The New FMLA

1
The New FMLA

• Training for State of Montana Human Resource
  Professionals

2
Recent Developments

• January 28, 2008 Congress amended the statutes
  with an immediate effective date.
• November 17, 2008 U.S. Department of Labor issued
  final regulations at 29 CFR 825. See
  www.dol.gov/esa/whd/fmla/finalrule.htm
• This site also has new FMLA forms
• January 16, 2009 effective date of the new
  regulations

3
The Final Regulations

• Incorporated two types of military family leave
• Qualifying Exigency Leave
• Military Caregiver Leave
• Revised and reorganized the existing regulations

4
Qualifying Exigency825.126

• Provides up to 12 workweeks (with some
  exceptions) of unpaid leave because of a
  qualifying exigency.
• Employees spouse, son, daughter, or parent (the
  covered service member) who is on active duty or
  call to active duty status in the Armed Forces.

5
Son or daughter on active duty or called to
active duty

• Per 825.122 (h) means the service members
  biological, adopted, or foster child, stepchild,
  legal ward, or a child for whom the service
  member stood in loco parentis, and who is of any
  age.

6
Qualifying Exigency825.126

• Covered service member must be a member of the
  reserve components For example, National
  Guard Army, Navy, Air Force, Marine Corps
  Reserve, etc. May also be a retired member of
  the Regular Armed Forces or reserve.
• Active duty service members in the Regular Armed
  Forces are not covered service members for the
  purposes of qualifying exigency leave.

7
Qualifying Exigency Categories825.126

• Short-notice deployment
• Leave is limited to 7 days or less
• Military events and related activities
• Childcare and school activities
• Financial and legal arrangements

8
Qualifying Exigency Categories825.126

• Counseling
• Not medically related - counseling from a pastor.
• Rest and recuperation
• Up to 5 days leave for each instance
• Post-deployment activities
• Up to 90 days leave following termination of
  active duty
• Additional activities
• Agreed to by the employer and employee

9
Employee Notice825.302

• State of Montana employee notice form has been
  revised to include the new types of FMLA military
  leave
• The form is not mandatory because FMLA allows for
  verbal notice

10
Employee Notice825.302

• If foreseeable, employee must give notice of the
  need for leave as soon as possible and
  practical
• Must provide the reason for the leave
• Anticipated timing and duration of leave
• Employer may require compliance with customary
  notice procedural requirements new regulation

11
Qualifying Exigency Certification825.309

• Recommend using U.S. DOL form WH-384
• www.dol.gov/esa/whd/fmla/finalrule.htm

12
Qualifying Exigency Certification825.309

• Employer may require the following
• Copy of active duty orders or other documentation
  only once for each deployment
• A signed statement or description of the
  qualifying exigency
• Approximate date the exigency commenced and
  duration
• Estimated duration and frequency of leave
• Written documentation that supports the need for
  leave
• If meeting with a 3rd party, contact information
  and a description of the meeting

13
Qualifying Exigency Certification825.309

• Employer may not ask for additional information
  if the employee submits certification that is
  sufficient and complete per 825.309(d)

14
Military Caregiver Leave825.127

• Up to 26 weeks of unpaid leave in a single
  12-month period
• Total amount of FMLA is 26 workweeks, e.g., 10
  weeks of regular FMLA, 16 weeks military
  caregiver leave
• Employee who is the spouse, son, daughter, or
  next of kin of a covered service member
• Son or daughter may be of any age

15
Military Caregiver Leave825.127

• Next of kin is the nearest blood relative, other
  than the covered service members spouse, parent,
  son, or daughter in the following order of
  priority blood relativesbrothers and sisters,
  grandparents, aunts, uncles, etc.

16
Military Caregiver Leave825.127

• Service member may designate next of kin
• If not designated, and there are multiple
  relatives with the same priority, all such
  family members shall be considered the covered
  service members next of kin and may take FMLA
  leave

17
Military Caregiver Leave825.127

• Covered service member is a member of the Armed
  Forces, including the reserves, who has a
  serious injury or illness incurred in the line of
  duty on active duty for which he or she is
  undergoing medical treatment, recuperation, etc.
• Former members of Armed Forces and those on
  permanent disability are not covered service
  members

18
Military Caregiver Leave825.127

• Serious illness or injury means an injury or
  illness incurred by a covered service member in
  the line of duty on active duty that may render
  the service member medically unfit to perform the
  duties of his or her office, grade, rank, or
  rating
• Department of Defense decides if the service
  member meets this threshold

19
Military Caregiver Leave825.127

• Employer must designate leave as military
  caregiver leave when the reasons qualify for both
  military and non-military FMLA leave.
• For example, providing military caregiver leave
  for a spouse might also qualify as providing
  necessary care to the spouse with a serious
  health condition.
• Employer may designate Military Caregiver Leave
  retroactively

