Download - Copyright© 2010 WeComply, Inc. All rights reserved. 10/11/2015 Family and Medical Leave Act (FMLA)
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 3
Overview
FMLA was passed in 1993 and expanded in 2008 and 2009
It guarantees employees annual unpaid leave for —
•Medical reasons related to employee or a family member
•Birth, adoption or placement in foster care of a child
•Exigencies related to family member's active duty military service
•Caring for relative's injuries related to active-duty military service
Employers must maintain health coverage for employees on leave and restore job positions when leave concludes
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 4
Overview (cont’d)
FMLA was passed in 1993 and expanded in 2008 and 2009
It guarantees employees annual unpaid leave for —
•Medical reasons related to employee or a family member
•Birth, adoption or placement in foster care of a child
•Exigencies related to family member's active duty military service
•Caring for relative's injuries related to active-duty military service
Employers must maintain health coverage for employees on leave and restore job positions when leave concludes
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 5
Overview (cont’d)
FMLA was passed in 1993 and expanded in 2008 and 2009
It guarantees employees annual unpaid leave for —
•Medical reasons related to employee or a family member
•Birth, adoption or placement in foster care of a child
•Exigencies related to family member's active duty military service
•Caring for relative's injuries related to active-duty military service
Employers must maintain health coverage for employees on leave and restore job positions when leave concludes
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 6
Covered Employers
Employers who must comply with FMLA:
•Private employers with 50 or more employees during 20 or more workweeks in calendar year
•Most public employers
•Separate businesses may be considered single "employer" for FMLA purposes
• When organizations merge, employees have same FMLA rights as when employed by predecessor organizations
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 7
Covered Employers (cont’d)
Employers who must comply with FMLA:
•Private employers with 50 or more employees during 20 or more workweeks in calendar year
•Most public employers
•Separate businesses may be considered single "employer" for FMLA purposes
• When organizations merge, employees have same FMLA rights as when employed by predecessor organizations
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 8
Eligible Employees
Employees are eligible for FMLA leave if —
•They have worked for 12 months and 1,250 hours in the 12 months before leave and
•There are 50 or more workers within 75 miles of employer's site
Special rules added for airline flight crews
12-month period need not be continuous or consecutive
All time worked for employer is counted
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 9
Eligible Employees (cont’d)
Employees are eligible for FMLA leave if —
•They have worked for 12 months and 1,250 hours in the 12 months before leave and
•There are 50 or more workers within 75 miles of employer's site
Special rules added for airline flight crews
12-month period need not be continuous or consecutive
All time worked for employer is counted
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 10
Entitlement to Leave
Employees are entitled to 12 workweeks of leave in 12-month period for —
•Birth and care of a child, or placement and care of a child with employee by adoption or foster care
•Care of spouse, child or parent with serious health condition
•When employee is unable to work because of serious health condition
• A qualifying exigency due to covered active duty in Armed Forces
Spouse, son, daughter, parent or next-of-kin of a covered servicemember is entitled to 26 workweeks during 12-month period to care for servicemember
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 11
Entitlement to Leave (cont’d)
Employees are entitled to 12 workweeks of leave in 12-month period for —
•Birth and care of a child, or placement and care of a child with employee by adoption or foster care
•Care of spouse, child or parent with serious health condition
•When employee is unable to work because of serious health condition
• A qualifying exigency due to covered active duty in Armed Forces
Spouse, son, daughter, parent or next-of-kin of a covered servicemember is entitled to 26 workweeks during 12-month period to care for servicemember
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 12
Entitlement to Leave (cont’d)
Employees are entitled to 12 workweeks of leave in 12-month period for —
•Birth and care of a child, or placement and care of a child with employee by adoption or foster care
•Care of spouse, child or parent with serious health condition
•When employee is unable to work because of serious health condition
• A qualifying exigency due to covered active duty in Armed Forces
Spouse, son, daughter, parent or next-of-kin of a covered servicemember is entitled to 26 workweeks during 12-month period to care for servicemember
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 13
Entitlement to Leave (cont’d)
Employees are entitled to 12 workweeks of leave in 12-month period for —
•Birth and care of a child, or placement and care of a child with employee by adoption or foster care
•Care of spouse, child or parent with serious health condition
•When employee is unable to work because of serious health condition
• A qualifying exigency due to covered active duty in Armed Forces
Spouse, son, daughter, parent or next-of-kin of a covered servicemember is entitled to 26 workweeks during 12-month period to care for servicemember
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 14
Entitlement to Leave (cont’d)
Employees are entitled to 12 workweeks of leave in 12-month period for —
•Birth and care of a child, or placement and care of a child with employee by adoption or foster care
•Care of spouse, child or parent with serious health condition
•When employee is unable to work because of serious health condition
• A qualifying exigency due to covered active duty in Armed Forces
Spouse, son, daughter, parent or next-of-kin of a covered servicemember is entitled to 26 workweeks during 12-month period to care for servicemember
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 15
Entitlement to Leave (cont’d)
Employees are entitled to 12 workweeks of leave in 12-month period for —
•Birth and care of a child, or placement and care of a child with employee by adoption or foster care
•Care of spouse, child or parent with serious health condition
•When employee is unable to work because of serious health condition
• A qualifying exigency due to covered active duty in Armed Forces
Spouse, son, daughter, parent or next-of-kin of a covered servicemember is entitled to 26 workweeks during 12-month period to care for servicemember
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 16
Pop Quiz!
