Transcript FMLA FOR MANAGERS

FMLA BASICS
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Purpose of the FMLA
• Balance work and
family life
• Provide job security
• Provide benefits
protection
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The FMLA basics
• Entitles employees to leave
• The leave is “protected”
• The employer must designate the leave as
FMLA and ensure that it maintains a
record of that leave
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FMLA 12 Week Leave Entitlement
• 12 weeks is maximum amount of FMLA-protected
leave in any postal leave year (480 hours for full-time
regular employees)
• Additional leave beyond the 12 weeks may be
granted, but the leave is not designated as FMLA
• 12 week entitlement is for all types of FMLA
conditions combined
• When FMLA leave is taken in less than full day
increments, only the hours actually required are
counted against the employee’s FMLA entitlement
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12 weeks of protected leave for:
• Birth, adoption or foster
care placement and
bonding time
• Employee’s own serious
health condition
• Employee is needed to
care for a parent, spouse,
or child with a serious
health condition
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Employees
An employee for FMLA purposes may
include:
• Prospective Employees
• Some Contract Employees
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Covered Family Members
Spouse
- common law, where recognized
- does not include same-sex
partners
Parent
- includes one who acted as a parent
when the employee was under 18
(in loco parentis)
Son or Daughter
- adopted, foster, stepchild, legal
ward and in loco parentis
- child must be under 18 unless
he/she has a disability as defined
under the ADA
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Needed to Care for a Family Member
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Medical needs
Hygiene
Nutrition
Safety
Cannot drive
oneself to the
doctor
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Needed to care for a Family Member
• “Psychological
comfort and
reassurance” for a
family member with
a SHC
• “Who is receiving
inpatient or home
care”
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Birth, Adoption and Foster Care
• Leave to care for
and bond with the
child
• Must be taken within
a year of the birth or
placement
• Preplacement
adoption/foster care
leave available
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Serious Health Conditions
(1) Overnight stay in the hospital and any follow-up
care
(2) A period of incapacity over 3 days plus treatment
(3) Any period of incapacity due to pregnancy or
prenatal care
(4) Any period of incapacity or treatment for a chronic
serious health condition
(5) Permanent or long-term incapacity due to a
condition for which treatment may not be effective
(6) Absence for multiple treatments for a condition
that, without such treatment, could result in an
absence over 3 days
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Incapacitated from Work
• Unable to work at
all
• Unable to perform
any one of the
essential functions
of the position
• Absent for medical
treatment
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Hospitalization
• Overnight stay
• Any period of
incapacity for that
condition
• Any period of follow
up treatment for that
condition
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Incapacity of more than 3 consecutive
Calendar Days Plus Treatment
• Incapacity must be consecutive
• Treatment is:
(A) two visits to a health
care provider
or
(B) one visit to a provider and a
regimen of continuing treatment
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Regimen of Continuing
Treatment
• Includes: prescription medication
(e.g., an antibiotic) or therapy
requiring special equipment (e.g.,
oxygen)
• Does not include: taking over-thecounter medications, bed rest,
drinking fluids, exercise
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Pregnancy or Prenatal Care
• Any period of incapacity due to the
pregnancy
• Absence for prenatal care
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Chronic Serious Conditions
• Requires periodic visits for
treatment with provider
• Continues over an extended period
of time
• May cause episodic flare-ups
• Any period of absence due to
incapacity or treatment
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Permanent or Long Term
Incapacity for a Condition Where
Treatment May Not be Effective
• Parent with Alzheimer’s
• Spouse with terminal
cancer
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Condition Likely to Result in Incapacity
of More than Three Consecutive Calendar
Days If Not Medically Treated
• Any period of absence
• To receive multiple treatments, or
to recover there from
• Examples:
- Chemotherapy
- Kidney dialysis
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Who is Eligible for FMLA Leave?
