blr’s human resources training presentations · for fmla leave. lfind out how long an employee...

4/00/31511251 © 2000 Business & Legal Reports, Inc. 1

4/00/31511251 © 2000 Business & Legal Reports, Inc.

BLR’s Human Resources Training Presentations

FMLA: Part I

I. Speaker’s Notes:

� The federal Family and Medical Leave Act (FMLA) was signed into law in 1993, in response to a growing national concern about balancing work and family responsibilities.

� The FMLA was created in response to the needs of a workforce whose demographics had changed drastically. One major demographic change was the influx of women, including those of childbearing age and mothers of small children, into the workforce. Another change has been the “graying” of the workforce. The post-World War II “baby boomers” are maturing, so issues such as disability leaves, medical costs, and insurance coverage have become of prime concern.

� The FMLA reflects these realities. It was created to protect workers from losing their jobs when they need time off to address critical personal and family matters.



Goals

l Understand who is eligible for FMLA leave.l Determine which events qualify an employee

for FMLA leave.l Find out how long an employee must have

worked to be eligible.l Know how much notice an employee must

provide.l Know what kind of medical certification you

can require.


� First, we will go over just who is eligible to take FMLA leave.

� Then, we’ll determine how long an employee must have worked to be eligible.

� Next, we will find out how much notice an employee must provide.

� Finally, we’ll discuss the type of medical certification you can require from an employee.



Basic Statutory Obligation

l 12 weeks’ job-protected leave for family or medical reasons


� The law allows eligible employees to take up to 12 workweeks of leave, during any 12-month period, to care for a newly born or adopted child or a spouse, child, or parent (does not include parents-in-law) with a serious medical condition, or to attend to the employee’s own serious medical condition.



State Requirements

lMost states have leave lawsl Some state laws mirror

the federal FMLAl But some states’ leave

laws differ from thefederal FMLA


� A majority of states now have laws in place addressing employee rights to leave.

� In some cases, the requirements of these state laws mirror those of the federal FMLA, and serve only as a reaffirmation of the state’s concern for the family needs of workers.

� In other cases, the requirements of state law differ from those of federal law. Some state statutes apply to employers who do not meet the size requirements of the FMLA, and extend leave obligations to these smaller employers. An increasing number of state statutes allow employees a longer period of leave than the 12 weeks allowed under federal law, or allow leave for purposes not covered by federal law.

� The federal FMLA explicitly provides that states may afford employees more expansive leave rights than those granted under federal law.

� It is crucial for employers to understand the requirements of any state leave laws that may exist in states where the employer does business.



Covered Employers

l Private employers with 50 or more employees within a 75-mile radius l State and local government employers

and most federal government employers

I. Speaker’s Notes:� The FMLA applies to private employers with 50 or more employees on each

working day for 20 or more weeks in any calendar year. Employees on the payroll are assumed to be employed each working day of the calendar week. FMLA also applies to most federal employers and to all elementary and secondary schools.

� Employees on paid or unpaid leave, such as a disciplinary suspension, leave of absence, or FMLA leave, are counted as long as the employer reasonably expects the person to return to work.

� Part-time , seasonal, and temporary employees are counted as working for the entire week during any week in which they appear on the payroll.

� Disabled employees who are unable to work are counted only if there is a reasonable expectation the employee will return to work later.

� Employees on temporary or permanent layoff status are not maintained on the payroll and are not counted.

� Independent contractors are not employees and are not counted as such. Independent contractors are ineligible for leave under FMLA. The U.S. Department of Labor uses standards employed by the Fair Labor Standards Act to determine if a person is an independent contractor (i.e., just calling a worker an independent contractor does not prove this status). The right to control the work of a person, however, is likely to be a key factor in determining if a person is an independent contractor.



Qualifying Events

l The employee’s own serious medical condition; ORl The birth, adoption,

or foster care placement of a minor child; OR

lA serious medical condition of the employee’s spouse, child, or parent.

I. Speaker’s Notes

� A serious medical condition is defined broadly to include:

–A physical or mental illness, injury, condition, or impairment that involves either inpatient care (an overnight stay in a hospital, hospice, or residential care facility), or continuing treatment by a health care provider for more than three consecutive days.

–Any period of incapacity because of pregnancy or prenatal care (even without treatment by a health care provider, even if the absence is less than three days).

