1

2

3

Overview of the Family and Medical Leave Act

Presented by:Tasos C. Paindiris, Esq.Miami Office

MY CONTACT INFORMATION

Tasos C. Paindiris, Esq.

Managing Partner

Jackson Lewis LLP

2 South Biscayne Blvd

Suite 3500

Miami, FL 33131

305-577-7600

PaindirisT@jacksonlewis.com

www.jacksonlewis.com

5

About the Firm

Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation

750 attorneys in 52 locations nationwide

Current caseload of over 6,500 litigations and approximately 415 class actions

Founding member of L&E Global

Strategically Located Throughout the Nation to Serve Employers’ Needs

652 Locations Nationwide

THREE STEP PROCESS FOR LEAVE REQUESTS

What leave is employee legally entitled to?

FMLA

Worker’s Compensation

State Leave Entitlements

USERRA

Does Company policy or practice provide leave?

Is leave required as a reasonable accommodation under the ADA?

7

COMPANY LEAVE OF ABSENCE POLICIES

Distinguish between leave and benefit policies Receipt of paid benefits is distinct from granting of leave.

Paid leave benefits include paid time off, short-term or long-term disability benefits, and workers compensation benefits

Employees may be eligible for paid benefits and not leave or vice versa

Employees should contact Human Resources to confirm leave and benefit entitlements. Company must provide employee with certain information about

paid benefits if leave is FMLA qualifying

8

The FMLA

Requires a "Covered Employer" to provide up to 12 weeks (or 26 weeks for military caregiver leave) of unpaid, job-protected leave to an "Eligible Employee" during a 12-month period for certain qualifying events.

WHO IS ELIGIBLE?

Employees who have worked for the employer for:

12 months (calculated from the date leave is to commence and including all leave time)

Break-in-service < 7 years: all prior time counts.

Break-in-service > or = 7 years: no prior time counts, unless military reason or written agreement.

WHO IS ELIGIBLE? (CON’TD)

Employees who have worked for the employer:

• At least 1,250 hours in the 12-month period immediately preceding the leave (actual hours worked) (must include National Guard or Reserve "but for" hours); ando NOTE: For airline pilots and flight attendants must have

worked or been paid at least 60% of monthly guarantee and actually worked 504 hours.

• At a site with 50+ employees in 75 miles. o NOTE: for joint employers, if employee worked at secondary

employer's site for 1 year, then = employer for FMLA determination.

REASONS FOR LEAVE – SPECIAL DELIVERIES

Birth, adoption or placement (of a child for foster care) and care of the child.

Special Considerations for Special Deliveries:

12 months to take

No intermittent or reduced schedule entitlement

Employer may require employee to take time consecutively

• Care for the employee’s son, daughter, spouse, or parent with a serious health condition.

• Care for the employee's own serious health condition that makes employee unable to perform any one of the essential functions of his/her position.

REASONS FOR LEAVE – SERIOUS HEALTH CONDITIONS

SERIOUS HEALTH CONDITION

Inpatient care in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with the inpatient care.

SERIOUS HEALTH CONDITION

Continuing treatment involving incapacity of more than 3 consecutive calendar days and treatment:

two or more times by a health care provider (1st visit within 7 days; 2nd visit within 30 days); or

once by a health care provider which results in a regiment of continuing treatment (visit within 7 days).

SERIOUS HEALTH CONDITION

Continuing treatment for incapacity related to: Pregnancy or prenatal care;

Chronic health condition (requires visits at least twice per year);

Permanent or long-term condition; or

Multiple treatments for restorative treatments or otherwise incapacitating condition.

SPOUSES EMPLOYED BY SAME EMPLOYER

Eligible for 12 (or 26) TOTAL weeks:o Birth of the employees’ son or daughter

o To care for the healthy child after birth

o For placement of a healthy son or daughter with the employee for adoption or foster care,

o To care for the child after placement

o To care for the employee’s parent with a serious health condition

o To care for a covered servicemember with a serious injury or illness

SUBSTANCE ABUSE

Covered by FMLA:

o Treatment for substance abuse

o Care for covered family member receiving substance abuse treatment

Absences because of substance abuse are not covered by the FMLA

Remember ADA issues come into play too!

MILITARY FAMILY LEAVE

• Two types:

oQualifying Exigency Leave

oMilitary Caregiver Leave

QUALIFYING EXIGENCY LEAVE

• Leave when employee’s spouse, son, daughter, or parent, who is a member of the regular component of the Armed forces OR the National Guard or Reserves , who is on active duty or called/ordered to active duty in a foreign country.

o Does NOT apply to active duty that takes place domestically.

QUALIFYING EXIGENCY LEAVE

A “qualifying exigency” is a non-medical event requiring urgent attention arising out of the covered servicemember’s active duty or call to active duty status.

