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FAMILY AND MEDICAL LEAVE ACT Regulations Updates Effective 01/16/09

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Page 1: Family and medical leave act 01 16 09 updates

FAMILY AND MEDICAL LEAVE ACTRegulations Updates

Effective 01/16/09

Page 2: Family and medical leave act 01 16 09 updates

Employee Eligibility

“12 months of employment requirement”– Prior Legal Framework

Employee must work for employer for a total of 12 months.

Page 3: Family and medical leave act 01 16 09 updates

Employee Eligibility

12 months of employment “PRIOR” regulations stated that the 12 months need not be consecutive so there was an open issue with respect to counting periods of employment prior to a break in service, e.g., Employee works for employer for 3 years, quits and does not work for employer for 5 years. When employee returns to work, when does employee become eligible for FMLA leave?

Periods of employment prior to a five year break in service would count toward the 12 months of employment eligibility requirement.

Left open issue of impact of longer break in service.

Page 4: Family and medical leave act 01 16 09 updates

Employee Eligibility FINAL REGULATIONS

In determining whether an employee has been employed for a total of 12 months:Employment periods prior to break in service of 7 years or more need not be counted; however, an employer may consider prior employment falling outside of cap, provided uniform application.

Except that, periods of employment prior to a break in service of more than 7 years must be counted where:

• Break due to National Guard or Reserve military service duty; time served counts toward 12 months

• Written agreement (e.g., Collective Bargaining Agreement) exists concerning intention to rehire after break in service

Page 5: Family and medical leave act 01 16 09 updates

Employee Eligibility

Impact of final regulations on “12 months of employment requirement”

FMLA only requires 3 year retention of employment records

Final regulations create proof issue because of need to review prior employment within 7 year period. It appears that the employee may have the burden of proof if employer doesn’t have documents after 3 years. However, if the employee establishes proof and the employer can’t disprove it, the employer have to recognize the prior service.

Page 6: Family and medical leave act 01 16 09 updates

Employee EligibilityFinal Regulations

Determining employee eligibility for FMLA leave while employee is on non-FMLA leave

Determination of 12 months and 1,250 eligibility requirements must be made as of the “date FMLA leave commences”

An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements; the period of leave taken for an FMLA-qualifying reason after the employee meets the eligibility criteria will be FMLA leave

Carefully consider whether to provide non-FMLA leave to new employees

New employees will in some instances become eligible for more leave than employees with longer lengths of service (DOL views this as employer policy issue)

Page 7: Family and medical leave act 01 16 09 updates

Employee Eligibility

Final regulations also coordinate with USERRA regulations to provide that an employee’s absence due to National Guard or Reserve military obligations count toward employee eligibility requirements

– 12 month requirement – 1,250 hour requirement

Page 8: Family and medical leave act 01 16 09 updates

Joint Employer and PEO Issues

Employee leasing arrangements’’—like those involving temporary services firms and other staffing companies—refer to arrangements in which the staffing firm places its own employees at a customer’s place of business to perform services for the recipient’s enterprise.

The PEO, or "HR Outsourcing Vendor" in contrast, contracts with client employers merely to perform administrative functions for its clients such as payroll and benefits coverage and administration (including workers’ compensation insurance and health insurance). The PEO typically has no direct responsibility over the employees of its clients including ‘‘hiring, training, supervision, evaluation, discipline or discharge, among other critical employer functions.’’

Page 9: Family and medical leave act 01 16 09 updates

Joint Employment and Work Site Provision

In joint employer relationship, primary employer must give FMLA notice, provide FMLA leave, and continued health benefits.

For employees of temporary help or leasing entities, placement agency is typically the primary employer. Job restoration is the primary responsibility of the primary employer.

The secondary employer is responsible for accepting the employee returning from FMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the temporary or leasing agency, and the agency chooses to place the employee with the secondary employer.

Secondary employer must comply with prohibited acts provisions since an employee on leave who is working for a secondary employer is considered employed by the secondary employer, and must be counted for coverage and eligibility purposes, as long as the employer has a reasonable expectation that that employee will return to employment with that employer.

