Fundamentals of FMLA

Fundamentals of FMLA

Presented by: Torrence Freeman, PHR G&A Partners – HR Generalist

Agenda

• What is the Family and Medical Leave Act (FMLA)?

• Who is covered by FMLA? •  Employers •  Employees

•  Eligibility •  Reasons for Leave

• How is FMLA processed? •  What am I responsible for as an employer? •  What are my employees responsible for?

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Before we get started…

•  I am not an aMorney •  This material is not legal advice •  This presentaNon is not a subsNtute for experienced legal counsel

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The Family and Medical Leave Act

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What is FMLA?

The FMLA enNtles eligible employees of covered employers to take unpaid, job-‐protected leave for specified family and

medical reasons with conNnuaNon of group health insurance coverage under the same terms and condiNons as if the employee had

not taken leave.

Source: Department of Labor, Wage and Hour Division 5

Purpose of FMLA

•  Balance the needs of the workplace with the needs of families

•  Promote stability and economic security •  To promote equal employment opportunity for men and women

Source: Public Law 103-‐3 6

Who is a covered employer?

•  Private sector employer with 50 or more employees in 20 or more weeks in the current or preceding year. •  Includes joint employers and successors in interest to a covered employer

•  Public agency, including a local, state, or Federal government agency, regardless of number of employees

•  Public or private elementary school or secondary school, regardless of number of employees

Source: DOL Fact Sheet #28 7

What makes an employee eligible?

• Works for a covered employer • Has worked for the employer for at least 12 months •  Non-‐consecuNve

• Has worked 1,250 hours in 12 months immediately prior to leave

• Works at locaNon with 50 or more employees in a 75 mile radius

Source: DOL Fact Sheet #28 8

What is an employee enNtled to?

• Up to 12 workweeks of leave in a 12-‐month period

• Up to 26 workweeks of leave in a single 12 month period to care for a covered service member with a serious injury or illness

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What can an employee use FMLA for?

•  Birth, adopNon, or foster care •  Care for a spouse, child, or parent who has a serious health condiNon

•  Employee’s own serious health condiNon •  For qualifying exigency (situaNon arising from military deployment)

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Types of leave

•  ConNnuous Leave •  Leave taken at one Nme

•  IntermiMent Leave •  Leave taken in days, hours, or less on a habitual basis

•  Smallest increment of Nme allowed based on increment policies for other types of leave (e.g. sick or vacaNon)

•  Employer not required to grant for bonding leave

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IntermiMent leave

•  Employee is sNll enNtled to up to 12 workweeks of leave in a 12 month period

•  Employee must work with employer to schedule leave to not disrupt operaNons if able

• May transfer employee temporarily to alternaNve posiNon (with equivalent pay and benefits)

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What is the 12-‐month period?

•  The calendar year •  Any fixed 12-‐month “leave year” such as a fiscal year, a year required by State law, or a year starNng on the employee’s “anniversary date”

•  12-‐month period measured forward from the date any employee’s first FMLA leave begins

•  A “rolling” 12-‐month period measured backward from the date an employee uses FMLA leave

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The “Rolling” 12-‐month period

•  The look-‐back method •  Avoids “stacking” of leaves •  Amount of FMLA leave available can be constantly changing •  To determine available leave on a given date, subtract all leave taken in the 12 months preceding that date from 12 weeks

•  Leave is accrued back on anniversary of use

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Qualifying Reasons for FMLA

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Birth, adopNon or fostering

•  Can be taken by both parents •  Employer not required to approve intermiMent leave for bonding

•  Leave must be taken within 1 year of birth or placement

•  Can be taken prior to placement for related acNviNes

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Serious health condiNon

•  For employee themselves •  For a family member

•  Spouse •  Parent •  Child •  In loco parenNs

•  ConNnuous or intermiMent •  Cannot deny intermiMent if it is needed

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•  Illness, injury, impairment or physical or mental condiNon that involves any period of incapacity: •  connected with inpaNent care (i.e., an overnight stay) in a hospital, hospice, or residenNal medical care facility

•  requiring absence of more than three calendar days that also involves conNnuing treatment any period of incapacity due to pregnancy, or for prenatal care

•  due to a chronic serious health condiNon •  that is permanent or long-‐term

•  Any absences to receive mulNple treatments that likely would result in incapacity of more than three consecuNve days if lej untreated

