Jill M. Lashay, Esquire Shareholder Buchanan Ingersoll & Rooney, PC 213 Market Street, 3 rd Floor

1. Jill M. Lashay, Esquire Shareholder Buchanan Ingersoll & Rooney, PC 213 Market Street, 3rd Floor Harrisburg, Pennsylvania 17101 (717) 237-4800 jill.lashay@bipc.com Advancements and Amendments to the Ever-Complex FMLA HUMAN RESOURCE PROFESSIONALS OF CENTRAL PENNSYLVANIAChapter MeetingMarch 23, 2010

2. WHAT’S SO COMPLEX ABOUT THE FMLA? 12 weeks of unpaid leave, Continuation of group benefits, and Return to the same or similar position

3. EVERYTHING!!! • Determining coverage • Determining employee eligibility • Notifying employees of their right for leave • Managing the leave • Returning employees from leave

4. Why We Need to Manage These Complexities • Compliance challenges • Result = Ripe for litigation • Easy to bring an action under the FMLA. • No administrative exhaustion prerequisites. • Longer statute of limitations (two years generally, and three years if the employer’s conduct is willful).

5. Why We Need to Manage These Complexities • Claims that an employee was denied FMLA leave are not subject to the burden-shifting rules associated with EEO litigation. • There is no statutory cap on damages. • Although the statute purports to limit damages to out-of-pocket and economic losses, recent case law has opened the door for possible exposure of employers to a wider range of damages.

6. Employer Notice Obligations There are four main notice requirements for employers: (1) general notice (2) eligibility notice (3) rights and responsibilities notice, and (4) designation notice. The eligibility and rights and responsibilities notices can be combined. • It is recommended that covered employers use the prototype forms included in the appendices to the regulations.

7. Employer Notice Obligations • Employers must post FMLA notice…as original rules required. • Electronically, if all applicants and employees and have access to the posting • Different language at different locations…if a significant portion of workers are not literate in English • All covered employers must post the notice…regardless of whether any of their employees is actually eligible to take FMLA leave. • Put it in a handbook or provide at time of hire.

8. “Eligibility” Notice • Employers must give notice that employee is or is not eligible to take FMLA leave within five business days (original rule provided two days), absent extenuating circumstances. • Eligibility notice addresses onlywhether the employee meets the statutory eligibility criteria for leave. • If the employee is not eligible for FMLA leave, this notice must give at least one reason why not. • Eligibility notice may be oral or written. • If employee has a subsequent need for FMLA leave during the 12-month period and eligibility status has not changed, employer does not need to provide another eligibility notice. • However, if the employee’s eligibility status has changed, the employer must notify the employee of the change in status within five business days, absent extenuating circumstances.

9. “Eligibility” Notice • Notice MUST state: • the employee’s rights and responsibilities, • that the leave may be designated and counted against the employee’s annual FMLA entitlement, • the applicable 12-month period the employer uses for determining FMLA leave entitlement, and • that the employee is required to provide certification of a serious health condition or qualifying exigency in the case of military family leave. • Employers may, but are not required, to include the medical certification form with the notice.

10. “Designation” Notice • The employer must provide notice that the leave has or has not been approved and designated as FMLA qualified. • The employer has five business days after obtaining sufficient information to determine whether the requested leave is FMLA-qualifying to give employees this notice. • The designation must contain the number of hours, days or weeks that will be designated as FMLA leave. • If the exact amount of leave is unknown and expected to continue for an extended period of time, the employer should provide this notice every 30 days. • The notice must include a list of essential job functions, if the employer requires a fitness-for-duty certification that addresses the employee’s ability to perform those functions.

11. “Designation” Notice • If the leave is not deemed qualifying, the designation notice must inform the employee of why (e.g., insufficient information or leave request was for non-qualifying reason). • If the information on the designation notice changes, the employer is required to notify the employee of the change within five business days of receipt of the employee’s first notice of the need for leave subsequent to any changes. • Only one designation notice is required for each FMLA-qualifying reason for leave in an applicable 12-month period.

