Transcript Important Changes for Family and Medical Leaves

Best Practices for
Family and Medical Leaves
Special thanks to:
Leslie Van Houten – Office of General Counsel
Stephanie Leider – Office of General Counsel
April 15, 2009 (revised)
1
 Goals



of this training:
Review how family and medical leaves should
be handled.
Provide guidance regarding the applicability of
the Department of Labor’s new FMLA
regulations effective January 2009.
Answer questions you might have about this
confusing area.
2

Caveat: In many areas our advice differs from what you
will see in the new FMLA regulations and may read in
legal updates intended for a national audience.




Where the current California law – principally the California
Family Rights Act (CFRA) – is more generous to employees, we
are recommending that the California law be followed rather than
the FMLA regulations. This means a “patchwork” approach.
If and when the California Fair Employment & Housing
Commission issues new CFRA regulations and Pregnancy
Disability Law (PDL) regulations, our advice may change.
As a result, we are issuing interim guidance, and forms are being
developed for use that are consistent with that guidance.
When we refer to “FML” we mean leave under federal
and state law, University policy, and applicable collective
bargaining agreements.
3
Family and Medical Leaves:
Overview
FML Overview
 The

basic elements are still the same:
An employee is eligible for family and medical
leave if he or she has at least 12 months
cumulative University service and has
worked 1,250 hours during the 12 months
immediately preceding the commencement of
the leave.
5
FML Overview

Leave may be taken
• For the employee’s serious health condition (SHC).
• For employee’s pregnancy-related disability.
• To bond with the employee’s newborn, adopted, or
foster care child (within 12 months of the child’s
birth or placement, as applicable).
• To care for employee’s child, spouse, same- or
opposite-sex domestic partner, or parent who has
a SHC.
6
FML Overview

Leave may be taken (cont’d)


New: To care for covered servicemember with a
serious injury or illness if servicemember is
employee’s parent, spouse, domestic partner, son,
daughter, or next of kin.
New: Because of a qualifying exigency arising out of
the fact that employee’s spouse, domestic partner,
son, daughter, or parent is a covered military member
on active duty (or has been notified of an impending
call or order to active duty in support of a contingency
operation).
• Note: “Covered military member” does not include a member
of the regular Armed Forces.
7
FML Overview

The definition of “child” includes:

Biological, adopted, or foster son or daughter

Stepson or stepdaughter

Legal ward

Child of an employee who stands in loco parentis to that child

The child must be under 18 or else incapable of self-care due to a mental or
physical disability.

Note: An employee may take Military Caregiver Leave if the employee is
the son or daughter of a covered servicemember. Also, an employee can
take Qualifying Exigency Leave if the employee’s son or daughter is on
active duty or call to active duty status. When the terms “son” and
“daughter” are used this way in the context of these two military FML
leaves, the son or daughter may be of any age.
8
FML Overview
 The




definition of “parent” includes:
A biological, foster, or adoptive parent
A Stepparent
A legal guardian
Someone who stood in loco parentis to the
employee when he or she was a child.
 “Parent”
does not include a parent-in-law.
9
FML Overview

Leave may be taken
• In blocks
• Intermittently
• By working a reduced schedule
10
FML Overview

Leave is usually for up to 12 workweeks. But
employees may be entitled to additional leave
time in certain situations, including:
• If covered by PPSM and Supplemental Family and
Medical Leave is granted (for up to an additional
12 workweeks).
• Where leave is taken for a combination of
pregnancy, childbirth, and baby bonding. (This is
due to the fact that pregnancy-related disability is
not covered by CFRA but is covered by FMLA.)
• New Military Caregiver Leave (for up to 26 weeks).
11
FML Overview
 Leave
is unpaid except in certain
circumstances. Be sure to check the
relevant policy or collective bargaining
agreement.
12
FML Overview
 Employee
is entitled to continuation of
health plan coverages (medical, dental,
and optical)



For up to 12 workweeks in a calendar year if
on an approved FML leave.
New: For up to 26 workweeks in a single 12month leave period if on an approved Military
Caregiver Leave.
Otherwise, in accordance with each plan’s
requirements.
13
FML Overview
 Employee
is entitled to reinstatement to
the same or, upon the Department’s
discretion, an equivalent position upon
return.
 Employee has no greater right to
reinstatement than if employee had been
actively working rather than on leave
during the FML period.
14
Eligibility Issues
Eligibility Issues
 The


requirement of 12 months of service.
Does not need to be continuous.
Time employees would have worked but for
leave due to National Guard or Reserve
military obligations is counted towards the 12
months of service requirement.
16
Eligibility Issues

The requirement of 1,250 hours of work in the 12 months
preceding the leave.




Time that employees would have worked but for leave due to
National Guard or Reserve military obligations is counted toward
the 1,250 hour requirement.
Time spent on non-military leaves does not count towards the
1,250 requirement.
If employee is exempt, the burden is on UC to clearly
demonstrate that employee has not met the 1,250 hour
requirement if employee is going to be considered ineligible for
leave for that reason.
Burden is also on UC to establish that a full-time faculty member
is not eligible for FML as they often work outside the classroom.
17
Eligibility Issues
 Employee
may take leave for an FMLqualifying reason when he or she is not yet
eligible for FML but may become eligible
during the leave. The portion of the leave
that occurs after employee becomes
eligible for FML is counted as FML.
18
Eligibility Issues
 Employees
can take leave to care for a
child for whom they stand in loco parentis
or for a person who stood in loco parentis
to them when they were a child.

