Title: FMLA Training
1FMLA Training Part II presented by The Office of
the State Employer Employee Health
Management Toni McFarland Contract
Negotiations/Administration Cheryl Schmittdiel
2Review
3- The State of Michigan must observe employee (EE)
rights under the FMLA - The State of Michigan must observe EE rights
under Collective Bargaining Agreements (CBA) and
Civil Service Rules Regulations (CSRR) and - The State of Michigan cannot interpret CBA or CSR
R to diminish rights guaranteed by FMLA.
4Employee Eligibility
- Work for covered employer (ER) -- Public Agencies
are covered ERs and - Work 12 months, which need not be consecutive
and - Work at least 1,250 hours within the 12 months
prior to the leave and - Military leave counts as time worked.
5 Qualifying Events
- The State of Michigan (SOM) as a covered ER must
grant an eligible EE up to a total of 12
workweeks of paid/unpaid FMLA leave in a 12 month
period for any of the following reasons - for the birth of a son or daughter and to care
for the newborn - for the placement of a child for adoption or
foster care, and to care for the newly placed
child - to care for a spouse, son, daughter, or parent
with a Serious Health Condition (SHC) and - for the EE's own SHC that makes the EE unable to
perform the essential functions of their
position.
6Employee Notification to Employer
- Notice to ER may be given
- In writing
- Verbally
- In person
- By telephone
- By fax machine
- After the employee returns, but within two (2)
business days - By EEs spokesperson
7Foreseeable Leave
- When need for leave is foreseeable EE notifies ER
30 days or more before leave begins - Or, as soon as practicable, but within two (2)
business days of learning leave is necessary - Verbal or written notification is acceptable
8Unforeseeable Leave
- When need for leave is unforeseeable EE notifies
ER as soon as practicable - Within two (2) business days of going on leave
or - Within two (2) business days of returning from
leave
9Employer Rules
- Any ER or department rules or requirements
regarding call in or notification when an EE
cannot work are still in effect and are not
relieved under the FMLA. - However, a transgression cannot serve as a basis
for denial if timely notice is given. - No call, no show and subsequent FMLA request
10Employer Knows the Reason for FMLA Leave
- The ERs designation decision must be based only
on information received from the EE or the EE's
spokesperson (e.g., if the EE is incapacitated,
the employee's spouse, adult child, parent,
doctor, etc., may provide notice to the ER of the
need to take FMLA leave).
11Employer Hears It Through the Grapevine
- If the EE tells their supervisor they are taking
annual leave and that annual leave will be for an
FMLA qualifying reason, then the EE has told the
ER. - If the EE has told a co-worker and the co-worker
tells the supervisor then the ER has not been
told. However, the ER may request that the
CS-1789 be filled out and returned. If the EE
does not confirm the absence or fill out the
paperwork the ER may not designate the leave as
FMLA, and the EE has no FMLA protection.
12FMLA, LTD and Workers Compensation
- If an EE qualifies for an FMLA leave and the
absence also qualifies for LTD or Workers
Compensation, then all of the pertinent forms,
documents, letters and notification need to be
sent to the EE simultaneously.
13Family Medical Leave ActEmployee Request
Employer ResponseForm CS-1790
14Family Medical Leave ActEmployee Request
Employer Response Form CS-1790
15Employee Request
16Employee Request
17Employee Request
- The EE is not required to use the CS-1790 to
notify the ER. - If notification is made in any other manner, the
ER/Supervisor/Human Resources office will
complete Section I of the CS-1790 as well as
Section II.
18Employee Request
- The EE need not specifically mention FMLA.
- The EE must make clear the reason for the leave.
- If the ER asks, the EE must provide details about
the reason for leave, either for their condition
or that of the EEs family member, or the leave
may not be approved.
19Employee Request
- The EE does not need to provide the diagnosis for
a SHC. - ER may ask if this is a SHC.
- Staying home for personal problems, if too sick
to work or because a child is ill, do not trigger
FMLA protection.
20Employee Information
21Reason for Leave Request
22Reason for Leave Request
- EE must have SHC and be unable to do the
essential functions of the job. - The ability to perform other jobs or light-duty
work is not relevant. - Consecutive days refers to calendar days, not
work days, and weekends are included even if the
EE is not scheduled to work. - A full or partial day absence to receive medical
treatment counts as a day of incapacity. - If an EE is absent for substance abuse and is not
receiving inpatient treatment or continuing
treatment by a health care provider, they do not
qualify for FMLA leave.