12. Employer Notice Obligations • The employer may give the employee both the eligibility and designation notices at the same time. • An employer's failure to comply with the notice requirements may be deemed an interference with an employee’s FMLA rights. See, e.g., Maldanado v. The Pictsweet Co., No. 09-1166, 2009 WL 4023135 (W.D. Tenn. Nov. 17, 2009). • If an employee can demonstrate harm as a result of the employer's failure to provide eligibility or designation notice, an employer may be liable for the harm suffered (e.g., lost compensation and benefits, other monetary losses and appropriate equitable or other relief, including employment, reinstatement, or promotion). Moreover, the employer can be barred from raising the defense that the employee was not eligible for FMLA leave. Weidner v. Unity Health Plans Ins. Corp., 606 F.Supp.2d 949, 957 n.2 (W.D. Wis. 2009).

13. Joint Employers • Employee is jointly employed by two or more employers: • employee’s worksite is the primary employer's office from which the employee is assigned or reports, unless the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee’s worksite is that location. • “Virtual” employees, or those who telecommute and work out of their homes are considered to work in the office to which they report and from which assignments are made. • Professional Employer Organizations (perform administrative functions) are only joint employers if the PEO has the right to hire, fire, assign, direct and control the employees or benefits from the work that the employees perform.

14. Nonconsecutive Periods of Service • Employers are required to count any service an employee had with an employer prior to a break in service of up to seven years towards her/his 12-month eligibility threshold. • The FMLA requires employers to keep records for three years. If those employers base a determination that an employee is not eligible to take FMLA leave based on those records, the employee will have to submit proof of her/his periods of employment for years four through seven to demonstrate eligibility. • Employees who take breaks in service to fulfill National Guard or Reserve military service obligations have no limit in the gap between periods of employment.

15. Serious Health Condition • Meeting the definition (when no regime of treatment): • Must be leave for a medical condition involving more than three consecutive calendar days of incapacity and two visits to a health care provider which occur within 30 days of the period of incapacity. • Example: Employee visits a health care provider and is told not to report to work for more than three days because of a health condition, but is not prescribed any medication. Whether it is SHC under FMLA depends on whether additional treatment is needed at a follow-up appointment within 30 days of the beginning of the initial period of incapacity. • For a chronic serious health condition to be present, an employee must make at least two visits per year to a health care provider. • Pregnancy or chronic conditions qualify for FMLA leave even if the employee or covered family member does not receive treatment from a health care provider during the absence and even if the absence does not last for more than three consecutive, full calendar days.

16. Medical Certification • BIG CHANGE! • Employer can contact the treating health care provider. • However… • The employer representative contacting the employee’s health care provider must be either a health care practitioner, an HR professional, a leave administrator or a management official. • Direct supervisor may not contact health care provider. • This does not apply to the military family leave provisions.

17. Medical Certification • The new regulations distinguish between “authentication” and “clarification.” • If certification appears to be falsified, the employer may contact the employee’s heath care provider directly and request verification that the form was authorized. • If certification provides insufficient information, the employer may need toclarify. • The employee has 7 calendar days, unless not practicable, to cure any deficiency. • Employer must comply with HIPAA regulations. • If deficiencies are not cured, or if the employee declines to participate in this process, the employer may deny the request for FMLA leave. • Employer may give the form back to the employee and ask him or her to return the form to the physician, indicating what portion(s) of the form are unclear or what information is needed.

18. Medical Certification, cont. • Advise the employee of the consequences of failing to provide adequate certification. • DO NOT incorporate blanket medical releases into the FMLA certification form and DO NOT require employees to sign the releases as a condition of taking FMLA leave. • When both SHC and disability, employers may following the ADA’s procedures for requesting sufficient medical information to determine if a disability exists and/or what accommodation is necessary. • For second and third opinions, employees must authorize the release of relevant medical information regarding the condition for which leave is sought. • Timing of recertification: Recertification may be requested in less than 30 days if the employee requests an extension of leave, circumstances have changed significantly from the original certification, or the employer doubts the stated reason for the employee’s absence, such as when leave results in recurring Monday/Friday absences.

19. Fitness-for-duty Certification • Employer may require it, as long as there is a uniformly applied policy or practice that requires all similarly situated employees who take leave to provide such certification. • Employees have responsibility to provide a complete fitness-for-duty certification or sufficient authorization to the health care provider to provide the information directly to the employer. • Employers may only seek fitness-for-duty certification for the condition that caused the need for leave. • Employer is not entitled to a fitness-for-duty certification for each absence taken on an intermittent or reduced leave schedule. • It may request one up to once every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform her/his duties, based on the serious health condition for which the employee took leave.