Someone stands in loco parentis to a child
when they have day-to-day responsibilities to
care for and financially support a child.
19
UC’s
Notice Obligations
UC’s Notice Obligations

UC must give the following 4 types of notice:
(1) General Notice
• Explains the FMLA’s provisions and provides information
concerning the procedures for filing complaints of violations
with the Wage & Hour Division of the DOL.
• Must be posted prominently where employees and applicants
for employment can see it. Because all UC applicants apply
online, this may be done electronically.
• In addition, the General Notice must either be



Included in any employee handbook or other written guidance
regarding employee benefits or leave rights or
Distributed to all new employees upon hiring.
In either case, may be done electronically.
21
UC’s Notice Obligations
(2) Eligibility Notice
• When an employee requests FML leave or UC acquires
knowledge that the employee’s leave may be for an FMLAqualifying reason, UC must notify the employee of his/her
eligibility to take FML leave within 5 business days, absent
extenuating circumstances.


Eligibility is determined (and this notice must be provided) when
the first instance of leave for each FMLA-qualifying condition
begins.
If there are multiple absences for the same FMLA-qualifying
reason, it is considered a single leave and the employee’s
eligibility for that leave does not change during that applicable
year (the calendar year).
22
UC’s Notice Obligations
(2) Eligibility Notice (cont’d)
• The Eligibility Notice must state whether the
employee is eligible for leave.


If the employee is not eligible, the notice must state at
least 1 reason why he or she is not.
This notice should state, as applicable, the employee’s
number of months of UC service and the number of
hours worked in the preceding 12-month period.
• The Eligibility Notice may be oral or in writing, but
we recommend that it be in writing.
23
UC’s Notice Obligations
(2) Eligibility Notice (cont’d)
• If an employee gives notice of a need for another
FML during the same 12-month period (calendar
year) due to a different FMLA-qualifying reason


No additional Eligibility Notice needs to be provided if
employee’s eligibility status has not changed.
New Eligibility Notice must be provided to employee
within 5 business days, absent extenuating
circumstances, if employee’s eligibility status has
changed.
24
UC’s Notice Obligations
(3) Rights & Responsibilities Notice
• This written notice details the expectations and
obligations the employee must meet and the
consequences of failing to meet them.
• This notice should be provided to the employee
each time the Eligibility Notice is provided.
• If employee’s leave has already begun, this notice
should be mailed to the employee.
25
UC’s Notice Obligations
(3) Rights & Responsibilities Notice (Cont’d)
• This notice must state:



That leave will be counted towards the employee’s
annual FML leave entitlement if it’s a qualifying leave.
That the applicable 12-month period is the calendar year
• Exception: Where the employee is taking a Military
Caregiver Leave, the notice should indicate that the
applicable 12-month period is the 12 months that
begins on the first day of the leave.
Any requirements for employee to furnish certification of
SHC, serious injury or illness (for Military Caregiver
Leave), or a qualifying exigency (for Qualifying Exigency
Leave) and the consequences of failing to do so.
26
UC’s Notice Obligations
(3) Rights & Responsibilities Notice (Cont’d)
• This notice must state (cont’d):



Employee’s right to substitute paid leave, whether UC
will require substitution of paid leave, the conditions
related to any substitution, and employee’s entitlement to
take unpaid leave if he or she does not meet the
conditions for paid leave.
Any requirement for employee to make premium
payments to maintain health benefits (e.g., if leave is
unpaid), the arrangements for doing so, and any
consequences of failure to do so on a timely basis.
Employee’s rights to maintenance of benefits during the
FML leave and reinstatement to the same or equivalent
job upon return to work.
27
UC’s Notice Obligations
(3) Rights & Responsibilities Notice (Cont’d)
• Any certification form(s) the employee must return
should be provided along with the Rights &
Responsibilities Notice.
• If the specific information provided in the Rights &
Responsibilities notice changes, UC must advise
the employee of the changes within 5 days of the
employee’s first notice of the need for leave
thereafter.

Example: If initial period of employee’s leave was paid
leave and subsequent portion will be unpaid, UC may
need to advise employee of the arrangements for making
premium payments for health coverages.
28
UC’s Notice Obligations
(4) Designation Notice
Should be provided in writing to employee within 5
days of having enough information to make that
determination (e.g., after receiving certification from
health care provider), absent extenuating
circumstances. May be given right when employee
provides notice of need for leave if UC has sufficient
information to make designation then.
• Advises employee of whether the leave will be designated
and counted as FML leave.
• If employer determines leave will not be designated as
FMLA-qualifying, the employer must advise the employee.
29
UC’s Notice Obligations
(4) Designation Notice (cont’d)
• If UC will require substitution of paid leave for unpaid FML
leave, or that paid leave taken under an existing leave plan
will be counted as FML leave, this should be in the
Designation Notice.
• If a return to work certification will be required, that should be
stated in the Designation Notice.

**Also: If employee will be required to have the certification
address employee’s ability to perform essential functions of job,
those essential functions should be listed.
• Only one Designation Notice is required for each FMLAqualifying reason per applicable 12-month period (calendar
year except for Military Caregiver Leaves) even if leave is
going to be taken intermittently or by reduced schedule.
30
UC’s Notice Obligations
(4) Designation Notice (cont’d)
• Advises employee of the amount of leave (hours, days, or
weeks) that will be counted against employee’s FML
entitlement if the amount of leave needed is known at that
time.
• If amount of needed leave is not known when Designation
Notice is provided (e.g., in cases of unforeseeable
intermittent leave), UC must provide notice of the amount of
leave counted against employee’s entitlement, at
employee’s request, but not more often than once in a 30day period and only if leave is taken within that period.

