FMLA & Military Family Leave Updates 2009

What is the Family and MedicalLeave Act?

Family Medical Leave is a Federal benefit provided to eligible employees.

A 1993 Federal Act which provides:– up to 12 work weeks of unpaid, job-

protected leave– maintenance of pre-existing health

benefits Enforced by the Department of Labor

On November 17, 2008, the DOL issued its final regulations under the Family and Medical Leave Act (FMLA), which include expansions to cover military

leave along with changes to the current regulations.

The final regulations become effective on January 16, 2009.

FMLA Updates

Key Changes

Military Leave Serious Health Condition Employer Obligation Employee Notice Employee Eligibility

Key Changes Continued

Medical Certification Process (Content, Clarification and Timing)

Fitness for Duty Light Duty Calculation of Leave Minimum Increments

Military Leave

Military Caregiver Leave (also known as Covered Service member Leave): Under the first of these new military family leave entitlements, eligible employees who are family members of covered service members will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty.

Military Leave Continued

Qualifying Exigency Leave: The second new military leave entitlement helps families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation.

Certification Certification that the covered military member is a member of the

National Guard or Reserves who is on active duty or called to active duty in support of a contingency operation.

Statement from the employee (including available written support documentation) about the nature and details of the specific exigency, the amount of leave needed, and the employee’s relationship to the military member.

Military Exigency Leave

1. Short-notice deployment2. Military events and related activities3. Childcare and school activities4. Financial and legal arrangements5. Counseling6. Rest and recuperation7. Post-deployment activities; 8. Additional activities not encompassed in the other

categories, but agreed to by the employer and employee.

Serious Health Condition – Continuing Treatment

Continual Treatment - measured by the duration of the incapacity itself (more than 3 full consecutive days)

requires 2 in-person treatments by a health care provider at least once within seven days of the first day of incapacity; and

requires either (i) a regimen of continuing treatment initiated by the health care provider within 30 days of the start of incapacity.

Serious Health Condition – Chronic Condition

A chronic condition is one that: (a) requires visits for treatment by a health care

provider at least twice a year; (b) continues over an extended period of time

(including recurring episodes of a condition); and

(c) may cause episodic incapacity rather than a continuing period of incapacity

Employee Eligibility

If an employer grants a non-FMLA leave to an employee before that employee is eligible for FMLA leave, and if the employee becomes eligible for FMLA leave while on the non-FMLA leave, the leave period after the date the employee becomes eligible is FMLA leave

If an employee has a break in service that lasts more than 7 years, the prior service does not need to be counted toward eligibility for FMLA except if the break in service was due to National Guard or Reserve military service, or if there was an agreement when the break in service occurred that the employer would later rehire the employee.

Employer Notice Obligation

FMLA information must be posted in conspicuous places that are accessible to both applicants and employees.

The employer must also distribute the general notice to employees by including it a handbook (or other written materials) or by providing it to each new hire.

Electronic posting and distribution is permissible.

Employer Notice Obligation

An Eligibility Notice; Employer must notify employee in writing of eligibility or noneligibility within 5 business days (absent extenuating circumstances) after the first time in the employer’s FMLA leave year that an employee requests leave for a particular qualifying reason, and thereafter during the same FMLA leave year, only if the employee’s eligibility status changes (even if a subsequent request is for a different qualifying reason)

Employer Notice Obligation Continued

Rights and Responsibilities Notice; Employer must provide written rights & responsibilities notice:

(a) each time an eligibility notice is required;

(b) if any info on it changes thereafter, within 5 business days after employee’s first request for leave after the changes occur, including reference to prior notice and info that has changed (e.g., method of paying premiums may change if paid LOA becomes unpaid LOA)

Employer Notice ObligationContinued

A Designation Notice - For each FMLA-qualifying reason within the employer’s designated 12-month FMLA leave year, employer must give written designation that leave qualifies (or not) as FMLA leave:

(a) within 5 business days after acquiring enough info to determine if it qualifies, absent extenuating circumstances;

(b) at any later time as long as the employee is not harmed (the Ragsdale rule); and

(c) if the amount of leave is not known, upon an employee’s request but no more often than every 30 days (if leave was taken during the prior 30 days)

Employee Notice

In the case of foreseeable leave, 30 days’ advance notice is still required or, if 30 days’ advance notice is not possible, notice must be given “as soon as practicable” (meaning the same day or the next business day).

If leave is unforeseeable, the employee must give notice of the need “as soon as practicable” (meaning within such reasonable time frame as is established in an employer’s usual and customary leave and absence notification policies).

Failure to provide timely notice allows the employer to count any absences during the delay as non-FMLA absences and apply the employer’s attendance policy to those absences. In the case of exigency leave (whether foreseeable or unforeseeable), notice must be given “as soon as practicable.”

Medical Certification Process (Content)

An employee must submit a complete and sufficient medical certification within 15 days (or longer if the employee has made diligent, good faith efforts to obtain it without success).

If submitted and is not complete or sufficient, the employer must provide the employee with seven days to cure the deficiencies and a list of what information is still needed. If the employee does not correct it within the cure period, leave can be denied.

Medical Certification Process (Clarification)

Once the employer receives a complete and sufficient certification, the employer may authenticate it (without the employee’s consent and by direct contact with the employee’s health care provider via Dr. Jackson) and may obtain clarification of any vague or unresponsive information (by direct contact with the provider but only with the employee’s consent).

Medical Certification Process (Timing)

Recertification can be required every six months in all cases, but only in connection with an absence that has occurred for that medical condition.

A recertification can also be required at any time if an extension to a leave is requested, circumstances described in the last certification have changed (such as a pattern of absences around an employee’s scheduled days off), or the employer receives information casting doubt on the employee’s stated reason for an absence or the continuing validity of the last certification (such as an employee observed engaging in 10 activities that are inconsistent with a need for time off due to the certified condition).

Fitness for Duty

An employer may require a fitness-for-duty certification that is more than a simple statement releasing the employee to work. The employer may require the health care provider to actually assess whether the employee has the ability to perform the essential functions of the job.

A fitness-for-duty certification can be required for each continuous leave upon the employee’s return to work or, in the case of intermittent or reduced schedule leave, every 30 days if reasonable safety concerns exist (defined as a significant risk of harm to the employee or others).

Light Duty

An employee performing “light duty” work does not count against an employee’s FMLA leave entitlement and that the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

Calculation of Leave Minimum Increments

An entire missed shift may be charged against FMLA leave when it is physically impossible for an employee to begin the shift late, such as working on an airline flight that has already taken off.

Department may track leave in increments of no more than 1 hour but not for any time spent working.

Next Steps

Review the presentation for understanding and ask questions of your Staff and Labor representative

Train employees and supervisors on the FMLA's new obligations and rights.

Remove old FMLA forms effective January 16, 2009 Determine departmental FMLA process (letters, sign

offs, verification of eligibility, and etc.) Visit the Duke HR Web Site for the toolkits, forms,

presentations, letters, updates and etc.

End of FMLA Regulations

Q&A