20. Fitness-for-duty certification • Employer may contact the heath care provider under the same circumstances as for any other medical certification. • Employer may then require the employee’s health care provider to certify that the worker can perform the list of duties. • Employer must provide the list of duties at the same time it gives the employee the eligibility for FMLA leave notice, or the employer waives the requirement. • Employer may deny restoration until an employee submits a required fitness-for-duty certification if it provided notice of the requirement when it designated the leave as FMLA-qualifying. • Employee may be discharged if s/he fails to provide a requested fitness-for-duty certification or a new medical certification for a serious health condition when the FMLA leave is concluded.

21. Attendance/Light Duty Work • Employees retain their right to reinstatement for a full 12 weeks of leave. That right is not diminished by time spent in a full-time light duty position, because the employee is not on leave; he or she is working. • If the voluntary light duty assignment ends before the employee is able to perform her/his regular position, the employee may use the remainder of her/his FMLA leave and can to return to the same or an equivalent position, provided the employee is able to perform the essential functions of that position at the end of her/his FMLA leave. • When employees take non-FMLA leave before their 12-month anniversary date, the period of leave after the 12-month anniversary date is counted as FMLA leave.

22. Awards • FMLA leave may be counted to deny perfect attendance awards. • The DOL eliminated the distinction between attendance and production awards. • Employers can disqualify employees from bonuses or other achievements based on a job-related performance goal, such as attendance, when the employees have not met the goal because they took FMLA leave, as long as the disqualification is done in a non-discriminatory manner.

23. Miscellaneous • Holidays During FMLA Leave • If an employee needs less than a full week of FMLA leave and a holiday falls within that partial week, the holiday hours cannot be counted against the employee’s FMLA leave if the employee would not otherwise have been required to report for work that day. • If a holiday occurs within a full week of FMLA leave, the employee is charged with a full week against her/his FMLA leave entitlement. • Substitution of Paid Leave • Employers may apply their normal leave policies to the substitution of all types of paid leave for unpaid FMLA leave. • Employers are required to notify employees of any additional requirements for the use of paid leave (such as paid leave only being available in full-day increments or after completing of a specific leave request form). • If employees cannot or do not meet the employer’s requirements, they remain entitled to unpaid FMLA leave.

24. Miscellaneous, cont. • Supplementing Disability Leave with Paid Leave • Although the substitution of paid leave does not apply when the employee is receiving paid disability leave, the employer and employee may voluntarily agree, when state law permits, to supplement the disability plan benefits with paid leave. • E.g. Employee needs six weeks of leave for a FMLA-qualifying serious health condition and is covered by the employer's disability benefit plan (2/3 income during leave). Assuming the employee has not otherwise exhausted their FMLA leave entitlement, the full six weeks of leave would be FMLA-protected and would count against the employee’s FMLA entitlement. Here, neither party can require substitution of accrued paid leave because the disability leave is not unpaid. The employer and the employee may, however, agree to use accrued paid leave to supplement the amount of paid under the disability plan, if permitted by state law and by the plan itself.

25. Miscellaneous, cont. • Waiver of Rights • Employees cannot waive, nor may employers induce employees to waive their FMLA rights. • However, the DOL clarified that employees can settle or waive FMLA claims based upon past employer conduct without court or DOL approval.

26. Military Provisions • Two new forms of leave benefits for families of military service members, enlarging the reasons employees may take leave, and in some cases, the time that an employee may be absent. • Qualifying exigency leave • Leave to care for an injured or ill military family member • The same rules that apply to traditional FMLA provisions apply to military family leave regarding employer coverage, notice, and designation provisions.

