County Extension CouncilsFMLA BasicsAugust 26, 2015

Jaki K. SamuelsonWhitfield & Eddy, PLC317 6th Avenue, Suite 1200Des Moines, IA 50309Phone: 515-288-6041Fax: 515-246-1474samuelson@whitfieldlaw.com

Family Medical Leave Act (“FMLA”)PURPOSE

“…to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families and to promote the national interest in preserving family integrity.”

U.S. Department of Labor regulations provide that governmental entities (regardless of size) provide FMLA leave

▫A new handbook policy will be distributed

▫Councils should designate who is responsible for administering FMLA for the County office

Types of Leave

1. Employees own serious health condition2. Birth, adoption, newly placed foster

child3. Care of a spouse, child, or parent with a

serious health condition4. Military family member

Caregiver Exigency

Legal Requirements

•Must provide leave to eligible employees•Must reinstate employees to equivalent

positions after leave•May not interfere with leave•May not retaliate against an employee for

taking leave

Who can be sued for violations?•Employer•Supervisors•Decision makers

Who is eligible for FMLA?

•Employee must have been employed for at least 12 months

AND

•Must have worked at least 1250 hours during last 12 months

Total Leave Available (Non Military)

•Up to 12 weeks (60 business days) in a one year period

•The new handbook language provides that the 1 year period is calculated starting on the date leave is first taken

•Right to leave ends when purpose for leave ends

Intermittent Leave

•For chronic, recurrent conditions (i.e. diabetes, asthma, migraine headaches) or conditions requiring periodic treatment (i.e. cancer / chemotherapy), employees may take leave in increments as small as shortest available for other leave, but not greater than one hour

•Available for employee’s own, or family member’s serious health condition

Intermittent Leave

•Not available for child birth, placement•Employee is obligated to work with

employer to schedule appointments / treatments to minimize disruption of work

Is Leave Paid?

Leave is unpaid

HOWEVER

The new handbook policy requires that employees use available paid leave time contemporaneously with FMLA

Substitution of Paid Benefits

•Paid benefits run concurrently•Vacation/sick leave•Work comp•Cannot substitute more than one form of

paid leave but may supplement by agreement i.e. work comp supplemented with

vacation/sick leave

Notice Requirements

•Employee initial notice Do not need to use words “FMLA” Can be oral if enough information provided

to know absence may qualify Can request enough detail to determine if it

is a “serious health condition” (use caution)• What is the reason for the leave (general

question – avoid ADA issue)• How long will you be gone• Are you seeking treatment• When do you expect to be back

Notice Requirements

•Employer notices (*use DOL forms)▫General: policy, DOL posters▫After leave request

Eligibility notice Rights and responsibilities (substitution of

paid leave; certification requirement; health care premium)

Designation (reminder re: paid leave, health premiums; requirement for return-to-work, fitness-for-duty)

Notice Requirements

•Employer notices Statutory time deadlines Retroactive designation possible

Certification of Serious Health Condition•You may, and generally will want to

require certification for: An employee’s serious health condition Family member’s serious health condition

•No certification for leave to care for healthy newborn/adopted/foster child May require documentation of absences

due to adoption/foster process or complications related to pregnancy

Certification of Serious Health Condition

•Documentation of family relationships•Medical certification for military

caregiver

Serious Health Conditions

1. Inpatient care

OR

2. Continuing treatment by healthcare provider

Incapacity plus treatment Incapacity from pregnancy/prenatal care Chronic conditions Permanent/long term conditions Conditions requiring multiple treatments

Incapacity Plus Treatment

•Employee must be incapacitated more than 3 consecutive, full calendar days and either: Receive two treatments by in person

healthcare provider – first within 7 days; both within 30 days

Receive one treatment in person by healthcare provider plus regime of continuing treatment – i.e. medication, therapy prescribed

Chronic Conditions

•At least two in person treatments by healthcare provider per year

•Do not need to visit healthcare provider for every episode or flare-up

•No requirement of more than 3 days’ incapacity

What Is Not A Serious Health Condition?

•General rule: Absent complications, common cold and flu

are not serious health conditions But they can be a serious health condition

if they meet one of the “incapacity plus treatment” definitions

Leave To Care For Family Member•Covers both physical and psychological

care (comfort and reassurance)•Can be intermittent, even if condition is

not•Includes making arrangements for

changes in care, such as transfer to nursing home

Reinstatement Required

•Same or equivalent position Compensation Benefits Responsibilities

Reinstatement Exceptions

• Unable to perform position due to medical restrictions? Explore accommodations May include additional leave

Position elimination during leave Employee intent not to return

Must be unequivocal Leave stops when articulated

Fraud/moonlighting Key employees

Exempt Highest paid 10% Substantial economic injury

What is Interference?

•If employee is entitled to leave and employer denies

•If employer makes it burdensome to take leave

What is Retaliation?

•Basing any adverse employment decision on FMLA leave

Thank You