dan murphy, esq. mclocklin, murphy & dishman llp (770) 867-7446 the center for school law &...
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Dan Murphy, Esq. Dan Murphy, Esq.
McLocklin, Murphy & Dishman LLP (770) 867-McLocklin, Murphy & Dishman LLP (770) 867-74467446
The Center for School Law & Policy, Inc.The Center for School Law & Policy, [email protected]; www.cslap.org; www.cslap.org
(c) 2009 The Center for School Law & Policy, Inc.
FMLA can be taken for the following reasons: Birth/adoption Employee own
serious health condition (SHC)
To care for a family member with an SHC
Qualifying Exigency of a family member
Who is eligible to take FMLA leave?
How do we know a request is valid?
How long can employees take leave?
(c) 2009 The Center for School Law & Policy, Inc.
Eight specific grounds listed, including;
(1) Short-notice deployment
(2) Military events & related activities
(3) Childcare & school activities
(4) Financial & legal arrangements
(5) Counseling (6) Rest &
recuperation (7) Post-
deployment activities
(8) Additional activities
Short notice deployment For any issue Up to 7 days, for order or
call w/n 7 days of duty Military events & related
activities Ceremonies, family
assistance, etc. Post-deployment activities
Ceremonies, reintegration or death of service member
(c) 2009 The Center for School Law & Policy, Inc.
Childcare & school To arrange alt care,
but only to provide care on urgent basis
Enroll/transfer new school or daycare
School meetings Necessity for meeting?
Rest & recuperation W/ service member
up to 5 days
Financial & Legal Representative for
service benefits Counseling
Non-medical Arises from active
duty? Additional activities
District & employee agree as to -
Exigency, timing & duration
(c) 2009 The Center for School Law & Policy, Inc.
1st time employee requests Q.E. leave Copy of active
duty orders or other doc issued by military
New orders or documentation shall also be provided to District
Certification- a statement from yee which includes Description of facts
re: Q.E. Confirmation of
counselor appt, or, lawyer’s bill.
Date of commencement
Block leave? Begin/end dates
Intermittent or RSL? Estimate
frequency/duration See DOL WH-384
If certification is complete & sufficient, no new info may be requested
But, District may contact DoD to verify active duty or call to active duty
If Q.E. is to meet w/ 3rd party, may contact 3rd party to verify schedule & nature of meeting Childcare & school
meeting, financial or legal appt, or counseling Other basis for Q.E.?
No additional info may be requested
(c) 2009 The Center for School Law & Policy, Inc.
(c) 2009 The Center for School Law & Policy, Inc.
Employee w/ a spouse, son, daughter, or parent in the Reserves, National Guard or retired members of Regular Armed Forces/retired reserve
Active duty is “a call or order to active duty.”
Q.E. leave does NOT apply to employees w/ family members in the regular Armed Services on active duty.
(c) 2009 The Center for School Law & Policy, Inc.
Q.E. woven into existing entitlements & subject to 12 weeks in a leave year
Counts toward total 12 week entitlement
Compare w/ leave to care for a covered service-member May take up to 26 weeks
(c) 2009 The Center for School Law & Policy, Inc.
What are the basis for FMLA leave today? Birth/adoption Employee’s own serious health condition To care for a family member with an SHC Qualifying Exigency of a family member To care for a service-member with a serious
injury or illness
(c) 2009 The Center for School Law & Policy, Inc.
Current member of the armed services (inc. National Guard, Reserves) Not retired, unless on
temporary disabled retired list (TDRL)
Treatment for a serious illness or injury that may render them unfit to perform the duties of their office, grade or rank
Note: Caregiver leave DOES extend to active duty military
(c) 2009 The Center for School Law & Policy, Inc.
Serious injury or illness incurred in line of duty & on active duty that may render member unfit to perform duties of office, grade, rank or rating, OR
Temporary disability retired list, OR
Outpatient status-assigned to military medical treatment as O/P, or unit est for purpose of providing command and control of Armed forces receiving care as O/P
(c) 2009 The Center for School Law & Policy, Inc.
