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THE FAMILY ANDMEDICAL LEAVE ACT

Copyright 2012, National Seminars Training

Workshop Agenda

FMLA122211

Module One: Who Is Covered and Who Is Not?

How the FMLA Relates to State and Federal Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Employer Obligations and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Who Is Covered and Who Is Not? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Employers and the FMLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Educational Agencies and the FMLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Congress and the FMLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Module Two: Qualifying Conditions

General Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Serious Health Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Leave for Pregnancy, Birth, Adoption, and Foster Care . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Spouses Employed by the Same Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Health Care Provider (HCP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Qualifying Exigency Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

Military Caregiver Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Module Three: Intermittent Leave and Managing the Leave Process

Determining the 12-Month Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Intermittent or Reduced Schedule Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

Substitution of Paid Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Module Four: Reinstatement of Employees on Leave and Notifications

Reinstatement of Employees on Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38

Employer Notice Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42

Employee Notice Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46

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Workshop Agenda, continued

Module Five: Managing Certifications and Employee Benefits

Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48

Recertification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52

Intent to Return to Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54

Fitness-for-Duty Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55

Maintenance of Group Health Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57

Employee Rights to Other Benefits While on Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60

COBRA, ERISA, and FMLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62

Health Benefits of Civil Service Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63

Employer Record-keeping Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64

Module Six: Untangle the Triangle and Legal Liability

Leave as a “Reasonable Accommodation” Under the ADA . . . . . . . . . . . . . . . . . . . . . . . .65

Workers’ Compensation and the FMLA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66

Beware Unlawful Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68

Penalties for Noncompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69

Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70

Actual and Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71

Costs and Fees Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74

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How the FMLA Relates to State and Federal Laws

4

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 workweeks(26 workweeks of military caregiver leave in a single 12-month period) of unpaid, job-protectedleave a year, and requires group health benefits to be maintained during the leave as ifemployees continued to work instead of taking leave.

The FMLA and State Law

• The FMLA does not replace or supplant any state or local laws that offer greateremployee protections than the FMLA.

• If a state or local law offers better protections to an employee, that takes precedence over the FMLA.

• The U.S. Department of Labor (DOL) doesn’t enforce state and local law; state or localagencies enforce their legislation or regulations.

The FMLA and the Americans with Disabilities Act of 1990 (ADA), as Amended in 2008

• Any family leave or medical leave policy must comply with the ADA and the FMLA.

• Many ADA-covered disabilities will be covered under the FMLA as “serious healthconditions”; FMLA serious health conditions often do not rise to the level of an ADA-covered disability.

• Inevitable conflicts have arisen, such as:

— ADA-covered employees may be transferred to a light-duty position as a reasonableaccommodation. If that same employee is FMLA eligible and does not want to takelight duty, he or she can’t be forced to do so.

— ADA-covered employees who are transferred to a part-time position as a reasonableaccommodation may no longer be benefit eligible. If that same employee is FMLAeligible and takes intermittent or reduced schedule leave, he or she retains benefit coverage.

• When reviewing the status of an employee who may have coverage under multiple laws,the law that provides the best protections controls. Each law must be examinedindividually to determine the extent of application.

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How the FMLA Relates to State and Federal Laws, continuedThe FMLA and the Pregnancy Discrimination Act of 1978 (PDA)

PDA Requirements

1. Employers must treat pregnancy no differently than any other temporarily disabling injury or illness.

2. Employers are prohibited from firing, not hiring, or not promoting a woman because sheis pregnant or terminating a pregnancy.

3. Since the FMLA has employment requirements (12 months of service, 1,250 hours, etc.),a pregnant short-service employee may not qualify under the FMLA. She is entitled underthe PDA to be treated the same as any employee applying for or returning from atemporary disability leave.

4. Any paid or unpaid maternity or parental leave provided by an employer can beconsidered as leave under the FMLA, and leave can be taken concurrently.

5. Maternity leave may be established to benefit women; parental leave must notdiscriminate against men.

6. Twelve weeks of unpaid leave provided by the FMLA includes prenatal medicaltreatment, a serious health condition related to the pregnancy of the mother that occursbefore or after the birth of the child, or bonding leave for either parent beginning on thedate of the birth or adoption of the child.

7. A husband may also qualify for FMLA leave to care for his pregnant spouse who hassevere morning sickness or other prenatal complications and to accompany her toprenatal doctor appointments. This includes driving the spouse to appointments anddelivering psychological care. Such leave is not available to a non-spouse father of thechild (e.g., same-sex domestic partner or boyfriend).

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How the FMLA Relates to State and Federal Laws, continuedThe FMLA and the Uniformed Services Employment andReemployment Rights Act of 1994 (USERRA)

• Employees are provided with job reinstatement to the job they left (same employer) andbenefit protection rights for up to five years after active duty ends.

• Active duty time for reservists is credited toward the eligibility (time worked)requirements of the FMLA.

• The employee must be away from work because of “service in the uniformed services.”

• Employees on USERRA leave are given the same benefits as employees on any other kindof leave.

• When an employee returns from USERRA leave, he or she is restored to the sameseniority and other rights as if the employee had been working continuously (the “escalator” principle).

• Medical coverage must continue under the Comprehensive Omnibus BudgetReconciliation Act of 1985 (COBRA).

FMLA and State Workers’ Compensation Laws

• Workers’ compensation is enacted as a federal law but effectuated on a state-by-state basis.

• With a few exceptions, most state laws don’t require reinstatement at the end of aworkers’ compensation leave; accordingly, employees who also qualify under the FMLAmay choose to take concurrently their workers’ compensation leave with FMLA leave toreceive the guarantee of reinstatement.

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Employer Obligations and Responsibilities

The FMLA permits employers to require that employees document their need for leave on thebasis of a military caregiver leave, a military exigency leave, a pregnancy-related condition, theirown serious health condition, as well as leave to care for a seriously ill covered family memberby providing medical certification from a qualified health care provider (HCP) or otherappropriate documentation. The employer must communicate:

1. The General Notice — both posted and distributed to all employees and new hires (WHPublication 1420)

2. The employer’s designated 12-month FMLA period

3. Whether the leave will be counted against the employee’s annual FMLA leaveentitlement. If the leave is denied, at least one reason for the denial of such leave must be provided. Subsequent changes to eligibility must be communicated at the time theemployee makes a request for leave during the same FMLA leave year (WH Publication 381).

4. If not required by the employer, the employee has a right to substitute paid leave and tofollow the usual and reasonable policies and procedures of the employer for thesubstitution of paid leave.

5. Any requirements for the employee to furnish medical certification of a serious healthcondition or other qualifying circumstances, a copy of the form to be completed, and theconsequences of failing to do so

6. Any requirement for the employee to make any premium payments to maintain healthbenefits, the arrangements for making such payments, and the possible consequences offailure to make such payments on a timely basis (i.e., the circumstances under whichcoverage may lapse)

7. Whether periodic reports on status and intent to return to work are required

8. Any requirement for the employee to present a fitness-for-duty (FFD) certificate to berestored to employment

9. The employee’s status as a “key employee” and the potential consequence thatrestoration may be denied following FMLA leave, explaining the conditions required forsuch denial

10. The employee’s right to restoration to the same or an equivalent job upon return from leave

11. The employee’s potential liability for payment of health insurance premiums paid by theemployer during the employee’s unpaid FMLA leave if the employee fails to return towork after taking FMLA leave

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Who Is Covered and Who Is Not?

“Employee” is defined under the FMLA in the same manner as under the Fair Labor StandardsAct (FLSA). “Hours worked” is defined generally as under the FLSA.

Eligible Employees

• Have worked for the organization for at least 12 months

— Twelve months need not be consecutive.

— If there is a break in service longer than seven years, service of more than seven yearsneed not be counted unless:

1. The break was due to National Guard or Reserve military service, or

2. There is a written agreement (including collective bargaining agreements) of theemployer’s intention to rehire the employee after the break in service.

— The employee can notify the employer of the need to take leave before his or hereligibility begins.

• Have worked at least 1,250 hours before leave begins — an average of 24 hours perweek — over the previous 12 months

Excluded Employees

• Federal officers and employees covered by Title II of the FMLA

• Employees of federal agencies who are not subject to civil service rules

• Elected and appointed officials

• Independent contractors working on the organization’s premises

Included Employees

• Employees of employers with more than 50 employees

• Distance requirement — 50 employees within 75 miles of work site

— 75 miles are not “as the crow flies,” but miles traveled on roads

• If employees have no fixed work site, then the work site is the place from which theemployee’s work is assigned.

— In cases of joint employment, the primary employer’s office to which the employee isassigned or reports is the work site, except if the employee has physically worked forat least one year at a facility of the secondary employer.

• Once eligibility is established, any change in the “50 employees within 75 miles”requirement does not change eligibility.

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Key or Highly Compensated Employees

• A salaried and FMLA-eligible employee who is among the highest paid 10 percent of allthe employees employed by the employer within 75 miles of the employee’s work site

• Not excluded from most provisions of the FMLA, but can be denied job restoration if to do so would result in substantial and grievous economic injury to the employer’soperations

• The employer must notify the employee of any restrictions before the key employee takesleave and if on leave, provide an opportunity to return

Congressional Employees

• FMLA protection was extended to employees of Congress in 1995.

• All employees are covered — the “50 employees within 75 miles” requirement does not apply.

Who Is Covered and Who Is Not?, continued

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An “employer’’ includes any person who acts directly or indirectly in the interest of an employerto any of the employer’s employees. (This means that individual officers, managers, andsupervisors can be held personally liable for FMLA violations.)

The FMLA Affects Almost All Employers

• Any person engaged in commerce or industry employing at least 50 employees duringeach of 20 or more calendar weeks in the preceding year

• Any public agency as defined by the FLSA

• Local educational agencies and private schools

Employer Must Have 50 Employees Working 20 or More Weeks EachWorking Year Within 75 Miles of the Employee’s Work Site

Counting the 50 Employees

• Part-time employees, temporary employees, and employees on leave are counted,provided they are on the payroll for each day of the workweek.

• Employees on leave, leave of absence, or disciplinary suspension are counted.

• Employees on layoff are not counted.

• Seasonal employees are counted if they work at least 20 weeks of the year.

— Seasonal employees are not counted if they are employed for less than 20 weeks.

• Temporary employees hired through an agency are employees of the contractingcompany, not the agency, if they work a full workweek.

Integrated Employment Relationships

• An organization with several departments is considered one employer.

• If an organization owns several companies, then each company is a separate employerunless the separate companies satisfy the FMLA definition of “integrated employer”:

— Common management

— Interrelation among operations

— Centralized control of labor relations

— A high degree of common ownership or financial control

Employers and the FMLA

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Joint Employment Relationships

• When an employee in the same job has two or more employers, the act lists the issuesthat should be considered to determine FMLA employer accountability:

— Type of control over employees

— Type of supervision over employees

— How employees are paid and who decides pay rates

— Ability to employ and terminate

— Who prepares and pays the wages

• The primary employer is responsible for FMLA compliance.

• The secondary employer is responsible for compliance with “prohibited acts” of the FMLA.

— In cases of joint employment, the primary employer’s office to which the employee isassigned or reports is the work site, except if the employee has physically worked forat least one year at a facility of the secondary employer.

• For the most part, a Professional Employer Organization (PEO) that contracts with clientsand merely performs administrative functions is not a joint employer; if the PEO has theright to hire, fire, assign, or direct and control employees, or benefits from the work theemployees perform, the PEO would be a joint employer.

