family and medical leave act april 15, 2011

© 2011 Fredrikson & Byron, P.A.

FAMILY AND MEDICAL LEAVE ACT

April 15, 2011

Ingrid N. Culp, [email protected]

Fredrikson & Byron, P.A.(612) 492-7188

* The material contained herein is intended to be educational. It does not constitute legal advice.

mailto:[email protected]


FMLA – Employer Coverage

• Covered companies:– 50 or more employees (in 20 or more

calendar weeks this calendar year or last) – Count everyone listed on the payroll – full-

time, part-time, casual, temporary, owners (e.g., physician owners), etc., whether they received pay in a week or not


FMLA – Employee Eligibility

• Eligible employees:

– 12 cumulative months of employment

– 1,250 work hours in the 12 months prior to leave

– Site has 50 employees within 75 miles


FMLA – Reasons for Leave

• Reasons for FMLA leave:– 12 workweeks of unpaid leave in a 12-

month period:• Birth, adoption, or foster child placement• Employee’s own “serious health condition”• “Serious health condition” of the employee’s

spouse, parent, son or daughter (generally who is under age 18)

• Qualifying military exigency leave


FMLA – The 12-month Period

• Counting methods:

– Calendar or other “fixed” year– Fixed 12 months from an employee’s

first day of use– Rolling 12-month period looking back

from each day of use


FMLA – Reasons for Leave

• Injured servicemember leave:

– 26 workweeks of unpaid leave to care for injured servicemember in the 12-month period starting on the first day of use (and combined together with any of the other reasons for FMLA leave)


FMLA Parenting Leave

• FMLA Parenting Leave:– Applies to mothers and fathers following the

birth or placement– Covers pre-placement activities for adoption or

foster care – Must conclude within 12 months of the birth or

placement– Intermittent or part-time only if the employer

agrees– Runs concurrently with Minnesota parenting

leave (if applicable)


FMLA Serious Health Condition Leave

• Available when

– Employee is incapacitated by a “serious health condition”

– Employee needs to care for a spouse, child or parent who has a “serious health condition”



• Note:

– There are six different ways that a medical condition may qualify as a “serious health condition”


FMLA Serious Health Condition

• “Serious Health Condition”

1. Inpatient care (hospital, nursing home) and any subsequent incapacity and treatment



• “Serious Health Condition”2. More than three consecutive, full calendar (not

just work) days of incapacity witha. One in-person health care provider visit within 7 days

of the first absence with a regimen of treatment (e.g., prescription), or

b. Two in-person health care provider visits: the first visit within 7 days of the first absence and the second visit within 30 days

NOTE: A full Friday and a partial Monday absence with

incapacity in-between may be enough.




3. Any period of incapacity due to pregnancy or prenatal care.




4. Any absence due to a chronic condition:Examples: Asthma, diabetes, epilepsy, migraine headache, irritable bowel syndrome, fibromyalgia, etc.




5. Permanent or long-term incapacity due to a condition for which treatment may not be effective.

Examples: Alzheimer’s, a severe stroke, the final stages of a terminal disease



• “Serious Health Condition”6. Any period of absence to receive multiple

treatments and recovery therefrom fora. Restorative surgery after an accident or

injury, orb. A condition that would likely cause incapacity

of more than three consecutive, full calendar days if not treated.

Examples: Chemotherapy or radiation for cancer, dialysis for kidney disease, physical therapy for severe arthritis, steroid treatments for multiple sclerosis


FMLA Medical Certification

• For an eligible employee requesting any type of “serious health condition” leave:

– Use the DOL’s appropriate “Certification of Health Care Provider” form – “Employee” or “Family Member” (www.dol.gov)

• Employee has 15 calendar days to return



• Care for a son or daughter:

– Son or daughter generally must be under age 18

– If age 18 or older, must be “incapable of self-care because of mental or physical disability”



• Consecutive Days of Absence• Intermittent

From time-to-time as needed in the smallest increment of time the employer uses to measure work time, but never forced use of increment greater than one hour

• Reduced Schedule– Half-time or other reduced schedule


FMLA Qualifying Military Exigency Leave

• Employee may take 12 workweeks of FMLA leave for a qualifying exigency involving his/her spouse, child (of any age or capacity) or parent– Who is an active or retired member of

the Guard or Reserve or an active or retired member of the Regular Armed Forces


FMLA Qualifying Military Exigency Leave

• Qualifying exigencies:– Issues related to deployment with 7 days or less of

notice– Attendance at military events– Arranging for child care and school activities– Making financial or legal arrangements– Attending counseling– Rest and recuperation with the military member

(up to 5 days)– Other activities as agreed to by employer and

employee


FMLA Injured Servicemember Leave

• Injured servicemember leave:– 26 workweeks of leave from the first day of

use– Applies to eligible employees who are the

spouse, son, daughter, parent or “next of kin” of a covered injured servicemember

– “Next of kin” means the “nearest blood relative of that individual” other than a spouse, parent, son or daughter


FMLA Injured Servicemember Leave

• Covered injured servicemembers include:– Current, discharged or retired (veteran)

members of the active Armed Forces and the Guard and Reserve


A quick summary so far:

• Covered employer – 50 or more employees

• Eligible employee – 12 months, 1,250 hours and 50 employees w/i 75 miles

• Reasons for FMLA leave: – Parenting– Serious Health Condition (6 ways)– Qualifying exigency– Injured servicemember (26 weeks)


Employee/Employer Notice Summary

• Employee indicates need for leave• Employer responds w/i 5 business days:

– DOL’s “Notice of Eligibility and Rights & Responsibilities” form w/

– Appropriate medical certification form (but not if parenting leave)

• Employee provides medical certification w/i 15 calendar days

• Employer responds w/i 5 business days– DOL’s Designation Notice form


Other FMLA Leave Details

• Paid/Unpaid:– FMLA leave is unpaid unless a company-

provided compensation benefit applies:• Vacation, sick leave, PTO, workers’ comp• Short-term disability, Long-term disability, etc.

– Company FMLA policy must state whether paid time may or must be used and give details of use



• Continuation of Insurance Benefits:– Employer continues to pay its share of the

health and dental insurance (individual or family coverage as applicable)

– Employee pays his/her share of the insurance

– NO COBRA notice unless and until all FMLA time is exhausted


Return from FMLA Leave

• Fitness for Duty:

– Only request for an employee’s own FMLA serious health condition leave, not parenting leave


Return from FMLA Leave

• Job reinstatement:– Upon completion of FMLA leave, the

employee is entitled to return to the same or an equivalent position• Job duties, pay, benefits and terms and

conditions of employment• If employee is laid off during FMLA leave, no

reinstatement is required (but proceed very cautiously here)


After FMLA Leave

• Note:

– More leave may be required per the Americans with Disabilities Act for an employee who has used all 12 workweeks of FMLA leave but still is medically unable to return to work because of the employee’s own disabling health condition



– No discrimination

– No retaliation (e.g. termination, discipline, pay cut, etc.)

Note: Absences covered by FMLA – no adverse action.


Recommendations

• Good written FMLA policy• Train supervisors and managers• Designate one person to be in charge

of employee leaves, including FMLA• Proceed with caution when terminating

employee during or following FMLA leave (or request for leave)


#4778534

Thank you!

Questions?

family and medical leave act april 15, 2011

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