QUALIFYING EXIGENCY LEAVE

8 Categories

o Short notice deployments

o Military related events (i.e., official military ceremonies)

o Childcare and school activities (i.e., placing a child in a new school or arranging for alternate childcare)

o Financial and legal arrangements

o Counseling provided by someone other than a healthcare provider

o Rest and recuperation

o Post-deployment activities (i.e. funeral arrangements)

o Any other event agreed upon by the employer and employee

MILITARY CAREGIVER LEAVE

• Leave for spouse, son, daughter, parent or “next of kin” to care for a covered servicemember – which includes current members of the Armed Services, Reserves or National Guard and veterans – who has a “serious injury or illness” who is undergoing medical treatment, recuperation or therapy.o NOTE #1: for veterans, the serious illness or injury must have

occurred at any point during the 5 year date preceding the medical treatment, recuperation or therapy.

o NOTE #2: “next of kin” means the nearest blood relative other than the spouse, parent (not in-law), son, or daughter.

MILITARY CAREGIVER LEAVE

• A “serious injury or illness” means for:

o Current servicemembers: an injury or illness that was incurred by the servicemember in the line of duty or that pre-existed active duty and was aggravated by service in the line of active duty;

o Veterans: a qualifying injury or illness (to be defined by the U.S. Department of Labor) that was incurred in the line of duty on active duty or that pre-existed active duty and was aggravated by service in the line of active duty and that manifested itself before the member became a veteran.

LEAVE ENTITLEMENT

Generally

12 weeks per year (generally, calculated on a “rolling” calendar).

Military Family Leave

Qualifying Exigency Leave: same 12 week period that is used for regular FMLA leave.

Military Caregiver Leave: 26 weeks of leave in a “single 12-month period”; eligible employee is entitled to a combined total 26 weeks of leave for all reasons .

INTERMITTENT/REDUCED SCHEDULE LEAVE

• Intermittent leave is taken in separate blocks of time due to a single qualifying event.

• Reduced schedule leave decreases an employee’s usual number of working hours per workweek or workday for a specified period of time.

INTERMITTENT: LEAVE INCREMENTS

These types of leaves must be measured in increments that are no greater than the shortest period of time used to account for use of other forms of leave – so long as this increment is not greater than one hour and the employee is not charged for more than the actual amount of leave that is taken.

“SUBSTITUTION” OF PAID LEAVE

• Apply normal leave policies to the substitutions of all types of paid leave.

• There is no longer a distinction between the treatment of paid vacation and paid sick leave.

• The use of paid leave will run concurrently with any unpaid leave under the FMLA.

SUBSTITUTION OF PAID LEAVE

EXAMPLES

• If an employer requires the use of sick days in full-day increments, it does not have to allow employees on FMLA leave to take it in shorter increments.

• If an employer requires two days’ advance notice for paid time off, it does not have to allow employees on FMLA leave to use paid time off where two days’ advance notice was not given.

EMPLOYER NOTICE TO EMPLOYEE

• Employer’s FMLA policy

• Eligibility Notice (to be given within 5 business days of being notified for the need for leave) (DOL Form WH-381)

• Rights and Responsibilities Notice (which is issued with the Eligibility Notice) (DOL Form WH-381)

• Designation Notice (must notify employee that leave is FMLA-qualifying within 5 business days of determination) (DOL Form WH-382)

o Leave can be retroactively designated (with caution).

RETROACTIVE DESIGNATION

Permissible if no harm or injury to employee

Employer and employee can mutually agree to retroactive designation

Employer’s failure to comply with the notice requirements could support an interference claim

EMPLOYEE NOTICE TO EMPLOYER

The employee need not expressly assert “FMLA” rights. Rather, the employee need only put the employer on notice of the reasonable need for FMLA leave.

EMPLOYEE NOTICE TO EMPLOYER

FORESEEABLE: 30 days notice; otherwise,

employer can delay.

NOT FORESEEABLE: As soon as possible (or within two business days of the

need for leave).

MEDICAL CERTIFICATION

• May require medical certification for leave related to the eligible employee’s serious health condition(s).

• Must advise an employee at the time of request or within 5 business days of need for medical certification.

• Provide 15 calendar days for employee to return the certification and notify the employee of the consequences for failure to return the certification in a timely manner.

MEDICAL CERTIFICATION

• The employee has the responsibility to provide “complete and sufficient” certification.

• Incomplete and insufficient certification: inform employee in writing of information needed and give 7 calendar days to comply.

• If the employee fails to provide a complete and sufficient certification, the employer may deny the request.

AUTHENTICATION/CLARIFICATION

• Authenticate without employee’s consent and Clarify with employee’s consent.

• In either event, the employer must comply with HIPAA by using a in-house health care practitioner, human resources professional, leave administrator, or management official; never a direct supervisor of the employee.

