An Overview

1

Family and Medical Leave Act Including Federal
Changes Effective January 16, 2009
An Overview
Cheryl Jez Regional Practice Leader Reliance
Standard Life Insurance 214-432-1311 Cheryl.jez_at_rs
li.com
2
Agenda

• FMLA Facts
• Purpose and Features of FMLA ACT
• 1993 Original Intent
• 2009 Updates/DOL Changes
• Analysis of New Regulations
• Military Family Leaves
• QA

3
FMLA Facts

• DOL Figures
• 7 million employees take FMLA each year
• With the Family Military Leave DOL estimates
  leaves will increase by an additional 139,000
  leaves
• Estimates the first year net financial impact on
  employees and employers will be 327.7 million,
  with annual recurring cost of 244.4 million

Employers need to reconsider all leave policies
and practices and make significant changes to
avoid FMLA violations
4
Purposeof the FMLA Law

• Balances workplace demands with family needs
• Minimizes discrimination in granting leave
  requests
• Ensures job-protected leaves for family and
  medical reasons
• Up to 12 weeks within a 12-month period
• Up to 26 weeks for care of an injured
  servicemember

5
Intent of New FMLA Law January 2009

• Clarify the requirements that the Act imposes on
  both employers and employees
• Improve communication between the groups
• Provide new more specific tools (forms)
• Improve (or delete) the most problematic
  potential abused area - intermittent leave rights

6
FMLA as Job Protection

• Pre-Leave Position
• Employee is entitled to resume pre-leave position
  or equivalent position with equivalent pay and
  benefits
• No loss of benefits earned prior to leave
• No entitlement to accrue seniority while on leave
• with respect to promotions or other benefits
• Job protection is subject to employment
  agreements
• FMLA does not protect employees from layoff
• If employment would end as an active employee,
  the employee can be terminated while on leave

7
Impact on Health Benefits

• Employers must maintain the employees group
  health coverage
• Employees must pay their portion of the premium
  if applicable
• Employer is not obligated to maintain any other
  benefits unless benefits are continued for other
  types of leaves

8
Paid and Unpaid Leave

• FMLA leave is unpaid leave
• Employee can choose to substitute accrued paid
  leave for unpaid FMLA leave
• Employer can require the substitution of accrued
  paid leave for unpaid FMLA leave (exception is WC
  leave)
• If employees top up their STD or WC pay with
  PTO time, this time is still considered FMLA
  time and lowers their available balance

9
Covered Employers

• FMLA only applies to employees employed within
  any of the 50 United States, D.C., or any U.S.
  territory or possession
• FMLA does not apply to employees employed outside
  of these areas

10
Eligibility Requirement

• 12 months may not be consecutive (7 year gap)
• AND
• 1250 hours in the preceding 12 months
• Note 24 hours a week for 12
  months-qualifies
• Must be 50 employees within a 75 mile radius
• (surface miles using available transportation
  from worksite)
• No fixed worksite (sales) site where they report
  to is assigned as their home base
• Determined at time of request may re-request
  employee count up
• Highly compensated / key employees - 10 paid in
  the company

Note Not denied coverage but employer is allowed
to deny restoration of employment if there would
be substantial and grievous economic harm
11
Eligibility

• If eligibility is mistakenly approved, the time
  taken cannot be rescinded or challenged.

12
Exception to 12-Week Entitlement

• Spouses working for same employer can be limited
  to a combined 12 weeks of leave if leave is due
  to child care or care of a parent
• Worksite location shutdown periods do not count
  toward FMLA time used
• Holidays do not count if they are part of a
  partial week the employee works

13
Coverage Definitions

• Employee Qualifying Event
• (FMLAs definition is very broad and is intended
  to cover a variety of physical and medical
  conditions.)
• Employees Own Serious Health Health Condition (6)
• Care for employees child after birth, or
  placement for adoption / foster care
• Care for employees spouse, child, parent, (next
  of kin if service member) with a serious health
  condition
• Substance Abuse self-referral doesnt qualify
• Deployment Activities for National Guard/Reserve

14
Six Serious Health Conditions (SHC)

• Inpatient care plus ensuing incapacity and
  treatment
• More than 3 days incapacity plus treatment
• Colds, flu, common headaches, and other common
  ailments can become SHC
• Pregnancy-prenatal care
• Chronic condition
• Permanent long-term conditions
• Multiple treatments

