Family & Medical Family & Medical Leave ActLeave Act

Includes January 2009 Includes January 2009 RevisionsRevisions

AgendaAgenda Types of leaveTypes of leave Employee’s eligibilityEmployee’s eligibility Serious health conditionsSerious health conditions Birth or placement of childrenBirth or placement of children Military leave typesMilitary leave types Recordkeeping and certificationsRecordkeeping and certifications Employee doesn’t/can’t return to Employee doesn’t/can’t return to

workwork

What constitutes What constitutes leave for FMLA leave for FMLA

purposes?purposes?

Eligibility Eligibility

Leave periods Leave periods

““Types” of FMLA LeaveTypes” of FMLA Leave

BasicBasic Own serious health conditionOwn serious health condition Family member’s serious health Family member’s serious health

conditioncondition Birth, placement, adoptionBirth, placement, adoption

Military Military (eff. January 2009)(eff. January 2009) Qualifying exigenciesQualifying exigencies Care for an injured service memberCare for an injured service member

Employee’s Leave Employee’s Leave EligibilityEligibility12 months12 months

Must have Must have workedworked for you for at least for you for at least 12 months (doesn’t have to be 12 months (doesn’t have to be consecutive)consecutive)

Count every week in which someone Count every week in which someone is on your payroll (even if paid leave)is on your payroll (even if paid leave)

Employee’s Leave EligibilityEmployee’s Leave Eligibility1250 hours1250 hours

Employee must have Employee must have workedworked at least at least 1,250 hours in immediately 1,250 hours in immediately preceding 12 months.preceding 12 months. Count up all hours Count up all hours workedworked in 52 weeks in 52 weeks

prior to date leave would begin.prior to date leave would begin. If If >> 1,250, eligible. 1,250, eligible. If <1,250, ineligible.If <1,250, ineligible.

Must have some kind of timekeeping Must have some kind of timekeeping system.system.

To Avoid Mistakes . . . To Avoid Mistakes . . .

Calculate months/hours accuratelyCalculate months/hours accurately Keep accurate records of time workedKeep accurate records of time worked Give first response (Notice of Give first response (Notice of

Eligibility) on timeEligibility) on time Give approval or request for more Give approval or request for more

information (Designation Notice) on information (Designation Notice) on timetime

Use Attachments 2A, 2B and 2CUse Attachments 2A, 2B and 2C

Types of FMLA Leave Types of FMLA Leave YearYear

Calendar year or other fixed periodCalendar year or other fixed period ““Counting forward” leave yearCounting forward” leave year ““Rolling” leave year—we useRolling” leave year—we use All qualifying reasons apply to annual All qualifying reasons apply to annual

entitlement.entitlement.

Rolling leave yearRolling leave year

Measured backward from first day Measured backward from first day leave is taken leave is taken

Based on Based on employee’semployee’s normal normal workweekworkweek

Rolls out throughout the year, Rolls out throughout the year, incrementally. incrementally.

Accrues, like vacation or sick.Accrues, like vacation or sick. See example spreadsheet.See example spreadsheet.

Military Caregiver Leave Military Caregiver Leave YearYear

26 weeks in 12-month period.26 weeks in 12-month period. AlwaysAlways begins on employee’s first begins on employee’s first

day of leave—no choice.day of leave—no choice. Only one leave per servicemember Only one leave per servicemember

per injury or illness.per injury or illness.

Own Serious Health Own Serious Health ConditionCondition

For employee’s For employee’s own illnessown illness IncludesIncludes

Inpatient careInpatient care Incapacity for more than 3 calendar daysIncapacity for more than 3 calendar days Incapacity for pregnancy or prenatal careIncapacity for pregnancy or prenatal care Incapacity for chronic serious health Incapacity for chronic serious health

conditioncondition Permanent or long-term incapacityPermanent or long-term incapacity Absence for multiple treatmentsAbsence for multiple treatments

Family Member’s Family Member’s Serious Health ConditionSerious Health Condition

““Family” definitionFamily” definition SpouseSpouse ChildChild ParentParent NotNot in-laws in-laws

Employee needed to Employee needed to care forcare for family family member (not just comfort)member (not just comfort)

Can ask for proof of family relationshipCan ask for proof of family relationship

To Avoid Mistakes . . .To Avoid Mistakes . . .

