The Family and Medical Leave Act (FMLA) JENNIFER MILLER-LOUW SANDBERG PHOENIX & VON GONTARD, P.C....

The Family and Medical Leave Act (FMLA) JENNIFER MILLER-LOUW SANDBERG PHOENIX & VON GONTARD, P.C. 2015 West Main, Suite 111 Carbondale, IL 62901 (800) 875-0794 [email protected]

This law requires certain employers to grant an eligible employee up to 12 weeks of unpaid leave during any 12-month period for one or more qualifying reasons.

Does the Act apply to you? The Act applies to employers IF they are: Engaged in commerce or in any industry or activity affecting commerce Who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year

Which Employees are Covered? Eligibility for FMLA 12 months of employment during the past seven years 1,250 hours worked in the 12 months immediately preceding the date leave is to begin Maximum Length of Leave Up to 12 weeks of medical and/or qualifying exigency FMLA leave in a fiscal year Up to 26 weeks of military caregiver leave in a 12 month period Continuous, intermittent or reduced schedule leave

Qualifying Reasons Qualifying Reasons for FMLA Leave Birth of a son or daughter and to care for the newborn child Placement of a son or daughter for adoption or foster care Care for the employees spouse, son, daughter or parent with a serious health condition If an adult son or daughter is determined to be incapable of self- care because of a disability, he or she will be considered a son or daughter under the FMLA. In order for a parent to take FMLA leave to care for an adult child, the son or daughter must also: 1. have a serious health condition, and 2. need care because of the serious health condition. Serious health condition that makes the employee unable to perform the functions of the employees job Qualifying exigency for covered military member Care for ill or injured covered servicemember

Required Posting Employee Rights And Responsibilities Under The Family And Medical Leave Act Provided to each employee when hired Printed and posted for employees that do not have access to computers at work WHD Publication 1420 (Rev. Feb. 2013) http://www.dol.gov/whd/regs/complianc e/posters/fmlaen.pdf

Employee Notice Obligations Employers may require that employees follow usual and customary procedures for requesting leave, absent unusual circumstances Such requirements may include written notice or notice to a specific individual (i.e., HR professional or Leave Administrator) Employer policies for timing of notice cannot be more stringent than timing for FMLA notice Exception for unusual circumstances

Notice Requirements For foreseeable leaves, 30 days. birth or placement for adoption/foster care; planned medical treatment for serious health condition; planned medical treatment for serious injury or illness of covered service member. For foreseeable leaves when less than 30-days notice is not possible, notice must be given as soon as practicable and employee must explain why 30-days notice was not practicable if employer requests As soon as practicable when employee becomes aware of the need for FMLA leave, should give employer notice the same day or the next business day, taking into account the individual facts and circumstances

Notice Requirements (cont.) For non-foreseeable leaves, as soon as practicable Normal policy for reporting off work.

Required Employer Notices Two Notices: 1.Notice of Eligibility and Rights & Responsibilities Provided to an employee within 5 business days of the date An employee requests FMLA; or Employer becomes aware that an employees leave may be FMLA qualifying Request for medical certification (and consequences) Form WH-381 (revised February 2013) 2.Designation Notice Provided to an employee once employer has sufficient information or knowledge to determine that is FMLA covered, paid, unpaid Employee must be notified within 5 business days that the leave has been designated as FMLA Designate retroactively? If in doubt, designate provisionally Form WH-382 (Revised February 2013)

Does the Employee have to Mention FMLA LEAVE? NO!! An employee is obligated only to tell you enough facts which indicate potential FMLA coverage. It is UP TO YOU to properly investigate the circumstances and designate leave as FMLA leave if applicable.

How Much Notice is Required? Employees are required only to place employers on notice of the probable basis for an FMLA to qualify. Issues have arisen over how much notice is required. General reference to being sick is not enough, but specifics provided to an employer about serious medical concerns is often sufficient. 2 recent 7 th Circuit cases regarding notice.

