FMLA

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FMLA Military Family Leave Updates 2009
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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

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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.

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Key Changes

• Military Leave
• Serious Health Condition
• Employer Obligation
• Employee Notice
• Employee Eligibility

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Key Changes Continued

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

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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)

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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)

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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)

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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.

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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.

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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).

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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).

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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).

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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.

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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.

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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.

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End of FMLA Regulations

• QA