Employees jointly employed by two employers must be counted by both employers, whether or not maintained on one of the employer's payroll, in determining employer coverage and employee eligibility.

Page 10: Family and medical leave act 01 16 09 updates

Joint Employment & Work Site Provision

PRIOR RegulationsFor employees who are jointly employed, for purposes of calculating “50 employees within 75 miles,” employee’s worksite is primary employer’s office from which the employee is assigned or reports

Final Regulations

Adds provision that where employee has physically worked for at least one year at a facility of a secondary employer (e.g. client employer), the employee’s worksite is the facility of the secondary employer

Page 11: Family and medical leave act 01 16 09 updates

Joint Employer Issues and PEO

Final Regulations add reference to Professional Employer Organization (PEO)

• PEO not joint employer where PEO performs only administrative functions

• PEO may be joint employer where PEO retains right to hire, fire, directs or controls employees or benefits from work performed by the client employees

• Impact of Final Regulations - Review agreements with PEO to determine to what extent PEO or client employer is directing employees and retaining responsibility

Page 12: Family and medical leave act 01 16 09 updates

Retains six (6) general categories of a “serious health condition”

1. Inpatient care (minimum of 1 night hospitalization)2. A period of incapacity of more than 3 consecutive calendar

days plus treatment by healthcare provider3. Any incapacity due to pregnancy or prenatal care4. Chronic conditions requiring treatment by a healthcare

provider5. Period of incapacity that is permanent or long-term due to a

condition for which treatment may not be effective6. Multiple treatments for non-chronic conditions that if left

untreated would become serious health condition

Serious Health Condition

Page 13: Family and medical leave act 01 16 09 updates

Serious Health Condition

Final regulations provide clarification to 2 categories of SHC:

– Incapacity Plus Treatment– Chronic Conditions

Page 14: Family and medical leave act 01 16 09 updates

Serious Health Condition

Prior regulations on Incapacity Plus TreatmentSHC defined to include period of incapacity in excess of 3 calendar days and subsequent treatment or period of incapacity - plus - Treatment 2 or more times by a healthcare provide or Treatment 1 time by a healthcare provider which results in regimen of continuing treatment (e.g., course of antibiotics) under supervision of healthcare provider.

Final regulations on Incapacity Plus TreatmentTreatment by a HCP must be an “in-person visit” and the first (or only, depending upon which definition) to the HCP must be within 7 days of first day of incapacity With respect to requiring treatment by HCP “two or more times,” treatment must occur within 30 days of the first day of incapacity, absent extenuating circumstances.

Determination of whether additional treatment visits or regimen of continuing treatment is necessary within the 30-day period shall be made by HCP (See New Certification prototype)

Page 15: Family and medical leave act 01 16 09 updates

Medical Certification for “SERIOUS HEALTH CONDITION”

With the exception of certifications to support a request for injured service member leave, annual medical certifications may be required in cases where a “Serious Health Condition” extends beyond a single leave year.

Page 16: Family and medical leave act 01 16 09 updates

CHRONIC Health Condition

Prior Regulations - SHC defined to include chronic conditions

• Requiring periodic visits for treatment by a healthcare provider

• Continuing over extended period of time• Causing episodic periods of incapacity

Final Regulations

• Specifies that “periodic visits” must occur at least twice per year

• Preamble: Determination of whether periodic visits are required two times per year is made by the HCP

Page 17: Family and medical leave act 01 16 09 updates

Re-certifications for Chronic Medical Conditions

The Company may request medical re-certifications for Chronic, i.e., continuing, open-ended conditions, “every 6 months”

Medical re-certifications may be requested on a more frequent basis if there are other change circumstances or reasons