Nicholson v. Pulte Homes Corp. The court held casual comments to a supervisor about a parents poor health did not constitute adequate notice. Nicholson informed her supervisor that she might need off work on the possibility her father would need chemotherapy. Around the same time, plaintiff had another informal conversation with her supervisor about only working during normal business hours due to the need to care for her mother. Court determined that the plaintiffs indication that she might need time off in the future if her father needed chemotherapy was too indefinite to put the employer on notice that she might qualify for FMLA leave. Further, plaintiffs statements about her mothers condition did not convey the seriousness of her mothers illness or that the time she needed out of the office was sufficient to put the employer on notice of the possible FMLA leave.

Pagel v. TIN, Inc. Court found the employer was on notice due to the employers knowledge of an employees own health condition. In 2006, the plaintiff experienced chest pain and labored breathing. He had various tests performed and was admitted to the hospital. His employer knew of the plaintiffs chest pain and hospital admission. The court concluded, it is difficult for us to imagine a scenario where [the plaintiffs] notice of hospitalization did not include an implicit demand for leave.

Content of Notice first-time vs. subsequent leaves First-Time Leave: when seeking FMLA leave for the first time, the employee need not expressly assert rights under the FMLA or even mention the FMLA Subsequent Leave: when seeking FMLA leave for a reason for which the employer has previously provided FMLA leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave

Employee Medical Certification Form Provides space for employees essential job functions Check off to indicate that the employees job description is attached Due back within 15 calendar days Employee allowed 7 calendar days to provide the additional information if the certification is incomplete or insufficient Certification of Health Care Provider for Employees Serious Health Condition (Form WH-380-E Jan. 2009)

Family Member Medical Certification Form Certification of Health Care Provider for Family Members Serious Health Condition (WH-380-F, Jan 2009) Asks for detailed information about the family members condition Amount of time the employee might need to care for the family member Employee allowed 7 calendar days to provide additional information if the certification is incomplete or insufficient

Incomplete or Insufficient Certification Employers may deny FMLA leave if the certification is incomplete or insufficient Incomplete: one or more entries have not been completed Insufficient: information is vague, ambiguous, or nonresponsive Employers must give employees at least 7 calendar days to cure the deficiencies Failure to cure deficiencies may result in the denial of FMLA leave

Clarification and Authentication Employer may contact the health care provider to Clarify information on medical certification form Authenticate medical certification form Limited to contacting health care provider to: understand handwriting on the certification understand the meaning of a response request verification that information on the certification form was completed and/or authorized by the health care provider who signed the document No additional medical information may be requested

Clarification and Authentication HIPAA requirements must be satisfied when employee health information is shared with an employer by a HIPAA covered health care provider Employees responsibility to provide complete and sufficient certification and to clarify if necessary If employee does not provide a required HIPAA release, and; If employee does not authorize employer to clarify the certification with the health care provider, and does not otherwise clarify the certification, FMLA leave may be denied

Clarification and Authentication Employer contact must be made by Health care professional Human resources professional Leave administrator Management official As determined by the employing department Under no circumstances may the employees direct supervisor contact the employees healthcare provider

Second/Third Certification Opinions Employer may not unilaterally reject a properly completed certification form by a healthcare provider that is timely submitted by an employee. If dispute certification that health condition qualifies as serious may seek second opinion at own expense. Employer can designate healthcare provider, but not one employed on a regular basis. If 1 st and 2 nd opinion conflict, get 3 rd final/binding opinion. Selection of provider approved by both employer and employee.

Re-Certification Pregnancy and Chronic or Permanent/Long Term Conditions Employer may request no more often than every 30 days, and in connection with absence. In cases of a medical condition lasting longer than 30 days, as noted on FMLA certification, an employer may not require re-certification before the minimum duration expires, unless an exception applies.

Re-Certification Exceptions: If the employee requests an extension of the leave If the situation described in the earlier certification has changed significantly If employer has information that casts doubt on the employers stated reason for the absence or the continuing validity of the certification.

Re-Certification Intermittent Certified Condition An employer may require a re-certification of a medical condition requiring intermittent leave every six months. May require more than every 30 days in instances where there is a pattern of absences occurring on Mondays and/or Fridays.

