Family & Medical Leave Act

1. Family & Medical Leave Act Includes January 2009 Revisions

2. Agenda • Types of leave • Employee’s eligibility • Serious health conditions • Birth or placement of children • Military leave types • Recordkeeping and certifications • Employee doesn’t/can’t return to work

3. What constitutes leave for FMLA purposes?Eligibility  Leave periods

4. “Types” of FMLA Leave • Basic • Own serious health condition • Family member’s serious health condition • Birth, placement, adoption • Military (eff. January 2009) • Qualifying exigencies • Care for an injured service member

5. Employee’s Leave Eligibility12 months • Must have worked for you for at least 12 months (doesn’t have to be consecutive) • Count every week in which someone is on your payroll (even if paid leave)

6. Employee’s Leave Eligibility1250 hours • Employee must have worked at least 1,250 hours in immediately preceding 12 months. • Count up all hours worked in 52 weeks prior to date leave would begin. • If > 1,250, eligible. • If <1,250, ineligible. • Must have some kind of timekeeping system.

7. To Avoid Mistakes . . . • Calculate months/hours accurately • Keep accurate records of time worked • Give first response (Notice of Eligibility) on time • Give approval or request for more information (Designation Notice) on time • Use Attachments 2A, 2B and 2C

8. Types of FMLA Leave Year • Calendar year or other fixed period • “Counting forward” leave year • “Rolling” leave year—we use • All qualifying reasons apply to annual entitlement.

9. Rolling leave year • Measured backward from first day leave is taken • Based on employee’s normal workweek • Rolls out throughout the year, incrementally. • Accrues, like vacation or sick. • See example spreadsheet.

10. Military Caregiver Leave Year • 26 weeks in 12-month period. • Always begins on employee’s first day of leave—no choice. • Only one leave per servicemember per injury or illness.

11. Own Serious Health Condition • For employee’s own illness • Includes • Inpatient care • Incapacity for more than 3 calendar days • Incapacity for pregnancy or prenatal care • Incapacity for chronic serious health condition • Permanent or long-term incapacity • Absence for multiple treatments

12. Family Member’s Serious Health Condition • “Family” definition • Spouse • Child • Parent • Not in-laws • Employee needed to care for family member (not just comfort) • Can ask for proof of family relationship

13. To Avoid Mistakes . . . • Always get medical certification—don’t make decisions on your own • “3-day rule” may not apply in every case • Think of FMLA immediately when employee talks of leave for physical or mental ailment

14. Birth of a Child • 12 weeks total only • Serious medical condition • Caring for ill wife or newborn (males) • Caring for ill newborn (males & females) • Parenting leave (to bond with new baby) • Males & females • Must conclude within one year of birth

15. Adoption of a Child • 12 weeks total • Includes time before placement • Parenting leave applies

16. Leave for a New Foster Child • 12 weeks only • Need may arise before or after placement • Must involve the state • Informal custody arrangements don’t count

17. Parenting Leave • Leave must conclude within one year of birth or placement—rigid deadline • Intermittent or reduced-schedule leave not required to be granted, but you can • If both parents work for you, entitled to 12 weeks combined

18. Pregnancy • Incapacity due to pregnancy and prenatal care = serious health condition • So, may be taken intermittently or on reduced schedule • Husband may take FMLA leave to care for ill wife

19. To Avoid Mistakes . . . • Make sure both parents are eligible if both work for you • Distinguish parenting leave from leave for a serious illness

20. FMLA Intermittent Leave • Taken in separate blocks of time for single qualifying reason. • Must be medically necessary. • For PT employee w/ variable week, calculate average hours in prior 52 weeks.

21. Recordkeeping for Intermittent Leave • Keep accurate and updated records or time. • FFD certifications not applicable. • Must use smallest increment of time your payroll systems uses to account for other types leave.

