26. Employer Notices • The amount of time an employer has to respond to an employee’s request for leave is increased from two (2) business days to five (5) business days. • If an employee is not eligible for FMLA leave, the eligibility notice must provide at least one reason why. • Designation notices are required within five (5) business days of the receipt of a medical certification.

27. Medical Certification • If a medical certification is incomplete or insufficient: • The employer must specify in writing what information is lacking and give the employee seven (7) calendar days to cure the deficiency, unless not practicable

28. Medical Certification • Contacting health care providers to clarify or authenticate certification • Final rule specifies that the employer’s representative contacting the health care provider must be a health care provider, human resource professional, a leave administrator, but in no case may it be the employee’s direct supervisor • Employee must still provide consent

29. Medical Certification • Recertification: • Final Regulations codify a DOL Opinion letter providing that employers may request a new medical certification each leave year for medical conditions that last longer than one year • Regulations clarify that employers may request medical re-certifications for continuing, open-ended conditions every six (6) months in conjunction with an absence

30. Medical Certification • Fitness-for-Duty • Employers may require fitness-for-duty certifications that specifically address the employee’s ability to perform the essential functions of the employee’s job • Employers may ask for fitness-for-duty certifications for intermittent leave if reasonable job safety concerns exist • Employers must provide a list of essential functions with the designation notice

31. Other Highlights • Attendance Bonuses • Employers may disqualify an employee from an attendance bonus where the employee fails to achieve the attendance goal due to FMLA leave, so long as the disqualification applies to all forms of leave • Retroactive Designation • Employers may retroactively designate leave as FMLA-leave, “provided” the employer’s failure to timely designate leave does not cause harm or injury to the employee

32. Other Highlights • Overtime • Where an employee would normally be required to work overtime, but cannot do so because of an FMLA-qualifying condition, the employee may be charged FMLA leave for the hours not worked • Waivers • Regulations clarify that employees may voluntarily settle or release past FMLA claims. Prospective waivers remain prohibited

33. Gina’s practice is focused on representation of management interests in labor and employment law. She counsels and represents management in the areas of employment-law compliance issues, preparation of personnel policies and employment agreements, and has successfully defended numerous discrimination and other wrongful termination claims at the agency level and in both state and federal courts. She also represents employers in collective bargaining negotiations, arbitrations, unfair labor practice proceedings and related court actions. AKRON 222 South Main StreetAkron, Ohio 44308Phone: (330) 849-6768Fax: (330) 376-4577Fax: (216) 623-0134gkuhlman@ralaw.com CLEVELAND 1375 East Ninth StreetOne Cleveland Center, 9th Floor Cleveland, Ohio 44114Phone: (216) 820-4202Fax: (216) 623-0134gkuhlman@ralaw.com Gina Kuhlman Partner

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