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•  The following condiNons are excluded, unless inpaNent care or complicaNons develop that would meet the above criteria: •  cosmeNc treatments •  common colds •  Flu •  ear aches •  upset stomach •  minor ulcers •  headaches other than migraine •  rouNne dental or orthodonNa problems •  periodontal disease

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Qualifying exigencies •  Covered acNve duty definiNon •  Family member includes spouse, son, daughter or parent •  Qualifying exigencies include:

•  Responding to short-‐noNce deployment, •  AMending military events and related acNviNes, •  AMending to childcare and school acNviNes, •  Receiving counseling, •  AMending to financial and legal maMers, •  Periods of rest and recuperaNon, •  Post-‐deployment acNviNes, •  Parental care (military member’s parent), and •  Other acNviNes agreed to by the employee and the organizaNon.

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Military caregiver leave

• Up to 26 in a 12-‐month period •  To care for a current service member or veteran •  Undergoing medical treatment, recuperaNon, or therapy for a qualifying serious injury or illness. •  Incurred in line of duty or condiNon exacerbated by service

•  For veterans, for treatment of injury or illness incurred or exacerbated while an acNve member of the armed forces

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12-‐month period for military caregiver leave

•  Single 12-‐month period begins the day of leave and ends 12 months later

•  Not always the same as the 12-‐month period available for other FMLA leave reasons

•  Eligible employee limited to combined total of 26 workweeks •  Including leave used for other FMLA qualifying reasons

• Military caregiver leave available once per servicemember, per serious injury or illness

•  Eligible employee can care for more than one covered servicemember at a Nme during leave

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Employer ResponsibiliNes

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Posted noNce

•  Post a general noNce explaining rights and responsibiliNes (WH PublicaNon 1420) •  Posted for all worker to see in common area •  Must be in plain view •  Provided in other languages when porNon of workforce is not fluent in English

•  Provides informaNon regarding filing a complaint •  May be assessed a fine for not posNng

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WriMen policy

•  Provide wriMen FMLA policy •  Best place is in an employee handbook •  Contains same informaNon as in poster, at minimum

•  Best pracNce to include further detail

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Eligibility noNce

•  Provide eligibility noNce •  Must state whether the employee is eligible, and if not eligible, the reason why

•  Provided within 5 business days •  Only provided once in a 12 month period unless the FMLA qualifying reason is different or eligibility has changed

•  Form WH-‐381

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Rights and responsibiliNes •  Provide Rights and ResponsibiliNes noNce

•  Form WH-‐381 •  Qualified leave may be designated and counted against annual leave enNtlement

•  Requirements of cerNficaNon of the need for leave •  SubsNtuNon of paid leave •  Premium payments to maintain benefits •  “Key Employee” •  Maintenance of benefits during leave •  Job restoraNon •  Employee potenNal liability of health insurance premiums if employee fails to return to work ajer leave

•  Other informaNon

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CerNficaNon of leave

•  Medical cerNficaNon for serious health condiNon •  WH-‐380-‐E, WH-‐380-‐F •  Employer must allow 15 days to be completed •  Employee responsible for any costs •  If incomplete or insufficient, provide wriMen noNce to employee to cure (7 calendar days)

•  Employer representaNve can authenNcate and clarify cerNficaNon (not direct supervisor!)

•  Employer can request second opinion at employer cost

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CerNficaNon of leave request

• Qualifying exigency •  Copy of orders •  Statement of facts •  Approximate Nmes of leave •  Contact informaNon for third parNes •  Proof of relaNonship •  Cannot request second or third opinions •  Cannot require recerNficaNon •  Must allow 15 days to complete •  Form WH-‐384

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CerNficaNon of leave request

• Military caregiver •  Completed by authorized health care provider

•  DOD, VA, DOD TRICARE, Non-‐military

•  Second or third opinions only for non-‐military affiliated HCP

•  Must allow 15 days to complete

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Designate the leave

•  DesignaNon noNce •  Employer is responsible for designaNng leave as FMLA leave

•  NoNce should be provided within 5 business days •  Should be provided for each qualifying reason per applicable 12 month period

