Transcript DEALING WITH EMPLOYEE ABSENCES: AVOIDING THE …

MASTERING THE NEW
FAMILY AND MEDICAL LEAVE ACT
Jay A. Ebelhar
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
165 Madison Avenue, Suite 2000
Memphis, Tennessee 38103
(901) 577-8204 (direct dial)
[email protected]
The “New” Family Medical Leave Act
The “New” Challenges
• Two brand new categories of leave
• New forms, and more of them
• Many new rules
The new categories of
leave:
1) Military Caregiver Leave
2) Qualifying Exigency Military Leave
How could these impact my employer?
• In WWII, 30% of Americans
injured in combat died-- in
Vietnam the number dropped to
24%
• The number is about 10% for
Iraq and Afghanistan
• “a far larger proportion of
soldiers are surviving their
injuries”
Source: The New England Journal of Medicine,
Vol 351:2471, Dec. 9, 2004
How could these impact my employer?
• There is already speculation
about whether the new
administration will be able to
withdraw troops at the rates
discussed during the recent
campaign
• Deployment of National
Guard and Reserve forces in
Afghanistan and Iraq is
expected to continue
Military Caregiver Leave
• New leave entitlement – up to 26 weeks during a single 12
month period
• Must be used to care for a “covered family member” with a
serious illness or injury incurred in the line of active duty
• A “covered family member” is broadly defined as a spouse,
child, parent, or next of kin who is a “covered servicemember”
• A “covered servicemember” is one who meets the strict
definition
Definition of “Covered Servicemember”
• A person who is a member of the armed forces,
National Guard, or Reserves and 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 incurred in the line of duty on active duty that
may render the servicemember medically unfit to
perform the duties of the servicemember’s office,
grade, rank or rating.
• Only current members of the armed forces included.
Calculation of the 26 Week Period
• Limited to 26 workweeks of leave within each 12 month period,
per covered servicemember, per injury
• Leaves open the possibility of 26 workweeks of military
caregiver leave in different 12 month periods in order to care for
multiple servicemembers or to address qualifying health issues
of the same servicemember that arise after the initial serious
injury or illness
• The "single 12-month period" in which up to 26 weeks of leave
may be taken must be measured from the date the caregiver
leave begins forward, regardless of the method used to
calculate the 12 month period for other types of FMLA leave
Evaluating whether the injury or illness
was “incurred in the line of duty” while on
active duty
• Employers may require employees obtain a
certification from the Department of Defense or its
authorized health care representative that the
servicemember’s injury or illness was incurred in the
line of duty
• This is a standard question on the Certification form
for military caregiver leave (Form WH-385, at p. 3)
Qualifying Exigency Military Leave
•
New leave entitlement – up to
12 weeks of job-protected leave
for a “qualifying exigency”
arising from the employee’s
spouse, child or parent who is in
the National Guard or Reserves
being notified of an impending
federal call or order to active
duty in the armed forces in
support of a military operation.
•
Not available to family members
of soldiers in the regular armed
forces
•
Not available in cases where the
call to duty comes from a state
Eight situations for Qualifying Exigency Leave
1) in “short-notice deployment” situations, where a
covered military member is notified of an
impending call or order to active duty 7 or fewer
days from the date of deployment – eligible
employee in such a case may take up to 7 days
beginning on the notification date of the
deployment
2) to attend military events, ceremonies or programs
related to active duty or the call to active duty –
must be sponsored by the military (such as family
support programs or briefings)
3) for certain childcare and school activities
Eight situations for Qualifying Exigency Leave
4) to make or update financial or legal arrangements to
address a covered military member’s absence while
on active duty
5) to attend certain counseling arising from active duty
or the call to active duty status
6) to spend time with a covered military member who is
on short-term, temporary rest or recuperation leave
during a period of deployment
Eight situations for Qualifying Exigency Leave
7) to attend certain post-deployment activities such as
arrival ceremonies and reintegration briefings and to
address issues arising from the death of a covered
military member while on active duty status
8) for certain additional activities arising out of a
covered military member’s active duty or call to
active duty where the employer and employee both
agree on the timing and duration of the leave
Key Revisions and Additions
Key Revisions and Additions to Existing FMLA
Rules – Employer Notice Requirements
• New rule that employers must give their employees
notice of the new FMLA requirements, including in
any employee handbook
– Easiest way to accomplish this is to distribute the
new “Employee Rights and Responsibilities Under
the Family Medical Leave Act” form (WHD
Publication 1420) to all employees now, and to
include it in your next handbook
– This is the same document that should also be
posted immediately as your new FMLA poster
Key Revisions and Additions to Existing FMLA
Rules – Employer Notice Requirements
• “Electronic posting” of FMLA regulations is a viable
possibility if done correctly
• Employers must consider the English literacy rate of
its employees.