Page 18: Family and medical leave act 01 16 09 updates

Holidays Occurring

During FMLA Leave

Prior Regulations • Holiday occurring during a week taken as FMLA leave has no

effect; full week counts as FMLA leave• Open issue in regulations on impact of Holiday on FMLA

absences of less than a full week

Final Regulations

• Same rule with respect to holiday occurring within week of FMLA

• Leave Specifies that if employee is using FMLA leave in increment of less that 1 week, Holiday does not count against FMLA leave unless employee was otherwise scheduled and expected to work during the Holiday

Page 19: Family and medical leave act 01 16 09 updates

Intermittent/Reduced Schedule FMLA Leave

Prior RegulationsEmployees needing intermittent leave or leave on a reduced leave schedule “must attempt to schedule their leave so as not to disrupt unduly the employer’s operations”

Final RegulationsEmployee needing intermittent leave or leave on a reduced leave schedule must “make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations”

Slightly stronger standard No definition of “reasonable effort”

*No clear enforcement mechanism

Page 20: Family and medical leave act 01 16 09 updates

Calculating FMLA Leave where Employee’s Schedule Varies

Prior Regulations Where schedule varies from week to week, calculation of

FMLA leave used based upon weekly average of hours worked over the 12 weeks prior to the beginning of the leave period

Final Regulations Where employee’s schedule varies from week to week

such that employer cannot determine with certainty what hours would have been worked but for FMLA leave, calculation of FMLA leave used based upon a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any periods of non-FMLA leave)

Page 21: Family and medical leave act 01 16 09 updates

FMLA QUALIFYING EVENTS

1. Because of the birth of a son or daughter of the employee and in order to care for such son or daughter

2. Because of the placement of a son or daughter with the employee for adoption or foster care

3. In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition

4. Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee

Page 22: Family and medical leave act 01 16 09 updates

NEW Qualifying Event (Number 5)January 16, 2009

Qualifying Exigencies

Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. The Final Regulations clarify that qualifying exigency leave generally applies only to families of service members on or called to active duty in the armed services.

Page 23: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

The need for leave by the eligible employee must arise out of the fact that the spouse, son, daughter, or parent of the employee is a covered military member in support of a contingency operation.  

With one exception, QE leave is family leave: it is not leave available to an employee who is also a covered military member.  

Page 24: Family and medical leave act 01 16 09 updates

Qualifying *Exigency under FMLA includes the following eight (8) categories:

1. Short-notice deployment, 2. Military events and related activities, 3. Childcare and school activities, 4. Financial and legal arrangements, 5. Counseling, 6. Rest and recuperation, 7. Post-deployment activities, and 8. Additional activities to address other events which arise out of the

covered military member’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 both the timing and duration of such leave. 

* Dictionary Definition of Exigency is a pressing or urgent situation requiring much effort or immediate action.

Page 25: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(1) Short-notice deployment

Where the covered military family member is notified of a deployment of 7 or less days, an eligible employee may take up to 7 days of leave for any reason related to that deployment.  The 7 days begins to run when the covered family member is provided the short-notice deployment. 

Page 26: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(2) Military events

Allows leave to attend any official ceremony, program or event sponsored by the military, and to attend family support and assistance programs and information briefings sponsored by the military, military service organizations, or the American Red Cross.

Page 27: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(3) Child care and school activities

Eligible employee may take leave to arrange for child care or attend certain school functions of the son or daughter of a covered military family member, including leave to (i) arrange for alternative school or childcare; (ii) provide childcare on an urgent, immediate need (not regular) basis; (iii) enrollment or transfer of a child in a new school or day care facility; and (iv) attend meetings with school or day care staff regarding discipline, parent-teacher conferences, and school counselors. DOL indicates that QE leave is not intended to be used to meet with staff at a school or daycare facility for "routine" academic concerns.  Obviously, in many circumstances it will be very difficult to determine whether the need to meet with school staff is casually related to the active duty of a covered military family member or merely for routine academic concerns. 

Page 28: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(4) Financial and Legal arrangements

Eligible employees are allowed leave to make or update financial or legal arrangements to address the covered military family member's absence while on active duty/call to active duty, such as preparing or executing a will, powers of attorney, transferring bank account signature authority, obtaining military identification cards, and securing military service benefits.  DOL specifically mentions coverage to enroll in the Defense Enrollment Eligibility Reporting System (DEERS).  Leave is not available for routine matters, such as paying bills.  