— The determination as to whether a PEO is a joint employer also turns on theeconomic realities of the situation and must be made based on all the facts and circumstances.

Successors in Interest

• “Employer” means any successor in interest or succeeding owner(s) of the organization.

• When an organization is purchased, employees of the preceding and the succeedingcompanies are considered as being in continuous employment.

• Should the employee be on leave during the transition, when the employee returns, he orshe must be restored to the same or an equivalent job as provided by the FMLA.

• Various factors are considered when determining if an employer is a successor in interest.

Employers and the FMLA, continued

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Public Employees

• The FMLA considers public agencies as covered employers, including:

— U.S. government

— State, city, county, and local governments

— Any agency of the United States

— Any interstate governmental agency

• The 50-employee threshold does not apply.

• The “50 employees within 75 miles of the work site” threshold does apply.

• One state, county, or city is considered one employer.

Employers and the FMLA, continued

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Under the FMLA, there are special rules for public and private elementary and secondaryschools due to “a need to balance the educational needs of children with the family leaves of teachers.”

Special Rules

• The “50 employees” and “50 employees within 75 miles” threshold does not apply.

• Requirements for employees for FMLA protection do apply.

• Should an employee take FMLA leave, the school will not violate the ADA or Title VII.

Intermittent Leave for Instructional Employees

• Instructional employees include teachers, education assistants, coaches, and driving instructors.

• If an instructional employee requests foreseeable leave and the instructional employeewould be gone for more than 20 percent of the working days during the period of leave,then the school may require that the employee:

— Take leave for periods of a particular duration not to exceed the duration of theplanned leave, or

— Transfer temporarily to another position with the same pay and benefits that is a betterfit with the requirements of the leave

Leave Requested Near the End of an Academic Term

• If the instructional employee wants to take leave more than five weeks before the end ofthe term, then the school may require that the instructional employee continue the leaveuntil the end of the term if:

— The leave period is at least three weeks, and

— The employee wants to return to work within the three-week period before the end ofthe term.

• If the leave is requested within the five weeks before the end of the term, then the schoolmay require that the instructional employee stay on leave until the end of the term, if:

— The leave is longer than two weeks, and

— The employee wants to return to work within the two-week period before the end ofthe term.

• If an instructional employee wants to take FMLA leave for a period of more than five daysthat begins in the three-week period before the end of the term, then the school mayrequire that the employee extend the leave until the end of the term.

— Note: This provision does not apply if the leave is for the employee’s own serioushealth condition.

Educational Agencies and the FMLA

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Congress and the FMLA

Congress has provided modified FMLA coverage for its own employees. Section 501 applies toSenate employees. Unlike private sector employees, congressional employees must exercise therights and remedies provided by the Government Employee Rights Act of 1991 (GERA).

Special Rules for Congress

1. The Congressional Accountability Act of 1995 (CAA)

— It applies 11 labor and civil rights statutes to congressional employees.

— The FMLA, Title VII, the ADA, the Age Discrimination in Employment Act, and theFLSA are included, among others.

— Unless good cause is proven, the FMLA applies to Congress, with certain exceptions.

2. Complaint procedures under the CAA

— Congress is not under the jurisdiction of the DOL.

— The Office of Compliance was established to implement CAA and to handlecomplaints and disputes.

— The Office of Compliance educates, issues rulings, and provides a forum for disputes.

3. If an employee works for one congressional office and moves to work at anothercongressional office, the employee does not have to reestablish the “1,250 hours workedwithin 12 months” provision.

4. Time served in a previous office counts toward time worked in the new office.

5. Differences between the FMLA for Congress and for private employers

— Complaint procedures must go through the Office of Compliance.

— All congressional employees are covered by the FMLA, no matter how manyemployees are in one particular office.

— Posting requirements do not apply.

— Record keeping is not required but is strongly suggested.

— The complaint procedure requires counseling and mediation before any other action.

— Congressional offices cannot be fined for an FMLA violation.

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Eligible employees are entitled to 12 weeks of unpaid FMLA leave each year for certainqualifying events. (Note: Military caregiver leave is 26 weeks of leave.)

Qualifying Events

• Birth of a son or daughter and care of a newborn child

• Adoption or foster care placement of a child

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

• The employee’s own serious health condition

• A qualifying military exigency arising from the employee’s spouse, son, daughter, orparent’s active military duty or impending call or order to active duty

• To care for a covered servicemember with a serious injury or illness if the employee isthe spouse, son, daughter, parent, or next of kin

Note:

— The FMLA does not distinguish between male and female parents.

— Leave may be taken by both parents concurrently or sequentially.

— Special rules apply for spouses employed by the same employer.

Definition of “Son” or “Daughter”

• “Son” or “daughter” is defined as “a biological, adopted, or foster child, a stepchild, alegal ward, or a child of a person standing in loco parentis ...”

• With the exception of the two forms of family military leave, a covered “son” or“daughter” must be:

— Under 18 years of age, or

— 18 years of age or older but incapable of self-care because of a mental or physical disability

• “Incapable of self-care” means that the person cannot provide three or more Activities ofDaily Living (ADL) for himself or herself.

— “Mental or physical disability” means an impairment that limits one or more majorlife activities as defined by the ADA.

• FMLA impairment does not need to be long lasting.

• Incapable of “self-care” is the important factor.

• For military caregiver or qualifying exigency leaves: the covered son or daughter may beof any age.

General Requirements

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General Requirements, continued

Definition of “Parent”

• “Parent” is defined as a biological, adoptive, step-, or foster care mother or father orsomeone who stands or stood in loco parentis to the employee when the employee wasunder the age of 18 or incapable of self-care.

• “In loco parentis” means the individual who has or had day-to-day responsibility for the child.

— Legal guardians are included.

— Grandparents or any other relative are included.

• Parents-in-law are not included under the FMLA.

— Some states have a broader definition under state FMLA policies and specify thatparents-in-law are included.

• The employer may require reasonable documentation that the requisite familyrelationship exists.

— Signed statement

— Birth certificate

— Court document

Definition of “Spouse”

Spouse means a husband or wife as defined or recognized under the state law for the purposesof marriage in the state where the employee resides, including common-law marriages in stateswhere it is recognized.

Definition of “Next of Kin”

Next of kin of a covered servicemember means the nearest blood relative other than the coveredservicemember’s spouse, parent, son, or daughter in the following order of priority:

• If the covered servicemember has designated in writing another blood relative, thatperson shall be the covered servicemember’s only next of kin.

• If no designation is made, and there are multiple family members with the same level ofrelationship, all are considered next of kin and may take leave to provide care eitherconsecutively or simultaneously.

— Blood relatives granted legal custody by a court decree or statutory provisions

— Brothers and sisters, grandparents, aunts and uncles, and first cousins

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Serious Health Condition

A “serious health condition” means an illness, injury, impairment, or physical or mentalcondition that involves:

• Inpatient care — an overnight stay — in a hospital, hospice, or residential medical carefacility, and any period of incapacity or subsequent treatment in connection with suchinpatient care, or

• Continuing treatment by a health care provider (HCP).

Definitions

• “Incapacity” means inability to work, attend school, or perform other regular dailyactivities due to the serious health condition, treatment, or recovery.

• Treatment includes examinations by a HCP to determine if a serious health conditionexists and evaluations of the condition.

— Routine eye, dental, or physical exams are not considered treatment.

• A regimen of continuing treatment includes a course of prescription medications ortherapy requiring special equipment (e.g., oxygen).

— This does not include taking over-the-counter drugs, bed rest, or drinking fluids, sincethese can be initiated without a visit to a HCP.

— Cosmetic treatments are not included (e.g., treatments for acne or plastic surgery)unless inpatient hospital care is required or complications develop.

Not-Serious Health Conditions

Short-term conditions requiring only brief treatment and recovery are not included as serioushealth conditions.

• Examples: cold, flu, earache, stomach upset, or routine dental work

• These are usually covered under the organization’s sick leave policies.

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Serious Health Condition, continued

Definition of Continuing Treatment

• Incapacity and treatment

• A period of incapacity due to pregnancy or prenatal care

• Incapacity or treatment for a chronic serious health condition

• Incapacity that is permanent or long-term and doesn’t respond to treatment

• A period of absence to receive multiple treatments for an injury or condition, such asrestorative surgery after an accident or other injury or a condition that would result in anincapacity of more than three consecutive, full calendar days if not treated

• Absences attributable to the incapacity of points (2) or (3) above, even though theindividual may not have visited a HCP and even if the absence doesn’t last for threeconsecutive, full calendar days (e.g., an asthma attack or severe morning sickness)

Incapacity and Treatment

Incapacity and treatment means a period of incapacity for three consecutive, full calendar daysand any subsequent treatment or incapacity relating to the same condition, and:

• Treatment two or more times by a HCP [or by a nurse under direct supervision of a HCPor by a provider of health-care services (e.g., a physical therapist) under the orders of orby referral from a HCP] within 30 days of the first day of incapacity, unless extenuatingcircumstances exist, and

• Treatment by a HCP on at least one occasion that results in a regimen of continuingtreatment under the supervision of the HCP, and

• The first or only in-person visit to a HCP must occur within seven days of the first day of incapacity.

— Note: “Extenuating circumstances” means circumstances beyond the employee’scontrol that prevent the follow-up visit from occurring as planned by the HCP (e.g.,the HCP doesn’t have appointment times available within the 30-day period).

Multiple ailments, none of which alone would satisfy FMLA requirements, may, if takentogether, satisfy the serious health condition requirement.

Chronic Conditions

A chronic serious health condition is one that requires periodic visits for treatment by a HCP (ora nurse under the direct supervision of an HCP) at least twice a year.

• The condition continues over an extended period of time, including recurring episodes ofa single underlying condition, and

• The condition may cause episodic rather than a continuing period of incapacity.

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Serious Health Condition, continued

Permanent or Long-term Conditions

Permanent or long-term conditions are those for which treatment may not be effective. Whilethe employee or family member is under the continuing supervision of a HCP, they need not bereceiving active treatment by a HCP (e.g., severe stroke or terminal stages of a disease).

Substance Abuse as a Serious Health Condition

Treatment for substance abuse may be a serious health condition if all the requirements of aserious health condition are met with respect to continuing treatment.

• Treatment must be under the care of a HCP or a provider of health services as referred bythe HCP.

• Absence due to an employee’s use of substances rather than for treatment is not coveredby the FMLA.

• Employers may not take disciplinary action against an employee for use of FMLA leave;employers may, however, take action against an employee even if on FMLA leave if:

— There is an established policy against substance abuse, and

— It is applied in a nondiscriminatory manner, and

— It is communicated to all employees.

• Employees may use the FMLA to care for a family member who is receiving treatment forsubstance abuse, and employers may not take disciplinary action against employees forthis use of FMLA leave.

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Leave for Pregnancy, Birth, Adoption, and Foster CarePregnancy and Bonding Leave

Both the mother and the father are eligible for FMLA leave for the birth of their child.

1. This includes time to be with a healthy newborn — bonding leave — during the 12-month period beginning on the date of the child’s birth.

• State law may allow or an employer may permit additional time for bonding leavefollowing the 12-month expiration. This extra time does not constitute FMLA leave.

2. State pregnancy disability laws:

• May provide a period of disability leave before or after the child’s birth

• Are considered leave for the mother’s serious health condition and are not subject tothe 12-week combined limit

3. An expectant mother may take FMLA leave before the birth of the child for prenatal careor because her condition makes her unable to work.