Intermittent Leave Scruggs v. Carrier Corp. Court held that an employer may terminate an employee based on an honest belief that an employee is misusing FMLA benefits. P worked at a plant and filed for FMLA 5 times. The last certification requested leave to take his mother to the Dr. every 6 months. D hired a private investigator and found that P did not leave the house on the day he requested leave and P was fired. On Ps FMLA interference claim, the appellate court ruled that an employee is entitled to reinstatement under the FMLA only if he takes leave for the intended purpose. An employer can defeat an interference claim by showing the employee didnt take leave for the intended purpose.

Intermittent Leave Danek v. County of Cook District court disposed of P-employees FMLA interference claim in part because the court determined the employees medical trip to Mexico was partly a vacation. In addition to not giving the required 30 day notice without an emergent reason, it was revealed that P was in Mexico and retreated with friends and went to several vacation destinations. The employer could not have interfered with the plaintiffs FMLA reinstatement because the P was not entitled to FMLA leave due to improper notice and misuse of leave.

Military Family Leave NDAA, signed by President Bush on January 28, 2008, created two new leave entitlements for family of military servicemembers Qualifying Exigency Leave National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA) Military Caregiver Leave National Defense Authorization Act for Fiscal Year 2010 (FY 2010 NDAA)

Military Family Leave Qualifying Exigency Leave A covered employer must grant an eligible employee up to 12 workweeks of unpaid, job-protected leave during any 12-month period for qualifying exigencies that arise when the employees spouse, son, daughter, or parent is on covered active duty or has been notified of an impending call or order to covered active duty. Military Caregiver Leave Leave taken by an eligible employee to care for a covered servicemember with a serious injury or illness.

Military Family Leave

Qualifying Exigency Qualifying Exigencies Include Short notice deployment up to 7 days Military events and related activities Childcare and school activities not routine child care Financial and legal arrangements up to 90 days after service ends Counseling Rest and recuperation short term only, up to 15 days (new) Post deployment activities up to 90 days after service ends Parental Care Parent of military member must be incapable of self-care when the care is necessitated by the members covered active duty. Additional activities as agreed upon by employer and the employee

Qualifying Exigency Leave Maximum Length of Leave 12 weeks of qualifying exigency leave Covered Military Member Employees spouse, son, daughter or parent who is on active duty or call to active duty Covered active duty means: for members of the Regular Armed Forces, duty during deployment of the member with the Armed Forces to a foreign country; or for members of the Reserve components of the Armed Forces (members of the National Guard and Reserves), duty during deployment of the member with the Armed Forces to a foreign country under a call or order to active duty in support of a contingency operation.

Request Qualifying Exigency Leave Certification of Qualifying Exigency for Military Family Leave (Form WH-384 Feb. 2013) An employee must provide notice of the need for qualifying exigency leave as soon as practicable

Military Caregiver Leave Serious Injury or Illness Injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the members office, grade, rank or rating. A serious injury or illness also includes injuries or illnesses that existed before the servicemembers active duty and that were aggravated by service in the line of duty on active duty.

Military Caregiver Leave Covered Servicemember Member of Armed Forces (including National Guard or Reserve) Undergoing medical treatment, recuperation, or therapy In outpatient status Temporary disability retired list Serious injury or illness Incurred in the line of duty on active duty

Military Caregiver Leave Covered Servicemember Covered veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness. Covered veteran: Individual who was a member of the Armed Forces, and was discharged or released under conditions other than dishonorable, at any time during the 5-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran.