Page 29: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(5) Counseling

QE leave is available for the employee to attend counseling by a non-health care provider.  Leave is available where the counseling is needed by the employee, the covered military member, or the son or daughter of the covered military member needs counseling, PROVIDED that the counseling arises from active duty service or call to active duty. As examples, DOL cites counseling by a military chaplain, pastor, or minister, or counseling offered by the military or a military service organization that is not a health care provider. 

Page 30: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(6)   R & R

The Rest and Recuperation category provides leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.

Page 31: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(7) Post-Deployment ActivitiesQE leave is available for the eligible employee to attend ceremonies incident to the return of the covered military family member, including arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member's active duty status.  It is also available for the employee to take leave to address issues arising from the death of a covered military family member, such as meeting and recovering the body and making funeral arrangements.  The DOL specifically noted coverage for participation in the DOD-sponsored Yellow Ribbon Reintegration Program.  Such participation, moreover, is covered even if it exceeds the general 90-day limitations period (be a few days) for post-deployment activities.   

Page 32: Family and medical leave act 01 16 09 updates

“Qualifying Exigency”

(8) Additional Activities

This category allows leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.

Page 33: Family and medical leave act 01 16 09 updates

Reasonable & Practicable Notice

Employees seeking qualifying exigency leave must give reasonable and practicable notice if the exigency is foreseeable. The notice must inform the employer that a family member is on active duty or called to active duty status, cite a listed reason for leave, and give the anticipated length of absence. Family members generally are defined broadly.

– A son or daughter on active duty, for example, includes an employee’s biological, adopted, or foster child, stepchild, legal ward, or

– one for whom the employee stood in loco parentis, regardless of age.

Page 34: Family and medical leave act 01 16 09 updates

NEW Qualifying Event (Number 6)January 16, 2009 (MILITARY CAREGIVER)

Eligible employees may take up to 26 weeks of leave to care for a covered service member during a single 12-month period.

A covered service member is a current member of the Armed Forces, including a member of 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 service member medically unfit to perform his or her duties for which the service member is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.

Page 35: Family and medical leave act 01 16 09 updates

# 6 MILITARY CAREGIVER

Eligible employees may take more than one period leave if the leave is to care for different eligible covered service members or to care for the same service member with a subsequent serious injury or illness, except that no more than 26 work-weeks of leave may be taken within any “single 12-month period

Page 36: Family and medical leave act 01 16 09 updates

# 6 MILITARY CAREGIVER

Eligible covered service member may be a “*Next of Kin” and can be in the regular armed forces, Reserves, Guard, or anyone in those categories on a temporary disability retired list (TDRL). “*Next of Kin” excludes the covered service member’s spouse, parent, son, or daughter, as they already are entitled to leave for this purpose. 

The eligible covered service member must have a serious illness or injury incurred in the line of duty on active duty, as determined by the Department of Defense (DOD), that may render him medically unfit to perform the duties of his office, grade, rank, or rating and for which he is undergoing medical treatment, recuperation, therapy, or outpatient treatment or is on TDRL.

Page 37: Family and medical leave act 01 16 09 updates

# 6 MILITARY CAREGIVER

“Single 12-Month Period”

The method for establishing the “single 12-month period” for purposes of military caregiver leave is a period that commences on the date an employee first takes leave to care for a covered service member with a serious injury or illness.    

Employers do not have the option of using the calendar-year method as they do for other types of FMLA leave.    

Page 38: Family and medical leave act 01 16 09 updates

FMLA MAY EXTEND BEYOND 26 WEEKS IN UNIQUE CIRCUMSTANCES

The 12-month period for military caregiver leave begins on the first day of such leave, regardless of the employer's method of calculating the 12-month leave period for other types of FMLA leave.