• The mother is entitled to FMLA leave for incapacity due to pregnancy even if she doesnot receive treatment from a HCP during the absence and even if the absence doesnot last for more than three consecutive calendar days (e.g., morning sickness).

4. The husband is entitled to FMLA leave if needed to care for his pregnant spouse who isincapacitated or to care for her during her prenatal stage or following the birth of thechild if the spouse has a serious health condition.

5. Both spouses are entitled to FMLA leave if needed to care for their newborn with aserious health condition. (If both spouses are employed by the same employer, see thefollowing pages. They must not have exhausted their entitlements during the applicable12-month leave period.)

6. Intermittent/reduced schedule leave: An eligible employee may use intermittent orreduced schedule leave after the birth of a healthy newborn only if the employer agrees.

• If the employer agrees to permit intermittent/reduced schedule leave, the employeecan be required to transfer temporarily to an available alternative position for whichthe employee is qualified and that better accommodates recurring periods of absence.

• Such a transfer must comply with a collective bargaining agreement, federal law, andstate law.

7. The employer’s agreement is not required for intermittent leave required by the serioushealth condition of the mother or a newborn child.

8. The employer’s agreement is not required for continuous bonding leave following thebirth of the child.

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Leave for Pregnancy, Birth, Adoption, and Foster Care, continuedAdoption or Foster Care Placement

• Similar rules to those related to the birth of a child apply to adoption or foster care placement.

• FMLA leave is provided before the actual placement or adoption if an absence isrequired for adoption or foster care placement to proceed.

— The source of an adopted child is not a factor in granting FMLA leave.

— Foster care placement, which is defined as 24-hour care for children in substitutionfor, and away from, their parents or guardian, requires state action.

• The entitlement for FMLA leave expires at the end of the 12-month period beginning atthe date of placement.

— If state law allows or the employer permits, leave may be taken beyond this 12-monthperiod and does not qualify as FMLA leave.

• The rules applied to spouses employed by the same employer apply to placement oradoptions in terms of a combined total of 12 weeks of leave.

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In order to forestall the incentive to an employer not to hire married couples, the FMLA includesspecific language concerning spouses employed by the same employer.

Spouses Who Work for the Same Employer

• Spouses limit their combined leave to a total of 12 weeks during any 12-month period forthe birth of a child or to care for a child after birth, placement of a child for adoption orfoster care or to care for a child after placement, or to care for each employee’s parentwith a serious health condition.

— If one spouse was ineligible for FMLA leave, the other eligible spouse would have afull 12 weeks of FMLA.

• When the husband or wife uses a portion of the total 12-week FMLA leave entitlement asoutlined above, each spouse remains entitled to use the difference between the amounthe or she has individually taken and 12 weeks of leave for other forms of FMLA leave.

Exercise

If each spouse employed by the same employer has taken six weeks to care for a healthynewborn child, how many weeks of FMLA leave would each of them have left?

For what purposes could they use the remaining FMLA time?

Unmarried Domestic Partners

The FMLA defines spouse as a husband or wife, as defined or recognized under state law forpurposes of marriage, including common-law marriage in states where it is recognized.

• This means an employer does not have to give FMLA leave to an employee to care for anunmarried domestic partner.

• In states that recognize common-law marriages, the FMLA would apply to employees as “spouses.”

• Some states have included under the state family and medical leave laws domesticpartners, including homosexual domestic partners. Some states have included sexualorientation as a protected class under state civil rights laws.

— Employers must follow the law that provides the greatest benefit and protections to employees.

Spouses Employed by the Same Employer

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Definition

• Doctor of medicine or osteopathy, or

• Any other person determined by the Secretary of Labor to be capable of providing health-care services, including:

— Podiatrists, dentists, social workers, clinical psychologists, optometrists, andchiropractors who are authorized to practice in the state

— Nurse practitioners, nurse-midwives, clinical social workers, and physician’s assistants

— Christian Science practitioners

— A HCP listed above who practices in a country other than United States who isauthorized to practice in accordance with the law of that country.

“Needed to Care For”

• Physical and/or psychological care for an immediate family member who is receivinginpatient or home care

• Includes situations when the employee fills in for others

• Includes transferring a relative to needed care facilities

• The employee need not be the only family member available.

• Intermittent/reduced schedule leave is allowed.

“Unable to Perform Functions of the Job”

• This means any one of the essential job functions within the meaning of the ADA.

— Unlike the ADA, temporary illnesses are covered by the FMLA.

• Employers have the option when requiring certification from a HCP to provide astatement of the essential functions of the employee’s position for the HCP to review. Inreturn, a sufficient medical certification from that HCP must specify what functions theemployee is unable to perform.

• The employee’s position is the one held at the time notice for the FMLA leave is given orwhen FMLA leave commenced, whichever is earlier.

Health Care Provider (HCP)

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The National Defense Authorization Act of 2008, the statutory amendment signed into law byformer President Bush, permits an employee to take FMLA leave for a qualifying exigency.

That exigency arises out of a spouse, son, daughter, or parent’s (“the covered military member’s”)active duty or because the covered military member has been notified of an impending federal(not state) call or order to active duty in the armed forces in support of a contingency operation.

Definitions

• Note the use of the term “military member” for exigency leave — not “servicemember”as with military caregiver leave.

• A military member must be a member of the National Guard or Reserve — not theregular armed forces, except for certain retired members of regular armed forces.

• The active duty orders of a covered military member will generally specify if theservicemember is serving in support of a contingency operation.

• “Child” of a military member is defined as the son or daughter of the employee who ison active duty and is of any age.

• Family members may use all or part of the regular allotment of 12 weeks of FMLA leaveduring the employer’s designated 12-month period.

Eight Nonmedical “Qualifying Exigencies”

This is an exhaustive list; no additions are permitted unless by mutual agreement of theemployer and employee. (See point eight below.)

It must be related to active duty or a call to active duty.

1. Short-notice deployment of less than seven days

• The employee can take up to seven calendar days; leave can extend beyond themilitary member’s deployment date.

2. Military events and related activities — e.g., official ceremonies, programs, or events,family support or assistance programs, or informational briefings sponsored or promotedby the military, military service organizations, or the American Red Cross related to activeduty or a call to active duty

Qualifying Exigency Leave

25FMLA122211

3. Child care and school activities

• To arrange for alternative child care

• To provide child care on an urgent and immediate basis

• To enroll a child in or transfer to a new school or day care

• To attend meetings with staff at school or day care

4. Financial and legal arrangements — e.g., preparing and executing financial and health-care powers of attorney, transferring bank account signature authority, or enrolling in theDefense Enrollment Eligibility Reporting System (DEERS)

• Acting as the covered military member’s representative before a federal, state, or localagency to obtain, arrange, or appeal military service benefits

— The power to act in a representative capacity continues for 90 days following thetermination of the covered military member’s active duty status

5. Counseling (nonmedical) for the employee, covered military member, or child of thecovered military member

6. Rest and recuperation of up to five days each time the covered military member is givenshort-term, temporary rest and recuperation leave

7. Post-deployment activities of 90 days following termination of the military member’sactive duty — e.g., arrival ceremonies, reintegration briefings, or issues arising from deathof covered military member (recovering the body, funeral arrangements)

8. Additional activities where the employer and employee agree to the leave, timing, and duration

Qualifying Exigency Leave, continued

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Certification Form WH-384

• The DOL created a prototype certification form, WH-384, certifying both active duty andqualifying exigency requirements.

— The first time an employee requests FMLA leave because of a qualifying exigency, theemployer may require the employee to provide a copy of the covered militarymember’s active duty orders or other military documentation and the dates of activeduty service.

• This information only needs to be provided once unless there is a new call to active duty.

• Employers may contact the appropriate unit of the Department of Defense to verify activeduty status. No additional information may be asked, and the employee’s permission isnot required.

• Employers can require the following information be provided by the employee: facts thatsupport the need for an exigency leave and any available documentation, the beginningand end dates, if leave is needed on an intermittent or reduced schedule basis, and thefrequency and duration of the qualifying exigency.

— If in meetings with a third party, Form WH-384 requests names, phone and faxnumbers, titles, organizations, addresses, and e-mail addresses of all third parties thatthe employee will be meeting because of a qualifying exigency.

• Employers may contact third parties to verify a meeting or appointment. No additionalinformation may be asked, and the employee’s permission is not required.

Other Considerations

• A qualifying exigency leave may be taken continuously, intermittently, or on a reduced schedule.

• The employee may not be transferred to an alternative job.

• The minimum increment rule of one hour or less and physical impossibility may be applied.

• The mandatory overtime rule may be applied.

• The use of paid time off rule may be applied (required by the employer; if not, elected bythe employee if the employee complies with or the employer waives its requirements forpaid-time-off benefits).

Qualifying Exigency Leave, continued

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The National Defense Authorization Act of 2008 also created a caregiver leave that permits aspouse, son or daughter, parent, or next of kin to take up to 26 workweeks of FMLA leave.

Caregiver leave is to care for a current servicemember of the regular armed forces, including amember of the National Guard or Reserves, who is undergoing medical treatment, recuperation,or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retiredlist for a serious injury or illness.

Definitions

• The injury or illness must have occurred while on active duty in the line of duty and mustrender the servicemember medically unable to perform the duties of his or her office.

— Former servicemembers are not covered.

— The servicemember must be on outpatient status.

• The definitions of “son,” “daughter,” and “parent” are the same as those used for FMLAqualified exigency leave.

• “Next of kin” may be any blood relative designated by the servicemember in writing —in the absence of designation, multiple family members of the same level are next of kinand may take leave consecutively or concurrently (see previous definition in this workbook).

— Employers may require the employee to provide confirmation of the covered familyrelationship to the covered servicemember.

26 Weeks in a Single 12-Month Period

• There is a maximum of 26 weeks of FMLA leave in a single 12-month period on a percovered servicemember, per injury basis.

— Aggravation or complication of an earlier injury/illness is still the same injury/illness.

— When an eligible employee takes leave to care for more than one coveredservicemember or for a subsequent serious injury or illness of the same coveredservicemember, and the “single 12-month period” corresponding to the differentleaves overlap, the employee is limited to taking no more than 26 workweeks in each“single 12-month period.”

— During the single 12-month period, the caregiver leave and others forms of FMLAleave (serious health condition of employee or immediate family member, pregnancy,or exigency leave) are combined for a maximum of 26 weeks (not 38).

• The 12 months are measured forward from the date the employee first takes the leave(regardless of other calculations of 12 months used for other forms of FMLA leave — e.g.,rolling 12 months or calendar year).

Military Caregiver Leave

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• Unused caregiver leave is forfeited at the end of each single 12-month period — theemployee may still be eligible, however, for other forms of FMLA leave (e.g., serioushealth condition of employee or immediate family member, pregnancy, or exigency leave).

• Employees whose FMLA leave qualifies under more than one type of FMLA leave takecaregiver leave first, then serious health condition FMLA leave (no double count).

Certification Form WH-385

• The DOL has created a prototype Certification Form, WH-385, certifying military statusand serious injury/illness.

— The regulations list four types of HCPs authorized to complete the certification: U.S.Department of Defense (DOD) HCP, U.S. Department of Veterans Affairs HCP, a DODTRICARE network HCP, and a DOD non-network authorized private HCP.

— Information that may be obtained includes: whether the injury occurred in the line ofduty during active duty, the date of the injury and probable duration, a description ofthe medical facts sufficient to support the need for the leave, the medical necessity foran intermittent or reduced schedule leave if such is requested, and the relationship ofthe employee to the covered servicemember.