This notice may be oral or written. If oral, written confirmation
should follow promptly.
31
UC’s Notice Obligations
(4) Designation Notice (cont’d)
• If the specific information provided in the
Designation Notice changes (e.g., if employee
exhausts the FML leave entitlement), UC must
provide employee with written notice of the
change(s) within 5 business days if the employee
subsequently asks for additional leave or another
leave.
32
UC’s Notice Obligations
 For


all 4 types of Notice:
If significant portion of workers (10% or more)
are not literate in English, the notices should
be provided in their language.
If employee is sensory-impaired, notice
should comply with any applicable
requirements under federal or state law.
33
Designating and
Calculating the Leave
Making the Designation
 Remember
that, in all circumstances, UC
is responsible for designating the leave as
FML.
 When designating leave as FML:

Rely only on information received from the
employee (or employee’s spokesperson, if the
employee is incapacitated). Usually that will
be the information contained in the Medical
Certification or other certification that the
employee submits.
35
Making the Designation
 When

designating leave as FML (cont’d):
If information provided is not sufficient to
make determination, request further
information.
• But be aware of privacy issues: Employee does
not have to identify the SHC. This is true whether
leave is being taken for employee’s SHC or a
family member’s SHC.
36
Retroactive Designation
 UC
may retroactively designate a leave as
FML with appropriate notice to employee –
but only if UC’s failure to timely designate
the leave does not cause harm or injury to
employee.

Consult counsel first if you think there is any
possibility employee could be harmed or
injured.
 UC
and employee can mutually agree on a
retroactive designation.
37
Calculating Leave
 The
applicable workweek entitlement of
leave (12 for most FML leaves and 26 for
Military Caregiver Leave) means that
number of the employee’s normally
scheduled workweeks.

For employees who work more or less than 5
days per week or who work alternative work
schedules, the number of working days that
constitutes the workweek entitlement is
calculated on a pro rata or proportional basis.
38
Calculating Leave

Examples:



If employee normally works five 8-hour days per
week, then 12 workweeks means 60 working and/or
paid 8-hour days of leave entitlement.
If employee normally works half-time, then 12
workweeks means thirty 8-hour days or sixty 4-hour
days of leave entitlement – or 12 workweeks of
whatever the employee’s normal half-time work
schedule is.
If employee normally works six 8-hour days, then 12
workweeks means 72 working and/or paid 8-hour
days of leave entitlement.
39
Calculating Leave
 If
employee takes leave on an intermittent
or reduced work schedule basis, only the
amount of leave actually taken may be
counted against employee’s leave
entitlement.

Example: If employee needs physical therapy
that requires a 2-hour absence from work
each week, only those 2 hours are charged
against his or her leave entitlement.
40
Calculating Leave

If a holiday falls within a week that employee is
on leave, the week is counted against
employee’s FML leave entitlement.


Exception: If employee is taking leave in increments
of less than one week, holiday will not count unless
employee was scheduled to work on holiday.
But, if UC closes or does not expect its
employees to report to work for one or more
weeks, those closed days do not count against
an employee’s FML leave entitlement.
41
Disputes
 If
there are any disputes regarding
whether the leave qualifies as FML or
regarding the calculation or handling of
leave, such disputes should be resolved
through documented discussions.
42
Employee’s Notice
Obligations
Employee’s Notice Obligations

What notice must the employee provide?


Can be verbal or written.
Notice of need for leave at least 30 days in advance if
foreseeable. Otherwise, as soon as practicable.
• When leave is unforeseeable, providing notice “as soon as
practicable” includes following any applicable UC call-in
procedures for absences.

If leave will be taken intermittently or on reduced
schedule, employee only needs to give notice once.
• But employee should advise as soon as practicable if dates
of scheduled leave change or are extended.
44
Employee’s Notice Obligations

Employee must provide sufficient information
for UC to determine whether leave would be
FML-qualifying, as well as information
regarding anticipated timing and duration of
the leave.
• Calling in sick would not be sufficient notice if
employee doesn’t specifically reference an FMLqualifying purpose.
45
Employee’s Notice Obligations

If employee requests vacation or paid time off
(PTO) but does not indicate an FML-qualifying
purpose, UC should not ask whether it is for
an FML-qualifying purpose.
• If UC denies that request for vacation or PTO,
employee can then provide information to indicate
leave would be FML-qualifying. At that point, leave
must be granted, but it can be charged against
employee’s vacation accrual or treated as PTO.
46
Employee’s Notice Obligations
 Where
leave is for planned medical
treatment for the employee or family
member, employee should consult with
UC and make a “reasonable effort” to
schedule treatment so as to minimize the
disruption to UC’s operations. Any
scheduling, however, shall be subject to
the approval of the health care provider of
the employee or family member.
47
Employee’s Notice Obligations
 If
the employee needs to take more leave
than originally anticipated or does not
need the full amount of leave originally
requested, the employee should give UC
reasonable notice of the changed
circumstances when that is foreseeable.

Keep in mind: An employee may not be
required to take more FML leave than is
necessary to resolve the circumstances that
precipitated the need for leave.
48
Employee’s Notice Obligations

UC may also obtain information regarding an employee’s
changed circumstances by requesting periodic status
reports.


There is a box on the Rights & Responsibilities Notice that can
be checked if you want to require the employee to furnish
periodic reports of his/her status and intent to return to work.
You will have to indicate how often the employee should provide
the status reports.
• Make that determination based on the relevant facts and
circumstances of the individual employee’s leave situation.
• Be reasonable.

