NEW FMLA RULES

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• NEW FMLA RULES
• JANUARY 16, 2009

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IN A NUTSHELL

• The FMLA provides
• 12 weeks of generally unpaid leave to employees
• for their own or their family members serious
  
  health condition
• 12 weeks of generally unpaid leave for a
  qualifying exigency arising from a family
  members call to active duty
• Or, a one-time 26 weeks unpaid leave to care for
  an
• injured covered service member

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ELIGIBILITY - covered employer

• 50 or more employees
• Who have been on the payroll for
  20 or more weeks during the
  current or preceding calendar
• year.
• And who work within 75 miles of the
• employees work site.

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ELIGIBILITY - covered employee

• worked for employer for at least 12 months
  not necessarily consecutive but less than 7 year
  break in service (unless
• CBA permits longer break)
• worked for 1,250 hours
• in past 12 months

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REASONS FOR LEAVE - Medical

• Birth or adoption of child
• To Care for Family Members
• Serious Health Condition
• Own Serious Health Condition

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REASONS FOR LEAVE Military

• For qualifying exigency arising from family
• member in National Guard call to active
• duty
• To care for a family member who is a
• covered service member with a
• serious injury or illness (including
• regular Armed Forces)

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FAMILY MEMBER Serious Health Condition

• Employees Parents not in-laws
• Employees Spouse
• as defined by state law
• Employees Minor Children
• (foster, step, biological)
• No need to be only family member who
• could provide services

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FAMILY MEMBER Military Leave

• 12 Weeks Spouse, adult child
• or parent who is a covered
• military member
• 26 Weeks if you are the
• Spouse, child, parent or next of kin of
  service member

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QUALIFYING EXIGENCY (not regular Armed
Forces)

• Short Notice Deployment (7 days or less)
• Attend military events, support service
• Childcare and school activities caused by
  military leave
• Financial and legal arrangements caused by
  military leave
• Counseling caused by military leave
• Rest and recuperation (up to 5 days)
• Post-deployment activities
• Other events caused by
• military leave

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SERIOUS HEALTH CONDITION

• A period of incapacity of 3 or more
  consecutive,
• full calendar days AND continuing medical care
  
• i.e. 2 or more visits to doctor within
  30
• days or 1 visit within 7 days of
  incapacity
• and prescription
• Any overnight stay in an in-patient
  facility
• Chronic conditions (must
• require at least 2 visits to
• doctor per year)
• Pregnancy

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ENTITLEMENTS

• 12 weeks of unpaid leave in a
• 12 month period
• 26 weeks military leave per incident,
• per family member in a single 12
• month period
• Employer must maintain Health Benefits
  (employee must keep up any contributions she/he
  makes)
• Guarantee of being returned to same or
  substantially same job on return from FMLA leave

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INTERMITTENT LEAVE

• Intermittent Leave is Permissible (except for
  birth or
• adoption of a child) in the smallest
  increment
• employer uses for other leave so long as not
• more than 1 hour.
• Cannot reduce by more than time actually
  taken.
• FAs and others for whom it is impossible to
  start
• late, entire period is counted FMLA.
• When foreseeable, employee must make
  reasonable
• effort not to unduly disrupt employer
  operations.

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OVERTIME

• If unable to work mandatory overtime because of
  FMLA, that time counts against FMLA entitlement

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EMPLOYEE RESPONSIBILITIES

• Notice - calling in sick not sufficient.
• Give enough information to put employer
• on notice that the reason the employee
• is requesting leave may be FMLA-qualifying.
• If for a reason already granted FMLA (i.e.
  chronic
• condition) must specifically reference it.
• If there is dispute, should be resolved
  through discussions of
• employer and employee. Discussions and
  decision should be
• documented 825.301(c).

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EMPLOYEE RESPONSIBILITIES (Notice continued)

• Employer can require employee to follow
• regular leave procedures unless it is an
• emergency.
• 30 days notice when leave is foreseeable.
• As Soon as possible and practicable when
• leave is not foreseeable. Usually within
  
• employers customary notice procedures and
• typically at least same day or next
  business
• day.

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CERTIFICATION

• Employer can insist on
• (1) a medical certification or
• (2) a certification of qualifying exigency
• Employer can insist it be returned within 15
  days unless it is not practical to do so despite
  employees diligent,
• good faith efforts

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CERTIFICATION

• If certification is insufficient, employer must
  tell employee in writing what information is
  necessary
• to make it sufficient.
• Employer must give employee at least 7 calendar
  days
• to cure deficiency unless it is not practical to
  do so despite employees diligent, good faith
  efforts.
• If employee fails to provide sufficient
• certification (after above steps) employer
• may deny leave.