Justin has a sister who was seriously injured while on active duty in the U.S. National Guard. Can Justin claim FMLA leave to care for his sister while she recovers?
A. No, because FMLA leave only applies to spouses, parents and children — not siblings.
B. No, because his sister was in the National Guard — not in Reserves
C. Yes, for up to 26 workweeks of unpaid leave.
D. Yes, for up to 12 workweeks of unpaid leave.
E. Yes, for up to 12 workweeks of paid leave.
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 17
Spouses with the Same Employer
Spouses employed by same employer are limited to —
•Combined 12 weeks for the birth or placement of child, or to care for family member with serious medical condition
•Combined 26 weeks for either —
• Care of servicemember or
• Combination of caring for servicemember and birth or placement of child or caring for family member with serious medical condition
Limitations imposed on spouses for certain forms of leave apply to leave taken for that purpose
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 18
Paid Leave
FMLA does not require employers to provide paid leave, only unpaid leave
As for other forms of paid leave —
•Employers may require employees to use accrued paid leave to cover allowable FMLA leave
• Employees may request to use accrued paid vacation or personal leave for time they are on FMLA leave
• Paid leave used in this manner counts toward 12- or 26-week leave entitlement
To extent employer provides paid leave for male employees who are absent because of serious health condition, similar amount of paid leave must be provided to female employees for pregnancy or childbirth-related disabilities
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 19
Paid Leave (cont’d)
FMLA does not require employers to provide paid leave, only unpaid leave
As for other forms of paid leave —
•Employers may require employees to use accrued paid leave to cover allowable FMLA leave
• Employees may request to use accrued paid vacation or personal leave for time they are on FMLA leave
• Paid leave used in this manner counts toward 12- or 26-week leave entitlement
To extent employer provides paid leave for male employees who are absent because of serious health condition, similar amount of paid leave must be provided to female employees for pregnancy or childbirth-related disabilities
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 20
Intermittent Leave and Reduced Schedules
Employee has right to reduced schedule or intermittent leave —
•To care for seriously ill family member
•Because of employee's serious medical condition
•Because of qualifying exigency due to family member's active-duty military service
• To care for covered servicemember
Employees must make a "reasonable effort" to minimize disruption of business operations
Employer may transfer employee to appropriate alternative job
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 21
Intermittent Leave and Reduced Schedules (cont’d)
Employee has right to reduced schedule or intermittent leave —
•To care for seriously ill family member
•Because of employee's serious medical condition
•Because of qualifying exigency due to family member's active-duty military service
• To care for covered servicemember
Employees must make a "reasonable effort" to minimize disruption of business operations
Employer may transfer employee to appropriate alternative job
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 22
Serious Health Conditions
Employee may take FMLA leave only for serious health condition —
•For his or her own condition
•To care for child, parent or spouse with such condition
•To care for child, parent, spouse or next-of-kin who is covered servicemember
Care provided for family member can be psychological or physical in nature
Employers must be cautious before denying leave request because illness is not "serious" enough
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 23
Serious Health Conditions (cont’d)
Employee may take FMLA leave only for serious health condition —
•For his or her own condition
•To care for child, parent or spouse with such condition
•To care for child, parent, spouse or next-of-kin who is covered servicemember
Care provided for family member can be psychological or physical in nature
Employers must be cautious before denying leave request because illness is not "serious" enough
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 24
Serious Health Conditions (cont’d)
Employee may take FMLA leave only for serious health condition —
•For their own condition
•To care for child, parent or spouse with such condition
•To care for child, parent, spouse or next-of-kin who is covered servicemember
Care provided for family member can be psychological or physical in nature
Employers must be cautious before denying leave request because illness is not "serious" enough
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 25
Serious Health Conditions (cont’d)
Employee may take FMLA leave only for serious health condition —
•For their own condition
•To care for child, parent or spouse with such condition
•To care for child, parent, spouse or next-of-kin who is covered servicemember
Care provided for family member can be psychological or physical in nature
Employers must be cautious before denying leave request because illness is not "serious" enough
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 27
Certification
Employer has right to request certification of claimed serious health condition or exigency related to military service
Employer may request from employee's healthcare provider —• Date condition began• Duration of condition• Relevant medical facts• Statement that employee is unable to perform his/her job
Employer can request certification in advance of date leave begins
If certification is not submitted, employer may designate leave as unexcused absence or other leave
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 28
Certification (cont’d)
Employer can request second or third opinion at its expense
Employer may seek clarification directly from employee's healthcare provider under certain circumstances
At the end of leave, employer may require employee to provide certification that condition no longer prevents the employee from doing his/her job
Employer may require employee to submit a fitness-for-duty certification before returning to work if employer has reasonable safety concerns
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 29
Certification (cont’d)
Employer can request second or third opinion at its expense
Employer may seek clarification directly from employee's healthcare provider under certain circumstances