22. Other Information • Intermittent or reduced schedule leave available • Employee may choose—or you may require—paid leave to be used, according to your leave policies

23. Military Leave

24. Military Family Leave • Family members defined: • Spouse • Parent • Child, regardless of age. • Nearest blood relative

25. Military Family Leave • Covered family member (meets all three) • Member of National Guard or Reserves • Could be retired member of regular Armed Forces or Reserves. • On active duty or called in support of contingency operation. • Called pursuant to federal call (not state). • Active career military not eligible

26. Military Family Leave • Qualifying exigency • Family member is National Guard or Reserves or retired from Armed Forces • 12 weeks • Caregiver leave • To care for family member with serious injury or illness from active duty • Regular Armed Forces & Guard and Reserves • 26 weeks in single 12-month period

27. Qualifying Exigencies • Short-notice deployment • Military events and related activities • Child care and school activities • Financial and legal arrangements • Counseling • Rest and recuperation • Postdeployment activities

28. Caregiver Leave • Up to 26 weeks in single 12-month period. • For family member and • With serious injury or illness and • Incurred in line of duty or • Undergoing treatment for same

29. Leave Rules • Employees eligible for military caregiver leave may take no more than 26 total weeks in a single 12-month period • Employees may not take more than 12 weeks FMLA leave for purposes other than military caregiver leave • Any unused leave does not carry over

30. Using Both Types of Leave • Time off must be designated either as military caregiver leave or as another type, not both. • In many instances, military caregiver leave would qualify as leave for a family member’s serious health condition. • BUT revised regs say this must be counted & designated as military caregiver leave only, to give employees full benefit of this time off.

31. Example Benny’s wife was seriously injured in Iraq. He has taken 20 weeks, starting September 1, to care for her. His son now has a serious medical condition requiring surgery and rehab. He requests 10 weeks of leave, starting April 15, to care for the boy. Do you have to grant that under FMLA?

32. Answer No. As the spouse of an injured service member, Benny is entitled to a max of 26 in any 12-month period for all FMLA leave. That 12-month period began September 1, and he’s used 20 weeks of it. So, he has only 6 weeks of any type of FMLA leave left until September 1 of following year.

33. Example Benny took only 8 weeks to care for his wife since September 1 (his mother-in-law took over care). When Benny’s son requires surgery, he asks for 16 weeks, to begin April 15. Should you grant?

34. Answer No. Even though Benny used only 8 weeks of his 26-week entitlement for military caregiver leave, he is still entitled to only 12 total weeks of FMLA leave for all other purposes. Son’s serious health condition subject to 12-week limit. Still has 18 weeks remaining to care for wife, but may not use all of this for other FMLA purposes.

35. To Avoid Mistakes . . . • Think of FMLA when employee mentions family member’s military service as reason for time off. • Ask questions. • 26 weeks of caregiver leave starts on first day of leave. • Keep track of limits on timing and duration for particular types of exigency leave.

36. Certifications • Always request • Give employees at least 15 days to return completed form • Completed by health care provider for all but military exigency • But you may confirm meeting with third-party • May confirm with DOD employee’s family member is on active duty or called to active duty.

37. If certification unclear • Employee must cooperate with getting clarification or leave may be denied • Call me

38. If employee can’t return to work • Your FMLA obligations end • ADA obligations must be reviewed • Call me to discuss

39. What if employee cannot return to work?

40. If employee can’t return • Basic rule: Employee is entitled to every benefit available under every law that applies • Americans with Disabilities Act • Continuation coverage • Title VII of Civil Rights Act • USERRA • Workers’ compensation

41. If employee doesn’t return • Determine reason • If voluntary, calculate • Employer’s share of health premium • Employee’s share if not paid • Offer continuation coverage

42. Pregnancy and childbirth • Title VII of CRA says employer must treat pregnant employees as it would any other temporarily disabled worker. • Means: might have to provide time off to pregnant employee who isn’t eligible for FMLA leave IF you provide such time off to employees with other types of short-term disabilities.

43. FMLA & Recordkeeping • Records may be inspected by DOL • “make, keep, and preserve” detailed records of FMLA leaves taken (including notices to and from employees) • No specific order required; must be clear and identifiable by date or pay period • Kept for at least 3 years • NOT in employment file!

44. To Avoid Mistakes . . . • Keep good (& up-to-date) payroll & leave records • Keep track of hours available to calculate intermittent leave • Keeping easily retrievable copies of forms to and from employee