Next of Kin Nearest blood relative other than spouse, parent, son, or daughter, in order of priority: Blood relatives who have been granted legal custody of the covered service member by court decree or statutory provisions Brothers and sisters Grandparents Aunts, uncles and first cousins Unless service member has designated a single blood relative as next of kin

Military Caregiver Leave Maximum Length of Leave Up to 26 weeks of military caregiver leave in a 12 month period 12 month period starts on the first day the employee takes military caregiver leave Any combination of absences in the 12 month period, including medical FMLA, may not exceed 26 weeks Healthcare providers authorized to complete a certification for military caregiver leave is expanded to include healthcare providers Could have second or third opinion

Request Military Caregiver Leave Certification for Serious Injury or Illness of Covered Servicemember/Veterant for Military Family Leave (Forms WH-385 and WH-385V) Must provide 30 days advance notice for planned medical treatment for a serious injury or illness of a covered servicemember. When 30 days advance notice is not possible, the employee must provide notice as soon as practicable When the need for leave is unforeseeable, an employee must comply with an employers normal notice or call in procedures, absent unusual circumstances.

Paid or Unpaid? What does your policy say? FMLA is generally unpaid. By policy, an employer can require employees to take any accrued paid vacation, personal, family or medical or sick leave as offered by the employer. Employee can elect to use paid time off.

Effect of FMLA Leave on Bonuses An employer is permitted to disqualify an employee from a bonus or other payment based on the achievement of a specified goal Hours worked, products sold, perfect attendance Be careful! Employers should not disqualify employees on FMLA leave while allowing employees on non-FMLA leave to qualify for bonuses or other awards

Health Insurance Maintain coverage under Group Health Plan On same conditions as pre-leave Employees share of Premium Deduct from any pay Submit by certain date Failure to Pay within 30 days of due date 15 days before coverage to cease Employee Does not return to work Can collect premiums employer paid in some circumstances

Returning to Work Upon notice to the employer that the employee is ready to return to work, an employee is entitled to immediately return to the - same position or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment even if the employee has been replaced or the position has been restructured to accommodate the employees absence. Exceptions: Unable to perform essential functions, fraud, moonlighting, key employees, substantial and grievous economic injuries.

Relationship Between FMLA and other Leaves

DURATION OF LEAVE ISSUES FMLA12 weeks in 12 months Leave is replenished assuming continued eligibility ADAIndeterminate leave may be a reasonable accommodation Absent undue hardship Lengthy, indefinite leave generally is not reasonable WCAnti-retaliation provisions apply

ATTENDANCE ISSUES FMLAAbsences while on FMLA leave may not be counted against Employee ADASatisfactory attendance is an essential function of job Poor attendance may mean employee is not qualified Reasonable accommodation requirement WCAnti-retaliation provisions apply

LIGHT DUTY ISSUES FMLAEmployer cannot require employee to work a light duty job rather than take FMLA leave Exception of intermittent FMLA leave FMLA leave not reduced by time on light duty ADA Light duty assignments may constitute a reasonable accommodation Employer not required to create job WCEmployer can force employee to accept light duty assignment Can limit light duty for only workers compensation injuries

RETURN TO WORK ISSUES FMLAEmployee entitled to same or equivalent job if timely returns from FMLA leave Perform essential functions Unless job would otherwise be eliminated ADAEmployee entitled to same job if qualified to perform essential functions Reasonable accommodation required Must consider reassignments to vacant positions WCNo right to reinstatement Retaliation for exercising WC rights prohibited

Employees Receiving Disability or Workers Comp Benefits Neither employees nor employers may require the use of accrued paid leave to supplement an employees disability or workers compensation income employees and employers can voluntarily agree to this though An employees 12-week FMLA leave entitlement is calculated without regard to whether an employee and employer agree to supplement the employees pay with accrued paid leave

FMLA Remedies and Enforcement Potential for administrative enforcement by the DOL or in civil suit by any individual adversely affected. Against employer and supervisor. Damages: employee entitled to an amount equal to the amount of any denied or lost wages, salary, employment benefits, or other compensation. Equitable relief available. Liquidated damages for willful violation amount equal to the doubling of actual damages awarded to an aggrieved individual. Litigation Costs/Expenses attorneys fees, reasonable expert fees, and other costs of the action.

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The Family and Medical Leave Act (FMLA) JENNIFER MILLER-LOUW SANDBERG PHOENIX & VON GONTARD, P.C....

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