— Employers may seek authentication or clarification of the certification, but second andthird opinions are not permitted, nor is recertification.

— Employers must accept as sufficient certification invitational travel orders (ITOs) orinvitational travel authorizations (ITAs) in lieu of the WH-385 or the employer’s owncertification form issued to any family member.

• During the time specified in an ITO, the employee may take FMLA leave on a continuousor intermittent basis.

• Authentication and clarification may be sought of an ITO or ITA, along with proof of thecovered family relationship, but no second or third opinions or recertificationrequirements are allowed.

• Employers can request that leave extensions beyond the time specified in the ITO or ITAbe supported with information from the appropriate military HCP on WH-385 or theemployer’s certification form.

Military Caregiver Leave, continued

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• Caregiver leave may be taken continuously, intermittently, or on a reduced schedule.

• The employee may be transferred to an alternative job if the leave is foreseeable and isfor planned medical treatment.

• The minimum increment rule of one hour or less and the physical impossibility rule maybe applied.

• The mandatory overtime rule may be applied.

• The use of paid time off rule may be applied (required by the employer; if not, elected bythe employee).

• A husband and wife who are eligible for FMLA leave and are employed by the sameemployer may be limited to a combined total of 26 workweeks during the “single 12-month period” for the birth, adoption, or foster care placement of a child (before and after), to care for a parent with a serious health condition, or to care for a coveredservicemember.

Military Caregiver Leave, continued

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Except in the case of leave to care for a covered servicemember, the DOL has providedemployers with four different methods to calculate the 12-month period in which employeesmay take leave.

Option 1: Calendar Year

• The 12-month period begins on Jan. 1 and ends on Dec. 31.

• The new 12-month period starts each Jan. 1.

Option 2: Any Fixed 12-Month Period

• The organization’s fiscal year

• Any other year

• A year required by state law

• An employee’s anniversary date

Option 3: Look Forward

• Twelve weeks of leave during the year beginning on the first date FMLA leave is taken.(This is the only method to be used for military caregiver leave.)

• The cycle repeats as needed in following years.

Option 4: Rolling Year or Look Back

• The 12 months are measured backward from the date the employee uses any FMLA leave.

— The amount of time left to the employee is the balance of the 12 weeks that was notused in the past 12-month period.

— On each day of the year, the amount of FMLA leave for a specific employee iscalculated by how much of the 12-week entitlement was consumed during the 12months before that day.

• The first three options permit “stacking” of the 12 weeks from one year on to the next.

• The Rolling Year method eliminates that possibility.

Determining the 12-Month Period

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• The 12-month period method chosen by the employer must be applied consistently anduniformly (unless a multistate employer follows the state law in a given state and usesanother method uniformly and consistently for the rest of the organization).

— When changing the 12-month period, the employer must provide at least 60 days’notice; employees whose leave falls during the transition retain the full benefit of 12weeks under whichever method affords the greatest benefit to the employee.

— If an employer doesn’t select a method, then the option that provides the greatestbenefit for the employee may be used.

• When a holiday occurs during a week when a full week of FMLA leave is taken, theholiday is counted against the employee’s FMLA entitlement.

• When a holiday occurs during an intermittent/reduced schedule leave, the holidaydoesn’t count against the employee’s FMLA entitlement unless the employee wasscheduled to work on the holiday.

• When an employer’s business is closed (e.g., school is closed for vacation or a plant isclosed for retooling), the days on which an employer’s activities have ceased don’t countagainst the employee’s FMLA leave entitlement.

Determining the 12-Month Period, continued

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Definition

• Intermittent leave is defined as “leave taken in separate blocks of time due to a singleillness or injury.”

• A reduced schedule leave is a schedule that reduces an employee’s usual number ofworking hours per week or per day. It is a “change in the employee’s schedule over time,normally from full-time to part-time.”

Medical Necessity

• Intermittent or reduced schedule leave due to the employee’s or an immediate familymember’s serious health condition or servicemember’s serious illness or injury must bebased upon “medical need” — requiring that an intermittent or reduced schedule leavebest accommodates the medical need.

• Intermittent and reduced schedule leave may be taken for a servicemember’s seriousillness or injury, a serious health condition, medical treatment (planned or unanticipated),or recovery from illness or treatment.

— E.g., medical appointments for a serious health condition, chemotherapy andrecovery, prenatal exams, or morning sickness

• Intermittent and reduced schedule leave may be taken to provide care or psychologicalcomfort to a covered family member or a servicemember.

• Intermittent leave or reduced leave taken after the birth or adoption/placement of a healthy child may only be undertaken with the agreement of both the employer and employee.

— Continuous leave under these circumstances is an FMLA entitlement.

— Intermittent or reduced schedule leave may be taken for the serious health conditionof a son or daughter.

• Employers can require that medical certification verify that intermittent leave or reducedleave is medically necessary.

Qualifying Exigency

Leave due to a qualifying exigency may be taken on an intermittent or reduced schedule basis.

Intermittent or Reduced Schedule Leave

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Intermittent Leave Notice

• Foreseeable intermittent leave

— “Employees must attempt to schedule their leave so as not to disrupt unduly theemployer’s operations.”

— Employees must provide 30 days’ advance notice.

— If 30 days’ advance notice is not given, the employee must give notice of the need for leave “as soon as practicable,” which usually means “the same or the nextbusiness day.”

• Unanticipated need for intermittent/reduced schedule leave

— Notice must be given as soon as practicable, or

— If the employer has a usual and customary leave of absence notification policy, withinsuch reasonable time frame as established by that policy.

Transfer to an Alternative Position

• The employer may require employees taking intermittent or reduced schedule leave thatis foreseeable based upon planned medical treatment to temporarily transfer to anotherposition that better accommodates the periods of absence during the time that theintermittent or reduced schedule leave is required.

— The position must be one for which the employee is qualified.

— The position must be one that accommodates recurring periods of leave better thanthe employee’s regular position.

— The position must comply with the ADA, federal and state laws, and collectivebargaining agreements.

— The alternative position must have equivalent pay and benefits.

• The new position does not necessarily have equivalent job duties, but must not be onethat is designed to discourage the employee from taking leave or impose a hardship onthe employee.

• If the employee is transferred to a part-time job, the employee can’t be forced to takemore leave than is medically necessary.

• Employees must retain their benefits, even if part-time employees don’t enjoy thosebenefits; however, an employer may proportionately reduce benefits, such as vacation,where the normal practice is to base such benefits on the number of hours worked.

• After the period of intermittent leave or reduced leave is finished, the employee must bereturned to his or her old position immediately.

Intermittent or Reduced Schedule Leave, continued

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Calculating Increments of Intermittent or Reduced Schedule Leave

1. Intermittent leave and reduced leave increments must be calculated based upon theshortest period of time that the employer uses to account for the use of other forms ofleave, provided that the basis is not greater than one hour and is not greater than theamount of time actually taken by the employee.

2. An employer may account for FMLA leave in shorter increments than used for otherforms of leave.

3. Physical impossibility rule: If it is physically impossible for the employee to access thework site after a shift begins due to an intermittent/reduced schedule absence, the entireperiod that the employee is forced to be absent from the work site may be chargedagainst FMLA (e.g., a flight attendant missing the departure of an airline flight — theentire flight is counted against the FMLA entitlement).

4. Hours in the workweek

• The FLSA defines the workweek as “all the time during which an employee isnecessarily required to be on the employer’s premises, on duty or at a prescribed workplace.”

• For FMLA purposes, an employee’s workweek is the number of hours he or she usually works.

5. Part-time employees’ intermittent leave is prorated based on the employee’s schedule.

6. The workweek of employees with varying work schedules is calculated based upon theweekly average of hours worked over the 12 months prior to the beginning of the leave.

• Required overtime missed due to an employee’s intermittent or reduced scheduleFMLA leave counts as FMLA leave (does not apply to voluntary or rotational OT).

7. Any hours worked by the employee while on FMLA leave are not counted as part of the12-week entitlement.

Designation Notice

• The Designation Notice must state the amount of leave being counted as FMLA, ifknown.

— If the amount of leave needed is known, the employee must be notified of the numberof hours, days, or weeks that will be counted against the employee’s FMLA leaveentitlement.

• The employee can’t request the information more often than every 30 days (if leave wastaken during the prior 30 days).

• Note: This means employees on intermittent leave can become something of a problem,requiring the employer to respond with how many days of leave they have left.


35FMLA122211

Paid Leave and the FLSA’s “Pay Docking” Policy

The FMLA provides that pay deductions from exempt employees for any hours taken asintermittent leave or reduced leave within a workweek do not affect the exempt status

of the employee.

• The employer must convert pay to hourly pay to deduct for FMLA leave.

• The employer may pay the exempt employee only for hours worked.


36FMLA122211

Substitution of Paid Leave for Unpaid Leave

1. Under the FMLA, an employee may choose or be required by the employer to substitutehis or her accrued paid vacation, personal, sick, or family leave for unpaid leave.Substituted paid leave “runs concurrently with” unpaid FMLA leave.

2. Employers are not required to provide paid leave in any circumstance in which it wouldnot normally provide such paid leave.

3. An employee’s ability to substitute accrued paid leave is determined by the terms of theemployer’s normal leave policies, which may be more or less stringent than FMLArequirements.

4. Whether the employee chooses or the employer requires substitution, the employer mustinform the employee that he or she must satisfy any procedural requirements of the paidleave policy in order to receive those payments.

• If procedural requirements are not satisfied, the employee may still take FMLA leave,unpaid, or

• If the employer reserves its right to “waive” those procedural requirements, it can stillrequire the employee to substitute paid leave.

5. When other types of paid leave are exhausted, the employee is still entitled to theremainder of the 12 weeks of unpaid FMLA leave.

6. Leave under a disability plan would count as FMLA leave for a serious health condition,and since it is paid, there can be no required substitution of other forms of paid leave(double dipping).

• Where state law permits and there is agreement between the employer and employee,paid leave can be used to supplement the disability plan benefits (i.e., where a planonly provides a percentage of replacement income, not full salary)

7. Leave under workers’ compensation may count as FMLA leave for a serious healthcondition, and since it is paid, there can be no required substitution of other forms ofpaid leave (double dipping).

• Where state law permits and there is agreement between the employer and theemployee, paid leave can be used to supplement workers’ compensation benefits(i.e., where workers’ compensation only provides a percentage of replacementincome, not full salary).

Substitution of Paid Leave

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• If the employee’s workers’ compensation HCP certifies the employee as able to returnto a “light-duty job,” but the employee is unable to return to the same or anequivalent job, the employee may decline the employer’s light-duty job offer.

— Under these circumstances, the employee may remain on FMLA leave until leavetime is exhausted but may lose workers’ compensation payments.

— When workers’ compensation payments cease, the substitution provision becomes applicable and either the employer or the employee can substituteaccrued paid leave.

8. The employer may not require the employee to substitute paid leave not yet available tothe employee.

9. Public employees may request and may be permitted or public employers may requirethe substitution of accrued compensatory time off in conjunction with FMLA leave.

Substitution of Paid Leave, continued

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A key element of the FMLA is the restoration clause — after taking FMLA leave, an employee isentitled to be returned to the same position the employee held when the leave began or to anequivalent position.

Reinstatement is guaranteed even if the employee has been replaced or the position has beenrestructured to accommodate the employee’s absence.