AlwaysAlways get medical certification— get medical certification—don’t make decisions on your own don’t make decisions on your own

““3-day rule” may not apply in every 3-day rule” may not apply in every casecase

Think of FMLA immediately when Think of FMLA immediately when employee talks of leave for physical employee talks of leave for physical or mental ailmentor mental ailment

Birth of a ChildBirth of a Child

12 weeks total only 12 weeks total only Serious medical conditionSerious medical condition

Caring for ill wife or newborn (males)Caring for ill wife or newborn (males) Caring for ill newborn (males & females)Caring for ill newborn (males & females)

Parenting leave (to bond with new Parenting leave (to bond with new baby)baby) Males & femalesMales & females Must conclude within one year of birthMust conclude within one year of birth

Adoption of a ChildAdoption of a Child

12 weeks total12 weeks total Includes time before placementIncludes time before placement Parenting leave appliesParenting leave applies

Leave for a New Foster Leave for a New Foster ChildChild

12 weeks only12 weeks only Need may arise before or after Need may arise before or after

placementplacement Must involve the stateMust involve the state Informal custody arrangements don’t Informal custody arrangements don’t

countcount

Parenting LeaveParenting Leave

Leave must conclude within one year Leave must conclude within one year of birth or placement—rigid deadlineof birth or placement—rigid deadline

Intermittent or reduced-schedule Intermittent or reduced-schedule leave not leave not requiredrequired to be granted, but to be granted, but you canyou can

If both parents work for you, entitled If both parents work for you, entitled to 12 weeks to 12 weeks combinedcombined

PregnancyPregnancy

Incapacity due to pregnancy and Incapacity due to pregnancy and prenatal care = serious health prenatal care = serious health conditioncondition

So, may be taken intermittently or on So, may be taken intermittently or on reduced schedulereduced schedule

Husband may take FMLA leave to Husband may take FMLA leave to care forcare for ill wife ill wife

To Avoid Mistakes . . .To Avoid Mistakes . . .

Make sure Make sure bothboth parents are eligible if parents are eligible if both work for youboth work for you

Distinguish parenting leave from Distinguish parenting leave from leave for a serious illnessleave for a serious illness

FMLA Intermittent LeaveFMLA Intermittent Leave

Taken in separate blocks of time for Taken in separate blocks of time for single qualifying reasonsingle qualifying reason..

Must be Must be medically necessarymedically necessary.. For PT employee w/ variable week, For PT employee w/ variable week,

calculate average hours in prior 52 calculate average hours in prior 52 weeks. weeks.

Recordkeeping for Recordkeeping for Intermittent LeaveIntermittent Leave

Keep accurate and updated records Keep accurate and updated records or time.or time.

FFD certifications not applicable.FFD certifications not applicable. Must use smallest increment of time Must use smallest increment of time

your payroll systems uses to account your payroll systems uses to account for other types leave.for other types leave.

Other InformationOther Information

Intermittent or reduced schedule Intermittent or reduced schedule leave availableleave available

Employee may choose—or you may Employee may choose—or you may require—paid leave to be used, require—paid leave to be used, according to your leave policiesaccording to your leave policies

Military LeaveMilitary Leave

Military Family LeaveMilitary Family Leave

Family members defined:Family members defined: SpouseSpouse ParentParent Child, regardless of age.Child, regardless of age.

Nearest blood relativeNearest blood relative

Military Family LeaveMilitary Family Leave

Covered family member (meets all Covered family member (meets all three)three) Member of National Guard or ReservesMember of National Guard or Reserves

Could be retired member of regular Armed Forces or Could be retired member of regular Armed Forces or Reserves.Reserves.

