Transcript FMLA: Intent of the Law

State Employee FMLA and
Federal FMLA
CSEA
December 6, 2010
Heidi Lane
Office of Program Policy
Connecticut Department of Labor
1
There are 2 FMLA laws that
you need to understand
 State Employee FMLA – Section 5-248a et
seq. of the Connecticut General Statutes
 Federal FMLA

(There is a 3rd FMLA law, but it is for private
sector employers with 75 or more employees)
2
 This is an overview of those 2 laws. It is
not intended as legal advice. If you have
questions, you should contact either DAS
(for State Employee FMLA) or USDOL
(for federal FMLA)
3
State Employee FMLA Basic
Employee Eligibility
 To be eligible - must be “permanent
employee”
 “Permanent” does not include a newly
hired employee in working test period
 Temporary and durational employees are
not eligible for State Employee FMLA
4
Federal FMLA Basis
Employee Eligibility
 The Employee must have:


Worked for the employer for at least 12
months prior to commencing FMLA leave
Worked at least 1,250 hours in the 12 months
prior to commencing FMLA leave
5
FMLA eligibility
 If an employee is not eligible to take State
Employee FMLA leave (for example; not a
permanent employee), then look to see if the
employee is eligible under the Federal FMLA
 If employee is not eligible to take the federal
FMLA (for example; has only worked for the
State for 10 months), then look to see if the
employee is eligible under the State Employee
law
6
State Employee FMLA Basic
Provisions
 24-week entitlement every two years
 An employee’s 24-week entitlement does not
begin to run until after he or she has exhausted
his or her sick leave entitlements
 The two year period begins the first day of the
leave

Ex.: If leave begins on February 5, 2009, the two year
period begins on that date and ends on February 5,
2011
7
Federal FMLA Basic
Provisions
 For federal FMLA, 12 weeks every 12 months
 The State, as an employer for federal FMLA
purposes, uses the 12 months measured forward
from the date the leave begins

Ex.: If leave begins on February 5, 2009, the 12
month period begins on that date and ends on
February 5, 2010
8
 If both you and your spouse work for the State of
Connecticut and are eligible for federal FMLA leave,
you may be limited to a combined total of 12 weeks of
leave during any 12-month period, if the reason for the
leave is the birth or adoption of a child, the placement of
a foster child or to care for a parent who has a serious
health condition
 There is no spousal limitation under State Employee
FMLA
9
Is Federal FMLA Paid or
Unpaid?
 Generally, federal FMLA leave is unpaid
 An eligible employee may choose accrued paid
leave to run concurrently with federal FMLA or
the State as the employer may require
employee’s accrued paid leave to run
concurrently with FMLA leave
 The State does require employees to use accrued
sick leave for the employee’s own serious health
condition under the federal FMLA
10
Is State Employee FMLA
Paid or Unpaid?
 Any leave under the State Employee FMLA
shall be unpaid (However, vacation leave does
count towards State Employee FMLA leave)
 If you are taking a leave of absence in
connection with your own serious illness or
serious health condition, you are required to
exhaust all accrued sick leave unless your labor
contract states otherwise.
11
 If you are eligible for State Employee
FMLA, your State Employee FMLA will
not start until after you exhaust all of your
own accrued sick leave
12
 Generally, federal FMLA is an unpaid leave
 If you are eligible for federal FMLA leave,
taking a leave for your own serious health
condition, and getting paid for the time, the
leave will run concurrently with the use of your
accrued sick leave (and any other paid leave
accruals you may choose to use)
∗ Donated sick time or benefits under a Sick Leave
Bank will run concurrently with both your federal
and/or state leave entitlement
13
 If you are eligible for both State Employee
FMLA and federal FMLA leave, generally
the leaves will run concurrently

The use of accrued sick time, however, may
affect when the leaves run concurrently
 There are special rules regarding when
Military Family leave runs concurrently
with federal FMLA leave
14
Definitions
 Parent - a biological, foster, adoptive or
stepparent, or legal guardian of an eligible
employee, or an individual who stood in
loco parentis to an employee when the
employee was a son or daughter (parentin-law is not covered by either FMLA law)
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Definitions
 Son or daughter - a biological, adopted,
foster child, stepchild, legal ward, or child
of a person standing in loco parentis, who
is


(A) under eighteen years of age; or
(B) eighteen years of age or older and
incapable of self-care because of a mental or
physical disability
16
Definitions
 Incapable of self-care - requires active
assistance or supervision to provide daily
self-care in several of the “activities of
daily living” or “instrumental activities of
daily living”
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Definitions
 Spouse