15
Definition of Family Member

• Spouse
• Husband or wife as defined by state law including
  common law marriages. Federal FMLA does not
  include same sex partners
• Parent
• Biological parent or individual who stands or
  stood in loco parentis to employee. Federal FMLA
  does not include parents-in-law
• Child
• Biological, adopted, foster, stepchild, legal
  ward, or child of person standing in loco
  parentis. Must be under 18 unless incapable of
  self-care due to disability
• Next of Kin (for service member leave)
• The nearest blood relative of that individual

16
New Definitions Added

• If leave involves more than three consecutive
  calendar days of incapacity plus two visits to a
  health care provider, the two visits must occur
  within 30 days of incapacity
• If the leave is for a chronic
• serious health condition, the
• Periodic visits to a health
• care provider" is at least two
• visits to a per year

17
Employer Notice Obligations

• Employer notice requirements are in one section
  of the regulations. This clears up time periods
  and notice requirement specifics. The Sections
  are called
• Eligibility/Rights and Responsibilities notice
• Designation notice
• Covered employers must post a general FMLA notice
  even when they have no FMLA-eligible employees  
• Employers that do not have an employee handbook
  or similar written materials describing benefits
  and leave must provide the general FMLA notice to
  each employee when he or she is hired (rather
  than annually, as was proposed)

18
Employer Notice Obligations

• Employer is obligated to provide general notice
  in a language in which the employees are
  literate, if a significant portion of workers are
  not literate in English
• Posting requirements may be satisfied through an
  electronic posting, as long as they meet the
  regulatory requirements
• Electronic-only posting is permitted where all
  employees and applicants have access to
  electronic information  
• Paper copies must be posted in locations readily
  visible to employees who do not have access to
  company computers, and to applicants who apply
  via non-electronic means

19
2 days, now 5 business days

• When employees request FMLA leave, or when
  employers acquire knowledge that an employees
  leave may be for an FMLA-qualifying reason,
  employers must notify employees of their
  eligibility to take FMLA leave within five
  business days, absent extenuating circumstances. 

20
New Law/New Forms and Letters

• WH-380E New Certification of Health Care
  Provider for Employee's Serious Health Condition
• WH-380F New Certification of Health Care
  Provider for Family Member's Serious Health
  Condition
• WH Publication 1420 Notice to Employee of Rights
  Under FMLA
• WH-381 Notice of Eligibility and Rights and
  Responsibilities
• WH-382 Designation Notice
• WH-384 Certification of Qualifying Exigency for
  Military Family Leave
• WH-385 Certification of Serious Injury or
  Illness of Covered Servicemember for Military
  Family Leave

21
Eligibility Notice

• Eligibility notice must include Rights and
  Responsibilities to detail expectations and
  obligations and explain any consequences of their
  failure to meet these obligations  
• Must inform of the requirement to provide medical
  certification, the right to substitute paid
  leave, whether to and how to pay premiums for
  benefits, and job restoration rights upon
  expiration of FMLA leave
• May include the FMLA medical certification form 
• Notice of rights and responsibilities may be
  distributed electronically if it meets the
  requirements in the law
• Eliminates the need to provide a preliminary or
  provisional designation.  Instead, once the
  Eligibility Notice has been provided, the
  designation notice can be sent up to five
  business days after receipt of medical
  certification/other required information 

22
HCP Form

• New medical certification form developed to
  determine need for leave based on the employees
  own serious health condition 
• Gives employers greater insight into the reasons
  why employees could not perform essential job
  functions
• Separate medical certification
• form for leave requested to care for
• a family member with a serious
• health condition.  Asks for the type
• of care being provided by employee

23
More Medical

• Employees serious health condition may also be a
  disability within the meaning of the ADA and may
  also trigger requests for paid leave or
• workers compensation benefits 
• Employers may follow procedures for requesting
  medical information under the ADA or paid leave
  or workers compensation programs 
• Employers may consider any information received
  regarding procedures or benefit programs in
  determining an employees entitlement to FMLA

24
Incomplete Certifications

• New rules for incomplete/insufficient
  certifications for curing deficiencies
• Notify employees in writing of the additional
  information that is needed
• Allow 7 calendar days to provide the additional
  information
• If employees fail to submit a complete/sufficient
  certification, the FMLA leave may be denied

25
Provider Contact

• Employee's direct supervisor cannot make contact
  with the health care provider

26
Employee Notice Requirements

• Past allows employees to notify their employers
  of their need for FMLA leave up to two full
  business days after an absence, even if they
  could provide notice sooner.
• Now the employee must follow the employer's
  normal and customary call-in procedures, unless
  there are unusual circumstances.