–Any period of incapacity because of a chronic serious condition (even without treatment by a health care provider and even if the absence is less than three days, such as for an asthma attack).

–Any period of absence to receive multiple treatments by health care providers for reconstructive surgery or for a condition that would likely result in a period of incapacity of more than three consecutive days if untreated, such as for cancer (chemotherapy) or kidney disease (dialysis). The serious medical condition may be the employee’s own, or that of a parent, spouse, or child.

–Leave for birth, adoption, or foster care entitles eligible employees to 12 weeks of “bonding leave.” Bonding leave is available to either men or women, and no medical certification is required. However, bonding leave must be completed within 12 months of the date of birth or placement.



Employee Eligibility

lWorked for 12 months and a total of 1,250 hours in the most recent 12 months


� Employee must have worked for the employer for a total of 12 months (which need not be consecutive) and for a total of 1,250 hours in the most recent 12 months, counting backward from the date of the leave request.

–Not consecutive. The 12-month service requirement does not require consecutive months of service. It includes periods of paid or unpaid leave (sick, vacation) during which other benefits or compensation are provided by the employer (e.g., workers’ compensation, group health plan benefits, etc.).

–Payroll. An employee is counted as having worked during a workweek if he or she was on the payroll for any part of that week.

–An employee must work at a worksite with 50 or more employees within a 75-mile radius in order to be eligible for FMLA.

–When do you count? The worksite employee count is made when the employee requests leave, not when the employee begins leave (unlike the minimum service and hours requirements).

–Employer coverage distinguished. The 50-employee requirement for employee eligibility is separate and distinct from the 50-employee requirement for employer coverage. It is possible for an employer to have 50 or more employees and still have employees who are ineligible to take leave because they work at a site which is too small to satisfy the minimum worksite size requirement.



Notice Requirements

l Employee must be notified when an employer designates FMLA leave, denies leave, or requests medical certification.


� Regulations published by DOL state that employers should notify employees of FMLA eligibility within two business days of the leave request. Some courts have disagreed with DOL’s regulations. Until the conflict is settled, employers should do their best to comply with the two-day requirement.

� Failure to notify. If the employer fails to advise the employee of his/her eligibility status in a timely fashion, the employee will automatically be presumed to be “eligible.” The employer may not subsequently challenge eligibility.



Pre-Employment Inquiries

l No regulatory requirements. l Not advisable to ask about previously

taken leave.


� There are no specific FMLA statutory or regulatory requirements regarding pre-employment inquiries. However, it is not advisable to ask about leave previously taken, because the question could indicate discriminatory intent or an intent to retaliate against the employees’ protected exercise of leave rights.



Post-Offer Inquiries and Examinations

l No specific requirement for post-offer inquiries.l Returning employee

may be required to provide a fitness-for-duty certificate.


� No specific statutory or regulatory requirements for post-offer inquiries and examinations.

� Certification. An employer may deny reinstatement until or unless a returning employee provides a fitness-for-duty medical certification (stating ability to return to work), when the employer has requested this certification prior to the commencement of the leave and when the leave was taken for the employee’s own serious health condition.



Employee Notice

lWhere leave is foreseeable, the employee, must give at least 30 days’ notice or reasonable notice.l If leave is not foreseeable, notice is given

“as soon as practicable” (2-day rule).


� Notice required. For foreseeable leave, 30 days’ notice is required. If the leave is required in less than 30 days due to a change in circumstances, medical emergency, or if the need for leave was not foreseeable, notice must be provided “as soon as practicable” (usually interpreted as within 2 business days of the employee learning of the situation). Leave may be delayed, but not denied for untimely notice.



Medical Certification

l For a medical condition, employee must provide certification from a health care provider.


� Certification allowed. Employers may require a request for leave be supported by a health care provider’s certification of the medical condition of the person affected. The certification should include the date on which the serious health condition began, the probable duration of the condition, and other appropriate medical facts.

–Department of Labor (DOL) form. The U.S. DOL has developed a medical certification form for use by employers. Although employers are not required to use the form suggested by U.S. DOL, no information may be requested beyond that specified on the DOL form.

� Certification should include a statement that the employee needs time off to attend to a serious health condition or is needed to care for a child, spouse, or parent, and an estimate of the amount of time that is needed. If the employee is ill, the certification should include a statement that the employee is unable to perform his or her job. When the certification is for intermittent leave for planned medical treatment, it should include the dates on which the treatment is expected to be given and the duration of the treatment.