Equivalent Position

An equivalent position is virtually identical to the employee’s former position in terms ofbenefits, pay, and working conditions, including privileges, perquisites, and status. It mustinvolve “the same or substantially similar duties and responsibilities, which must entailsubstantially equivalent skill, effort, responsibility, and authority.”

• If the employee is no longer qualified for the position because of the employee’s inabilityto attend a course or renew a license, the employee must be given a reasonableopportunity to fulfill the conditions upon return to work.

Equivalent Pay

• Employees are entitled to unconditional pay increases that occurred during FMLA leave(e.g., cost of living).

• Pay increases conditioned upon seniority, length of service, or work performed must betreated the same way the employer treats others on equivalent non-FMLA leaves.

• The opportunity for pay premiums (e.g., shift differentials), normally worked amounts ofovertime, and discretionary and nondiscretionary bonuses must be restored upon returnfrom FMLA leave.

— Bonuses or other payments based upon achievement of a goal (hours worked,products sold, or perfect attendance) not achieved by the employee due to FMLAleave need not be paid unless paid to employees on equivalent non-FMLA leave (i.e.,If an employee on paid vacation leave is paid the bonus, then an employee usingvacation substitution while on FMLA leave must be paid the bonus).

Equivalent Benefits

• Benefits must be resumed in the same manner and at the same level as provided whenthe leave began, subject to changes affecting the entire workforce. (See previous section,Employee Rights to Other Benefits While on Leave)

• An employee can’t be required to re-qualify for any benefits, even if coverage lapsed.

— Benefits include group life, health, and disability insurance, sick leave, annual leave,educational benefits, and pensions.

Reinstatement of Employees on Leave

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Equivalent Terms and Conditions of Employment

• The employee must be reinstated to the same work site or one that is geographicallyapproximate to that where he or she had been employed (not a significant increase incommuting time or distance).

• The employee is ordinarily entitled to return to the same shift and to the same or anequivalent work schedule.

— An employer may accommodate an employee’s request to be restored to a differentshift, schedule, or position that better suits the employee’s personal needs on returnfrom leave, or offer a promotion to a better position.

• The employee must have the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and nondiscretionary payments.

Suggestions for Maintaining an Absent Employee’s Job

• Reorganize other jobs within the remaining staff.

• Use overtime.

• Hire a temporary worker.

Potential Grounds for Denial of Reinstatement

• The FMLA creates no greater right to reinstatement or other benefits than if the employeehad been continuously employed during the leave. Employees can be deniedreinstatement if:

— The employee’s position is eliminated (layoff).

— A shift has been eliminated or overtime has been decreased.

— The employee was hired for a specific time period or only to work on a discrete project.

— A fitness-for-duty (FFD) certificate is required and not provided (job restoration maybe denied or delayed).

— The employee can no longer perform one of the essential tasks of the position he orshe formerly held.

Reinstatement of Employees on Leave, continued

40FMLA122211

• The ADA may apply in terms of reasonable accommodation.

— The employee gives the employer unequivocal notice of the intent not to return to work.

— The employee fraudulently obtains FMLA leave (including in violation of theuniformly applied policy prohibiting outside employment).

— The employee would have been terminated for cause regardless of FMLA leave.

— The employee does not comply with the employer’s leave policies.

Exemption for Key Employees

A key employee is defined as one who is salaried and paid in the top 10 percent percent of allemployees (salaried and non-salaried) employed within 75 miles of the employee’s work site.

1. Key employees may take FMLA leave, but the employer may deny reinstatement if:

• The denial of restoration is necessary to prevent substantial and grievous economicinjury to the operations of the employer (not due to the employee’s absence), and

• The employer notifies the employee in writing (in person or by certified mail) at thetime the employee gives notice of the need for FMLA leave or when such leavecommences, whichever is earlier, that restoration may be denied as a key employee.

2. If there is a need to determine whether the employee is a key employee, the employermust give notice as soon as practicable.

3. The notice must include information about the potential consequences with respect toreinstatement and maintenance of health benefits.

4. Failure to provide timely notice will eliminate the right to deny restoration even ifsubstantial and grievous economic injury will result from reinstatement.

5. The notice must explain the basis for the employer’s finding that substantial and grievouseconomic injury will result.

6. If the leave has begun, the employee must be given a reasonable time to return to work.

• If the employee elects not to return to work after receiving such notice, the employeecontinues to be entitled to maintenance of health benefits, and the employer may notrecover its cost of health benefit premiums at the end of the leave.

• FMLA rights continue until the employee gives notice that he or she no longer wishesto return to work or the employer actually denies reinstatement at the conclusion ofthe leave period.


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7. Key employees are still entitled to request reinstatement at the end of the leave period,and the employer must again determine whether there will be substantial and grievouseconomic injury based upon reinstatement under the facts at the time.

• If restoration is again denied, the employer must notify the key employee in writing(in person or by certified mail).

8. Grievous economic injury is not the same as “undue hardship” as defined by the ADA —the standard is more stringent under the FMLA.

• Grievous economic injury would result if the reinstatement of the key employeethreatens the economic viability of the organization.

• “Minor inconveniences and costs that the employer would experience in the normalcourse of doing business” do not qualify as grievous economic injury.


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Note: In the Appendix, relevant DOL notice prototype forms have been included. The DOL does not require employers to use the prototype forms; employers may adapt the forms as appropriate to meet their business needs, provided the employer’s adapted form does notseek prohibited information.

General Notice WH-1420

• Every employer covered by the FMLA must post on its premises in conspicuous placeswhere employees are employed a notice explaining the act’s provisions and providinginformation concerning the procedures for filing complaints of violations of the act withthe DOL Wage and Hour Division.

• The General Notice WH-1420 (see Appendix) meets the FMLA poster and policydistribution requirements.

• A copy must be posted and distributed to employees by covered employers — even if there are no FMLA-eligible employees.

— Posting and distribution can be done electronically or by paper or a combination of the two.

• Notice must be included in the handbook or other materials given to all employees, andnew hires must receive a copy upon hire if not included in the employee handbook orother summary of leave rights.

• If a significant portion of the workforce doesn’t speak English, the communication mustbe in a language they understand.

Eligibility Notice WH-381 Part A

• When an employee requests FMLA leave or when the employer acquires knowledge thatan employee’s absence may be for FMLA-qualifying reasons, the employer must notifythe employee within five business days (absent extenuating circumstances) of theemployee’s eligibility to take FMLA leave. (See Appendix for WH-381.)

• Employers must notify employees in writing of eligibility or non-eligibility within fivebusiness days after the first time in the employer’s FMLA leave year that an employeerequests leave for a particular qualifying reason.

— All FMLA absences for the same qualifying reason are considered a single leave, andemployee eligibility as to that reason for leave does not change during the applicable12-month period.

Employer Notice Requirements

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• The Eligibility Notice either:

— States that the employee is eligible, or

— If not, why not (at least one reason: e.g., lacks 1,250 hours, one year of service, or 50employees/75-mile radius).

The notice must include as applicable:

1. The number of months the employee has worked for the employer

2. The number of hours of service worked for the employer during the 12-month period

3. Whether the employee is employed at a work site with 50 or more employeeswithin a 75-mile radius of that work site

• If, at the time an employee provides notice of a subsequent need for FMLA leave duringthe applicable 12-month period due to a different FMLA-qualifying reason, theemployee’s eligibility status has not changed, no additional eligibility notice is required.

— If that employee requests leave and the eligibility status has changed, the employermust notify the employee in writing of the change in eligibility status within fivebusiness days, absent extenuating circumstances. (e.g., the employee drops below1,250 hours or there are fewer than 50 employees within a 75-mile radius).

— If the employee has exhausted the 12-week FMLA entitlement, that is not a reason forineligibility — instead, a new Designation Notice (see following section) should beused to deny leave.

Rights & Responsibilities Notice WH-381 Part B

• Employers must provide written notice detailing the specific expectations and obligationsof the employee seeking leave and the consequences of failure to meet those obligations.(See Appendix.)

• Employers must provide a written Rights & Responsibilities (R&R) Notice:

— Each time an eligibility notice is required

— Thereafter, if any information on it changes after the employee’s first request for leave,within five business days after changes occur. This must reference the prior notice andthe information that has changed (e.g., if paid leave becomes unpaid or the method ofcollecting premiums that will be used).

Employer Notice Requirements, continued

44FMLA122211

• Information that must be included:

1. That leave may be designated and counted against the employee’s FMLA leaveentitlement if qualifying

2. Employer’s designated 12-month FMLA year

3. Whether certification or other documentation will be required and that thecertification/documentation to be completed may be attached

4. Whether substitution of paid-time-off benefits use is mandated, those terms andconditions, and the employee’s entitlement to take unpaid FMLA leave even if theemployee does not meet the conditions for paid leave

5. Whether a fitness-for-duty (FFD) certification will be required

6. Benefit continuation obligations, including arrangements for making payments andthe possible consequences for failure to do so (including liability for payment ofhealth insurance premiums paid by the employer during the employee’s unpaid leaveif the employee fails to return to work)

7. Key employee status, the potential consequence that restoration may be deniedfollowing leave, and an explanation of the conditions required for such denial

8. Not mandated but may be included: whether periodic reports on status and intent toreturn to work are required

Designation Notice WH-382

1. For each FMLA-qualifying reason within the employer’s designated 12-month FMLA leave year, the employer must give written designation that leave qualifies — or not — as FMLA leave, including a calculation as to the amount of leave. (See Appendix.) A Designation Notice must be delivered within five business days after acquiring enough information to determine if the employee qualifies for FMLA leave, absentextenuating circumstances.

• Only one Designation Notice is required for each FMLA-qualifying reason perapplicable 12-month period, regardless of whether the leave will be taken ascontinuous, intermittent, or reduced schedule.

2. If the information provided by the employer in the Designation Notice changes (e.g., theemployee exhausts FMLA leave), the employer must provide written notice of the changewithin five business days of receipt of the employee’s first notice of need for leavesubsequent to any change.

3. The employer can provide a written designation at any time later as long as the employeeis not harmed (the Ragsdale rule).

• This means “provisional” designation is gone and the employer has nothing to lose bydesignating leave late.


45FMLA122211

4. The Designation Notice must contain:

• A statement that leave is being designated as FMLA

If not, notice must be given that the leave is not FMLA qualifying (e.g., the employee’s FMLA leave has been exhausted). This may be in the form of a simple written statement.

• The amount of leave being counted as FMLA, if known

— If the amount of leave needed is known, the employee must be notified of thenumber of hours, days, or weeks that will be counted against the employee’sFMLA leave entitlement.

— If the amount of leave is not known (e.g., due to a chronic condition), theDesignation Notice still must be given.

The employee can’t request the information more often than every 30 days (ifleave was taken during the prior 30 days).

— The notice of the amount of leave counted against the employee’s FMLA leavemay be oral or in writing. If given orally, it must be confirmed in writing no laterthan the following payday, unless the payday is in less than one week; then noticemust be not later than the subsequent payday. Notice may be written in any form,including a paycheck notation.

• Whether paid-time-off benefits will be used during the leave and if so, that paid leavewill count as FMLA leave

• Whether a fitness-for-duty (FFD) certification will be required that addresses whetherthe employee can perform the essential job functions of the employee’s position

5. A list or job description of essential duties must be attached for the HCP to use for theFFD certification.

6. If the handbook or other written documents describing the employer’s leave policyclearly provides that a FFD certification will be required in specific circumstances (e.g.,back injuries), the employer doesn’t have to include information on the FFD certificationin the Designation Notice, but must provide oral notice at the same time or earlier thanproviding the Designation Notice.