27
Employee Requirements

• Employee to explain
• Must explain sufficiently the reasons for leave
  to allow a determination as to whether the leave
  qualifies
• Calling in sick is not considered a sufficient
  notice to trigger an employers FMLA obligations
• If employee fails to explain the reasons, leave
  may be denied
• Employee to give information
• When employees seek leave due to an
  FMLA-qualifying reason for which employers have
  previously provided FMLA-protected leave,
  employees must specifically reference the
  qualifying reason for leave or the need for FMLA
  leave

28
Employee Reporting Requirements

• May require employees comply with usual and
  customary notice and procedural requirements for
  requesting leave, absent unusual circumstances 
• Requirements may include providing written notice
  of the reasons and anticipated start and duration
  of the leave or requirement that employees
  contact a specific individual to request leave 
• Examples of unusual circumstances include
• a) no one answered telephone number employee
  called
• b) company voice mail box is full
• c) employees are unable to use telephone because
  
• they are seeking emergency treatment.

29
Certification Required

• The employee must provide a medical certification
  to substantiate the serious health condition even
  if they are using sick pay to supplement and the
  sick pay policy does not require a medical
  certification.

30
6 Month Certifications

• Medical recertifications can be requested for
  continuing, open-ended conditions every 6 months,
  rather than after the specified minimum duration
  of the condition 
• Medical recertifications may be requested on a
  more frequent basis if there were other change
  circumstances or other reasons outlined in the
  regulation

31
Yearly Certifications

• Request for medical certifications for chronic
  conditions are allowed on a yearly basis with the
  exception of certifications to support a request
  for injured servicemember leave.

32
Fitness for Duty Certifications

• May demand more than a simple statement of the
  ability to return to work
• May now ask for fitness for duty certifications
  for intermittent leave if reasonable safety
  concerns exist

33
DI Supplement

• Employer and employee may agree to run paid leave
  concurrently with FMLA leave to supplement
  disability or workers compensation benefits 
• Time the employee is not at work is FMLA if they
  are eligible

34
Light duty

• Past two courts held that
• the employee uses up his/her
• 12-week FMLA leave while on a
• "light duty" assignment.
• Now Light duty" work does not count against
  FMLA entitlement, the employee's right to job
  restoration is held during the light duty period
• If an employee is voluntarily doing light duty
  work, he or she is NOT on FMLA leave
• When the voluntary light duty assignment ends,
  the employee has the right to be restored to the
  position they held at the time the their FMLA
  leave began or they may use the remainder of his
  or her FMLA leave entitlement.

35
Intermittent Increments

• Intermittent or reduced schedule leave is in an
  increment no greater than the shortest period of
  time that the employer uses to account for use of
  other forms of leave provided it is not greater
  than one hour
• Employers are not required to account
• for FMLA leave in increments of 6 min.
• or even 15 min. simply because their
• payroll systems are capable to do so

36
Partial Days

• If the workplace makes it physically impossible
  for employees to start work mid-way through the
  shift, the entire shift may be designated as FMLA
  leave 
• This exception is to be applied narrowly.
  Examples are flight attendant, train conductor,
  or a laboratory technician whose workplace is
  inside a clean room that must remain sealed for
  a certain period of time

37
Shifting Shifts

• When an employee works a schedule that varies
  from week-to-week you calculate a weekly average
  over the 12 months preceding the leave period
  (rather than just the prior 12 weeks as required
  under the current rule).

38
Missed Overtime

• If an employee is required to report to work and
  it involves overtime, the time missed must be
  counted against the employees FMLA.

39
Perfect Attendance Awards

• Employers may consider FMLA absences in
  determining bonuses or other incentive awards
• Employees can be disqualified from bonuses or
  other payments based on the achievement of a
  specified job-related performance goal (such as
  perfect attendance) due to FMLA leave as long as
  this is done in accordance to how other types of
  leaves are handled.

40
Waiver of Rights

• FMLAs waiver provisions apply only to
  prospective FMLA rights
• They do not prevent employees from settling past
  FMLA claims without Department or court
  approval. 
• Employers should modify general releases to
  include waiver of FMLA claims. 

41
Disputes

• Disputes between an employer and an employee as
  to whether leave qualifies as FMLA leave should
  be resolved through discussions between the
  employee and the employer. 
• The discussions and decision must be documented.

42
Retroactive Designation

• The rule permits retroactive notice if the
  employer fails to provide timely notice and the
  delay does not cause employee harm or injury 
• In all cases where leave would qualify for FMLA
  leave protection, employees and employer can
  mutually agree that the leave be retroactively
  designated as FMLA leave

43
Penalties

• Failure of the employer to provide required
  written notice can be considered interference
  with employees FMLA rights 
• The regulations expand potential damages
  available for interference claims, including any
  other relief tailored to the harm suffered

44
Potential cost to employers

• Employers may be liable for
• compensation and benefits lost by reason of the
  violation,
• for other actual monetary losses sustained as a
  direct result of the violation,
• for appropriate equitable or other relief,
  including employment, reinstatement, promotion,
  or any other relief tailored to the harm
  suffered.

