Title: FMLA
1FMLA Military Family Leave Updates 2009
2What 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
3FMLA 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.
4Key Changes
- Military Leave
- Serious Health Condition
- Employer Obligation
- Employee Notice
- Employee Eligibility
5Key Changes Continued
- Medical Certification Process (Content,
Clarification and Timing) - Fitness for Duty
- Light Duty
- Calculation of Leave Minimum Increments
6Military 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.
7Military 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.
8Military 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.
9Serious 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.
10Serious 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
11Employee 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.
12Employer 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.
13Employer 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)
14Employer 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)
15Employer 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)
16Employee 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.
17Medical 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.
18Medical 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).
19Medical 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).
20Fitness 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).
21Light 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.
22Calculation 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.
23Next 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.
24End of FMLA Regulations