The Family and Medical Leave Act and

1

• The Family and Medical Leave Act and
• 2008 Revised Department of Labor Regulations
• Labor Center
• University of Iowa

2
The struggle to getand keepthe FMLA

• 1980s 10 years of pressure vetoed twice by GHW
  Bush
• 1993 Compromise version signed
• 1995 DOL regulations finalized
• 2007 DOL request for information
• 2008 expansion of FMLA for military family leave
• 2008 DOL proposes and adopts new regulations

3
Basic FMLA Rights

• Up to 12 weeks of UNPAID leave
• -Medical leave for serious health condition
• -Family leave to care for ill family member
• -Newborn leave for birth or adoption
• -Military family leave for qualifying
  exigencies
• -up to 26 weeks to care for injured military
  member
• ? FMLA-qualifying absences cannot be used against
  workers
• ? Benefits and job are protected

4
? Questions

• What does your contract say about FMLA?
• What other leave rights do members have under
  your contract?
• for their own medical conditions or medical
  appointments?
• to take care of family members?

5
FMLA and Collective Bargaining Agreements

• Whichever is stronger
• FMLA may not weaken contract
• Contract may not weaken FMLA

6
Who is eligible?

• Eligible employees
• Work for a covered employer (50 or public)
• 12 months of service
• 1250 hours worked within 12 months prior to leave
• Work site with 50 employees within 75 miles

7
Leave year

• 12-month period in which 12 weeks of leave
  available
• What is your leave year?

8
When can workers use FMLA?

• Workers own serious health condition
• Care for a spouse, child or parent with a serious
  health condition
• Birth and care of newborn or placement and care
  of adopted or foster child

9
? Questions

• Is the flu a serious health condition?

10
Serious Health Conditions

• Inpatient care
• Incapacity of more than 3 calendar days involving
  a continuing regimen of treatment
• Pregnancy, childbirth, and prenatal care
• Chronic conditions that cause episodic
  incapacity
• Incapacity from untreatable permanent
  disabilities or terminal diseases
• Multiple treatments for otherwise incapacitating
  conditions
• Examinations to detect serious health condition

11
? Questions

• Cheryl missed work for five days due to flu
  symptoms. She went to a quick care clinic,
  where a nurse practitioner prescribed Tamiflu for
  her. Did she have a serious health condition?

12
Serious Health ConditionCriteria 2

• Incapacity of more than 3 calendar days
• ?plus two visits to health care provider within
  30 days
• OR
• Incapacity of more than 3 calendar days
• ?plus one visit within seven days
• ?and a regimen of continuing treatment

13
? Questions

• Cheryls daughter caught her moms flu. She
  missed school for eight days. Cheryl called the
  clinic she had visited and the nurse practitioner
  phoned in another Tamiflu prescription for her
  daughter.

14
Serious Health Conditions
Who decides whether a health condition is really
serious enough for FMLA?
15
? Questions

• Can I take a couple hours of FMLA leave for an
  asthma attack?

16
Rights to intermittent leave or reduced schedule

• Can be one hour or several weeks
• Can be as short as the smallest increment of time
  the employer uses to account for other types of
  leave
• Must make a reasonable effort to schedule
  treatments so as not to disrupt employers
  operations

17
When can workers use FMLA?

• Workers own serious health condition
• Care for a spouse, child or parent with a serious
  health condition
• Birth and care of newborn or placement and care
  of adopted or foster child

18
? Questions

• An employee who is going through a divorce
  recently found out his wife was diagnosed with
  cancer. They have been separated for about three
  months. Can he take FMLA leave to accompany her
  to medical appointments and watch their son on
  days when she is recovering from chemotherapy?