7. If more information is required and the employer is unable to determine if the leave isFMLA qualifying, the employer must notify the employee that:

• The medical certification is incomplete or insufficient (provide a written list ofdeficiencies and an opportunity to cure them)

• A second or third opinion is required

8. In summary, a Designation Notice can do one of four things: designate leave, requiremore information from a HCP, require a second or third opinion, or deny FMLA leave.


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Employees seeking FMLA leave don’t have to mention the FMLA or even assert rights under theact; they only need to state a qualifying reason for the needed leave and comply with the noticerequirements outlined below.

Timing

• If leave is foreseeable, at least 30 days’ advance notice or as soon as practicable,normally the same or next business day if the employee is off work when learning of theneed for leave, absent unusual circumstances

— If less than 30 days’ notice is given, the employer can require an explanation aboutwhy 30 days wasn’t practicable.

— If timely notice is not given, the period of delay can count as non-FMLA absence,subject to the employer’s normal attendance requirements, provided suchrequirements are no more stringent than the 30-day or “as soon as practicable”requirements outlined above.

— If leave is foreseeable but the time frame is less than 30 days, employees can still berequired to give notice as soon as practicable, and leave can be delayed to the extentthat notice wasn’t given in a timely fashion.

— For qualifying exigency leave, notice must be provided as soon as practicable,regardless of how far in advance such leave is foreseeable.

— Whether FMLA leave is taken continuously or on an intermittent or reduced schedulebasis, notice need only to be given once, but the employee must advise the employerif there is a date change, leave needs to be extended, or if leave dates were initiallyunknown and become known.

• If leave is unforeseeable, either as soon as practicable or if the employer has a usual andcustomary leave of absence notification policy, within such reasonable time frame asestablished by that policy, absent unusual circumstances

— If timely notice is not given, the period of delay can count as non-FMLA absence,subject to the employer’s normal attendance requirements.

1. If the employee doesn’t provide sufficient information to establish that the leave isFMLA-qualifying, leave can be denied.

2. If the employee uses paid time off for an FMLA qualifying reason and theemployee subsequently learns of the need for the leave, that paid time off can besubstituted for FMLA time and counted against the employee’s FMLA leave entitlement.

— Retroactive designation is appropriate when it does not cause harm or injury to the employee.

— Notice may be given by any electronic means.

— Notice may come from the relative or responsible party.

Employee Notice Requirements

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Method

Notice may be oral unless the employer has a usual and customary policy on leave notificationprocedures (e.g., advance written notice, sent to specific person, or call designated phonenumber), provided the policy doesn’t require more advance notice than FMLA permits.

• Employers can’t require written notice for unforeseeable leave.

• If the policy isn’t followed, the period of delay can count as a non-FMLA absence,subject to the employer’s normal attendance requirements.

Content

When requesting FMLA leave for the first time for a particular FMLA-qualifying reason, theemployee must provide sufficient information (e.g., state the qualifying reason, provideanticipated timing and duration of leave if foreseeable) for an employer to reasonably determinethat the FMLA may apply.

• Calling in “sick” is not sufficient.

• When subsequently requesting leave for the same FMLA-qualifying reason for whichleave was previously provided, the employee must specifically reference the qualifyingreason or state “FMLA” leave.

No Undue Disruption

• FMLA requires that, in the case of foreseeable leave, the employee must “consult with theemployer and make a reasonable effort to schedule the leave so as not to disrupt undulythe employer’s operations.”

— If the employee does not consult with the employer, the employer may require such consultation.

— All such agreements and the appointment schedule must include the approval of theemployee’s HCP.

• The employer may require that the employee follow established procedures for requestingleave without pay.

Employer Delays Employee’s Leave

An employer may delay FMLA leave when an employee needs to take a foreseeable leave,knows about FMLA notice requirements, and does not follow them.

• Posting the required notice in the workplace suffices to notify employees of notice requirements.

Employee Notice Requirements, continued

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An employer may require that an employee’s leave be supported by a certification issued by the health care provider (HCP) of the employee, the employee’s ill family member, or theservicemember. (Employers also can request that qualifying exigencies and caregiver leave be supported by a certification.)

Medical Certification

• If the employer wants certification, it must be requested:

— Within five business days after the foreseeable leave is requested, or

— Within five business days after unforeseeable leave commences, or

— At a later date, if the employer has reason to question the appropriateness or durationof the leave

• Written notice to employees of the medical certification requirement must be providedon the Rights and Responsibilities (R&R) Notice. (See Appendix.)

— Subsequent requests for recertification of the same condition during the same FMLAyear may be oral.

• The R&R Notice may include the actual form to be completed by the HCP, the timeperiod for returning the form — which must be at least 15 full calendar days, excludingthe day that the employee is given the notice — and the consequences for failure toreturn the form.

— The 15-calendar-day time frame is used for both foreseeable and unforeseeableleaves, and the only exception to the timely return of the certification is if it is notpracticable despite the employee’s diligent, good faith efforts.

• The DOL has created two prototype medical certification forms — one for the employee’sown serious health condition, WH-380-E, and the other for a family member’s serioushealth condition, WH-380-F. (See Appendix.)

— The HCP is asked to provide medical facts sufficient to support the need for leave,including symptoms, diagnosis, hospitalization, medication prescribed, regimen ofcontinuing treatment, as well as sufficient information on the employee’s inability toperform the essential job duties (based upon a list provided by the employer).

1. The employer may not ask for the employee’s medical records.

2. The employer may not request an overall history of visits to the HCP.

— If the employee is the patient, the form requests information sufficient to establish thatthe employee can’t perform the essential functions of the job, as well as any otherwork restrictions and the likely duration of such inability.

— If intermittent or reduced schedule leave is requested for planned treatment, the formrequests information on why there is medical necessity for the leave and an estimateof the duration of incapacity, treatment, and recovery periods.

Certification

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— In addition to the above, WH-380-F, the Family Member form, requires sufficientinformation be provided to establish that the family member is “in need of care” andan estimate of the frequency and duration of leave needed for such care. Theemployer can also request proof of the covered family relationship.

Complete and Sufficient Certification Forms

• Employers can require that forms be “complete” (not missing one or more applicableentries) and sufficient (not vague, ambiguous, or nonresponsive).

• This requirement applies to initial certifications, a recertification, a second or thirdopinion, or a FFD certificate, including any clarification necessary to determine if suchcertifications are authentic and sufficient.

— If the certification/recertification is returned but is incomplete or nonresponsive, theemployer must use the Designation Form or provide written notice of what specificinformation is still required.

— Employees must be given seven calendar days to cure the deficiencies, unless theseven days is not practicable under the particular circumstances despite theemployee’s diligent, good faith efforts.

Annual Medical Certification

In situations in which the serious health condition of the employee or family member lastsbeyond a single leave year, the employer may require a new medical certification in eachsubsequent year.

• Such new certifications are subject to the provisions for authentication and clarification,including second and third opinions.

FMLA Intersection With HIPAA

An employer may not require HIPAA consent authorizing the employee’s or a family member’sHCP to communicate with the employer or to send the certification directly to the employer.

• If a HIPAA consent is required by the HCP, however, the employee/family member mustfurnish it; if the employee/family member does not, the employer can deny leave.

• This forces the employee to make a choice about cooperation in providing necessaryinformation or foregoing the leave.

Certification, continued

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Contact With HCP

• If medical certification/recertification is complete and sufficient, the employer’s HR staff,leave administrator, a management official, or the employer’s HCP may contact theemployee’s HCP to authenticate or clarify the form (for both initial and recertification).

— The employee’s immediate supervisor may not speak to the employee’s HCP.

• Authentication means verification that the information was provided or authorized by the employee’s HCP.

— No additional medical information may be requested.

— No employee or HIPAA consent is required.

• Clarification means understanding the handwriting or the meaning of something writtenbut not asking for information beyond that required by the form.

Second and Third Opinions

• An employer who has reason to doubt the validity of a medical certification may requirethe employee to obtain a second medical certification at the employer’s expense.

• Pending receipt of the second (or third) opinion, the employee is provisionally entitled tothe benefits of the act, including maintenance of health insurance benefits.

• The second HCP must not be employed on a regular basis by the employer.

— The employer must reimburse the employee for any travel expenses and generallycan’t require travel outside the normal commuting area.

• A third opinion, if needed to resolve differences, is binding on the employee and theemployer. A third opinion is at the employer’s expense as well.

— The third HCP must be jointly approved or designated by the employer and employee.

— The party who fails to cooperate in the selection of the third HCP will be bound bythe opinion adverse to their position.

— Upon employee request, the second or third opinion must be provided to theemployee within five business days.

• Employers are free to request second or third opinions on certifications, with the sameHIPAA qualifications outlined previously. (Second or third opinions are not allowed on a recertification.)


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Failure to Provide Certification

• Foreseeable leave — If the employee fails to provide certification, then the employer candeny FMLA coverage until the required certification is provided (e.g., the employee doesnot provide the certification for 45 days; the employer can deny FMLA protections for the30-day period following the expiration of the normal 15-day grace period if the employeetakes leave during the 30-day period).

• Unforeseeable leave — If the employee fails to provide certification within 15 calendardays from receipt of the request for certification (unless not practicable due toextenuating circumstances), the employer may deny FMLA coverage for the requestedleave until sufficient certification is provided.

— If no certification is produced, the leave is not FMLA leave.


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Recertification for Serious Health Conditions

• 30-Day Rule: An employer may request recertification no more often than every 30 daysand only in connection with an absence by the employee unless the following applies:

— If an initial leave certification is 30 days or more (taken continuously, intermittently,or on a reduced schedule), an employer must wait until that minimum durationexpires before requesting recertification unless:

1. Every six months in connection with an absence, or

2. A leave extension is requested, or

3. A significant change in circumstances described by the certification(complications, duration/frequency of absences, nature/severity of illness) or apattern of absences before or after scheduled days off or longer duration ofabsences than specified on the certification for the most recent two or moreepisodes of incapacity, or

4. If the employer receives information casting doubt upon the employee’s statedreason for absence (i.e., information that an employee’s off-duty activities areinconsistent with the need for FMLA leave)

— An employer can request recertification for a leave of less than 30 days if:

1. A leave extension is requested, or

2. A significant change in circumstances described by the certification(complications, duration/frequency of absences, nature/severity of illness) or apattern of absences before or after scheduled days off or longer duration ofabsences than specified on the certification for the most recent two or moreepisodes of incapacity, or

3. The employer receives information casting doubt upon the employee’s statedreason for absence (i.e., information that an employee’s off-duty activities areinconsistent with the need for FMLA leave).

— Employers may also provide the employee’s HCP with a record of the employee’sabsence pattern and ask the HCP whether the condition and the need for leave areconsistent with such a pattern.

• If the certification indicates that the employee may need leave beyond a single leave year(e.g., for intermittent or reduced schedule leave), the employer can require a newcertification annually.

• Employees must provide recertification within the time set by the employer, but theemployer must give at least 15 calendar days.

• Recertification is at the employee’s expense. (No second or third opinions are allowed.)

Recertification

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Employee’s Diligent and Good Faith Efforts

Employees have two opportunities to provide complete and sufficient certification.

