Welcome to the SIG University HR Roundtable Series FMLA: Part II: - - PowerPoint PPT Presentation

FMLA: Part II: Go in Depth with Nuanced Provisions Under the FMLA

Laura Rubenstein, Esq, Partner, Wright, Constable & Skeen, LLP November 16th, 2017

Welcome to the SIG University HR Roundtable Series

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Part II The FMLA: Gaining a Deeper Understanding of the Federal Act

Laura L. Rubenstein, Esq. Wright, Constable & Skeen, LLP 410.659.1347 lrubenstein@wcslaw.com

Today’s Objectives

• Today’s presentation will be 1.5 hours
• Provide basic and advanced knowledge of the FMLA
• Test your knowledge with hypotheticals
• Answer questions

8

Employer Coverage

Which employers are required to provide FMLA coverage?

• Private sector employers who employ 50 or more employees for at least 20

workweeks in the current or preceding calendar year including joint employers and successors of covered employers.

9

Employee Eligibility

To be eligible for FMLA leave

• an employee must work for a covered employer;
• have worked for that employer for at least 12 months;
• and have worked at least 1,250 hours during the 12 months prior to the start of

the FMLA leave; and

• work at a location where at least 50 employees are employed at the location or

within 75 miles of the location.

10

Leave Entitlement

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:

• for the birth of a son or daughter, and to care for the newborn child;
• for the placement with the employee of a child for adoption or foster care,

and to care for the newly placed child;

• to care for an immediate family member (spouse, child or parent) with a

serious health condition;

• when the employee is unable to work because of a serious health

condition; and

• Any qualifying emergency arising out of a having a *military spouse, child
• r parent on covered active duty or call to covered active duty.

11

2008 FMLA Amendment

Effective in 2008, the FMLA was amended to require that eligible employees be permitted to take leave for up to 26 workweeks in a single 12 month period to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."

12

Poster & Notice Requirements

• FMLA poster required in workplace explaining rights and responsibilities ($110 fine

for willful violations)

• FMLA rights should be in employee handbooks and/or provided to new employees
• Upon request for leave, employer to provide a written notice to employee

concerning his or her eligibility for and rights and responsibilities under the FMLA; and

• Notify employees whether leave is designated as FMLA leave and the amount of

leave that will be deducted from the employee’s FMLA entitlement, if known.

13

Using paid leave concurrently

• Under certain conditions, employees may choose, or

employers may require employees, to "substitute" (i.e., run concurrently) accrued paid time off, to cover some or all of the FMLA leave period. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy.

14

How do employees ask for leave?

• Employees generally must request leave 30 days in advance when the

need for leave is foreseeable.

• When the need for leave is unforeseeable, employees must provide

notice as soon as possible and practicable under the circumstances.

• Be aware of signs the leave may qualify under the FMLA (mention of

surgical procedure; spouse getting medical treatments, etc.).

15

What about benefits during FMLA leave?

• An employee’s use of FMLA leave cannot be counted against

the employee under a “no-fault” attendance policy.

• Employers are also required to continue group health

insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.

16

What is “intermittent” leave or “reduced” leave?

• Are employers obligated to provide it?
• How long can it last?
• What documentation can the employer request?

17

Serious Health Condition

• A serious health condition is an illness, injury, impairment, or physical or mental condition that

involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.

• Subject to certain conditions, the continuing treatment requirement may be met by a period of

incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition.

• Other conditions may meet the definition of continuing treatment.

18

Medical Certification

An employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification. What if the employee fails to return the certification after 15 days?

19

What if the Medical Certification is questionable?

Can the employer contact the medical provider to ask questions about the certification? Can the company require the employee get a second opinion if it questions the medical certification?

20

Health Care Provider

Health care providers who may provide certification of a serious health condition include:

• doctors of medicine or osteopathy authorized to practice medicine or surgery (as appropriate) by the State in which the

doctor practices;

• podiatrists, dentists, clinical psychologists, optometrists, and chiropractors authorized to practice in the State and

performing within the scope of their practice under State law;

• nurse practitioners, nurse-midwives, and clinical social workers authorized to practice under State law and performing

within the scope of their practice as defined under State law;

• Christian Science practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
• any health care provider recognized by the employer or the employer's group health plan's benefits manager; and
• a health care provider listed above who practices in a country other than the United States and who is authorized to

practice under the laws of that country.

21

Communicating with an Employee on FMLA Leave

• Should my employee be working part-time for another

employer while on leave from my company?

• What if I learn my employee is engaging in physical activity

when they’re supposed to be on bed rest?

• What if my employee won’t communicate with me at all?

22

Employees working while on FMLA leave

• Set parameters about what is expected of the employee during

his/her FMLA leave.

• Consider denying the employee access to e-mail accounts or

database during FMLA leave.

• Consider having the employee return his/her company-issued

cell phone during leave.

23

Job Restoration

• Upon return from FMLA leave, an employee must be restored to his or

her original job, or to an "equivalent" job.

• An employee's use of FMLA leave cannot result in the loss of any

employment benefit that the employee earned or was entitled to before using (but not necessarily during) FMLA leave.

24

Poll

How do you handle an employee who can return to work but cannot perform his/her same job duties?

A. Terminate the employee. B. Provide the employee additional leave. C. I am required to accommodate the employee. D. None of the above. E. Not sure.

25

“Key” Employee Exception

• Under limited circumstances an employer may refuse to reinstate certain highly-

paid, salaried "key" employees.

• The employer must notify the employee in writing of his/her status as a "key"

employee (as defined by FMLA), the reasons for denying job restoration, and

• Provide the employee a reasonable opportunity to return to work after so notifying

the employee.

26

Caring for an adult child with a disability

In 2013, the DOL clarified the definition of a “child” for whom a covered employee could provide care to include adult children with a disability, as defined under the ADA.

– Note – it is not a requirement that the child be born with an impairment.

27

Fillable FMLA Forms available

• n HR Forms
• WH-380E: Certification of Health Care Provider for Employee’s Serious Health

Condition

• WH-380F: Certification of Health Care Provider for Family Member’s Serious Health

Condition

• WH Publication 1420: Notice to Employee of Rights Under FMLA
• WH-381: Notice of Eligibility and Rights and Responsibilities (mandatory)
• WH-382: Designation Notice
• WH-384: Certification of Qualifying Exigency for Military Family Leave
• WH-385: Certification of Serious Injury or Illness of Covered Service member for

Military Family Leave

28

When the ADA, Workers’ Compensation, USERRA and the FMLA collide

• How do you handle an employee injured on the job, who takes

FMLA leave and returns to work needing an accommodation?

• What if the injury/disability did not occur at work?
• What about an employee who served in the military and cannot

return to work right away because she suffers from PTSD?

29

30

Steps to Take

Train Your Managers!!!!!!!

– Managers should be able to recognize when the FMLA or the ADA is implicated – Make sure managers are not approving leave

• r granting accommodations without

checking with HR (can lead to a disparate treatment claim)

Questions?

31

Reminders

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