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FMLA

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Military Leave Continued ... Certification that the covered military member is a member of the National Guard ... Military Exigency Leave ... – PowerPoint PPT presentation

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Title: FMLA


1
FMLA Military Family Leave Updates 2009
2
What is the Family and MedicalLeave Act?
  • Family Medical Leave is a Federal benefit
    provided to eligible employees.
  • A 1993 Federal Act which provides
  • up to 12 work weeks of unpaid, job-protected
    leave
  • maintenance of pre-existing health benefits
  • Enforced by the Department of Labor

3
FMLA Updates
  • On November 17, 2008, the DOL issued its final
    regulations under the Family and Medical Leave
    Act (FMLA), which include expansions to cover
    military leave along with changes to the current
    regulations.
  • The final regulations become effective on January
    16, 2009.

4
Key Changes
  • Military Leave
  • Serious Health Condition
  • Employer Obligation
  • Employee Notice
  • Employee Eligibility

5
Key Changes Continued
  • Medical Certification Process (Content,
    Clarification and Timing)
  • Fitness for Duty
  • Light Duty
  • Calculation of Leave Minimum Increments

6
Military Leave
  • Military Caregiver Leave (also known as Covered
    Service member Leave) Under the first of these
    new military family leave entitlements, eligible
    employees who are family members of covered
    service members will be able to take up to 26
    workweeks of leave in a single 12-month period
    to care for a covered service member with a
    serious illness or injury incurred in the line of
    duty on active duty.

7
Military Leave Continued
  • Qualifying Exigency Leave The second new
    military leave entitlement helps families of
    members of the National Guard and Reserves manage
    their affairs while the member is on active duty
    in support of a contingency operation.
  • Certification
  • Certification that the covered military member is
    a member of the National Guard or Reserves who is
    on active duty or called to active duty in
    support of a contingency operation.
  • Statement from the employee (including available
    written support documentation) about the nature
    and details of the specific exigency, the amount
    of leave needed, and the employees relationship
    to the military member.

8
Military Exigency Leave
  • Short-notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling
  • Rest and recuperation
  • Post-deployment activities
  • Additional activities not encompassed in the
    other categories, but agreed to by the employer
    and employee.

9
Serious Health Condition Continuing Treatment
  • Continual Treatment - measured by the duration of
    the incapacity itself (more than 3 full
    consecutive days)
  • requires 2 in-person treatments by a health care
    provider at least once within seven days of the
    first day of incapacity and
  • requires either (i) a regimen of continuing
    treatment initiated by the health care provider
    within 30 days of the start of incapacity.

10
Serious Health Condition Chronic Condition
  • A chronic condition is one that
  • (a) requires visits for treatment by a health
    care provider at least twice a year
  • (b) continues over an extended period of time
    (including recurring episodes of a condition)
    and
  • (c) may cause episodic incapacity rather than a
    continuing period of incapacity

11
Employee Eligibility
  • If an employer grants a non-FMLA leave to an
    employee before that employee is eligible for
    FMLA leave, and if the employee becomes eligible
    for FMLA leave while on the non-FMLA leave, the
    leave period after the date the employee becomes
    eligible is FMLA leave
  • If an employee has a break in service that lasts
    more than 7 years, the prior service does not
    need to be counted toward eligibility for FMLA
    except if the break in service was due to
    National Guard or Reserve military service, or if
    there was an agreement when the break in service
    occurred that the employer would later rehire the
    employee.

12
Employer Notice Obligation
  • FMLA information must be posted in conspicuous
    places that are accessible to both applicants and
    employees.
  • The employer must also distribute the general
    notice to employees by including it a handbook
    (or other written materials) or by providing it
    to each new hire.
  • Electronic posting and distribution is
    permissible.