23Reason for Leave Request
- Some CBAs permit EE to certify the need to use
up to two weeks of sick leave, upon the birth of
their child, prior to the beginning of any
parental leave. - The time counts against the 12 weeks of FMLA.
- An eligible EE is entitled to a total of 12 weeks
of FMLA leave in a 12-month period. The two
weeks of sick leave are deemed to be due to the
serious health condition of the EEs spouse or
newborn child and are attributable to family care
leave under the FMLA.
24Notice Requirements
25Notice Requirements Section 301 Notice
- The CS-1790 meets the FMLA Section 301 notice
requirements. - This form replaces the US DOL WH 381 and the need
to provide the EE with Fact Sheet 28.
26Designation Rights Responsibilities
27Designation Rights Responsibilities
- The ER must make a preliminary designation of
whether or not the leave qualifies as FMLA leave. - The ER has a duty to inquire further if the ER
needs additional information to determine whether
a request for leave is for an FMLA qualifying
reason. - ER may only inquire further of EE or EEs
spokesperson. - ER may not have direct contact with EEs
healthcare provider.
28 Eligibility/Ineligibility Notice
29Eligibility/Ineligibility Notice
- If the ER fails to notify the EE that they do not
meet the eligibility requirement prior to the
start of leave, when the leave is foreseeable,
then the EE could be deemed eligible even if
they do not meet the eligibility criteria. - See US DOL Opinion Letter, FMLA 2002-1.
30Designation of FMLA Leave
31Designation of FMLA Leave
- Provisional designation should be given pending
receipt of CS-1789 Medical Certification form. - If the ER fails to designate FMLA leave and the
EE takes 12 weeks, then later the EE states they
want to take more time, the EE must establish
that they would have shortened their original
leave if it had been designated FMLA. - The designation of FMLA leave must be made within
two (2) business days after the EE returns to
work and can be made by either the EE or the ER.
If not designated within two (2) business days
cannot be designated FMLA.
32Medical Certification
33Medical Certification
- The ER must give specific notice of the need for
medical certification and the consequences of
failing to obtain medical certification. - The EE must be given the CS-1789 Medical
Certification form within two (2) days of the EE
notice of need for FMLA. - The ER may ask for only the information on the
CS-1789, no greater amount of information is
allowed.
34Medical Certification contd
- The information on the CS-1789 must relate only
to SHC for which the current need for leave
exists. - The EE has 15 calendar days to have the form
completed and returned to the ER. - If the form is incomplete the ER may ask the EE
for clarification. - Any charges associated with completing the form
are the EEs responsibility.
35Paid or Unpaid Leave
36Paid or Unpaid Leave
- An employee may elect to use accrued sick, annual
or personal leave, as appropriate, in place of an
unpaid FMLA leave. - If the EE fails to designate sick, annual or
personal leave for an unpaid leave, the ER may
require the use of appropriate accrued leave
before allowing an unpaid leave. - The EE must be informed within two (2) business
days of giving FMLA notice that the paid leave
will be imposed except where the ER does not have
sufficient information to make an FMLA
designation.
37Group Health Benefits
38Group Health Benefits
- Group Health Benefits (health, dental and vision)
must be maintained during FMLA leave. - EEs make arrangements with their Human Resources
Office to pay their bi-weekly premium share. - If an EE is laid off or their limited term
appointment expires during an FMLA leave, the ER
can stop paying for the EEs health insurance.
39Fitness for Duty Certification
40Fitness for Duty Certification
- This certification must be required uniformly for
all similarly-situated EEs. - The certification can be as simple as a statement
that the EE is able to return to work. - There is no fitness-for-duty certification for
intermittent leave. - The ER cannot contest the fitness-for-duty
certification through second and third opinions. - The EE may be terminated if the fitness-for-duty
certification is not provided and notice was
given of the requirement.
41Fitness for Duty Certification
- If a CBA permits ER to require an EE to have a
medical examination, notice of this requirement
must be given to an EE when leave is requested or
shortly after leave is requested. - The medical examination must be to determine
whether - The EEs ability to perform the essential job
functions is impaired by a medical condition or - The EE poses a direct threat to other EEs due to
a medical condition.
42Key Employee
43Key Employee
- The Key EE exemption is very rare.
- It applies only to high-salaried (must be in the
highest 10 of all EEs for the ER) EEs whose
reinstatement after a leave would cause the ER
substantial and grievous economic injury. - A Key EE may not be denied the right to take
FMLA leave if the EE is eligible and the FMLA
leave is properly designated, but can be denied
reinstatement if properly noticed of Key EE
designation.