� The employee must return the completed medical certification within a reasonable time (which the regulations state is 15 days, absent unusual circumstances). An employer may delay the taking of a scheduled leave where the medical certification is not timely returned. In cases where the employee fails or refuses to return a certification without good cause, the leave need not be treated as authorized under FMLA.



Independent Medical Examinations

lWhen medical certification is questionable.l Conducted at the employer’s expense.


� Second opinion. Whenever the employer has reason to doubt the validity of the original certification, the employer is allowed to require a second opinion from a health care provider chosen by the employer. This health care provider may not be someone employed on a regular basis by the employer.

� Third opinion. Employers may require the employee to obtain a third opinion when the second opinion differs from the first. The health care provider for the third opinion is allowed to be someone designated or approved by the employer, as long as the employee consents to the designated provider. This third opinion is considered to be final and binding on both employer and employee.

� Cost of exam. Second and third opinion exams are conducted at the employer’s expense and can be requested whether the patient is the employee or a family member.



Disqualifying Events

l Delay in returning completed medical certification (delays FMLA leave)l Failure or refusal to return certification


� Delay. When a certification is requested, the employee must return the completed medical certification within a reasonable time (15 days, absent unusual circumstances). An employer may delay the taking of a scheduled leave where the medical certification is not timely returned.

� Failure to return. In cases where the employee fails or refuses to return a medicalcertification without good cause, the leave need not be treated as authorized under FMLA.



Undue Hardship

l “Key employee” exceptionl Employer can deny job restoration

to key employees


� Key employee exception. An employer may lawfully deny reinstatement to certain highly compensated employees (key employees) if the following conditions are met: (1) denying restoration is necessary to prevent substantial and grievous economic injury to the operations of the employer; (2) the employer notifies the employee of its intent to deny restoration at the time the employer determines that substantial and grievous economic injury would occur; and (3) in any situation in which leave has commenced, the employee elects not to return to employment after receiving the notice referenced above.

� Limits to exception. This exception applies only to salaried employees who are among the highest-paid 10 percent of employees employed by the employer within 75 miles of the facility at which the employee works. Employees must be notified in writing of their status as key employees and the consequences, with respect to reinstatement, at the time the leave is requested. Note this exception is rarely used by employers and should only be used as a last resort.



Substance Abuse

l Current drug or alcohol addiction covered if employee is receiving treatment or rehabilitation


� Both are protected. A current drug/alcohol addiction is a serious medical condition covered by FMLA if and only if the employee is receiving treatment and/or rehabilitation from a health care provider, and is covered only for the time spent in rehabilitation or treatment.



Other Exceptions

l Spouses in the same workplace


� Spouses. When both husband and wife work for the same employer, the full amount of leave is limited to an aggregate of 12 weeks for the birth, adoption, or foster care placement of a single child.

Note: Each spouse is still entitled to a full 12 weeks of leave (less any leave taken for bonding) for their own serious medical condition, or a serious medical condition of their spouse, child, or parent.



Summary

l The FMLA allows eligible employees to take up to 12-weeks of job-protected leave for family or medical reasons.l Since only some state laws mirror the federal

FMLA, you must be familiar with leave laws in your state.l The FMLA applies to private employers with

50 or more employees on each working day for 20 or more weeks in any calendar year.



Summary (cont.)

l Eligible employees must have worked for 12 months and a total of 1,250 hours.lWhen leave is foreseeable, the employee

must give at least 30 days’ notice or reasonable notice.



Quiz

1. The FMLA applies to private employers with 50 or more employees on each working day for 20 or more weeks. True or False

2. Bonding leave is available only to women. True or False

3. If an employer fails to advise an employee of his eligibility, the employee will automatically be presumed to be eligible. True or False



Quiz (cont.)

4. An employer may deny reinstatement until a returning employee provides a fitness-for-duty medical certification. True or False

5. An employee must always give 30 days’ notice to be entitled to FMLA leave.

True or False



Quiz Answers

1. True.2. False. Bonding leave is available to men as well

as women.3. True. 4. True.5. False. If leave is not foreseeable, 30 days’ notice

is not required, but the employee must give notice “as soon as practicable.”

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