Federal - husband or wife
State Employee FMLA - includes same sex
marriage
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State Employee FMLA Serious Illness
 An illness, injury, impairment or physical or
mental condition that involves


(1) inpatient care in a hospital, hospice or residential
care facility or
(2) continuing treatment or continuing supervision by
a health care provider
(This definition under the State Employee FMLA
gives little guidance or explanation so refer to the
federal FMLA definition of serious health condition
for guidance)
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SERIOUS HEALTH CONDITION
An illness, injury, impairment, or
physical or mental condition which
involves:
(1) Inpatient care and treatment
therefor or recovery therefrom
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SERIOUS HEALTH CONDITION
(2) Continuing treatment by a health care provider with
incapacity of more than 3 full consecutive calendar
days, AND:
 2 or more treatments by a health care provider
 (1st visit within 7 days of first day of incapacity
and 2nd visit within 30 days of first day of
incapacity)
OR
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SERIOUS HEALTH
CONDITION
(3) Continuing treatment by a health care provider
with incapacity of more than 3 full consecutive
calendar days, AND:
 1 treatment by a health care provider (within 7
days of the first day of incapacity) with a
regimen of continuing treatment
 regimen of continuing treatment includes
prescription medication or physical therapy
 incapacity means inability to work or go to
school or perform other regular daily
activities
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SERIOUS HEALTH CONDITION
(4) Any period of incapacity because of
pregnancy or prenatal care
 A doctor’s visit at the time of each absence
is not required
 Pregnancy Disability Act (Commission on Human
Rights and Opportunities)
In Connecticut, a pregnant employee is entitled to a
“reasonable leave of absence for the period of
disability resulting from pregnancy.”
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SERIOUS HEALTH CONDITION
(5) Chronic condition
Any period of incapacity due to a chronic condition which :
 Requires periodic visits for treatment (2 per year)
 Continues over an extended period of time
 May cause episodic rather than continuous incapacity,
i.e., “intermittent leave”
 A doctor’s visit at the time of each absence is not
required
 Examples - Asthma, Migraines
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SERIOUS HEALTH
CONDITION
(6) Any period of incapacity for
restorative surgery or for
conditions that if left untreated
would result in incapacity of more
than three consecutive calendar
days
 Chemotherapy or radiation for cancer
 Dialysis for kidney disease
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SERIOUS HEALTH
CONDITION
(7) Any period of incapacity for a
permanent or long term condition
under the continuing supervision
of a health care provider
 Alzheimer’s, stroke
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SUMMARY OF SERIOUS
HEALTH CONDITION
1.
2.
3.
4.
5.
6.
7.
Inpatient
Incapacitated more than 3 consecutive calendar days plus two
HCP visits (1st within 7 days, 2nd within 30 days)
Incapacitated more than 3 consecutive calendar days plus one
HCP visit (within 7 days) and regimen of treatment
(prescription medicine, physical therapy, etc.)
Chronic
Pregnancy
Restorative surgery/illness left untreated
Long-term condition
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What triggers the FMLA?
 The birth of a child and the care for such child within
the first year after birth;
 The placement of a child with the employee for adoption
or foster care and the care for the newly placed child
(Foster care is not covered by the State Employee
FMLA);
 To care for a spouse, son, daughter or parent with a
serious health condition;
 Because of the employee’s own serious health condition;
 To serve as an organ or bone marrow donor
28
Placement of Foster
Child/Adoption
 In the case of the placement of a foster
child, you must provide a letter from the
state establishing the placement date
 In the case of adoption, you must provide
a letter from the adoption agency
establishing the date of the adoption
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Initiating the Leave
 When the need for leave is
FORESEEABLE:

Typically 30 day advance request
 When the need for leave is NOT
FORESEEABLE:

Notify employer as soon as practicable
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EMPLOYEE NOTICE
 If the employee is calling in absent, he or she
must give adequate information to indicate that
the illness may be FMLA qualifying
“I am sick” is not sufficient
 When employee calls in absent due to an already
approved leave, employee must notify employer
that the leave is due to previously qualifying
FMLA reason
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Request for Leave
 Complete the Form FMLA-HR1
Employee Request for Leave of Absence
under the federal FMLA and/or state
FMLA - C.G.S. 5-248a
32
NEW FORMS
 Notice of Eligibility and Rights and
Responsibilities (Form FMLA-HR2a)
 The employer must provide a notice detailing
expectations and obligations, and explaining the
consequences of failing to comply
 Leave may count towards FMLA entitlement
 Medical certification requirements
 Right to substitute paid leave
 Right to reinstatement
33
Medical Certification
 Employer may request certification of the
serious health condition by a health care
provider
 Employee must be given at least 15 days
after receipt of the form from the
employer to return the medical
certification
34
Medical Certification Forms