Includes physical and “comfort care”
Ex. Doctor visits, arrange nursing home transfer, etc.
Applies when condition requires intermittent/RSL and employee is only needed occasionally
(c) 2009 The Center for School Law & Policy, Inc.
Son or daughter-under the age of 18 or incapable of self-care due to mental/physical disability
Military Caregiver son or daughter-biological, adopted or foster child, step child, legal ward or child for whom the covered service-member stood in loco parentis and who is of any age.
(c) 2009 The Center for School Law & Policy, Inc.
• Next of kin-nearest blood relative (outside FMLA family) in order Blood relative w/
legal custody Brothers & sisters Grandparents Aunts & uncles First cousins
UNLESS member has designated one of above as “next of kin.”
(c) 2009 The Center for School Law & Policy, Inc.
• Lt. Larry has 3 teenage brothers, an adult sister and one adult cousin. Larry designates his cousin as “next of kin”
• Only Larry’s cousin may take caregiver leave.
• But what if no designation w/n same level of kinship? • Anyone in closest
level of kinship may take leave
• Ex. Major Mark has 2 adult brothers, one adult sister, a grandparent and three cousins. Mark has not designated any “next of kin”
• Mark’s 3 siblings are considered “next of kin” and each is eligible to take leave
(c) 2009 The Center for School Law & Policy, Inc.
Who can certify? 1) DoD health care
provider (HCP) 2) VA HCP 3) DoD Tricare
authorized HCP 4) DoD non-network
Tricare authorized HCP
(c) 2009 The Center for School Law & Policy, Inc.
Contact info of HCP Authorized HCP
status I/I incurred in line
of duty I/I commencement
& probable duration
Description of medical facts Fitness to perform
duties Treatment ,
recuperation & therapy
Covered service-member in need of care Est begin/end of
any block leave necessary
Intermittent/RSL for planned treatment Medical necessity Est frequency &
duration Intermittent/RSL
(other) Medical necessity Est frequency &
duration
(c) 2009 The Center for School Law & Policy, Inc.
Contact info of employer, employee and covered service-member
Relationship of yee-covered service member
Covered service members military branch, rank & unit assignment
Current membership in Armed forces, national guard or reserves
Outpatient assignment
Command & control unit providing outpatient care
Temporary disability retired list
Care to be provided and est of leave needed
(c) 2009 The Center for School Law & Policy, Inc.
Invitational Travel Orders or Authorizations must be accepted in lieu of above
Valid for block or intermittent leave
Valid for time specified in Order Employee does not have
to be named in Order
(c) 2009 The Center for School Law & Policy, Inc.
No additional info may be requested
No 2nd or 3rd opinions
No recertification But, authentication
& verification are OK Confirmation of
relationship is OK
(c) 2009 The Center for School Law & Policy, Inc.
• Begins on 1st day yee takes leave to care for eligible service member
• Ends 12 months later-regardless of regular leave year
• No rollover of unused leave time
• Total FMLA leave capped at 26 weeks in 12 month period
• BUT regular FMLA does not count against caregiver leave
• Ex. In same 12 month period Yee takes 16 weeks of caregiver leave and 10 weeks when baby is born=This is OK
(c) 2009 The Center for School Law & Policy, Inc.
Employer must designate If caregiver leave and
family member both apply, must designate as caregiver leave
Retroactive designation may be OK
26 week cap may apply to 2 spouses who work for 1 employer
(c) 2009 The Center for School Law & Policy, Inc.
H/W employed by same District limited to total of 26 weeks of leave during ‘single 12-month period’
Applies to leave for Birth/adoption Bonding Care for parent Care for covered service
member
Added basis for leave under the Act
Expanded definition of family for whom yee may take leave Note “next of kin”
Unique Certification & Verification rules
26 weeks and a “12 month period”
What: A full day training and presentation
Where: Gainesville, Florida at Santa Fe Community College
When: October 6, 2009 For more information
please see: www.cslap.org
(c) 2009 The Center for School Law & Policy, Inc.