On active duty or called in support of On active duty or called in support of contingency operation.contingency operation.

Called pursuant to Called pursuant to federalfederal call (not state). call (not state). Active career military not eligibleActive career military not eligible

Military Family LeaveMilitary Family Leave

Qualifying exigencyQualifying exigency Family member is National Guard or Family member is National Guard or

Reserves or Reserves or retiredretired from Armed Forces from Armed Forces 12 weeks12 weeks

Caregiver leaveCaregiver leave To care for family member with serious To care for family member with serious

injury or illness from active dutyinjury or illness from active duty Regular Armed Forces & Guard and Regular Armed Forces & Guard and

ReservesReserves 26 weeks in single 12-month period26 weeks in single 12-month period

Qualifying ExigenciesQualifying Exigencies

Short-notice deploymentShort-notice deployment Military events and related activitiesMilitary events and related activities Child care and school activitiesChild care and school activities Financial and legal arrangementsFinancial and legal arrangements CounselingCounseling Rest and recuperationRest and recuperation Postdeployment activitiesPostdeployment activities

Caregiver LeaveCaregiver Leave

Up to 26 weeks in single 12-month Up to 26 weeks in single 12-month period.period. For family member andFor family member and

With serious injury or illness andWith serious injury or illness andIncurred in line of duty orIncurred in line of duty orUndergoing treatment for sameUndergoing treatment for same

Leave RulesLeave Rules Employees eligible for military Employees eligible for military

caregiver leave may take no more caregiver leave may take no more than 26 total weeks in a single 12-than 26 total weeks in a single 12-month periodmonth period

Employees may not take more than Employees may not take more than 12 weeks FMLA leave for purposes 12 weeks FMLA leave for purposes other than military caregiver leaveother than military caregiver leave

AnyAny unused leave does not carry over unused leave does not carry over

Using Both Types of Using Both Types of LeaveLeave

Time off must be designated either as Time off must be designated either as military caregiver leave or as another military caregiver leave or as another type, not both.type, not both.

In many instances, military caregiver leave In many instances, military caregiver leave would qualify as leave for a family would qualify as leave for a family member’s serious health condition.member’s serious health condition.

BUT revised regs say this must be counted BUT revised regs say this must be counted & designated as military caregiver leave & designated as military caregiver leave only, to give employees full benefit of this only, to give employees full benefit of this time off.time off.

ExampleExample

Benny’s wife was seriously injured in Benny’s wife was seriously injured in Iraq. He has taken 20 weeks, starting Iraq. He has taken 20 weeks, starting September 1, to care for her. His son September 1, to care for her. His son now has a serious medical condition now has a serious medical condition requiring surgery and rehab. He requiring surgery and rehab. He requests 10 weeks of leave, starting requests 10 weeks of leave, starting April 15, to care for the boy. Do you April 15, to care for the boy. Do you have to grant that under FMLA?have to grant that under FMLA?

AnswerAnswer

No. As the spouse of an injured service No. As the spouse of an injured service member, Benny is entitled to a max member, Benny is entitled to a max of 26 in any 12-month period for of 26 in any 12-month period for allall FMLA leave. That 12-month period FMLA leave. That 12-month period began September 1, and he’s used began September 1, and he’s used 20 weeks of it. So, he has only 6 20 weeks of it. So, he has only 6 weeks of any type of FMLA leave left weeks of any type of FMLA leave left until September 1 of following year.until September 1 of following year.

ExampleExample

Benny took only 8 weeks to care for Benny took only 8 weeks to care for his wife since September 1 (his his wife since September 1 (his mother-in-law took over care). When mother-in-law took over care). When Benny’s son requires surgery, he Benny’s son requires surgery, he asks for 16 weeks, to begin April 15. asks for 16 weeks, to begin April 15. Should you grant?Should you grant?