44Periodic Report Intent to Return
45Periodic Report Intent to Return
- An ER may require an EE on FMLA leave to report
periodically on the EEs status and intent to
return to work. - If there is a change in the EEs circumstances
that will allow them to return to work earlier,
or will need to extend their leave, they are
required to notify the ER within two (2) business
days of the change in their circumstances. - If an EE gives unequivocal notice of intent not
to return to work, the ERs obligations under
FMLA to maintain health benefits and to restore
the EE cease unless the EE will not be returning
due to a continuation of a SHC.
46Periodic Report Intent to Return
- A returning EE is entitled to any unconditional
pay increases that occurred during the leave,
unless the pay increases are dependent on
seniority, work performed or length of service. - If an EE is no longer qualified for their
position because they have not renewed a license,
attended a necessary course, flown a minimum
number of hours due to the FMLA leave, the EE
must be given a reasonable opportunity to
fulfill those conditions upon their return to
work.
47Periodic Report Intent to Return
- An equivalent position must have the same pay,
benefits, working conditions and must also have
substantially similar duties and
responsibilities, authority, skill and effort. - The returning EE is not entitled to any more
preferential treatment,(e.g., if the EEs
position is eliminated due to a reduction in
force or a limited term appointment has expired)
than they would have had if they had been at
work. - An EE may be terminated while on FMLA leave if
the EE would have been terminated absent their
leave.
48Re-certification
49Re-certification
- For pregnancy, chronic, or permanent/long term
conditions under continuing supervision of a
health care provider the ER may request
re-certification no more often than every 30 days
and only in connection with an absence unless - Circumstances described in the previous
certification have changed (change in severity of
the condition or frequency of absences). - The ER receives information that casts doubt on
the reason for the EEs absence.
50Re-certification
- If the minimum period of continuous incapacity on
the previous certification is more than 30 days,
the ER may not request re-certification (this
also applies to intermittent leave and leave
taken for treatment) during the designated period
unless - The EE requests an extension of leave.
- Circumstances described in the previous
certification have changed (change in severity of
the condition or frequency of absences). - The ER receives information that casts doubt on
the reason for the EEs absence.
51Re-certification
- The EE must provide the requested
re-certification to the ER within the timeframe
requested by the ER but not less than 15 days
from the date of the request. - Any expenses associated with the re-certification
are the EEs responsibility. - No second or third opinion on re-certification
may be required.
52Return to Employee
53Return to Employee
- The ER must provide a verbal or written approval
or denial to the EE within two business days. If
approval is given verbally the ER must
subsequently provide the EE with a copy of this
completed form by the next payday which is at
least one (1) week after the verbal notice. - Documentation should be made on the form as to
the date, sender and how this form was provided
to the EE. - This form meets the US DOL Section 301 notice
requirements.
54Certification of Health Care ProviderForm CS-1789
55Certification of Health Care ProviderForm
CS-1789 contd.
56Serious Health Condition
57Serious Health Condition
- Considered a SHC are examinations to determine if
a SHC condition exists and evaluations of the
condition. - Treatment does not include routine physical
examinations, eye examinations, or dental
examinations. - A regimen of continuing treatment that includes
the taking of over-the-counter medications such
as aspirin, antihistamines, or salves or
bed-rest, drinking fluids, exercise, and other
similar activities that can be initiated without
a visit to a health care provider, is not, by
itself, sufficient to constitute a regimen of
continuing treatment for purposes of FMLA leave.
58Serious Health Condition contd
- Conditions for which cosmetic treatments are
administered (such as most treatments for acne or
plastic surgery) are not ''SHCs'' unless
inpatient hospital care is required or unless
complications develop. - Ordinarily, even if the absence is three (3) days
or more, unless complications arise, the common
cold, the flu, ear aches, upset stomach, minor
ulcers, headaches other than migraine, routine
dental or orthodontia problems, periodontal
disease, etc., are examples of conditions that do
not meet the definition of a serious health
condition and do not qualify for FMLA leave.
59Medical Facts
60Medical Facts
- Medical facts do not include a diagnosis.
- An EE who must be absent from work to receive
medical treatment for a SHC is considered to be
unable to perform the essential functions of
the position during the absence for treatment. - An ER has the option of providing a statement, or
a copy of the EEs PD, showing the essential
functions of the EEs position for the health
care provider to review. - If the ER does not provide the essential
functions, the health care provider will ask the
EE.
61Medical Facts contd
- An EE is ''needed to care for'' a family member
encompasses both physical and psychological care.
It includes situations where a family member is
unable to care for their own basic medical,
hygienic, or nutritional needs or safety, or is
unable to transport themself to the doctor. This
also includes providing psychological comfort and
reassurance which would be beneficial to a child,
spouse or parent with a SHC who is receiving
inpatient or home care.