At the end of leave, employer may require employee to provide certification that condition no longer prevents the employee from doing his/her job
Employer may require employee to submit a fitness-for-duty certification before returning to work if employer has reasonable safety concerns
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 30
Employer Notice Requirements
Employers must provide notice to employees of FMLA rights
If employee requests FMLA leave or employer realizes employee is eligible for leave, it must notify employee that —
•He/she is eligible for FMLA leave (or, if ineligible, give at least one reason why)
•He/she has rights/obligations, and consequences of not meeting obligations
• His/her absence is being designated as FMLA leave
Employer notices may need to be provided in other language(s)
Required certification forms must be included with notice
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 31
Employer Notice Requirements (cont’d)
Employers must provide notice to employees of FMLA rights
If employee requests FMLA leave or employer realizes employee is eligible for leave, it must notify employee that —
•He/she is eligible for FMLA leave (or, if ineligible, at least one reason why)
•He/she has rights/obligations, and consequences of not meeting obligations
• His/her absence is being designated as FMLA leave
• Employer notices may need to be provided in other language(s)
• Required certification forms must be included with notice
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 32
Employer Notice Requirements (cont’d)
Employers must provide notice to employees of FMLA rights
If employee requests FMLA leave or employer realizes employee is eligible for leave, it must notify employee that —
•He/she is eligible for FMLA leave (or, if ineligible, at least one reason why)
•He/she has rights/obligations, and consequences of not meeting obligations
• His/her absence is being designated as FMLA leave
• Employer notices may need to be provided in other language(s)
• Required certification forms must be included with notice
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 33
Employee Notice Requirements
Employees must provide information to determine if absence qualifies as FMLA leave
Other employee obligations:
•Employee must give at least 30 days' notice, except for family member's active duty or call to active duty
•If leave is required earlier than anticipated, employee must inform employer as soon as possible
• Employee must make reasonable effort not to disrupt the employer's operations
Employers may impose additional notice requirements on employees and delay/deny FMLA leave until employee complies
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 34
Pop Quiz!
Julie may need to take advantage of FMLA leave for two reasons: (1) to care for her father, Luke, who has been diagnosed with Alzheimer's disease, and (2) her husband Terrel may be called to active duty. Since she knows about both circumstances now, how much notice would she be required to give before taking any leave?
A.Thirty days for both cases.
B.Thirty days to care for Luke, but no notice is required in Terrel's case.
C.Fifteen days to care for Luke, but no notice is required in Terrel's case.
D.Thirty days to care for Luke, but notice that is "reasonable and practicable" in Terrel's case.
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 35
Continuing Benefits
Employees on FMLA leave continue to receive health benefits under same conditions of coverage
If employees pay premiums or co-payments, obligations continue while on leave
Changes to group health plan apply to employees who are on FMLA leave when changes take effect
Continuing coverage only required for 12-or 26-week leave entitlement
Certain benefits may not continue while employee is on FMLA leave•E.g., seniority, insurance
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 36
Pop Quiz!
If an employee receives the following benefits from his or her employer before taking FMLA leave, which of these benefits must continue during and after that leave:
A.Health insurance.
B.Life insurance.
C.Disability insurance.
D.Accident insurance.
E.A. and C. only.
F.All of the above.
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 37
Job Restoration
Employers must give returning employees same job or equivalent one
•Must have same pay, benefits, working conditions, etc.
•Must be near same worksite and involve similar work schedule
Exception for "key employees"
•If restoring to former position would cause substantial and serious economic injury to business, employer can refuse job restoration
•Employer must notify key employee who will not be restored
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 38
Job Restoration (cont’d)
Employers must give returning employees same job or equivalent one
•Must have same pay, benefits, working conditions, etc.
•Must be near same worksite and involve similar work schedule
Exception for "key employees"
•If restoring to former position would cause substantial and serious economic injury to business, employer can refuse job restoration
•Employer must notify key employee who will not be restored
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 40
Other Issues
Reasons to be familiar with FMLA:
Knowing requirements will help minimize disruption caused by employees who take leave
Violations can expose us to significant legal liability and expense
FMLA interacts with other laws, including —
Workers' compensation
•State family and medical leave laws
•Laws that prohibit discrimination based on disability or pregnancy
Application to union members may be affected by collective-bargaining agreement
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 41
Other Issues (cont’d)
Reasons to be familiar with FMLA:
Knowing requirements will help minimize disruption caused by employees who take leave
Violations can expose us to significant legal liability and expense
FMLA interacts with other laws, including —
Workers' compensation
•State family and medical leave laws
•Laws that prohibit discrimination based on disability or pregnancy
Application to union members may be affected by collective-bargaining agreement
Copyright© 2010 WeComply, Inc. All rights reserved.8/11/2010 42
Other Issues (cont’d)
Reasons to be familiar with FMLA:
Knowing requirements will help minimize disruption caused by employees who take leave
Violations can expose us to significant legal liability and expense
FMLA interacts with other laws, including —
Workers' compensation
•State family and medical leave laws
•Laws that prohibit discrimination based on disability or pregnancy
Application to union members may be affected by collective-bargaining agreement