1. If certification/recertification is not returned at all within 15 calendar days and theemployee has not provided information about his or her diligent, good faith efforts, leavecan be denied.

2. If certification/recertification is not returned at all within any required seven-day cureperiod and the employee has not provided information about his or her diligent, goodfaith efforts, or certification is returned on a timely basis but does not cure thedeficiencies, leave can be denied.

The employer has no obligation to notify an employee that a certification/recertification has notbeen received within the 15- or seven-day period.

Failure to Provide Recertification

An employee must produce recertification within the time frame requested by the employer (atleast 15 calendar days after the request) or as soon as practicable under the circumstances.

• The employer can deny continuation of the FMLA leave protections until the employeeproduces a sufficient recertification.

• If no certification is produced, the leave is not FMLA leave.

• Recertification may not be required for leave taken for a qualifying exigency or militarycaregiver leave.

Recertification, continued

54FMLA122211

Employers may require employees to periodically report on their status and intent to return to work.

• If the employee states unequivocally he or she won’t be returning, the employer has noobligation to maintain health benefits or provide job restoration.

If the employee indicates that he or she may be unable to return but still wishes to do so,the employer must maintain benefits and job restoration obligations.

• Once on leave, an employee may need more or less time than originally anticipated.

If the employee requires less time, he or she can’t be required to take more FMLA leavethan necessary to resolve the circumstance that precipitated the need for the leave.

• In either circumstance (more or less time needed), the employer can require that theemployee provide reasonable notice (i.e., two business days) of the changedcircumstance where foreseeable.

Intent to Return to Work

55FMLA122211

• As a condition of restoring an employee whose FMLA leave was for his or her ownserious health condition, an employer may have an uniformly applied policy that requiresall similarly situated employees (i.e., same occupation or same serious health condition)to present a fitness-for-duty (FFD) certification from their HCP that the employee is ableto resume work.

• The same cooperation and complete and sufficient information obligations for employeesand their HCPs apply as discussed with respect to initial certifications.

• FFD certification is only allowed in terms of the original need for the FMLA leave.

The Essential Functions of the Job

1. The employer can require that the HCP’s certification specifically addresses theemployee’s ability to perform the essential functions of the job.

• The employer must provide the employee with a list of the essential job functionswith the Designation Notice and indicate that the FFD certification must address theemployee’s ability to perform the essential functions.

• The employee’s HCP must then certify that the employee can perform the essential functions.

2. If medical certification/recertification is complete and sufficient, the employer’s HR staff,leave administrator, a management official, or the employer’s HCP may contact theemployee’s HCP to authenticate or clarify the form (for both initial and recertification).

• The employee’s immediate supervisor may not speak to the employee’s HCP.

• The employer may not delay the return to work while this contact is pending.

3. There are no second or third opinions on FFD certifications.

4. The cost of the FFD certification must be borne by the employee, and there is noentitlement for pay for the time spent or travel costs associated with obtaining the FFD certification.

5. If the employer complies with the above requirements and the employee fails to providea FFD certification or request additional FMLA leave, the employee is no longer entitledto reinstatement and may be terminated.

Fitness-for-Duty Certification

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6. An employer is not entitled to a FFD certification for each absence taken on anintermittent or reduced schedule basis, except:

• If reasonable safety concerns exist regarding the employee’s ability to perform his orher duties based upon the serious health condition for which the employee tookFMLA leave, the employer may require an FFD certification for such absences up toonce every 30 days.

• When the employer issues the Designation Notice, the employee must be informedthat for each subsequent instance of intermittent or reduced schedule leave, theemployee will be required to submit a FFD certification, unless one has already beensubmitted within the past 30 days.

• The employer may not terminate an employee while awaiting the FFD certification foran intermittent or reduced schedule leave.

• “Reasonable safety concerns” mean a reasonable belief of significant risk of harm tothe individual employee or others.

7. Collective bargaining agreements or state law provisions that govern an employee’s returnto work must be applied.

Fitness-for-Duty Certification, continued

57FMLA122211

Group Health Plan Coverage

The FMLA requires all employers (including public) to maintain employee coverage under any“group health plan … at the level and under the conditions coverage would have been providedif the employee had continued in employment continuously for the duration of the leave.”

• Group health plans don’t include insurance programs under which employees voluntarilypurchase individual policies (no money contributed by the employer, only anadministrative role in collecting premiums).

• If the employee chooses not to be covered by the organization’s plan while on FMLAleave, he or she must be reinstated at the same level upon returning to work without theneed to re-qualify.

Employee Payment of Health Premiums

1. If the employee had paid for some part of the premium before FMLA leave, he or shemust continue to pay that premium while on leave.

2. If premium amounts change, then the employee must pay new premium rates.

3. If on substituted paid leave, the employee’s share of premiums are paid by the methodnormally used during any paid leave (presumably payroll deduction).

4. If an employee is on unpaid leave, the employer has a number of options for obtainingpayment from the employee. This includes requiring the employee to remit directly to thecarrier, having payment due at the same time as if by payroll deduction, due on sameschedule as COBRA payments, or prepaid to a cafeteria plan, or following the employer’sexisting rule for leaves without pay, provided such rules don’t require prepayment prior tothe beginning of leave or a higher premium.

• The employee can voluntarily agree to prepayment.

5. The employer must provide the employee with advance written notice of payment termsand conditions.

6. The employer may elect to pay the employee’s premium and can recover that cost fromthe employee once the employee returns to work.

7. The employer may not require more of employees using unpaid FMLA leave thanemployees on other types of unpaid leave.

Maintenance of Group Health Benefits

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Maintenance of Benefits Under Multiemployer Health Plans

• Under multiemployer health plans:

— More than one employer is required to contribute to it.

— The terms are created by collective bargaining agreements.

• The employer’s contributions to these plans must continue at the same rate and in thesame amount as if the employee had not taken leave until:

— FMLA leave is exhausted, or

— The employer can show that the employee would have been laid off or had his or herhours reduced during the period of leave, or the employee states clearly that he orshe is not going to return to work.

Employer’s Obligation to Maintain Coverage Under a Single Employer Plan

• In the absence of an established policy of a longer grace period, an employer’s obligation to maintain health coverage ends if the employee is more than 30 days late in making payments.

• The employer must provide written notice at least 15 days before terminating coverageon a specified date.

— If the employer has a policy for other forms of unpaid leave that allow for retroactivetermination of coverage to the date the unpaid premium was due, the employer maydrop the employee’s coverage retroactively.

— All other obligations under the FMLA remain in force.

• The employer may recover any missed employee premiums it paid on behalf of the employee.

• If coverage lapses due to a missed premium, the employer must still restore the employeeto coverage/benefits upon return from leave.

— Since the employer is required to provide equivalent benefits when an employeereturns from FMLA leave, from the standpoint of avoiding an administrative issue, theemployer may want or need to make payments to avoid any lapse in coverage.

Maintenance of Group Health Benefits, continued

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Premium Recovery When an Employee Quits

• The employer may recover any payments it made on behalf of the employee on unpaidFMLA leave if the employee does not come back to work, unless:

— The employee did not return because of the continuation, recurrence, or onset of aserious health condition (of the employee or family member) that would otherwiseentitle the employee to FMLA leave, or

— There are other circumstances beyond the employee’s control.

• If the failure to return is due to a serious health condition, the employer may request thatthe employee provide HCP certification, which must be returned within 30 days of theemployer’s request.

• Absent meeting either test above or failure to provide certification, the employer canrecover 100 percent of premiums it paid on the employee’s behalf.

— Recovery can come from deductions from any amounts of money still owed to theemployee, provided federal/state wage payment laws are complied with.

— The employer may also sue the employee for recovery.

• An employee who returns to work for at least 30 calendar days is considered to have“returned” to work.

Maintenance of Group Health Benefits, continued

60FMLA122211

The Employer’s Established Policy Controls

• An employee’s entitlement to benefits other than group health benefits during FMLAleave (e.g., holiday pay) is determined by the employer’s established policy for providingsuch benefits for employees on other forms of leave (paid and unpaid).

— If the employee had been responsible for paying for some or all of these otherbenefits, the employer must follow the organization’s policy regarding how thosepayments are handled during other types of leave.

• Employers can elect to maintain benefits on behalf of the employee on unpaid FMLAleave to ensure that the employer can provide equivalent benefits upon return.

— If the employee fails to return, the employer can recover only the cost incurred forpaying the employee’s share of the premiums.

Accrued Benefits and Continuing Service

• Employers may not deprive an employee of any accrued benefits the employee hadalready earned prior to taking FMLA leave.

— Accrued benefits are reinstated after the FMLA leave as though the employee hadbeen continuously employed.

• Employees are entitled to accrue hours of service during paid leave.

• An employee may, but is not entitled to, accrue any additional benefits or seniorityduring unpaid FMLA leave.

— If a benefit plan’s eligibility is predicated on working a preestablished number ofhours each year and the employee does not have sufficient hours worked due tounpaid FMLA leave, the employee is no longer entitled to the benefit.

• FMLA leave, paid or unpaid, must be treated as “continued service” for vesting andpension/retirement plans.

— For plans that require employees to be employed on a specific date for vesting,contribution, or participation purposes, employees on FMLA leave shall be deemedemployed on that date.

Employee Rights to Other Benefits While on Leave

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Additional Information

An employer may request additional information in accordance with a paid leave policy ordisability plan that requires greater information to qualify for benefits than for leave under theFMLA only.

• The employer must inform the employee that the additional information only needs tobe provided in connection with the receipt of such benefits or payments.

• Any information received pursuant to such policy or plan may be considered indetermining the employee’s FMLA entitlement.

• If the employee fails to provide the information required for these other plans orbenefits, the failure does not affect the employee’s entitlement to take unpaid FMLA leave.

Employee Rights to Other Benefits While on Leave, continued

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The Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA)

1. The COBRA provides continued health insurance coverage for employees andbeneficiaries who lose their group coverage.

2. Every employer-sponsor of a group health plan must continue coverage for employeeswho lose their health insurance because of a “qualifying event.”

3. “Qualifying events” include termination, layoff, and reduction of hours.

4. Employees can continue on the employer health plan for 18 months.

5. The employee pays the COBRA premium, which may not exceed 102 percent of the totalpremium paid by the employer and employee prior to the qualifying event.

6. Being on FMLA leave is not a qualifying event since the employee is still employed.

• COBRA qualifying events related to FMLA: The employee is laid off while on leave,notifies the employer of the intent not to return from leave before the leave starts, ordoes not return to work after FMLA leave or continues on leave after exhaustingFMLA entitlement.

7. The 18-month COBRA coverage begins on the last day of FMLA leave (and the employeehas not returned to work), or when the employee notifies the employer that he or she willnot be returning to work.

Key Employee Intersection With COBRA

If a key employee does not return from leave when notified by the employer that substantial andgrievous economic injury will result from reinstatement, the key employee’s entitlement to grouphealth continues until (1) the employee advises the employer that reinstatement is no longersought, (2) FMLA leave entitlement is exhausted, or (3) reinstatement is actually denied.

COBRA Notice Period

• The employer must notify the plan administrator within 30 days of qualifying events.

• Employer-provided COBRA notices should also include information regarding itsinteraction with the FMLA.

The Employee Retirement Income Security Act (ERISA) of 1974

The FMLA modifies the ERISA in one significant way:

• The ERISA only requires that employers maintain an employee’s health coveragewhile on a leave at the employee’s expense.

• The FMLA requires that if the employer had paid for any portion of the healthcoverage before leave, it must continue to pay during FMLA leave.