13
Employer Notice Obligation
  • An Eligibility Notice Employer must notify
    employee in writing of eligibility or
    noneligibility within 5 business days (absent
    extenuating circumstances) after the first time
    in the employers FMLA leave year that an
    employee requests leave for a particular
    qualifying reason, and thereafter during the same
    FMLA leave year, only if the employees
    eligibility status changes (even if a subsequent
    request is for a different qualifying reason)

14
Employer Notice Obligation Continued
  • Rights and Responsibilities Notice Employer must
    provide written rights responsibilities notice
  • (a) each time an eligibility notice is required
  • (b) if any info on it changes thereafter, within
    5 business days after employees first request
    for leave after the changes occur, including
    reference to prior notice and info that has
    changed (e.g., method of paying premiums may
    change if paid LOA becomes unpaid LOA)

15
Employer Notice ObligationContinued
  • A Designation Notice - For each FMLA-qualifying
    reason within the employers designated 12-month
    FMLA leave year, employer must give written
    designation that leave qualifies (or not) as FMLA
    leave
  • (a) within 5 business days after acquiring enough
    info to determine if it qualifies, absent
    extenuating circumstances
  • (b) at any later time as long as the employee is
    not harmed (the Ragsdale rule) and
  • (c) if the amount of leave is not known, upon an
    employees request but no more often than every
    30 days (if leave was taken during the prior 30
    days)

16
Employee Notice
  • In the case of foreseeable leave, 30 days
    advance notice is still required or, if 30 days
    advance notice is not possible, notice must be
    given as soon as practicable (meaning the same
    day or the next business day).
  • If leave is unforeseeable, the employee must give
    notice of the need as soon as practicable
    (meaning within such reasonable time frame as is
    established in an employers usual and customary
    leave and absence notification policies).
  • Failure to provide timely notice allows the
    employer to count any absences during the delay
    as non-FMLA absences and apply the employers
    attendance policy to those absences. In the case
    of exigency leave (whether foreseeable or
    unforeseeable), notice must be given as soon as
    practicable.

17
Medical Certification Process (Content)
  • An employee must submit a complete and sufficient
    medical certification within 15 days (or longer
    if the employee has made diligent, good faith
    efforts to obtain it without success).
  • If submitted and is not complete or sufficient,
    the employer must provide the employee with seven
    days to cure the deficiencies and a list of what
    information is still needed. If the employee does
    not correct it within the cure period, leave can
    be denied.

18
Medical Certification Process (Clarification)
  • Once the employer receives a complete and
    sufficient certification, the employer may
    authenticate it (without the employees consent
    and by direct contact with the employees health
    care provider via Dr. Jackson) and may obtain
    clarification of any vague or unresponsive
    information (by direct contact with the provider
    but only with the employees consent).

19
Medical Certification Process (Timing)
  • Recertification can be required every six months
    in all cases, but only in connection with an
    absence that has occurred for that medical
    condition.
  • A recertification can also be required at any
    time if an extension to a leave is requested,
    circumstances described in the last certification
    have changed (such as a pattern of absences
    around an employees scheduled days off), or the
    employer receives information casting doubt on
    the employees stated reason for an absence or
    the continuing validity of the last certification
    (such as an employee observed engaging in 10
    activities that are inconsistent with a need for
    time off due to the certified condition).

20
Fitness for Duty
  • An employer may require a fitness-for-duty
    certification that is more than a simple
    statement releasing the employee to work. The
    employer may require the health care provider to
    actually assess whether the employee has the
    ability to perform the essential functions of the
    job.
  • A fitness-for-duty certification can be required
    for each continuous leave upon the employees
    return to work or, in the case of intermittent or
    reduced schedule leave, every 30 days if
    reasonable safety concerns exist (defined as a
    significant risk of harm to the employee or
    others).

21
Light Duty
  • An employee performing light duty work does not
    count against an employees FMLA leave
    entitlement and that the employees right to
    restoration is held in abeyance during the period
    of time the employee performs light duty (or
    until the end of the applicable 12-month FMLA
    leave year). If an employee is voluntarily
    performing a light duty assignment, the employee
    is not on FMLA leave.

22
Calculation of Leave Minimum Increments
  • An entire missed shift may be charged against
    FMLA leave when it is physically impossible for
    an employee to begin the shift late, such as
    working on an airline flight that has already
    taken off.
  • Department may track leave in increments of no
    more than 1 hour but not for any time spent
    working.

23
Next Steps
  • Review the presentation for understanding and ask
    questions of your Staff and Labor representative
  • Train employees and supervisors on the FMLA's new
    obligations and rights.
  • Remove old FMLA forms effective January 16, 2009
  • Determine departmental FMLA process (letters,
    sign offs, verification of eligibility, and etc.)
  • Visit the Duke HR Web Site for the toolkits,
    forms, presentations, letters, updates and etc.

24
End of FMLA Regulations
  • QA
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