Be consistent regarding when employees on FML are required to
furnish status reports in order to avoid disparate treatment
49
Certifications
for FML Leaves
Certifications

UC can require certification of SHC when leave
is taken for employee’s own SHC or to care for
family member with SHC.
 Request for certification should be made



when employee gives notice of need for leave or
within 5 business days thereafter or
within 5 business days of commencement of leave if
leave is unforeseeable.
Request for certification may be made at a later
date if UC later has reason to question the
appropriateness of the leave or its duration.
51
Certifications

Employee must provide the requested
certification within 15 calendar days, unless it is
not practicable under the circumstances to do so
despite employee’s diligent, good faith efforts or
UC allows employee to take longer.
 Employee is obligated to provide a complete and
sufficient certification.

Certification is not complete if applicable entries are
left blank or the provided information is vague.
52
Certifications
 What
would constitute a “complete and
sufficient” certification?

For leave for employee’s own SHC: (a)
approximate date when SHC began, (b)
probable duration of the condition, and (c)
statement that, due to SHC, employee is
unable to perform one or more essential
functions of his or her position.
53
Certifications

What would constitute a “complete and
sufficient” certification (cont’d)?

For leave for family member’s SHC: (a) approximate
date when SHC began, (b) probable duration of the
condition, (c) estimate of frequency and duration of
the leave required to provide that care, and (d)
statement that SHC warrants the employee providing
care during a period of the family member’s
treatment.
• Note: Care includes



providing psychological comfort
arranging for third party care
Directly providing or participating in medical care
54
Certifications

What is a “complete and sufficient” certification?
(cont’d)


If intermittent or reduced schedule leave due to
employee’s own SHC or family member’s SHC is
being requested, certification should state that
intermittent or reduced schedule leave is medically
necessary.
If intermittent or reduced schedule leave is being
requested for employee’s own SHC (including
pregnancy) that may result in periodic episodes of
incapacity, certification should state that intermittent
or reduced schedule leave is medically necessary
and estimate the frequency and duration of the
episodes of incapacity.
55
Certifications
 What
is a “complete and sufficient”
certification? (cont’d)

If leave is for employee’s SHC or family
member’s SHC, certification need not identify
the SHC (diagnosis) – but it may, at
employee’s option.
56
Certifications
 Certifications
from health care providers
outside the US:


UC must accept certifications (and second
and third opinions) from such health care
providers if employee or family member
becomes ill or injured while outside the US or
the employee’s family member lives abroad.
If the certification is not in English, employee
must provide a written translation, upon
request from UC.
57
Certifications

If Certification is incomplete, advise the
employee in writing of what additional
information is necessary.



Give employee at least 7 calendar days to cure the
deficiency.
Give employee extra time if employee notifies UC that
he or she is unable to obtain the additional
information in spite of diligent, good faith efforts.
UC may deny leave if deficiencies are not fixed
in resubmitted certification.
58
Certifications

Employee can either



return the complete and sufficient certification or
give the health care provider the necessary authorization to fill
out and return the certification to UC.
Employee may choose to comply with certification
requirement by providing an authorization, release or
waiver allowing appropriate UC representative to speak
directly to the health care provider of employee or the
family member. UC cannot require employee to do this.

UC representative should not be the employee’s immediate
supervisor.
59
Certifications
 Second/third


opinions:
UC may request second opinion if has reason
to doubt the validity of medical certification for
employee’s own SHC – but not for SHC of
family member.
UC can choose health care provider for
second opinion.
• But can’t use a health care provider UC uses on a
regular basis.
60
Certifications
 Second

and third opinions (cont’d)
If first and second opinions conflict, UC may
require third opinion.
• UC and employee must jointly approve selection of
health care provider to provide third opinion. Good
faith cooperation required.
• Third opinion is final and binding.
61
Certifications
 Second


and third opinions (cont’d)
UC must cover cost for any second and third
opinions – including the cost of employee’s
travel expenses.
UC must provide employee with copies of the
second and third opinions, at employee’s
request, within 5 business days, absent
extenuating circumstances.
62
Certifications
 Second


and third opinions (cont’d)
During this process, employee should be
treated as provisionally on a qualifying leave.
If this process results in determination that
employee is not entitled to a qualifying leave,
the provisional leave period may be treated as
paid or unpaid under the applicable UC leave
policy or CBA provision.
63
Certifications

Recertification may be required when the time
period the health care provider originally
estimated would be needed for leave – either for
employee’s own SHC or family member’s SHC –
has expired and employee is requesting
additional leave.
 If health care provider indicated on certification
that estimated duration of leave was “indefinite,”
then a recertification may be requested every 30
days in connection with an absence of an
employee.
64
Certifications
 Note:
Although new FMLA regulations
indicate that employers may require
annual medical certifications if employee’s
need for leave due to employee’s SHC or
family member’s SHC lasts beyond 1
leave year, that does not appear to be
permissible under California law at this
time.
65
Certifications
 Certifications
that employees must provide
for Military Caregiver Leave or Qualifying
Exigency Leave are discussed in
connection with those leaves below.
66
Serious Health Condition
Serious Health Condition (SHC)
A
serious health condition is an illness,
injury (including on-the-job injury),
impairment, or physical or mental
condition that involves either:


Inpatient care in a hospital, hospice, or
residential health care facility or
Continuing treatment or continuing
supervision by health care provider.
68
Serious Health Condition (SHC)
 What

constitutes “inpatient care”?
Inpatient care (i.e. an overnight stay) in a
hospital, hospice, or residential medical care
facility – including any period of incapacity
and any subsequent treatment in connection
with such inpatient care.
• Note: “Period of incapacity” means inability to
work, attend school or perform other regular daily
activities due to the SHC treatment or the recovery
from it.
69
Serious Health Condition (SHC)
 What
constitutes “continuing treatment by
a health care provider”?
• New FMLA regulations provide guidance regarding
what the terms “health care provider” and
“continuing treatment” mean.
70
Serious Health Condition (SHC)
 Health


care provider can be:
Doctor of medicine or osteopathy licensed to
practice in their state.
Other health care professionals licensed to
practice in their state and who are performing
within the scope of their practice as defined
by that state’s law, including:
• Podiatrists
• Dentists
• Clinical Psychologists
71
Serious Health Condition (SHC)
 Health
•
•
•
•
•
•
care provider can be (cont’d)
Optometrists
Chiropractors (for certain treatments)
Nurse practitioners
Nurse-midwives
Clinical social workers
Physician assistants
72
Serious Health Condition (SHC)
 Health


care provider can be (cont’d)
A health care provider from the list above who
practices in a country other than the US, is
authorized to practice in accordance with the
law of that country, and is performing within
the scope of his or her practice as defined
under that country’s law.
Christian Science Practitioners listed with the
First Church of Christ, Scientist in Boston,
Mass.
73
Serious Health Condition (SHC)
 Treatment


Includes examinations to determine if SHC
exists and evaluations of the condition.
Does not include routine physical, eye, or
dental examinations.
74
Serious Health Condition (SHC)
 Regimen


of Continuing Treatment
Includes a course of prescription medication
or therapy requiring special equipment to
resolve or alleviate the health condition (e.g.,
oxygen).
Does not include taking over-the-counter
medications, bed-rest, drinking fluids,
exercise, and other similar activities that could
be initiated without a visit to health care
provider.
75
Serious Health Condition (SHC)
 SHCs
include chronic conditions, which
are conditions that



require periodic visits for treatment by health
care provider
continue over an extended period of time
(including recurring episodes of a single
underlying condition)
may cause episodic incapacity rather than a
continuing period of incapacity
76
Serious Health Condition (SHC)
 SHCs
include conditions that require
multiple treatments for


restorative surgery
a condition that would likely result in a period
of incapacity of in the absence of medical
intervention or treatment, such as cancer,
kidney disease, or severe arthritis
77
Serious Health Condition (SHC)
 SHCs



also include
pregnancy-related incapacity
prenatal care
incapacity related to and following childbirth
78
Serious Health Condition (SHC)

Conditions that are generally not considered
SHCs (unless complications arise): common
cold, flu, upset stomach, minor ulcers,
headaches other than migraines, routine
dental or orthodontia problems, periodontal
disease.
79
Serious Health Condition (SHC)
 Employee
may take leave for SHC to
undergo substance abuse treatment.

Note: If employee violated an applicable
policy or collective bargaining provision that
prohibits the use of alcohol or drugs in the
workplace, UC may nevertheless terminate
employee, provided that the applicable policy
or CBA is applied in a non-discriminatory
manner.
80
Intermittent &
Reduced Schedule Leaves
Intermittent and
Reduced Schedule Leaves
 Intermittent
leave is FML leave taken in
separate blocks of time due to a single
qualifying reason.
 Reduced schedule leave is a leave
schedule that reduces the employee’s
usual number of work hours per workweek
or per workday. Usually it is a change
from full-time to part-time.
82
Intermittent and
Reduced Schedule Leaves
 Leaves
may be granted on an intermittent
or reduced schedule basis when medically
necessary:



For planned and/or unanticipated medical
treatment of a SHC.
For recovery from treatment or from SHC.
To provide care or psychological comfort to
an immediate family member with a SHC.
83
Intermittent and
Reduced Schedule Leaves

As noted earlier, where employee is requesting
intermittent or reduced schedule leave due to
planned medical treatment for the employee or
family member, employee should consult with
UC and make a “reasonable effort” to schedule
treatment so as to minimize the disruption to
UC’s operations. Any scheduling, however,
shall be subject to the approval of the health
care provider of the employee or family member.
84
Intermittent and
Reduced Schedule Leaves
 Also,
if the need for intermittent or reduced
schedule leave is foreseeable based on
planned medical treatment, UC may
require employee to transfer temporarily
(during the period when the intermittent or
reduced schedule leave is required) to an
available alternative position for which the
employee is qualified and which better
accommodates recurring periods of leave
than the employee’s regular position.
85
Intermittent and
Reduced Schedule Leaves

If such a temporary transfer is done:



Transfer may include altering an existing job to better
accommodate the employee’s need for intermittent or
reduced schedule leave.
Alternative position must have equivalent pay and
benefits – but it does not have to have equivalent
duties.
Can increase the pay and benefits of an existing
alternative position to satisfy equivalent pay and
benefits requirement.
86
Intermittent and
Reduced Schedule Leaves
 If


temporary transfer is done (cont’d):
Can transfer employee to a part-time job with
the same hourly rate of pay and benefits,
provided employee is not required to take
more leave than is medically necessary.
It cannot be done to discourage employee
from taking leave or otherwise impose a
hardship on employee.
87
Intermittent and
Reduced Schedule Leaves
 If


temporary transfer is done (cont’d):
When employee can resume working fulltime, employee must be placed in same or
equivalent job as employee had before the
leave.
Employee cannot be required to take more
leave than necessary to address the
circumstances that precipitated the need for
the leave.
88
Light Duty