COBRA, ERISA, and FMLA

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Federal employees are covered under the Federal Employees Health Benefits (FEHB) Program.These employees may continue FEHB coverage while on FMLA leave but must make appropriatecontributions on a timely basis. They must make payments or incur a debt to be repaid uponreturning to work.

• Coverage for employees in a non-pay status continues for 365 days.

• The FMLA cannot supersede laws that provide greater rights, so:

— Federal employees can also be on leave for 365 days and maintain health coverage.

Health Benefits of Civil Service Employees

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Record keeping under FMLA is very similar in form, content, and intent to the FLSA.

Required FMLA Records

• Generally, the DOL may only request records once in every 12-month period.

• Employers must be able to document the entire “leave cycle.”

• FMLA records must maintained for a minimum of three years.

• Records include:

— Basic payroll and identifying data

— Dates of properly designated FMLA leave

— Hours of leave in the case of less-than-full-day increments

— Copies of employee notices to the employer and copies of employer notices to employees

— Internal documents regarding benefits and policies concerning paid and unpaid leave

— How any premium payments will be handled during times of leave

— Documentation regarding any disputes concerning whether leave is properlydesignated as FMLA leave

Privacy Requirements

• Certain records must be kept separate and treated as confidential.

— Medical certifications

— Medical recertifications

— Medical histories of employees or their families

• Access to these records must be limited to:

— Supervisors and managers who need to know of any restrictions placed on employees

— First aid and safety personnel

— Government officials as needed

• ADA requirements for record-keeping privacy must also be implemented.

Employer Record-keeping Requirements

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The ADA and the FMLA often overlap and sometimes are seemingly at odds with each other.

Reasonable Accommodation and Undue Hardship

• The ADA requires “reasonable accommodation” for mental and physical disabilities,unless it would create an “undue hardship.”

— A disability is not the same as a serious health condition — serious health conditions may be temporary in nature and a disability is usually a long-term, perhaps chronic condition.

— “Undue hardship” is defined as “an action requiring significant difficulty or expense,when considered in the light of (certain) factors.”

— An employee who qualifies for FMLA leave may not be denied leave because suchleave would constitute an “undue hardship.” (Note: key employee exception,“grievous and substantial harm”)

• The ADA includes “part-time or modified work schedules” as a reasonableaccommodation. Employees who qualify for FMLA leave may not be coerced into taking a light-duty position in lieu of taking FMLA leave.


• Under the ADA, an employer does not have to provide time off for an employee to carefor a disabled family member; FMLA provides for this coverage.

• When an employee is ADA-covered and FMLA eligible, the FMLA does not prevent anemployer from following the procedures for requesting medical information under the ADA.

— Any information received pursuant to these procedures may be considered indetermining the employee’s FMLA entitlement.

• ADA requires “reasonable accommodation” of qualified individuals with various disabilities.

— This may require additional ADA-protected leave beyond the 12-week FMLA entitlement.

— The employee can perform the essential functions of the job upon returning fromFMLA leave, but needs reasonable accommodation to do so.

• Employers who require FFD certification for FMLA leaves must still comply with the ADArequirement that an FFD physical be job-related and consistent with business necessity.

Leave as a “Reasonable Accommodation”Under the ADA

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Job Restoration

• If an employee’s on-the-job injury is a serious health condition as defined by the FMLA,the employee may qualify for workers’ compensation benefits and for FMLA leave.

• With few exceptions, most state workers’ compensation laws do not create anentitlement to reinstatement; most state laws prohibit only retaliation for requesting or using workers’ compensation benefits.

— When an employee elects or an employer requires the “stacking” of workers’compensation and FMLA leave (taken concurrently), the employee is givenreinstatement rights and the employer reduces the total amount of time that theemployee can be out on leave and retain reinstatement rights.

Light Duty

• The FMLA prohibits employers from requiring that the employee return to work in a light-duty position before the employee’s 12 weeks of FMLA leave has expired.

— Employees may elect to temporarily transfer to a light-duty job in lieu of taking FMLAleave while recovering from a serious health condition.

— Such a decision must be “voluntary and uncoerced.”

— The decision to take a light-duty job doesn’t constitute a waiver of the employee’sprospective FMLA rights.

— The employee’s right to restoration while on a light-duty job ceases at the end of the12-month FMLA year.

• If the employee’s HCP for workers’ compensation certifies that the employee is able to return to work in a light-duty position, the employer offers one, and the employeedoes not elect to take it, the employee may no longer be eligible for workers’compensation payments.

— The employee will be still be entitled to continue on unpaid FMLA leave until the 12-week leave entitlement is exhausted or the employee is able to return to the same oran equivalent job.

Substituting Paid Leave With Workers’ Compensation and FMLA Leave

Employees who receive paid leave from workers’ compensation benefits can’t be compelled to substitute their employer-provided paid leave (double dipping), except to the extent thatworkers’ compensation does not provide full wage replacement.

Workers’ Compensation and the FMLA

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Additional Information From the Employee’s Workers’ Compensation HCP

The FMLA doesn’t prevent the employer from following the workers’ compensation provisions.

• When state law permits, employers or their representatives may request additionalinformation from the employee’s workers’ compensation HCP.

• Information received under these provisions may be considered by the employer indetermining the employee’s FMLA entitlement.

Workers’ Compensation and the FMLA, continued

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• The FMLA clearly provides that any employee who asserts rights under the act has nogreater rights to reinstatement or other conditions of employment — including continuingemployment — than if the employee had never requested or taken the leave.

• This means that an employer may terminate an employee regardless of leave statusprovided that there is a legitimate, nondiscriminatory reason for termination.

• The FMLA makes it unlawful to discharge or discriminate against any person for opposingor complaining about any unlawful practice under the act.

Protected Activities by Employees

• Opposing any practice made unlawful by the FMLA

• Filing a charge or instituting a proceeding under the FMLA

• Giving information in connection with an inquiry or proceeding relating to a rightprovided under the FMLA

• Testifying in an inquiry or proceeding related to a right provided under the FMLA

• Unlawful retaliation: firing or not promoting an employee who engages in any of these activities

Documentation

• Any adverse action taken against a protected employee should be well documented,establishing the legitimate business reason(s) for taking such action.

• Documentation must show that the adverse action was not related to an FMLA provisionor right to take leave.

• Employers should:

— Keep accurate and up-to-date attendance records, clearly demarcating excused andunexcused absences.

Note: FMLA leave cannot be counted under “no fault” attendance policies.

— Ensure that all personnel actions are documented and kept in each employee’spersonnel file.

— Ensure that all persons responsible for supervising employees record all disciplinaryactions taken against individual employees.

— Ensure that personnel documentation is retained for at least three years following theend of the employee’s employment.

Beware Unlawful Discharge

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The FMLA is administered and enforced by the Department of Labor (DOL). An employer isprohibited from interfering with, restraining, or denying the exercise of, or the attempt toexercise, any rights provided by the act.

Legal Action by DOL

• Civil actions for damage can brought by the DOL.

— The DOL can sue or seek an injunction on behalf of the employee.

— If the DOL seeks an injunction, the employer cannot be held liable for liquidated damages.

— If the employee sues, he or she may recover attorney’s fees; the DOL cannot.

• Employees can recover:

— Lost wages

— Salary or employment benefits

— Actual monetary losses

• An employee can bring action against the employer in any federal or state court.

• Once the DOL files suit, the employee no longer can.

• Employees cannot waive nor can employers induce employees to waive their prospectiveFMLA rights.

— Employees have the right to settle or release past FMLA claims without obtainingcourt or agency approval.

— This means severance pay provided in exchange for a release of liability may includeFMLA claims up to the date the release is signed.

Penalties for Noncompliance

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The FMLA provides two theories of recovery — entitlement and retaliation.

Entitlement

• Entitlement violations are based on the rights given to employees under the FMLA.

• The employee must show that he or she was denied rights to which the FMLA entitleshim or her.

• The employer cannot defend itself by showing lack of intent or that there was some goodbusiness reason for the denial of rights.

Retaliation

• The employee claims discrimination for exercising his or her rights under the FMLA.

• The employer’s intent in these cases is very important.

• The employee must show that:

1. He or she exercised a right protected under the FMLA,

2. He or she was adversely affected by an employment decision, and

3. There was a connection between the two events.

• If the employee can show a causal connection, then the burden of proof is on theemployer to evidence there was no causal connection (a legitimate business reason).

• If the employer can rebut these things, then the employee must show that the profferedbusiness reason was a pretext for unlawful discrimination.

• Courts are influenced by “temporal proximity” (timing of the events) between the first twoevents to decide cases of retaliation.

Burden of Proof

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If an employer violates an employee’s FMLA rights, then the organization could be held liablefor damages that equal wages or salary, employment benefits, and other monetary damages lostas a result.

Monetary Losses

• This includes the cost of providing care for a family member, and/or an amount equal toas much as 12 weeks of the employee’s wages or salary.

• Interest at prevailing rates may also be awarded.

• The employee could also potentially collect damages in place of reinstatement.

Liquidated Damages

• The employee may also receive liquidated damages equaling or even greater than theamount of other recovered amounts.

— The only way the employer can avoid this decision is if it can prove that the violationwas made in good faith.

• The employer establishes good faith by proving:

— “Honesty of intention and no knowledge of circumstances which ought to put him on inquiry”

— The employer must also objectively show that it acted as a reasonable, prudentorganization would have under similar circumstances.

Prejudgment Interest

• This is restitution for losing the use of money from the time of injury until vindication incourt.

• An employer who violates the FMLA is liable for interest on wages, salary, employmentbenefits, or any other compensation the employee did not have access to because of theviolation.

• Prejudgment interest may still be awarded even if liquidated damages are not.

Actual and Liquidated Damages

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Equitable Relief

An employee may also seek reinstatement or promotion to the position he or she should havehad but for the action of the employer when he or she exercised FMLA rights. This is in additionto all other monetary recoveries.

Front Pay

This is a cash award for any future loss of earnings that results from some discriminatory job action.

• Front pay is used when reinstatement is not possible or desirable.

• Front pay terms can last years, even decades.

Actual and Liquidated Damages, continued

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If the employee wins the suit against the employer, he or she can also be awarded reasonableattorney’s fees, expert witness fees, and other reasonable costs incurred in the litigation.

If Employer Wins

Should the employer prevail, each side pays its own fees.

• The employer cannot recover attorney’s fees from the employee.

• This could be overturned if the employer can prove that the suit was frivolous or broughtin bad faith.

Individual Liability

The FMLA states that “all persons (whether or not employers) are prohibited from discharging orin any other way discriminating against any person (whether or not an employee) …”

Statute of Limitations

Lawsuits must generally be brought within two years of the event, but:

• If the employee can prove that the violation was “willful,” suit may be brought withinthree years.

Civil Actions Under the ADA

• The ADA is enforced by the Equal Employment Opportunity Commission (EEOC) anduses the same procedures as Title VII of the Civil Rights Act of 1964, as amended.

• An employee who feels that his or her ADA rights were violated must first file a chargewith the EEOC.

— Filing must take place within 180 days, or 300 days in states with an approved fairemployment practices agency.

— The EEOC investigates the charge. If it determines that the charge has merit, it willeither sue or issue a “right to sue” letter to the employee.

— The employee then has 90 days to file suit in federal or state court.

• Damage awards are capped, based on the size of the employer, from $50,000 to $300,000.

Costs and Fees Liability

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