Form P-33A-Employee – Medical certificate to be completed
when the leave is employee’s own illness, including the disability
portion of maternity leave
Form P-33B-Caregiver – Medical certificate to be completed
when employee requests a leave to care for a child, spouse or
parent with a serious health condition/serious illness
An employee may also be required to produce documentation
demonstrating the required relationship between the employee
and the family member
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MEDICAL CERTIFICATION
Cure
If employer finds certification incomplete
or insufficient:
 Must give employee 7 days to cure an
incomplete certification
36
MEDICAL CERTIFICATION
 Incomplete - one or more of the entries
have not been completed
 Insufficient - the information provided is
vague, ambiguous, or non-responsive
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MEDICAL CERTIFICATION
Authentication and
Clarification
 Employer personnel such as HR (not
supervisor) may call HCP for
authentication and clarification
 If employee fails to give authorization (after
opportunity to cure), then may be in jeopardy of
being denied FMLA
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MEDICAL CERTIFICATION
 SECOND OPINION
 Employee or the employee’s family member must
release relevant medical information pertaining
to the serious health condition to second opinion
HCP
 THIRD OPINION - binding
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MEDICAL CERTIFICATION
TRANSLATION
 Employees must provide a
translation for any medical
certification in a foreign language
40
NEW FORM
 Form FMLA-HR2b - Designation Notice
 The employer must inform the employee whether
the leave has been approved and designated as
FMLA
 Whether leave designated as qualifying
 Requirements for substitution of paid leave
 Requirements for fitness-for-duty
 Amount of leave counted against entitlement
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RECERTIFICATION
 RULE – recertifications no more than every 30 days in
conjunction with an absence
 Employer may ask for recertification on a “reasonable basis”
 Federal FMLA permits more frequent recertification in cases of
fraud, significantly changed circumstances of the leave or in
response to requests for extension of the leave
42
RECERTIFICATION
The Employer has the right to request
recertification if the employee has a
pattern of taking Mondays and Fridays off
43
Fitness-for-Duty Certification
 Employer can require employee to provide a
“fitness-for-duty” certification upon return from
continuous absence due to employee’s own
serious health condition
 Federal FMLA allows employers to seek a more
detailed fitness-for-duty certification addressing
whether the employee can perform essential
functions
44
Fitness-for-Duty Certification
 Federal – allows employer to require
“fitness for duty” note every 30 days
for employee on intermittent leave in
conjunction with an absence
 Must be “reasonable safety concerns”
regarding employee’s ability to perform
job
45
Confidentiality of Health
Records
 Records and documents relating to
medical information created for the
FMLA shall be maintained as separate,
confidential medical records
46
Federal FMLA Intermittent
Leave
 Federal FMLA leave may be taken
intermittently or on a reduced leave schedule
under certain circumstances

When medically necessary for planned and/or
unanticipated medical treatment or for recovery from
treatment or recovery from a serious health condition
or for the care and comfort of a family member or for
absences where employee or family member is
incapacitated
47
NO INTERMITTENT LEAVE UNDER THE
STATE EMPLOYEE FMLA
THERE IS NO INTERMITTENT
LEAVE UNDER THE STATE
EMPLOYEE FMLA
If an employee needs intermittent leave, he
or she must qualify as an eligible employee
under the federal FMLA
48
Scheduling of Intermittent Leave
Under the federal FMLA
 If an employee needs leave intermittently
or on a reduced leave schedule for planned
medical treatment, then the employee
must make a reasonable effort to schedule
the treatment so as not to disrupt unduly
the employer’s operations
49
Transfer
 If an employee needs intermittent leave or leave on a
reduced leave schedule that is foreseeable based on
planned medical treatment the employer may require
the employee to transfer temporarily, during the period
that the intermittent or reduced leave schedule is
required, to an available alternative position for which
the employee is qualified and which better
accommodates recurring periods of leave than does the
employee’s regular position
 The alternative position must have equivalent pay and
benefits but does not have to have equivalent duties
50
Intermittent Leave
 The policy for the State of Connecticut is
that you cannot take federal FMLA
intermittent leave or go on a reduced leave
schedule for the birth or adoption of a
child or the placement of a foster child
with you.
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Prohibited Acts
 Employee must be returned to the same
job or to an equivalent position after
leave
 An employee has no greater right to
reinstatement or to other benefits and
conditions of employment than if the
employee had been continuously
employed during the FMLA leave period
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Prohibited Acts
 Employer may not discriminate against
employee for requesting or taking FMLA leave
 May not base any actions against the employee
on leave which was, or should have been
classified as FMLA-qualifying
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