If an employee voluntarily accepts a light duty
assignment in lieu of taking FML while
recovering from a SHC, employee has not
waived his or her FML rights, including the right
to job restoration. However, the right to job
restoration ends with the leave year.
 Time an employee spends working on light duty
should not be counted towards an employee’s
FML leave entitlement.
89
Returning to Work
After FML
Reinstatement Rights
 Employee

has the right to reinstatement:
To the same position or, upon the
Department’s discretion, to an equivalent
position with equivalent benefits, pay, and
other terms & conditions of employment.
• Exception: If the leave was for employee’s
pregnancy, the reinstatement must be to the same
position.
91
Reinstatement Rights (cont’d)

Equivalent position means a position that is
virtually identical to the former position in
terms of pay, benefits, and working
conditions, including privileges, perquisites,
and status.
• Must entail substantially equivalent skill, effort,
responsibility and authority.
• If the employee is no longer qualified (e.g., if
employee missed a course, failed to renew a
license, etc.), employee must be given reasonable
opportunity to fulfill those conditions upon return to
work.
92
Reinstatement Rights (cont’d)

Equivalent pay means employee is entitled to
• Any unconditional pay increases (e.g., COLA increases) that
occurred during the FML leave period.
• Other pay increases (e.g., due to seniority, length of service,
or work performed) to the same extent as employees on an
equivalent status who did not take FML leave.
• Same or equivalent pay premiums, such as shift differentials.
• Same or equivalent opportunity to earn overtime.
• Any unconditional bonuses made during the leave – whether
or not they are discretionary.
93
Reinstatement Rights (cont’d)

Equivalent benefits means employee is
entitled to same benefits as before the leave,
subject to any changes made to benefit levels
that occurred during the leave and affected
the entire workforce, unless otherwise elected
by the employee.
94
Reinstatement Rights (cont’d)

Equivalent terms & conditions of
employment means employee is entitled to
have similar duties, conditions, responsibilities, privileges and status as employee’s
original position.
• Same or geographically proximate worksite
• Same or equivalent shift or work schedule
• Same or equivalent opportunity for bonuses and
other nondiscretionary payments
95
Reinstatement Rights (cont’d)

Employee is not entitled to reinstatement if



Employee would have been laid off if employee had
been working during the leave. In those
circumstances, employee is entitled to the same
considerations as other employees laid off or
terminated pursuant to applicable policy or collective
bargaining agreement.
Employee was hired for specific term that has ended
and employee would not otherwise have been
retained.
Employee was hired to work on a discrete project that
has ended and employee would not otherwise have
been retained.
96
Reinstatement Rights (cont’d)

Employee is not entitled to reinstatement if
(cont’d)

Employee is unable to perform the essential functions
of the position due to a physical or mental condition
(including continuation of a SHC or an injury or illness
also covered by workers’ compensation).
• Important: There will likely be obligations under the ADA
and/or FEHA to reasonably accommodate such an employee
(e.g., by providing an alternative job).

Employee acted fraudulently in obtaining the leave.
97
Return to Work Certification

Return to Work Certification

Employee who took leave for his or her own SHC
may be required to present a medical certification
prior to returning to work, if permissible under
applicable policy or collective bargaining agreement.
• Be sure to treat similarly situated employees the same.
• If return to work certification is going to be required, that must
be stated in Designation Notice given to employee.
• Can ask the health care provider to certify that employee can
now do those essential functions that SHC rendered
employee unable to do at the time certification was provided.
98
Protections
for Employees
Protections for employees

UC can’t interfere with, restrain, or deny employee’s
exercise of FML rights.


UC can’t discriminate against employee who exercises
right to take FML leave (or attempts to exercise that
right).


Note: Failing to provide required notices is considered
interference.
Can’t discipline, penalize, terminate, or refuse to hire for that
protected conduct.
UC can’t retaliate against employee for taking FML
leave.

Can’t discipline, penalize, terminate, or refuse to hire for that
protected conduct.
100
Protections for employees (cont’d)

UC also can’t discriminate against or retaliate
against any person (not just employees) who



Files a claim under the FMLA or CFRA in an agency
or court or an internal grievance.
Testifies in any such proceeding.
Opposes a practice (e.g., by filing a complaint about)
any practice that is unlawful under the FMLA or the
CFRA or that the person reasonably believes to be
unlawful under those Acts.
101
New:
Military Caregiver Leave
102
Military Caregiver Leave
 Who



is eligible?
An employee who is the spouse, domestic
partner, son, daughter, parent, or next of kin
of a “covered servicemember” and
Has at least 12 cumulative months of
University service and
Has worked at least 1,250 hours during the 12
months immediately preceding the leave.
103
Military Caregiver Leave
 This
group differs from the employees
eligible for other types of family and
medical leave in several ways.


Employee can take leave to care for a son or
daughter who is a covered servicemember
regardless of age.
“Next of kin” is included in the eligible group.
104
Military Caregiver Leave
 Who


is considered “next of kin”?
The covered servicemember’s nearest blood
relative other than his or her spouse,
domestic partner, parent, son, or daughter; or
The person who the covered servicemember
has designated in writing as his or her nearest
blood relative for purposes of Military
Caregiver Leave.
105
Military Caregiver Leave

If the servicemember has not designated, the
next of kin would be, in order:
• Blood relatives who have been granted legal
custody of the covered servicemember by court
decree or statutory provisions
• Brothers and sisters
• Grandparents
• Aunts and uncles
• First cousins
106
Military Caregiver Leave

What if there are multiple family members at
the same level of relationship?
• All of them will be considered next of kin and would
be eligible to take Military Caregiver Leave to care
for the covered servicemember.
107
Military Caregiver Leave

Who is a “covered servicemember”?