27. Qualifying Exigency Leave • Up to 12 workweeks of unpaid leave for any qualifying exigency arising out of the fact that the spouse, parent, or child of an employee is on active duty (or notified of impeding call to active duty) in the Armed Forces in support of a contingency operation. • Short-notice deployment (7 calendar days prior to deployment); • Military events and related activities (in advance of and during deployment, including family support or assistance programs and informational briefings); • Childcare and school activities (e.g., to arrange alternative childcare, provide urgent, immediate-need child care, or attend meetings at school or daycare); • Financial and legal arrangements (e.g., prepare powers of attorney, enroll for military health care, prepare will or living trust); • Counseling (non-medical, for oneself, service member, or child); • Rest and recuperation (up to 5 days for each); • Post-deployment activities (to attend ceremonies and briefings for 90 days or to address issues arising from service member’s death); and • Additional activities agreed to by the employer and employee • Generally, qualifying exigency leave is treated in the same manner as other 12-workweek leaves under the FMLA.

28. Qualifying Exigency Leave, cont. • 2010 National Defense Authorization Act (“NDAA”) extended coverage to families of service members in the National Guard, Reserves, and Armed Forces. Previously, it only applied to families of service members in the National Guard, Reserves, and certain retired members of the Armed Forces. • The traditional FMLA definition of children does not apply to the military family leave provisions. The definition of a “son or daughter on active duty or call to active duty status” covers “the employee’s biological, adopted, foster, stepchild, legal ward, or child for whom the employee stood in loco parentis, who is of any age. • The employer may require the employee to provide a copy of the service member relative’s orders or other military documentation, showing the call to active duty and expected dates of active duty service. • The employer may contact the appropriate DOD unit to verify the service member's orders.

29. Qualifying Exigency Leave, cont. • The employer can only require the documentation one time for each service member's call to service, but can request again for a different active duty call-up for a different service member. • The employer may seek certification from the employee of the reason for each qualifying exigency leave requested during the period of the relative’s service. • May be a statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency for which the FMLA leave is requested and should include the approximate dates and purpose of the absence and, if for reduced or intermittent leave, an estimate of the frequency and duration of the qualifying exigency. • If a third party is involved, the employee must provide contact information and an employer may contact the third party for verification that the meeting is scheduled or the employee’s absence is required.

30. Military Caregiver Leave • An eligible employee who is the spouse, child, parent, or next of kin of a covered service member shall be entitled to a total of 26 workweeks of unpaid leave during a 12-month period to care of the service member. • This leave is only available during a single 12-month period. • A “covered service member” includes a member of the Regular Armed Forces or the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the member medically unfit to perform the duties of the member’s military office, grade, rank or rating, and who is undergoing medical treatment, recuperation or therapy; is otherwise in military outpatient status, or otherwise on the temporary disability retired list. • Veterans of the Reserves, National Guard, or Armed Forces are also covered under certain circumstances. The 2010 NDAA provides family members with up to twenty six weeks of leave to care for a veteran undergoing treatment for a serious illness or injury. The veteran must have been a service member of the Reserves, National Guard, or Armed forces any time during the five-year period before the date of treatment.

31. Military Caregiver Leave, cont. • The definition of a “son or daughter on active duty or call to active duty status” covers “the employee’s biological, adopted, foster, stepchild, legal ward, or child for whom the employee stood in loco parentis, who is of any age.” • Next of kin may take military caregiver leave of the injured or ill service member. • If the service member designates the blood relative next of kin, that person is the only next of kin eligible to take military caregiver leave. • If the service member does not designate a next of kin, multiple family members with the same level of relationship may take leave, either consecutively or simultaneously. The DOL’s order of priority (other than spouse, parent or child) is: blood relatives who are legal custodians of the service member by court decree or statutory provision, brothers and sisters, grandparents, aunts and uncles, and first cousins.

32. Military Caregiver Leave, cont. • Leave is for a single 12-month period per service member, per injury. • The 12 months for this leave begin on the first day the leave is taken and ends 12 months later, regardless of what other method the employer may be using for designating a leave year for other FMLA leave. Any remaining leave after the 12-month period is forfeited. • Eligible employees may combine the traditional 12 workweeks of FMLA leave with the military caregiver leave and use a total of 26 workweeks during the 12-month period. • If the familial relationship and illness or injury qualify the eligible employee to take traditional FMLA leave, the limitation of taking 26 workweeks in a 12-month period does not foreclose the employee from caring for the service member after the 12 months end under traditional FMLA leave for a family member with a serious health condition. • The same employee may be eligible to take an additional 26 workweeks of military caregiver leave in the next 12-month period, if the leave is to care for a different covered service member or to care for the same service member with a subsequent serious injury or illness.