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INFORMATION ON MEDICAL CERTIFICATION

• Employers cannot
• insist on more information than whats
• on Dept. of Labors form
• insist on a diagnosis, but can request it
• insist that employee waive all medical
• records except as it relates to this
• incident
• Are separate forms for employee and for
  employees
• family member

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INFORMATION ON QUALIFYING EXIGENCY CERTIFICATION

• Employers can require
• copy of Military Orders
• statement from employee
• 3rd party contact information

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RECERTIFICATION

• Employers cannot
• require recertification more frequently
• than every 30 days and then only
• in connection with absence unless
• circumstances change or doubt
• arises within 30 days
• require recertification until original
• period designated by doctor lapses except
• may always require recertification every
• 6 months
• require 2nd or 3rd opinion
  

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Recertification

• Employer may provide Doctor with record
• of pattern of absence and ask if the
• serious health condition and need for
• leave is consistent with the pattern

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FITNESS FOR DUTY - Test

• Employers can insist on a Fitness for
• Duty test if it does so for all similarly
• situated employees
• A fitness for duty test must be job-related
• and consistent with business necessity

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FITNESS FOR DUTY - Certification

• Employers can require Fitness for Duty
  Certification
• before return not more frequently than every
  30 days
• Employer must provide list of essential job
  duties at time
• of designation of leave and notice that Fitness
  for Duty
• Certification will be required.
• Certification must address essential job
  duties.
• No 2nd or 3rd opinions.
• Intermittent leave can only require Fitness
• for Duty Certification 1 x 30 days if
  reasonable
• safety concerns exists, unless CBA says
• otherwise.

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CLARIFICATION AUTHENTICATION

• Employer may contact doctor for clarification
  and
• authentication -- not for more information.
• Only health care provider, Human Resources
  professional,
• leave administrator or management may make
  contact
• with doctor.
• Direct supervisor may not contact doctor.
• Second opinion if employer doubts validity of
  certification
• (original only)
• Employer must give employee copy of 2nd
• opinion within 5 days of employees request.

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EMPLOYER DESIGNATION

• Employers must tell the employee the amount of
  leave
• designated as FMLA if known at the time it
  provides
• designation notice.
• If unknown, must tell employee how much
• leave used upon request of employee but
• no more frequently than every 30 days in
  connection
• with absence.
• Must include essential job functions if Fitness
• for Duty Certificate will be required.

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SUBSTITUTION OF PAID LEAVE

• Always at Employees Choice
• Except must follow employers leave policies
• for that kind of leave.
• Employer may require unless CBA says
  otherwise.
• Disability or workers compensation if less
  than
• 100 pay may substitute remainder
• only by agreement of both.

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Non-Discrimination

• Employers may not discriminate against
• employees due to their use of FMLA
• leave
• Employers may deny an employee an
• attendance bonus if the employer
• denies the attendance bonus to
• other employees who use the
• same type of leave

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ENFORCEMENT

• DOL
• Grievance Procedure
• Courts

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BARGAINING

• Many ways to bargain greater rights
• FMLA is floor
• Can protect vacation leave to employees choice
• Can bargain maintenance of benefits in addition
  to
• health
• Can limit use of Fitness for Duty tests
• Can negotiate form employer will use for
• Certification
• Can bargain for paid FMLA leave
• Can bargain for FMLA leave for other family
• members, domestic partners or for school
• events

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Genetic Information Nondiscrimination Act or GINA

• New law effective November 2009
• Prohibits Employer from Asking or
• Requiring Genetic Information
• Requires Employer to Keep inadvertent Genetic
• Information confidential and in separate
  folder (i.e.
• employer learns you need FMLA leave for
  heart condition employer learns you need
  bereavement
• leave for mother who died of breast cancer,
  etc.)
• Prohibits Employer from taking adverse
  employment
• action based on Genetic Information

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FAMILY RESPONSIBILITY DISCRIMINATION

• A form of sex discrimination in which employees
  are treated worse because of their caregiving
  responsibilities for newborns, children, elderly
  parents, or ill spouses
• A schedule change in an employees work schedule
  may make little difference to many workers, but
  may matter enormously to a young mother with
  school age children. BNSF v. White, 126 S.Ct.
  2405, 2415 (2006).

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WHO CAN BE IMPACTED

• Pregnant employees
• Mothers
• do you want babies or do you want a career?
• Assuming Mothers will not travel or work
  overtime
• Assuming a Mother will not move family for
  promotion
• Employees who work flex
• schedules

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ALSO IMPACTED

• Non-mothers
• Fathers
• roughly 55 of FRD arbitrations involve men
• Refusing Flex schedule for man because a woman
  should be the caregiver
• Disciplining male who refuses overtime because
  of
• child care responsibilities
• Assuming men with child care responsibilities
  are un-ambitious
• Employees caring for aging, ill and disabled
  family members
• taking away perks for employees caring
  for
• elderly parents because they put family
• before work

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LAWS THAT CAN PROTECT AGAINST FRD

• Title VII EEOC has regulations specifically
  addressing
• FRD
• Pregnancy Discrimination Act
• FMLA
• ADA
• Equal Pay Act
• State Statutes many states now allow a certain
  number
• of hours per year to attend school functions

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BARGAINING TO PROTECT AGAINST FRD

• Allow sick leave to be used for family
  responsibilities
• Negotiate paid leave to attend to family
  responsibilities including school functions
• Negotiate for Voluntary Overtime
• Allow employees to take leave in small
  increments
• Negotiate for child care