As a result, an employee who has taken other FMLA leave before beginning military caregiver leave may be entitled to more than 26 weeks of leave in the 12-month period beginning with the earlier FMLA leave.

Page 39: Family and medical leave act 01 16 09 updates

# 6 MILITARY CAREGIVER

     As in the case of defining a son or daughter, “parent” is defined broadly but does not include in-laws. “Next of kin” also is defined as categories of blood relatives, in order of priority, but the “covered service member” may make a written designation of a specific blood relative as next of kin, and that will control under the FMLA. 

When no such designation is made, and there are multiple family members with the same level of relationship to the covered service member, all such family members shall be considered the covered service member’s next of kin and may take FMLA leave to provide care to the covered service member; either consecutively or simultaneously.

The Company can ask employees for reasonable documentation of family relationships; a simple statement will suffice.

Page 40: Family and medical leave act 01 16 09 updates

# 6 MILITARY CAREGIVER

Employer may require a certification from the covered military member’s healthcare provider. In addition, Employer may request:

Military member’s name, branch, rank, and assignment

Relationship of Employee to military member Name of the facility where military member is

receiving care A description of the care to be provided and

estimate of the time needed

Page 41: Family and medical leave act 01 16 09 updates

No Overlap of Service Member and Family/Medical Leaves

Leave that qualifies both as leave to care for a covered service member and leave taken to care for a family member with a serious health condition during the “single 12-month period” cannot be designated and counted as both leave to care for a covered service member and leave to care for a family member with a serious health condition.

Page 42: Family and medical leave act 01 16 09 updates

MARRIED EMPLOYEES

In cases where the married couple is employed by the same Company the two spouses together may take a combined total of :1. 12 weeks' leave during any 12-month period for reasons 1 and 2,

or to care for the same individual pursuant to reason 3.

2. The aggregate number of workweeks of leave to which both that husband and wife can take for reason 5 is 12 weeks.

3. When both husband and wife work for The Company, the aggregate amount of leave that can be taken by the husband and wife is 26 weeks in a single 12 month period for reason 5, or a combination of reasons 5 and 6.

Page 43: Family and medical leave act 01 16 09 updates

Medical Certifications

Final regulations represent significant changes with new forms for all types of leave

– Employer must request certification within 5 business days after receiving employee notice

– Employee must still provide certification within 15 days

Page 44: Family and medical leave act 01 16 09 updates

NEW FORMS AVAILABLE

The DOL has updated the optional forms provided to assist employers in administering FMLA.  It also has developed forms to implement the new Military Family Leave Amendments.  The new list of optional FMLA forms include:

1) WH-380E: New Certification of Health Care Provider for Employee’s Serious Health Condition

2) WH-380F: New Certification of Health Care Provider for Family Member’s Serious Health Condition

3) WH Publication 1420: Notice to Employee of Rights Under FMLA 4) WH-381: Notice of Eligibility and Rights and Responsibilities 5) WH-382: Designation Notice 6) WH-384: Certification of Qualifying Exigency for Military Family

Leave 7) WH-385: Certification of Serious Injury or Illness of Covered Service

member for Military Family Leave

Page 45: Family and medical leave act 01 16 09 updates

Different Medical Certifications for Employee and Family Members

Recognizing that employers could benefit from having greater insight into the reasons why employees could not perform essential job functions, the DOL has created a new medical certification form for use in evaluating the medical need for leave prompted by an employee’s own serious health condition.  (WH-380E)

The DOL also created a separate medical certification form for use when employees request leave to care for a family member with a serious health condition.  This form seeks information on the type of care being provided by employees. (WH-380F)

Page 46: Family and medical leave act 01 16 09 updates

New “Rights & Responsibilities” Form (WH-Publication 1420)

At the time of their eligibility notice employees also must receive a written notice of “Rights & Responsibilities” from the Company detailing the specific expectations and obligations of employees and explaining any consequences of their failure to meet these obligations.  Among other things, the Company must inform FMLA-eligible employees of

1. Any requirement to provide medical certification, 2. The right to substitute paid leave, 3. Whether and how to pay premiums for continuing benefits, and 4. Job restoration rights upon expiration of FMLA leave. 