20
Military Caregiver Leave825.127

• Single 12-month period starts on the first day
  of military caregiver leave ends 12 months
  later
• Consistent with the State of Montanas looking
  forward method to determine FMLA year
• Leave isnt carried into the next year unused
  military leave is forfeited

21
Military Caregiver Leave825.127

• Leave is per-covered service member
• Leave for another service member may provide
  another 26 weeks
• Leave is on a per-injury or illness basis
• A separate serious illness or injury for the same
  service member may provide another 26 weeks

22
Military Caregiver Leave Certification825.310

• Recommend using U.S. DOL form WH-385
• www.dol.gov/esa/whd/fmla/finalrule.htm

23
Military Caregiver Leave Certification825.310

• Employer may request the following from a Dept.
  of Defense, Veterans Affairs, or TRICARE health
  care provider
• Contact information
• Medical practice or specialty
• Whether the injury occurred in the line of active
  duty
• Approximate date the illness or injury commenced

24
Military Caregiver Leave Certification825.310

• Description of medical facts that support the
  need for leave
• Sufficient information establishing the need for
  care and whether the care will be continuous or
  intermittent with an estimate of dates
• The medical necessity of intermittent or reduced
  leave
• The medical necessity of leave to provide care
  other than scheduled follow up treatments

25
Military Caregiver Leave Certification825.310

• Employer may not require second or third medical
  opinions for Military Caregiver Leave
• May request authentication and clarification of
  medical certification

26
Military Caregiver Leave Certification825.310

• Employer may require the following from the
  employee or covered service member
• Name and address of the employee, and name of
  covered service member
• Relationship of the employee to the service member

27
Military Caregiver Leave Certification825.310

• Whether the service member is
• a current member of the Armed Forces or reserves
  as well as rank and unit assignment
• assigned to a military medical facility as an
  outpatient
• on the temporary disability retirement list
• A description of the care to be provided and an
  estimate of the leave needed

28
Military Caregiver Leave Certification825.310

• Employee may submit an invitational travel
  order (ITO) or invitational travel
  authorization (ITA) in lieu of the certification
  form. The employer must accept them as adequate
  certification.

29
Existing FMLA

• Changes to and review of the existing regulations

30
Employee Eligibility825.110

• Employed for at least 12 months
• New regulations allow an employer to exclude time
  employed if a break in service of 7 years
  occurred.
• Excludes a break due to military service or
  written agreement
• Should the State of Montana adopt this regulation
  in the state FMLA policy?

31
General Notice825.300

• Recommend using the U.S. DOL general notice
  poster
• www.dol.gov/esa/whd/fmla/finalrule.htm
• Post in the workplace
• Distribute to employees
• In a handbook
• To new hires (if no handbook)
• May be distributed electronically

32
Eligibility Rights and Responsibilities
Notice825.300

• Employer must provide within 5 business days of
• Employees request for leave or
• When employer learns leave may be FMLA

33
Eligibility Rights and Responsibilities
Notice825.300

• U.S. DOL form WH-381 with revisions
• State of Montana 1,040 hour threshold
• State of Montana uses the 12-month forward method
• www.dol.gov/esa/whd/fmla/finalrule.htm

34
Eligibility - Rights and Responsibilities
Notice825.300

• Notice must include
• Whether or not the employee is eligible for FMLA
  leave
• Any requirement for medical certification and
  consequences for failing to provide
• Employee right to use paid leave and whether the
  employer will require it

35
Eligibility - Rights and Responsibilities
Notice825.300

• Right to maintain benefits and right to
  restoration to the same or equivalent position
• Requirement to make premium payments and the
  arrangement for making payments
• Potential liability for employer paid benefit
  payments if the employee does not return to work
  for at least 30 days following leave

36
Eligibility - Rights and Responsibilities
Notice825.300

• Notice is valid for one year for the same
  condition
• If a new condition
• Re-notice is not required if no change in
  eligibility occurs
• Re-notice if eligibility status changes

37
Designation Notice825.300

• Employer must provide within 5 business days of
  having enough information to determine whether
  leave is FMLA qualifying

38
Designation Notice825.300

• Recommend U.S. DOL form WH-382
• www.dol.gov/esa/whd/fmla/finalrule.htm

39
Designation Notice825.300

• Notice must include
• Whether or not leave is designated as FMLA leave
• The amount of leave designated as FMLA, if known
• If unknown, the employees right to be notified
  of the designation every 30 days
• Any requirement to substitute or use paid leave
  during FMLA leave
• Any requirement for fitness for duty
  certification
• Include the essential functions of the job

40
Designation Notice825.300

• This notice is also used to inform the employee
  when
• additional information is required to determine
  whether the employee qualifies for FMLA leave
• the employer is exercising the right to a second
  or third medical opinion