33. Military Caregiver Leave, cont. • When leave qualifies as both military caregiver leave and traditional FMLA leave to care for a family member with a serious health condition, the DOL mandates that the employer first designate the leave to be military caregiver leave. The absence cannot simultaneously be counted as traditional and military family leave, but an employer may, as with traditional leave, retroactively designate the leave as military caregiver leave. • The rule remains that the aggregate amount of time spouses employed by the same employer can take is limited to the combined total that each is eligible to take, but the leave taken may be as much as 26 workweeks.

34. Military Caregiver Leave, cont. • When an employee seeks to take military caregiver leave, the employer may require the employee to obtain a certification from the service member’s authorized health care provider. • The employer may make requests that fall into several broad categories: • The health care provider is to provide the employer with certain military-related determinations • The employer may request that the health care provider provide contact information, information about the type of medical practice and specialty, and whether the health care provider is an “authorized” health care provider. The employer also may seek sufficient information to determine whether the injury or illness qualifies for military FMLA leave, as well as the expected duration and frequency of the need for the family member’s caregiving role. • The employee or covered service member may be required to provide information to show that the employee is eligible for this leave, such as a statement of the familial relationship, the service member’s military status and where the service member is receiving medical care or if he or she is on a temporary disability retired list, as well as a description of the expected care and the time that will be needed. • No second or third opinions and no recertifications are permitted. • Employers must accept the military’s invitational travel orders/authorizations as sufficient certification for an employee to take leave to join an injured or ill service member for the duration of time designated.

35. Overview of Proposed Changes to the FMLA • The Healthy Families Act • Would require employers, who have fifteen or more employees for each working day during twenty or more workweeks a year, to provide a minimum paid sick leave of: • 7 days annually for employees who work at least thirty hours per week, or • A prorated annual amount for employees who work less than thirty, but at least twenty hours a week, or less than 1,500, but at least 1,000 hours per year. • Introduced to the House in May 2009 and referred to the Subcommittee on Workforce Protection in June 2009.

36. Overview of Proposed Changes to the FMLA, cont. • The Family Leave Insurance Act of 2009 • Would create a federal insurance fund to provide employees with twelve weeks of paid family and medical leave. The Secretary of Labor would establish and administer the fund. • Fund would provide benefits for employees taking leave under the same conditions of the FMLA, as well as some other conditions. • The bill was introduced to the House in March 2009 and referred to the Subcommittee on Workforce Protections in May 2009.

37. Overview of Proposed Changes to the FMLA, cont. • The Family and Medical Leave Enhancement Act of 2009 • Would amend the FMLA to allow employees to take, as additional leave, parental involvement leave to participate in or attend their children's and grandchildren's educational and extracurricular activities. • Would clarify that leave may be taken for routine family medical needs, to assist elderly family members, and for other purposes. • Eligible employees under the Act would be allowed to take up to four hours of leave in any thirty day period, not to exceed twenty four hours in any twelve month period. The leave would be in addition to other types of permitted leave. • Under this Act, the FMLA would apply to employers with twenty five—rather than fifty—employees within the prescribed radius. • Introduced to Congress in September 2008 and referred to the Subcommittee on Federal Workforce, Post Office, and District of Columbia in May 2009.

38. Overview of Proposed Changes to the FMLA, cont. • The Domestic Violence Act & The Balancing Act of 2009 • The Balancing Act, in conjunction with The Domestic Violence Act, would amend Titles I and II of the FMLA to allow eligible employees to take up to twelve weeks of FMLA leave during a twelve month leave year to care for a family member who has been a victim of domestic violence, sexual assault, stalking, or their effects. • The Balancing Act was introduced to Congress in June 2009.

39. Overview of Proposed Changes to the FMLA, cont. • The Military Family Leave Act • Would allow employees to spend time with family members who have received notification of impending active military duty. It would give employees two workweeks of unpaid leave prior to and after deployment. • Any employee would be eligible for this leave, regardless of the hours they work or the size of the employer. • Introduced to Congress in July 2009 and was immediately referred to the House Committee on Veterans' Affairs.

40. Q&A…THANK YOU!!!