45
Professional Employer Organizations

• PEOs provide services to employers that may not
  include directing the work of their clients
  employees directly or jointly
• The test under which PEOs will be considered
  joint employers
• the decision is on the economic realities of the
  relationship and should be based upon all the
  facts and circumstances 
• A PEO is not a joint employer, if it simply
  performs administrative functions, such as those
  related to payroll and benefits and updating
  employment policies
• Some state laws require PEOs to reserve the
  right to hire and fire, but that the PEOs do not
  actually exercise that right, the final rule
  states that such rights may lead to a
  determination that the PEO would be a joint
  employer with the client employer, depending upon
  all the facts and circumstances. 
• Unlike the case of traditional employment
  agencies, a PEOs client employer usually would
  be considered the primary employer in a joint
  employment relationship with the PEO 
•  

46
Military Family Leaves
47
Military Family Leaves

• New Qualifying Reason for Leave
• Qualifying Exigency up to 12 weeks
• Covered employees may take up to 12 weeks of
  leave per year to deal with certain issues
  relating to a family members active duty or call
  to active duty.
• New Military Leave Entitlement
• Military Caregiver - up to 26 weeks of leave
• Covered employees may take up to 26 weeks of
  leave in a single year to care for a family
  member who is seriously ill or injured in active
  military duty.

48
Military Provisions

• Expands FMLA protections for family members
  caring for a covered servicemember with a serious
  injury or illness incurred in the line of duty on
  active duty. The family member can be Next of
  Kin
• Leave is up to 26 workweeks of leave in a
  12-month period measured forward from the first
  day of leave.
• Procedures (reporting, etc.) used when taking
  military
• family leave should be the same as those
• used for other types of FMLA leave

49
Military Provisions(Qualifying Exigency)

• FMLA allows families of National Guard and
  Reserve on active duty to take FMLA to manage
  their affairs, for "qualifying exigency" leave
• The new rule defines "qualifying exigencies" as
• (1) short-notice deployment (less than 7 days)
• (2) military events and related activities
• (3) childcare and school activities
• (4) financial and legal arrangements
• (5) counseling
• (6) rest and recuperation (5 days)
• (7) post-deployment activities (up to 90 days,
  includes death)
• (8) additional activities where the employer and
  employee agree to the leave

50
Definition of Next of Kin

• The nearest blood relatives may be considered
  next of kin besides the covered servicemembers
  spouse, parent, son, or daughter.
• Employee can designate in writing another blood
  relative as his or her next of kin.
• If one is not designated and there are multiple
  family members with the same level of
  relationship to the covered servicemember, all
  family members are considered next of kin.
• Leave can be consecutively
• or simultaneously. 

51
Military Period of Leave

• May take more than one period of leave if the
  leave is to care for different covered
  servicemembers or to care for the same
  servicemember with a new/different serious injury
  or illness
• No more than 26 workweeks
• of leave may be taken as
• described in the employees
• Medical Caregiver Leave
• time period of 26 weeks in a
• single 12 month period

52
Military 12 Months

• Single 12-month period for purposes of military
  caregiver leave is a period that commences on the
  date an employee first takes leave to care for a
  covered servicemember with a serious injury or
  illness. 

53
Overlapping Military Leaves

• Leave that qualifies both as leave to care for a
  covered servicemember and leave taken to care for
  a family member with a serious health condition
  during the single 12-month period cannot be
  designated and counted as both leave to care for
  a covered servicemember and leave to care for a
  family member with a serious health condition.

54
Military Notice

• Many employees with a covered military member may
  never need to use qualifying exigency leave
• Employees obligation to provide notice of leave
  due to a qualifying exigency is triggered when
  the employee first seeks to take such leave
• Where foreseeable, eligible ees
• must provide notice to the employer
• that is reasonable and practicable

55
Military Medical Cert

• The certification requirements for Military
  Caregiver Leave (MCL) are different from other
  types of FMLA as the triggers for taking the
  leave are different. 
• Definitions of serious injury or illness and
  covered servicemember are different for MCL.
• MCL, like leave for a family member do require
  similar information
• -information about the need for leave
• -probable duration of the injury/illness
• -frequency and duration 
• New certification Form WH385 is for use in
  obtaining
• medical certifications of Military Caregiver
  Leave.

56
Impact of State Regulations
Key colored areas indicate states with
additional leave regulations
57
Q A