A current member of the Armed Forces (including the
National Guard and the Reserves) or a member of the
Armed Forces, the National Guard or the Reserves
who is on the temporary disability retired list and
Who has a “serious injury or illness” incurred in the
line of duty on active duty for which he or she is
undergoing medical treatment, recuperation, or
therapy or is otherwise in “outpatient status” or on the
temporary disability retired list.
108
Military Caregiver Leave

What is a “serious injury or illness”?

An injury or illness incurred by the covered
servicemember in the line of duty on active duty that
may render the servicemember medically unfit to
perform the duties of his or her office, grade, rank or
rating.
Note: If the covered servicemember’s serious injury or
illness was not incurred in the line of duty on active
duty, it’s possible the employee may still be eligible to
take a regular family illness leave to care for the
servicemember.
109
Military Caregiver Leave
 What

is “outpatient status”?
The covered servicemember is in outpatient
status when he or she is assigned either to (a)
a military medical facility as an outpatient or
(b) a unit established for the purpose of
providing command and control of members
of the Armed Forces receiving medical care
as outpatients.
110
Military Caregiver Leave

Leave is for up to 26 weeks during a “single 12month leave period.”

What is a “single 12-month leave period”?
• The period beginning on the first day the employee takes this
type of leave and ends 12 months after that date.
• Important: Note that for all other FML leaves, UC uses a
calendar year to determine leave eligibility.

If covered servicemember is a spouse, child or parent
of employee and has a SHC, the first 12 of the 26
weeks would run concurrently with CFRA.
111
Military Caregiver Leave

Leaves may be taken intermittently or on a reduced
schedule.

As with other family leaves, if the need for intermittent or
reduced schedule leave is foreseeable based on
planned medical treatment, the employee may be
required to transfer temporarily (during the period when
the intermittent or reduced schedule leave is required) to
an available alternative position for which the employee
is qualified and which better accommodates recurring
periods of leave than the employee’s regular position.
112
Military Caregiver Leave

Leave is applied on a per-coveredservicemember basis and a per-injury basis.


Eligible employees may take more than one period of
leave to care for a different covered servicemember
or to care for the same covered servicemember who
has a subsequent serious injury or illness.
Except no more than 26 workweeks of leave can be
taken within any single 12-month leave period.
113
Military Caregiver Leave
 If
the leave would qualify as either a
Military Caregiver Leave or a Family
Illness Leave, it should be designated as a
Military Caregiver Leave.
114
Military Caregiver Leave

Employees may be required to provide a
Certification completed by an authorized health
care provider of the covered servicemember

Who can fill it out?
• A US Dept of Defense (DOD) health care provider
• A US Dept of Veteran Affairs health care provider
• A DOD TRICARE network authorized private health care
provider
• A DOD non-network TRICARE authorized private health care
provider
115
Military Caregiver Leave

UC will be using the Department of Labor’s Certification
form, which request the following information:






Information to confirm that the servicemember is a “covered
servicemember.”
Approximate date when the servicemember’s condition
commenced.
Probable duration of the condition and/or need for care.
Whether care will be needed for a single continuous period of
time, including any time for treatment and recovery.
Whether periodic follow-up treatment will be required and
whether there will be a medical necessity for care in connection
with that treatment.
Whether there is a medical necessity for any other periodic care
and, if so, the estimated frequency and duration of such care.
116
Military Caregiver Leave

In addition, the employee may be asked to
provide information (or to have the covered
servicemember provide it) to establish that the
leave is for a qualifying purpose, including:


Name of the covered servicemember for whom
employee is requesting leave to care.
Whether the covered servicemember is a member of
the Armed Forces, National Guard, or Reserves and
his or her military branch unit and current unit
assignment.
117
Military Caregiver Leave
 Additional
information employee may be
asked to provide (cont’d):



Whether the covered service member is in
“outpatient status” and the name of the
medical treatment facility or unit.
Whether the covered service member is on
the temporary disability retired list.
A description of the care to be provided to the
covered service member and an estimate of
the leave needed to provide the care.
118
New:
Qualifying
Exigency Leave
Qualifying Exigency Leave
 Eligible
employees may take Qualifying
Exigency Leave while employee’s spouse,
domestic partner, son, daughter, or parent
(the “covered military member”) is on
active duty or call to active duty status for
one or more of the activities described
below.
120
Qualifying Exigency Leave
 Who
is a “covered military member”?
• The employee’s spouse, domestic partner, son,
daughter, or parent
• Who is on active duty or has been called to active
duty status in support of contingency operations
pursuant to one of several specified provisions of
law
• Because he or she is




A member of the Army or Air National Guard of the US
A member of one of various specified Reserve forces
A retired member of the Armed Forces
A member of the retired Reserve
121
Qualifying Exigency Leave
 Important


Notes:
A member of the regular Armed Forces is not
a “covered military member” for purposes of
Qualifying Exigency Leave.
“Active duty” refers to federal active duty only.
State calls to active duty are not covered
unless the President so orders.
122
Qualifying Exigency Leave
 Important