41
Designation Notice825.300

• Only one notice required for each qualifying
  reason during a 12-month period

42
Medical Certification825.305

• If the employer requires medical certification,
  should request it at the time the employees gives
  notice of the need for leave
• If requested, the employer must do so
• within 5 business days of the employees notice
  or
• 5 days after leave commences for unforeseen leave
• Employer may request medical certification at a
  later date if the employer questions the
  appropriateness of leave or its duration
• The employee has 15 calendar days to provide
  certification

43
Medical Certification825.305

• Employee must provide complete and sufficient
  certification
• Incomplete if one or more of the entries are not
  completed
• Insufficient if information is vague, ambiguous
  or non-responsive

44
Medical Certification825.305

• If the employee provides incomplete or
  insufficient information, the employer must
• Specify the information needed to make the
  certification complete and sufficient
• Allow the employee 7 calendar days to provide the
  information unless not practical under the
  particular circumstances despite the employees
  good faith efforts

45
Medical Certification825.305

• Revised regulations allow an employer to require
  annual certification if a condition lasts beyond
  a single year.

46
Medical Certification825.306

• Recommend using U.S DOL forms
• WH-380E for the employees serious health
  condition
• WH-380F for the family members serious health
  condition
• www.dol.gov/esa/whd/fmla/finalrule.htm

47
Medical Certification825.306

• An employer may require the following information
  for a serious health condition of the employee or
  family member
• Health care providers name, address, phone, fax,
  and type of medical practice
• Approximate date the condition began
• Statement or description of the appropriate
  medical facts sufficient to support the need for
  leave

48
Medical Certification825.306

• Sufficient information to establish
• The employee is unable to perform the essential
  functions of the job or
• The family member is in need of care
• If intermittent leave, information sufficient to
  establish the medical necessity for leave
• Estimate of the frequency and duration of leave

49
Medical Certification825.306

• Content of certification for the employees
  serious health condition is the same as that of a
  family member with the following two additions
• Information sufficient to establish the employee
  cannot perform the functions of the job, the
  nature of any work restrictions, and the likely
  duration of the inability to perform
• If the employee requests intermittent or reduced
  schedule leave, that may result in unforeseen
  episodes of incapacity, information to establish
  the medical necessity of leave and the likely
  frequency and duration of the episodes of
  incapacity

50
Authentication Clarification of Medical
Certification825.307

• Employer may not ask for more information than
  the regulations allow. However, the employer may
  contact the health care provider to clarify and
  authenticate the medical certification
• Authenticate means providing a copy of the
  certification to the provider to verify the
  information was completed by the provider
• Clarification means contacting the provider to
  understand the handwriting or meaning of the
  response

51
Authentication Clarification of Medical
Certification825.307

• After giving the employee the opportunity to
  correct deficiencies, the employer may directly
  contact the provider to authenticate and clarify
  the certification without the employees
  consent

52
Authentication Clarification of Medical
Certification825.307

• Employer must use one of the following people to
  contact a health care provider
• Employers own doctor, nurse, etc
• HR professional
• Leave administrator
• Management official
• Direct supervisor contact is prohibited

53
Medical Certification825.307

• Employees consent is required for the employer
  to obtain more information directly from a HIPPA
  covered health care provider. For example, to
  obtain more information than was originally
  provided by the health care provider on the form.

54
Recertification825.308

• Generally, may not request more frequently than
  every 30 days
• If medical certification stated 40 days of leave
  needed, must wait 40 days
• May request recertification every 6 months

55
Recertification825.308

• May request less than 30 days when
• The employee requests an extension of leave
• The circumstances described in the original
  certification have significantly changed
• The employer receives information that casts
  doubt upon the employees stated reason for the
  absence

56
Fitness for Duty Certification825.312

• Employer may require certification of all
  similarly situated employees
• May ask the employees health care provider to
  certify the employee can perform the essential
  functions of the job
• May contact the provider to clarify and
  authenticate the certification
• When intermittent leave is used, the new
  regulations allow certification every 30 days if
  reasonable safety concerns exist

57
Serious Health Condition825.113

• Serious health condition means an illness,
  injury, impairment or physical or mental
  condition that involves inpatient care or
  continuing treatment

58
Continuing Treatment825.115

• Changes to the regulations deal with the timing
  and frequency of continuing treatment by a health
  care provider
• Treatment two or more times within 30 days of
  the first incapacity
• Treatment on at least one occasion that results
  in a regimen of continuing treatment
• The first or only in person treatment must be
  within 7 days of the first day of incapacity
• Chronic conditions require periodic visits at
  least twice a year

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Other Changes

• Revised regulations clarify that light duty does
  not count as FMLA leave 825.220(d)
• Can disqualify employee from attendance or other
  goal based bonuses 825.215(c)(2)

60
The New FMLA

• Questions?