fmla update 2010 - warner norcross & juddregulations on january 16, 2009, the department of...

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FMLA UPDATE2010

Jonathan P. Kok

Outline

� Background� Recent Changes

� Military Leave� Highlights of the New Regulations

� “Fun” Case Law

Background

� Who is covered by the FMLA?� Employers who have 50 or more employees

in 20 or more workweeks per year� Employees who have

� worked with the employer for one year or more;

� worked 1,250 or more hours in the past 12 months; and

� worked at a site within 75 miles of which the employer has 50 employees

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Background

� What Does the FMLA Provide?� Eligible employees are entitled to:

� 12 workweeks of leave within a 12-month period

� Can be intermittent� Continuation of benefits� Reinstatement to the same or an equivalent

position

Background

� For What Reasons May an Employee Take FMLA Leave?� Serious health condition

� Employee’s own condition� To care for a spouse, parent or child with a

serious health condition

� Birth, adoption or placement of a child for foster care

Background

� What is a Serious Health Condition?� A condition involving inpatient care, including any

follow-up treatment or recovery period� A condition of incapacity for more than three

consecutive calendar days if the condition involves continuing treatment from a health care provider

� A chronic or long-term condition that requires periodic treatment and continues over a period of time

� A major medical condition (cancer, HIV, stroke)� Treatment necessary to prevent a serious health

condition� A condition caused by pregnancy or pre-natal care

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Military Leave

� National Defense Authorization Act creates two (2) new categories of leave� Military Caregiver Leave� Qualifying Exigency Leave

Military Leave

� Two new categories of FMLA leave:� Military Caregiver Leave

� Covered service member is a member of armed forces (including National Guard and Reserves) who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is otherwise on the temporary disability retired listfor a serious injury or illness

� Injury or illness must have been incurred in line of duty and must be such that it may render person medically unfit to perform duties of office, grade, rank or rating

� Available to spouse, child, parent or “next of kin” (defined as nearest blood relative to service member) who is needed to care for service member

� Up to twenty-six (26) weeks of leave during one 12-month period

� Leave is available immediately� Employer may require medical certification from employee

Military Leave

� Two (2) new categories of FMLA leave: (Cont.)� Qualifying Exigency Leave

� Leave due to a “qualified exigency” arising out of the fact that son, daughter or parent is on active duty or has been notified of impending call to duty to support a contingency operation

� Available to spouse, child or parent of service member

� Up to twelve (12) weeks of leave during one 12-month period

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Military Leave

� What are the qualifying exigencies?

� Short-notice deployment

� Military and related events

� Childcare and school activities

� Financial and legal arrangements

� Counseling

� Rest and recuperation

� Post-deployment activities

� Other activities

Military Leave

� Should now be in your Employee Handbook Policy

� New FMLA Poster Includes Military Family Leave

� http://www.dol.gov/whd/regs/compliance/ posters/fmla.htm

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Highlights of the New Regulations

� On January 16, 2009, the Department of Labor issued its revised FMLA regulations. These are the first changes to the regulations since the FMLA was enacted.

� Significant organizational and certification changes

� No significant changes to the definitions of a serious health condition or to how leave can be taken (i.e., blocks of time, reduced schedule, or intermittently)


� Eligibility� Currently, eligible employees are those who

� have been employed by the employer for 12 months,

� have worked 1,250 hours in the 12 months prior to their leave, and

� work within 75 miles of 50 other employees.


� Eligibility

� Do not need to count breaks in service of 7 years or more

� Time spent in military duty counts toward 1,250 hours and 12 month requirements

� Employee who is not eligible at the beginning of his/her leave may begin leave once s/he meets the requirements

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� Continuing Treatment

� Previously, continuing treatment by a Health Care Provider involved 2 or more visits to HCP or under supervision of HCP, or 1 visit plus a regimen of continuing care

� Now, continuing treatment means:

� two doctor visits within first 30 days

� first visit must be within 7 days


� Chronic Conditions� Previously, chronic condition leave is allowed

for conditions that require “periodic” visits to a health care provider

� Now, periodic means two or more visits per year


� Intermittent Leave� No issue received more commentary than

employee use of unscheduled intermittent leave

� New regulations require that employees make a “reasonable effort” (as opposed to an “attempt”) to schedule intermittent leave so as not to unduly disrupt the employer’s operations

� Must comply with employer’s call-in procedures

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� Substitution of Paid Leave� New regulations require employees

substituting paid leave for unpaid FMLA leave to abide by the employer’s non-discriminatory policies regarding leave usage:

� Notice� Increments of usage (1/2 days, full days, etc.)� Employers must publicize in the Notice of Rights

& Responsibilities� Employer and employee can agree to use paid

time off benefits to supplement STD or other wage-loss benefits.