– If a “significant portion” of workers are not literate
in English, the employer must provide the general
FMLA notice in a language in which the employees
are literate
• New 5 business day requirement for notifying
employees who have requested FMLA leave of their
eligibility
Key Revisions and Additions to Existing FMLA
Rules – Employer Notice Requirements
• A written “Rights and Responsibilities” notice now
required to each employee taking FMLA leave
– It must detail the specific expectations and
obligations of the employee and the consequences
of not meeting those terms
– A optional notice that can be used for this purpose
has been issued by DOL (Form WH-381)
Key Revisions and Additions to Existing FMLA
Rules – Employer Notice Requirements
• Employers now have five days, instead of two, to
designate leave as FMLA leave
– DOL has supplied a new optional “Designation
Notice” form for this purpose (Form WH-382)
Key Revisions and Additions to Existing FMLA
Rules – Employee Notice Requirements
• When the employee becomes aware of a need for
FMLA leave more than 30 days in advance, the
employee must provide notice more than 30 days in
advance
When an employee becomes aware of a need for FMLA
leave less than 30 days in advance, the new regs
state that the employee’s obligation is to provide
notice no later than the next business day
– Employers now have option to request an
explanation if this timeline is not met
Key Revisions and Additions to Existing FMLA
Rules – Employee Notice Requirements
• When the leave is not foreseeable, the new regs
clarify that the employee must follow the employer’s
usual and customary notice and procedural
requirements for requesting leave, absent
extenuating circumstances
– If the employer’s attendance policy requires an
employee to call in sick by a certain time, the
employee must follow that policy for FMLA leave
Key Revisions and Additions to Existing FMLA
Rules – Medical Certification Requirements
• Certain employer representatives, including human resources
professionals, leave administrators, and management officials
(but not an employee’s direct supervisor) now may contact an
employee’s health care provider directly to clarify or
authenticate a medical certification
• If a medical certification is going to be required, in most cases it
must be requested within five business days after the employee
gives notice of the need for leave or within five business days
after the leave commences
– Requests for clarification/supplementation of the medical
certification must be requested in writing – after which the
employee has seven days to respond
Key Revisions and Additions to Existing FMLA
Rules – Medical Certification Requirements
• The new regulations also strengthen employers’
rights to obtain medical certifications and
recertifications.
– Employers may request a new medical certification
each leave year for medical conditions lasting
longer than a single leave year
– Employers will be able to request recertification for
ongoing conditions at least every six months in
conjunction with an absence
• more frequently in some cases
Key Revisions and Additions to Existing FMLA
Rules – Fitness-for-Duty Certification
• Two changes:
1) Employers may now require that these
certifications specifically address the employee’s
ability to perform essential functions of the job, as
long as they provide the employee with a list of
these functions no later than when they provide
the employee with the FMLA designation notice
described above
• This provides an incentive for up-to-date job
descriptions
Key Revisions and Additions to Existing FMLA
Rules – Fitness-for-Duty Certification
2) Where reasonable job safety concerns exist, up to
once every 30 days, employers may now request a
fitness-for-duty certification before allowing an
employee to return to work from intermittent leave
Key Revisions and Additions to Existing FMLA
Rules – “Serious Health Condition”
Three issues relating to the six definitions of “serious
health condition” in the existing regulations have
been addressed.
Key Revisions and Additions to Existing FMLA
Rules – “Reasonable Effort”
Employees who must take intermittent leave for
planned medical treatment must make a “reasonable
effort” to schedule the treatment so that it will not
unduly or unnecessarily disrupt the employer’s
operations.
Breaks in Service and Eligibility
• To be eligible, employees must have been employed
by the employer for at least 12 months and have at
least 1,250 hours of service in the 12 months
preceding the leave
• Although the 12 months of employment need not be
consecutive, employers need not count employment
prior to a continuous break in service of seven years
or more
– with some exceptions
Light Duty
• Employees on “light duty” assignments while recovering
from a serious health condition are not considered to be
on FMLA leave
– therefore, the light duty assignment time cannot be
counted against the FMLA leave to which an employee
is entitled annually
– employees accepting light duty assignments voluntarily
in lieu of taking FMLA leave will lose their FMLA-based
right to reinstatement if they remain in the light duty
position at the end of the 12-month leave year
Light Duty -- Scenario
Where an employer uses a calendar year to
calculate FMLA leave, and an employee takes four
weeks of FMLA leave and returns in September to
a light duty assignment that is not limited in
duration and that neither the employer nor the
employee chooses to end, the employee has a
right to job restoration that runs through the end
of that calendar year, but no further.
Substitution of Paid Leave
• Employees who seek to substitute accrued paid leave
of any kind for unpaid FMLA leave must now comply
with the terms and conditions of the employer’s
normal leave policies.
• While employers must allow substitution of paid
vacation, personal leave, or “paid time off” for any
situation covered by the FMLA, employees can be
required to follow normal procedures.
Substitution of Paid Leave -- Scenario
If an employer’s paid personal leave policy requires
two days notice for the use of paid personal leave, an
employee seeking to substitute paid personal leave
for unpaid FMLA leave would need to provide two
days notice.

This represents a significant change from the
prior rule.
Relief for Employers Failing to
Timely Designate FMLA Leave
Under the new regulations, employees must prove on
a case-by-case basis that they have suffered actual
harm due to the employer failing to follow the FMLA
notice requirements
Perfect Attendance Awards
FMLA leave absences are not required to be excused
absences when it comes to earning perfect
attendance awards.
But employees taking non-FMLA leaves must be
treated the same as those taking FMLA leaves.
Professional Employer Organizations (PEOs)
The revised regulations recognize that PEOs do not
always enter into joint employment relationships.
The new regulations ensure that small companies are
not automatically covered by the FMLA simply
because they partner with a PEO.
New Optional FMLA Forms
The DOL also issued several optional forms
1. “Certification of Health Care Provider for Employee’s Serious
Health Condition” (Form WH-380-E)
2. “Certification of Health Care Provider for Family Member’s
Serious Health Condition” (Form WH-380-F)
3. “Certification of Qualifying Exigency” (Form WH-384)
4. “Certification for Serious Injury or Illness of Covered
Servicemember” (Form WH-385)
New Optional Notices
• Employee Rights and Responsibilities Under the Family and
Medical Leave act (WHD Publication 1420) (i.e., the new FMLA
poster)
• Notice of Eligibility and Rights & Responsibilities (Form WH381)
• Designation Notice (Form WH-382)