19
Who is a spouse?

• a husband or wife as defined or recognized under
  State law for purposes of marriage in the State
  where the employee resides
• includes common law marriage in states where it
  is recognized

20
Who is a child?

• Son or daughter under 18 years old
• OR
• Son or daughter 18 or older who is incapable of
  self-care due to a disability

21
Who is a parent?

• Biological parent
• OR
• Person acting (or who acted) in loco parentisin
  place of a parent, including day-to-day care and
  financial support

22
? Questions

• Can you use FMLA to visit your father (an
  Alzheimers patient), who is in a nursing home
  three hours away?

23
CARE may include

• Physical care
• Psychological care and reassurance
• Assistance with transportation

24
When can workers use FMLA?

• Workers own serious health condition
• Care for a spouse, child or parent with a serious
  health condition
• Birth and care of newborn or placement and care
  of adopted or foster child

25
? Questions

• A new employee had a baby and used three weeks
  of sick leave and vacation because at the time
  she was not eligible for FMLA. Five months
  later, she becomes eligible after having worked a
  full year for the company. Can she now take FMLA
  to care for her baby?

26
Birth, adoption, or foster placement

• For care of healthy child ?
• Up to 12 weeks during first year following
  birth/adoption
• Guaranteed right to single block of
  timethereafter at employers discretion
• If both parents work for same employer, must
  share 12 weeks

27
? Questions

• Can you use FMLA leave to care for a healthy
  child?
• Can you use FMLA to care for a child with an
  earache?

28
? Questions

• I plan to use two weeks of vacation for a
  planned surgery and recovery time.
• Can my boss also count this time off as FMLA?

29
Using paid leave along with FMLA leave

• Paid leave may be used along with FMLA leave at
  option of worker or employer
• If at workers option, may be required to follow
  usual policies and procedures for paid leave
  what are these in your workplace?
• If at employers option, worker must be notified

2 weeks vacation
10 weeks unpaid FMLA leave
12 weeks FMLA leave
30
Employer notification duties

• Display FMLA poster or post electronically and
  include FMLA information in employee handbook in
  language workers can read
• Ask relevant questions to determine if an absence
  may be FMLA-qualifying and responsively answer
  questions from workers about their FMLA rights
• Notify individual employees in writing of
  eligibility, rights, and responsibilities

31
Employer notification duties

• Respond within 5 days of workers request for
  FMLA leave (Form 3971)
• If the worker is not eligible, indicate at least
  one reason why
• State any policies and procedures that must be
  followed for using paid leave
• Indicate the leave year
• Regularly inform workers of how much time
  designated as FMLAup to once every 30 days at
  worker request

32
Worker notice requirements

• First request for leave
• Give sufficient information calling in sick
  is not considered sufficient notice
• Subsequent requests for leave
• Refer to the reason for leave or the need for
  FMLA

33
Worker notice requirements

• What is sufficient information?
• Medical condition causing incapacity
• Pregnancy
• Hospital over night
• Under care of health care provider
• Call to active duty
• Injured/ill military servicemember

34
Worker notice requirements

• Foreseeable leaves
• 30 days ahead or as soon as practicable same
  day or next business day
• Unforeseeable leaves
• As soon as practicable within the time
  prescribed by usual and customary notice
  requirements

35
Medical Certification

• Employer must request within 5 days of notice
• Worker must turn in within 15 days of request or
  show good faith effort
• Limited information required, but new DOL forms
  include diagnosis in list of medical facts
• New DOL form requires identifying job functions
  employee cannot perform

36
If the employer questions the certificate

• 1) State in writing what else is needed on form
  and give the worker 7 days to fix it (or show
  good faith effort)
• 2) Contact the health care provider to clarify
  and authenticate the certification
• 4) ask for a 2nd (and possibly 3rd) opinion
• -2nd Employer choice, at employers expense
• -3rd Joint choice, at employers expense

37
Recertification

• NOT during the period of incapacity specified in
  the medical certification
• For chronic or other long-term conditions
• No more often than every six months
• Only in connection with an absence
• UNLESS
• -employee requests extension of leave
• -circumstances change significantly
• -employer receives information casting doubt upon
  the original certificate may include absence
  pattern with recertification form for health care
  provider