Notes (cont’d):
The active duty orders of a covered military
member will usually indicate if he or she is
serving in support of the kind of contingency
operations contemplated by this statute.
• Contingency operations are typically operations in
which members of the armed forces are or may
become involved in military actions, operations, or
hostilities against an enemy of the US or against
an opposing military force.
123
Qualifying Exigency Leave
 As
used in the following slides, “child”
means


a biological, adopted, or foster child,
stepchild, or legal ward of a covered military
member or a child for whom a covered
military member stands in loco parentis.
who is under 18 or else incapable of self-care
because of a physical or mental disability at
the time the leave commences.
124
Qualifying Exigency Leave
There are 7 categories of activities that
would entitle an employee to Qualifying
Exigency Leave.
UC and the employee may also agree to
treat other activities as qualifying
exigencies in appropriate circumstances.
125
Qualifying Exigency Leave
(1) Short-notice deployment
• To address any issue arising from the fact that the
covered military member is notified of an
impending call or order to active duty in support of
a contingency operation 7 or less calendar days
prior to the date of deployment.
• Leave taken for this purpose can be used for a
period of 7 calendar days beginning on the date
the covered military member is notified of an
impending call or order to active duty in support of
a contingency operation.
126
Qualifying Exigency Leave
(2) Military events and related activities
• To attend any official ceremony, program, or event
sponsored by the military that is related to active
duty or call to active duty status of a covered
military member.
• To attend family support or assistance programs
and informational briefings sponsored or promoted
by the military, military service organizations, or
the American Red Cross that are related to the
active duty or call to active duty of a covered
military member.
127
Qualifying Exigency Leave
(3) Childcare and school activities
• To arrange for alternative childcare when the
active duty or call to active duty status of a covered
military member necessitates a change in the
childcare arrangement for a child of the covered
military member.
• To provide childcare on an urgent, immediate need
basis (but not on a routine, regular, or everyday
basis) when the need to provide such care arises
from the active duty or call to active duty status of
a covered military member for a child of a covered
military member.
128
Qualifying Exigency Leave
(3) Childcare and school activities (cont’d)
• To enroll or transfer a child of a covered military member to a
new school or day care facility when enrollment or transfer is
necessitated by the active duty or call to duty status of a
covered military member.
• To attend meetings with staff at a school or a daycare facility,
such as meetings with school officials regarding disciplinary
measures, parent/teacher conferences or meetings with
school counselors when such meetings are necessary due to
circumstances arising from the active duty or call to active
duty status of a covered military member.
129
Qualifying Exigency Leave
(4) Financial and legal arrangements
• To make or update financial or legal arrangements
to address the covered military member’s absence
while on active duty or call to active duty status,
such as





Preparing and executing financial and healthcare powers
of attorney
Transferring bank account signature authority
Enrolling in the Defense Enrollment Eligibility Reporting
System (DEERS)
Obtaining military ID cards
Preparing or updating a will or living trust
130
Qualifying Exigency Leave
(4) Financial and legal arrangements (cont’d)
• To act as the covered military member’s
representative before a federal, state, or local
agency for purposes of obtaining, arranging, or
appealing military service benefits while the
covered military member is on active duty or call to
active duty status and for a period of 90 days
following the termination of the covered military
member’s active duty status.
131
Qualifying Exigency Leave
(5) Counseling
• To attend counseling provided by someone other
than a healthcare provider for oneself, for the
covered military member, or for the child of a
covered military member, provided that the need
for counseling arises from the active duty or call to
active duty status of a covered military member.
(6) Rest & Recuperation
• To spend time with a covered military member who
is on short-term, temporary, rest and recuperation
leave during the period of deployment.
132
Qualifying Exigency Leave
(7) Post-deployment activities
• To attend arrival ceremonies, reintegration
briefings and events, and any other official
ceremony or program sponsored by the military for
a period of 90 days following the termination of the
covered military member’s active duty status.
• To address issues that arise from the death of a
covered military member while on active duty
status, such as meeting and recovering the body of
the covered military member and making funeral
arrangements.
133
Qualifying Exigency Leave
(8) Additional activities (as agreed)
• To address other events that arise out of the
covered military member’s active duty or call to
active duty status provided that UC and the
employee


agree that such leave shall qualify as an exigency and
agree to both the timing and duration of such leave.
134
Qualifying Exigency Leave
What documentation can UC require?

(1) Active duty orders
• The first time an employee requests leave because of a
qualifying exigency arising out of the active duty or call to
active duty status of a covered military member, UC may
require that the employee provide a copy of the covered
military member’s active duty orders or other
documentation issued by the military that indicates he or she
is on active duty or call to active duty status in support of a
contingency operation.
• The employee only needs to provide this documentation
once.
135
Qualifying Exigency Leave
(1) Active duty orders (cont’d)
• A copy of new active duty orders or other
documentation issued by the military should be
provided by the employee if the need for leave
because of a qualifying exigency arises out of a
different active duty or call to active duty status of
the same or a different covered military member.
136
Qualifying Exigency Leave
(2) Certification (signed by employee) that
includes:
• Appropriate facts regarding the qualifying exigency
for which FML leave is being requested.


Facts sufficient to understand the type of qualifying
exigency for which leave is sought and
Any supporting documentation (e.g., meeting
announcement, document confirming appointment with a
counselor or school official).
• Approximate date on which the qualifying exigency
commenced or will commence.
137
Qualifying Exigency Leave
(2) Certification that includes: (cont’d)
• If leave is being requested for a single, continuous
period of time, the beginning and end dates of the
absence.
• If intermittent or reduced schedule leave is being
requested, an estimate of the frequency and
duration of the qualifying exigency.
• If the qualifying exigency involves meeting with a
third party, appropriate contact information for the
individual or entity with whom the employee is
meeting and a brief description of the purpose of
the meeting.
138
Qualifying Exigency Leave
While the facts of each request for a
Qualifying Exigency Leave are going to be
unique, these requests should be handled
as consistently as possible.
139
Questions?
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157