Page 47: Family and medical leave act 01 16 09 updates

New “Eligibility Notice” Clarifies Employee Rights to Leave: 

A new mandatory WH-381 form replaces the existing optional Form WH-381, and combines the written notice of “Rights and Responsibilities” required by the regulations.

• When an employee requests leave or employer acquires knowledge that an employee’s leave may be for FMLA qualifying reason, employer must notify employee of employee’s eligibility for FMLA leave within 5 business days, absent extenuating circumstances

• Must state whether employee is eligible

• If employee is not eligible, employer must state at least one reason why employee is not eligible

• Employer’s notice must include how much time is designated, if known For unspecified leave, employer must send notice every 30 days as to

how much leave was designated in the prior month Retroactive designation is permitted if no harm to employee

Page 48: Family and medical leave act 01 16 09 updates

“Designation Notice” (WH-382)

  Once an employer has obtained sufficient information to determine whether an employee’s leave will be protected by the FMLA, the employer must notify the employee within five business days (a change from the current requirement of two business days) that the leave is designated as FMLA leave, absent extenuating circumstances. 

Of course, employers may provide the “Eligibility” and “Designation” notices at the same time, if they have sufficient information to do so.

Page 49: Family and medical leave act 01 16 09 updates

Certifying Qualified Exigency Leave

Employers may require certification for qualified exigency leave For example, requiring the employee to provide a copy of the service member’s active duty ordersThere’s an optional form, WH-384, for qualifying exigency certification.

– The regulations also allows employers to verify with a third party that an employee met with the third party (a teacher, for example) during the leave.

– If the employee submits a complete, sufficient certification supporting a request for the leave, the employer may not request additional information from the employee.

– Recertification isn’t permitted.

Page 50: Family and medical leave act 01 16 09 updates

Certification of Need for Caregiver Leave

The DOL offers an optional form, WH-385, for certifying military caregiver leave.

An employer must accept “invitational travel orders” (ITO) or “invitational travel authorizations” (ITA) issued by the DOD to family members for medical purposes as sufficient certification of the need for military caregiver leave, at least until the expiration date of the order or authorization.

The government issues an ITO and ITA so that one to three family members can immediately travel, at government expense, to the bedside of an injured service member, and they’re not issued routinely, so the DOL believes they’re sufficient certification.

Employers may seek authentication and clarification of military caregiver certifications but may not seek second or third opinions or recertification.

Page 51: Family and medical leave act 01 16 09 updates

Employers Must Notify Employees of Certification Deficiencies

The Company can contact health care providers directly, but only to authenticate certification

– Direct supervisors may not be the Company’s representative– Comply with HIPAA privacy requirements with respect to

clarification

The Company must notify the employee in writing of the additional information that is necessary to complete the medical certification and allow the employee seven calendar days to provide the additional information. 

If the employee fails to submit a complete and sufficient certification despite the opportunity to cure the deficiency or give permission for the clarification discussion, the Company may deny FMLA leave.

Page 52: Family and medical leave act 01 16 09 updates

Fitness For Duty Certifications

If reasonable safety concerns exist, the Company may now require more than a “simple statement” of the ability to return to work and may require a “fitness for duty” certification

Page 53: Family and medical leave act 01 16 09 updates

Intermittent Leave Minimum Increment

Final regulation clarifies

“minimum increment of FMLA leave”– Must account for leave using increment no greater

than the shortest period of time that employer uses to account for other forms of leave, provided not greater than one hour and provided that employee’s FMLA leave entitlement is not reduced by more than FMLA leave actually taken

– Preamble – Do not have to account for FMLA leave in 6 minute increments, just because time system is capable of doing so

Page 54: Family and medical leave act 01 16 09 updates

Inability to work overtime protected by FMLA

The DOL has clarified that missed overtime must be counted against the employee’s FMLA leave entitlement if the employee would otherwise have been required to report for duty but for the taking of FMLA leave.