62Duration of Incapacity
63Duration of Incapacity
- A period of incapacity of more than three (3)
consecutive days (including any subsequent
treatment or period of incapacity related to the
same condition), that also involves - Treatment two (2) or more times by a health care
provider or under the direction of a health care
provider or - Treatment by a health care provider on at least
one occasion which results in a regimen of
continuing treatment that is under the
supervision of the health care provider.
64Treatment Frequency
65Treatment Frequency
- Any period of absences to receive multiple
treatments (including any period of recovery
therefrom) by a health care provider or services
under the supervision of a health care provider
(chemotherapy, radiation treatment, physical
therapy, dialysis). - Any illness or injury that if left untreated
would result in an incapacity of three (3) or
more days (e.g., cancer, arthritis, and kidney
disease, etc). - The EE or their family member must be under the
supervision of a health care provider even if
they are not in active treatment, e.g.,
Alzheimers, severe stroke or terminal stages of
a disease.
66Absence from Work
67Absence from Work
- A chronic condition requires
- Periodic visits for treatment by a health care
provider or treatment under the direction of a
health care provider and - Continues over an extended period of time
(including recurring episodes of a single
underlying condition) and - May cause episodic rather than a continuing
period of incapacity (e.g., asthma, diabetes,
epilepsy, etc.).
68Care for Family Member
69Care for Family Member
- The ER may request a medical certification
verifying that the family member has a SHC and
needs care. If the ER has reason to doubt the
medical certification it may schedule the family
member for a second-opinion at the ERs expense. - Care is needed if the family member is unable to
provide his or her medical, hygienic,
nutritional, safety, or transportation needs. - Care includes preparing meals, driving to medical
appointments, changing dressings and supplying
psychological comfort and reassurance.
70Healthcare Provider
71Healthcare Provider
- A SHC must be treated or supervised by a health
care provider qualified to practice in the area
of the SHC. - Health care providers include
- Physicians, Optometrists, Osteopaths,
Chiropractors (when manipulating the spine to
correct subluxation), Podiatrists, Dentists,
Clinical Psychologist, Christian Science
practitioners, Nurse practitioners, Nurse
Midwives, and Clinical Social Workers ( if
authorized under state law to diagnose and treat
SHC without supervision), other providers
recognized by the ER or the group health plan as
qualified to substantiate a claim for health
benefits (e.g., Acupuncturist).
72Employees Statement
73Employees Statement
- The EE must state what care they will provide to
a family member. - The EE must state the duration and frequency of
the stated care they will be providing. - The care, frequency and duration must match the
care, frequency and duration outlined by the
health care provider.
74Definitions
75Clarification
- If the ER determines the medical certification is
incomplete, the ER must notify the EE and give
the EE a reasonable opportunity to cure any
deficiency. - The ER cannot request information not asked for
on the CS-1789, the ER can only seek
authentication or clarification of the medical
certification. - The ER cannot have their health care professional
make any contact with the EEs health care
provider unless the EEs permission is obtained.
76Second Third Opinion
- The ER may require a second opinion when there is
reason to doubt the accuracy of the Medical
Certification. - If the second providers report conflicts with
the first report, then a third opinion must be
obtained.The two providers must agree on a third
provider and the third providers opinion is
binding. - Second and third opinions are at the ERs
expense.
77QUESTIONS ANSWERS
78ENFORCEMENT
- Complaints - Wage and Hour - ER Policy Review.
- Litigation - DOL or private attorney.
- Remedies - wages/employment lost
- monetary loss for providing care
- reasonable legal and witness fees
- Private right of action.
- 2 year statute of limitation.
79CONTACT INFORMATION
- Toni McFarland, DMB/OSE/EHM
- (517) 33-54274,
- McFarlandT_at_michigan.gov
- Cheryl Schmittdiel, DMB/OSE/CNA
- (517) 37-37400
- SchmittdielC_at_michigan.gov
80RESOURCES
- The FMLA Handbook A Union Guide to the Family
and Medical Leave Act, Second Edition, Robert M.
Schwartz - A Medical/FMLA Leave Checklist Emerging Issues
and How to Comply with the FMLA and the ADA,
David B. Calzone, Vercruysse Murray Calzone - The Family Medical Leave Act of 1993 Federal
Regulations, Part 825 Title 29, Part 825 of the
Code of Federal Regulations - FMLA Resource Manual, Complete Text of FMLA and
Applicable Federal Regulations, Council on
Education in Management
81Thank You!