•  Employer’s determinaNon •  Any concurrent use of paid leave requirements •  Any fitness for duty requirements •  Provides amount of leave counted against enNtlement

•  Form WH-‐382

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Recordkeeping

•  Dates, documents and records of FMLA leave • Hours if leave is intermiMent •  Keep for no less than three years • Maintain medical informaNon in a confidenNal manner

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Benefits

• Maintenance of employee benefits •  Employer maintains payment of their contribuNon to premiums

•  Employee must pay their premium porNon •  During leave at specific Nme or upon return

•  Same condiNons applied as if the employee were conNnuously employed

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Reinstatement

•  Employee reinstatement •  Same posiNon, or to an equivalent posiNon with equal pay, benefits and other terms and condiNons

•  Pay includes bonuses, uncondiNonal pay increases, pay premiums and opportunity for overNme

•  Benefits include insurance, paid Nme off, pensions, educaNonal benefits

•  Other terms and condiNons may include duNes, condiNons, responsibiliNes, schedule, locaNon

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Fitness-‐for-‐duty

• NoNfy employee of need when designaNng leave

•  Releases employee to return with or without accommodaNons

•  Provide a list of job duNes employee would need to be able to perform

•  Remind employee of need approximately two weeks prior to expected return

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“Key” employee

•  Salaried, FMLA-‐eligible employee, among highest paid 10 percent of all employees within 75 miles of employee’s worksite

•  Employer may deny to reinstate employee, not the request for leave •  Must show that if reinstated it would case “substanNal and grievous economic injury”

•  NoNfy employee of possibility when FMLA is approved

•  Must maintain FMLA rights unNl end of leave

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Employee ResponsibiliNes

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Requirements for employees

•  Eligible employees may be required to provide: •  30 days advance noNce for foreseeable leave •  NoNce as soon as pracNcable when not foreseeable

•  Sufficient informaNon for the employer to understand why the leave is needed

•  Timely noNce of leave being FMLA qualifying if not addressed prior to absence

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AddiNonal requests

•  And if requested, employee should: •  Provide cerNficaNon requests in a Nmely manner

•  Must be given at least 15 days to provide

•  Provide periodic status reports •  Submit fitness for duty upon return to work

•  “Working” while on leave •  Reasonable requests for assistance only

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AddiNonal FMLA Concerns

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Reducing abuse

• Use “rolling” 12-‐month period •  Require medical cerNficaNons •  Seek recerNficaNon when circumstances change

•  Confirm cerNficaNon with HCP •  Enforce call-‐in procedures •  Train supervisors and management

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Most common violaNons

•  Failure to noNfy of rights •  Failure to designate leave appropriately •  Considering FMLA leave in disciplinary acNons

•  Failure to reinstate employee appropriately •  Denying coverage to an eligible employee with a qualifying reason

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What happens when violaNons occur?

•  Failing to post noNce -‐ $110 •  Employees who feel that their FMLA rights have been violated can go to the Department of Labor, Wage and Hour Division •  Costs from law suits can include back wages, reinstatement of terminated employees, medical bills, legal fees, as well as other expenses and fees.

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Court cases

•  DOL v. D.S. Waters of America (Sparklets) •  Employee terminated by company’s new owners while on FMLA leave.

•  Smith v. Genon Energy •  Employee was asked to perform 20 to 40 hours of work while on an FMLA leave.

•  Alexander v. Boeing Company •  Employee terminated when she took a 4-‐day leave of absence for migraine headaches.

•  Hurley v. Kent of Naples Inc. •  Employer denied leave for depression and terminated employee.

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Don’t forget the Americans with DisabiliNes Act (ADA)

•  Employee isn’t eligible for FMLA •  FMLA exhausted

•  Do not automaNcally terminate when an employee is unable to return to work

•  Employee returns to work with accommodaNons

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In closing

•  Employers cannot interfere with, restrain or deny employees’ FMLA rights.

•  It’s prohibited to retaliate, discriminate, discharge or otherwise consider a negaNve factor against an employee for exercising FMLA rights.

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The use of this seal is not an endorsement by the HR CerNficaNon InsNtute of the quality of the program. It means that this program has met the HR CerNficaNon InsNtute's criteria to be pre-‐approved for recerNficaNon credit."

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Fundamentals of FMLA

Business

Transcript of Fundamentals of FMLA