Inability to work normally required overtime counts against FMLA entitlement

Inability to work voluntary overtime does not count against FMLA entitlement

Page 55: Family and medical leave act 01 16 09 updates

Full Explanation Required

Calling in sick is not considered a sufficient notice to trigger an FMLA absence.

Employees must explain sufficiently reasons for leave to allow the Company to determine whether the leave qualifies under the Act.  If employee fails to explain the reasons, leave may be denied. 

When an employee seek leave due to an FMLA-qualifying reason for which the Company has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave

Page 56: Family and medical leave act 01 16 09 updates

Employees must comply with usual and customary call-in procedures

All employees must comply with *usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. 

Examples of “unusual circumstances” may include: no one answered telephone number employee called company voice mail box is full employees are unable to use telephone because they are seeking

emergency medical treatment

*You may have requirements providing written notice of the reasons and anticipated start and duration of the leave or requirement that employees contact a specific individual to request leave. 

Page 57: Family and medical leave act 01 16 09 updates

Impact of FMLA Leave on Bonus Payments/Pay Increases

Final Regulations on Equivalent Pay 1. Pay increases conditioned upon seniority, length of service or

work performed must be granted in accordance with the employer’s policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave (no special treatment for FMLA leave)

2. Recognizes that attendance and safety awards are predicated on the achievement of a performance based goal

3. If bonus or other payment is based upon achievement of a specific goal, such as hours worked, products sold or perfect attendance, and employee does not meet the goal due to FMLA leave, then payment may be denied (so long as consistent with other employees on equivalent non-FMLA leave)Note – take into account vacation

Page 58: Family and medical leave act 01 16 09 updates

Time spent performing light duty does not count toward FMLA entitlement

An employee’s right to FMLA leave and job restoration are not affected by light duty assignments.  Thus, the employee’s right to job restoration is essentially on hold during the period of time an employee performs a light duty assignment. 

At the conclusion of the voluntary light duty assignment, the employee has the right to be restored to the position the employee held at the time the employee’s FMLA leave commenced or the employee may use the remainder of his or her FMLA leave entitlement.

Page 59: Family and medical leave act 01 16 09 updates

Employer Notice Requirements

Final regulations Consolidates all employer notice requirements into 4 parts:

• General Notice• Eligibility Notice• Rights and Responsibilities Notice• Designation Notice

Page 60: Family and medical leave act 01 16 09 updates

General Notice

Poster (new prototype form)

• Post in conspicuous place - Where employer has eligible employees, contents of the general notice (the contents of the poster) must be included in handbook or guidance (if such exist) or by distributing to new employees upon hire (not annual)

• May be distributed electronically so long as available to all employees

• May be posted electronically so long as available to all employees

• Must be posted even if no eligible employees

• Increase in daily penalty for failure to post - $110

Page 61: Family and medical leave act 01 16 09 updates

Rights and Responsibilities Notice

Contents of Notice: • That the leave may be designated FMLA leave if qualifying and 12

month period

• Certification requirements

• Employee right or employer requirement to substitute paid leave

• Health premium payment requirements

• Key employee rights

• Employee’s right to benefits and job restoration

• Employee’s potential liability for failure to pay health insurance premiums paid by employer if employee fails to return to work

• Other information (such as requirement for periodic reports) may be included, but not required

Page 62: Family and medical leave act 01 16 09 updates

Designation Notice

• Employer responsible for designating leave

• Prototype notice- must be in writing

• When employer has enough information to determine whether leave is taken for an FMLA qualifying reason, employer must notify employee within 5 business days (or earlier, if have enough information)

• Notice must address concurrent use of PTO benefits

• Notice must address fitness for duty (exception if covered in handbook policy); include list of essential functions

• Notice must identify amount of leave being counted against FMLA entitlement; if amount unknown, must provide (upon employee request) update on amount of leave used (but no more often than every 30 days and only if leave taken in that period)