AnswerAnswer

No. Even though Benny used only 8 No. Even though Benny used only 8 weeks of his 26-week entitlement for weeks of his 26-week entitlement for military caregiver leave, he is still military caregiver leave, he is still entitled to only 12 entitled to only 12 totaltotal weeks of FMLA weeks of FMLA leave for all other purposes. Son’s leave for all other purposes. Son’s serious health condition subject to 12-serious health condition subject to 12-week limit.week limit.

Still has 18 weeks remaining to care for Still has 18 weeks remaining to care for wife, but may not use all of this for wife, but may not use all of this for other FMLA purposes.other FMLA purposes.

To Avoid Mistakes . . .To Avoid Mistakes . . .

Think of FMLA when employee Think of FMLA when employee mentions family member’s military mentions family member’s military service as reason for time off.service as reason for time off.

Ask questions.Ask questions. 26 weeks of caregiver leave starts on 26 weeks of caregiver leave starts on

first day of leave.first day of leave. Keep track of limits on timing and Keep track of limits on timing and

duration for particular types of duration for particular types of exigency leave.exigency leave.

CertificationsCertifications

Always requestAlways request Give employees at least 15 days to Give employees at least 15 days to

return completed formreturn completed form Completed by health care provider for all Completed by health care provider for all

but military exigencybut military exigency But you may confirm meeting with third-But you may confirm meeting with third-

partyparty May confirm with DOD employee’s family May confirm with DOD employee’s family

member is on active duty or called to active member is on active duty or called to active duty.duty.

If certification unclearIf certification unclear

Employee must cooperate with Employee must cooperate with getting clarification or leave may be getting clarification or leave may be denieddenied

Call meCall me

If employee can’t return If employee can’t return to workto work

Your FMLA obligations endYour FMLA obligations end ADA obligations must be reviewedADA obligations must be reviewed Call me to discussCall me to discuss

What if What if employee employee

cannot return cannot return to work?to work?

If employee can’t return If employee can’t return

Basic rule: Employee is entitled to Basic rule: Employee is entitled to every benefit available under every every benefit available under every law that applieslaw that applies Americans with Disabilities ActAmericans with Disabilities Act Continuation coverageContinuation coverage Title VII of Civil Rights ActTitle VII of Civil Rights Act USERRAUSERRA Workers’ compensationWorkers’ compensation

If employee doesn’t If employee doesn’t returnreturn

Determine reasonDetermine reason If If voluntaryvoluntary, calculate, calculate

Employer’s share of health premiumEmployer’s share of health premium Employee’s share if not paidEmployee’s share if not paid

Offer continuation coverageOffer continuation coverage

Pregnancy and childbirthPregnancy and childbirth

Title VII of CRA says employer must Title VII of CRA says employer must treat pregnant employees as it would treat pregnant employees as it would any other temporarily disabled any other temporarily disabled worker.worker.

Means: might have to provide time Means: might have to provide time off to pregnant employee who isn’t off to pregnant employee who isn’t eligible for FMLA leave IF you provide eligible for FMLA leave IF you provide such time off to employees with such time off to employees with other types of short-term disabilities.other types of short-term disabilities.

FMLA & RecordkeepingFMLA & Recordkeeping

Records may be inspected by DOLRecords may be inspected by DOL ““make, keep, and preserve” detailed make, keep, and preserve” detailed

records of FMLA leaves taken (including records of FMLA leaves taken (including notices to and from employees)notices to and from employees)

No specific order required; must be clear No specific order required; must be clear and identifiable by date or pay periodand identifiable by date or pay period

Kept for at least 3 yearsKept for at least 3 years NOT in employment file!NOT in employment file!

To Avoid Mistakes . . .To Avoid Mistakes . . .

Keep good (& up-to-date) payroll & Keep good (& up-to-date) payroll & leave recordsleave records

Keep track of hours available to Keep track of hours available to calculate intermittent leavecalculate intermittent leave

Keeping easily retrievable copies of Keeping easily retrievable copies of forms to and from employeeforms to and from employee