� Bonuses� Previously, regulations prohibited employers

from disqualifying employees from certain incentive bonuses because the employee took FMLA leave.

� New regulations allow an employer to disqualify employee from a production or attendance award where the employee fails to meet the requirements for it as a result of FMLA leave. Such disqualification must be non-discriminatory.


� Holiday Weeks

� Employee taking a full week of FMLA during holiday week will be charged a full week

� Employee taking less than a full week will not be charged for the holiday

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� Light Duty

� Does not count against FMLA entitlement

� Employee’s right to reinstatement held in abeyance


� Waiver of FMLA Rights

� New regulations make clear that an employee can waive or settle past claims without court or DOL approval


� Employer Notice Requirements� Poster (form WH-1420)

� Must be posted and distributed to all employees either in a handbook or as a separate document. (Can be electronically posted and distributed.)

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� Employer Notice Requirements

� Notice of Eligibility and Rights and Responsibilities (form WH-381)

� Must provide to employee within 5 business days of request for leave (previously 2)

� Must give reason for ineligibility

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� Employer Notice Requirements� Designation Notice (form WH-382)

� After receiving appropriate medical information, Employer must designate leave as qualifying/not qualifying for FMLA within 5 business days

� Must designate substitution of paid leave and whether fitness for duty certification is required to return to work

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� Employee Notice Requirements� New regulations retain 30-day advance

notice of foreseeable leave, or as soon as practicable if not foreseeable

� Employer can ask for explanation of why less than 30-days’ notice was provided

� As soon as practicable means same day employee becomes aware or next business day

� If employer delays leave due to late notice and employee nevertheless takes time off, employee’s leave is not protected and subject to discipline


� Employee Notice Requirements� Simply calling in saying the employee or

family member is “sick” is not considered sufficient notice of unforeseeable leave

� Employees must comply with employer’s established procedures for calling in and requesting leave (absent unusual circumstances) and can be disciplined if they do not


� Medical Certification� New regulations allow employers to contact

health care providers directly to authenticateand clarify certification form

� Must be health care provider, HR professional, leave administrator or management official

� If medical certification is incomplete or insufficient, employer must give employee written notice and 7 days to complete

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� Medical Recertification� New regulations allow employers to require

recertification every 6 months for long-term conditions

� Employers may require a new certification each year


� Fitness for Duty Certification� Under the new regulations employers can

require health care providers to certify that the employee is able to perform the essential functions of the job

� If an employee is on intermittent leave, employer can require a fitness for duty certification every 30 days if a reasonable safety concern exists

Proposed Legislation

� Family and Medical Leave Restoration Act

� Family Medical Leave Inclusion Act

� Healthy Families Act

� The Balancing Act of 2009

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Fun Case Law

� Psychological Comfort?� The Bedside Vigil—Schoonover v. ADM Corn

Processing (N.D. Iowa 2008)� The Road Trip—Tellis v. Alaska Airlines, Inc.

(9th Cir. 2005)

Fun Case Law

� Discipline for not complying with sick leave policy?� Allen v. Butler County Commissioners (6th

Cir. 2009)

Fun Case Law

� What must an employee do to put her employer on notice of FMLA condition?� The Catwoman—Stevenson v. Hyre Elec.

Co. (7th Cir. 2008)

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Fun Case Law

� How far should an employer push the rules?� The Triplets—Ryl-Kuchar v. Care Centers,

Inc. (7th Cir. 2009)� The Good Samaritan—Dotson v. Pfizer Inc.

(4th Cir. 2000)

Fun Case Law

� How much fun can an employee have while on FMLA leave?� Senior Lucky’s Cantina—Hyldahl v. AT&T

(E.D. Mich. 2009)� Chippendales on Facebook?

Questions?

fmla update 2010 - warner norcross & juddregulations on january 16, 2009, the department of...

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