SECOND AND THIRD OPINIONS

May send an employee for a second opinion (at the employer’s cost). Not to a medical provider whom the employer regularly employs. If there is a conflict, then the opinion of a “neutral third” is final.

RECERTIFICATION

• Can require recertification where there is a change in circumstances surrounding the leave or there is reason to believe the employee is being untruthful.

• May generally require recertification every 30 days, but no sooner than the minimum duration of the period of incapacity, but in all cases – at least every 6 months.

• May request a new medical certification each leave year for conditions lasting longer than one year.

FITNESS FOR DUTY CERTIFICATION

• May require pursuant to a uniformly applied policy applicable to similarly-situated employees.

• May require once every 30 days for employees on intermittent leave if the employee is notified with the designation notice and reasonable safety concerns exist regarding the employee’s ability to do his/her job

• May require a certification of whether the employee may perform the essential job functions of his job only if the essential job functions are attached to the initial designation notice.

QUALIFYING EXIGENCY CERTIFICATION

• With the employee’s first request, an employer may require a copy of the servicemember’s orders.

• An employee may be required to submit a certification for each qualifying exigency. (DOL Form WH-384)

o If the qualifying exigency involves a meeting with a third party, an employer may verify the meeting by contacting the third party.

MILITARY CAREGIVER LEAVE CERTIFICATION

• An employee may be required to have a certification completed by a Department of Defense “authorized” health care provider (DOL Form WH-385).

o Note: If an employee provides an “invitational travel order” (“ITO”) or “invitational travel authorization” (“ITA”) that was issued to any family member, no further certification may be required

o No second or third opinions or recertifications are permitted

JOB RESTORATION

An employee must be restored to the same or equivalent position even if the employee has been replaced or position has been restructured to accommodate the employee’s absence.

BUT, there is no right to reinstatement if:

• the employee would have been laid off or terminated anyway;

• the employee was designated as a “key employee”; or

• it is determined that the employee received the leave by fraud.

42

RESTRICTING ACTIVITIES ON LEAVE

Employers can have a uniform policy for all leaves that limits employees activities on leave

Examples:

o Working second job

o Travelling out of state

o Engaging in certain recreational activities

BENEFITS DURING LEAVE PERIOD

• Group health plan coverage must be continued under the same terms offered to employee’s who are not on leave.

• Any plan changes that apply to all employees also apply to an employee on FMLA leave.

• Entitlement to benefits other than group health plan coverage is determined by employer’s established policy for providing such benefits during other forms of leave.

ENFORCEMENT AND WAIVER

• Interference and retaliation is strictly prohibited. The penalties are stiff as an employee may recover:

o Lost wages and benefits;

o Liquidated damages;

o Attorney’s fees and costs; and

o Reinstatement.

• Employees may waive FMLA claims under certain circumstances.

State Leave Laws

o Family leave laws

o Medical leave laws

o Pregnancy leave laws

o Workers’ compensation laws

o Domestic/sexual violence leave laws

o Adoptive leave

o Parental Leave

o Military leave

o “Small necessities” leave law

Common Differences Between Federal/State Laws

• Lower threshold to be a covered “employer”

• Lower threshold to be an eligible “employee”

• Different reasons for leave

• Different definitions for “serious health conditions”

• Different definitions of covered family members

• Different amounts of leave

• Different employee notice requirements

• Different medical certification rules

• Different methods to calculate leave

LEAVE MANAGEMENT

JOB-PROTECTED ABSENCE

Statutory Entitlement

(including state laws)

Policy Commitment

Reasonable Accommodation

Ask Three Questions

o Is the employee “entitled” to be absent with job protection?

• FMLA, State Leave Entitlements

o Has Company “committed” to providing additional job-protected leave?

• Evaluate policies and past practices locally

o Is additional leave required as a reasonable accommodation for employees with disabilities?

• Company owns this process/analysis

• Must consider impact of the ADA Amendments Act

Thank You!

50

Workplace law. In four time zones and 52 major locations coast to coast.

The Hartford® is The Hartford Financial Services Group, Inc. and its subsidiaries including issuing companies Hartford Life Insurance Company, Hartford Life and Accident Insurance Company and Hartford Fire Insurance Company. Administrative services are provided by the Hartford-Comprehensive Employee Benefit Service Company. In MI, NH, NM, NC, and WY, administrative services are provided by Hartford Life and Accident Insurance Company. Policies sold in New York are underwritten by Hartford Life Insurance Company. Home Office of Hartford Fire Insurance Company and affiliates is Hartford, CT. Home Office of Hartford Life Insurance Company, Hartford Life and Accident Insurance Company and Hartford-Comprehensive Employee Benefit Service Company is Simsbury, CT.

51