• Employees must meet two eligibility
requirements:
(1) Have 12 months postal
employment (which need not be
consecutive)
(2) Work at least 1250 hours in the
year preceding the start of the leave
Note: Employer must make eligibility
determination and notify employee of status
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Employer Notice Requirements
• Assess whether leave is potentially FMLA
qualifying
• Give notice of FMLA rights and
responsibilities via Pub 71, 3971 and DOL’s
Form WH-380
• Note on 3971 that (1) absence is
provisionally protected, pending
documentation; (2) make eligibility
determination
• Notify employee if medical documentation
is insufficient, explain deficiency and allow
15 days to provide complete documentation
• Designate leave on 3971 as FMLA when
appropriate and notify employee
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Employee Notice Requirements
•
Employee does not have to mention FMLA; need only provide enough
information for employer to believe the absence may be covered
•
Advance notice when leave is foreseeable
•
Notice as soon as practicable (1-2 days) when leave is not foreseeable
•
For foreseeable leave, employee must make effort to schedule leave
so as not to disrupt operations
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Employee Notice Obligations
“When planning medical treatment, the
employee must consult with the
employer and make a reasonable effort
to schedule the leave so as not to
disrupt unduly the employer’s
operations, subject to the approval of
the health care provider.”
29 C.F.R. 825.302(e)
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Managing Intermittent or Reduced
Schedule Leave
• Employees are only entitled to intermittent or
reduced schedule leave when it is medically
necessary
• Such leave must be the best way of accommodating
the medical need
• When leave is to care for a child after birth or
placement, intermittent or reduced schedule leave is
discretionary
• Employees must attempt to schedule foreseeable
leave in a manner that is least disruptive to
operations
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Absence from Overtime
• Absence from overtime may be
an appropriate use of FMLA
intermittent leave
• Ensure that medical certification
supports absence from overtime
(e.g., clarification, second and
third opinion)
• Absence from overtime hours
are protected as FMLA, but are
not counted against the
employee’s 12 week FMLA
entitlement
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FMLA and Charging Leave
• FMLA is not a separate leave category
• FMLA is unpaid leave (LWOP)
• Employees may request to substitute paid leave,
subject to USPS regulations:
- AL
- SL or SLDC
- COP/OWCP
- PERSONAL LEAVE
• FMLA is approved leave and therefore, is never
AWOL
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Paid Leave and FMLA Protection
If employees do not follow postal
leave policies for documenting
sick leave, they can be denied
paid sick leave
However, if they have complied
with FMLA notification policies,
they cannot be denied FMLA
protection or have it delayed
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Paid Leave and FMLA Protection
“An employer may require an employee to
comply with the employer’s usual and
customary notice and procedural
requirements for requesting
leave….However, failure to follow such
internal employer procedures will not permit
an employer to disallow or delay an
employee’s taking FMLA leave if the
employee gives timely verbal or other
notice.”
29 C.F.R. 825.302(d)
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Record Keeping
• FMLA certifications are confidential
medical records and must not be
disclosed
• FMLA medical certifications are filed in
the FMLA office, in a locked cabinet.
• FMLA records must be retained 3 years
• Note: Due to ongoing litigation, all FMLA
records are to be retained until you are
notified by the Law Dept that the
litigation hold covering the Cyncar
litigation has been lifted. Until such
notification, under no circumstances can
any FMLA records be altered or
destroyed. This requirement overrides
any document retention policies or
practices otherwise in effect. Includes PS
3971s for FMLA protected leave.
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Record Keeping
• Employers must
maintain all records
relating to their notice
and obligations, leave
designation and use,
employee notices, and
even disputes between
the employee and an
employer.
29 C.F.R. 825.500(r)
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Return to Work
• Employees are entitled to the same or
virtually identical position
• Employees must be able to perform
all the essential functions of their job
• Non-bargaining unit employees need
only provide a statement of their
ability to return to work and perform
essential functions
• No return to work documentation
required for non-bargaining unit
employees with intermittent
absences
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FMLA, Rehab Act and Worker’s
Comp
Rehabilitation Act
Worker’s Comp
• A disability under the
Rehabilitation Act may also
be a SHC under the FMLA
• Workplace illness/injury can
also be a SHC under the
FMLA
• Qualified disabled
employees may be
entitled to more than
12 weeks of leave as a
reasonable accommodation
• Employees may use entire
12 week entitlement prior to
returning to work
• Qualified disabled
employees may be entitled
to job modifications as
reasonable accommodation
• Employer cannot require
employee to return to work
and accept a modified duty
position if FMLA leave
remains
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