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The Family Medical Leave Act (FMLA), 29 CFR, Chapter V, Part 825, was first enacted in August 1993. The law was expanded in January 2008 to include provisions regarding military servicemembers. In light of that change, along with court decisions and stakeholder input, new final rules were published, effective January 16, 2009. On October 28, 2009, another revision to the FMLA was signed to clarify and expand the leave provisions which relate to employees with family members serving in the military. On December 21, 2009, the law was changed to allow airline crewmembers alternative eligibility criteria.
The stated purpose of the FMLA is to help employees balance work and family life by allowing reasonable leave for specified reasons. Congress intended the law to weigh the legitimate needs of employers to be productive with the needs of workers to handle family medical concerns. The FMLA also provides for communication between employer and employee. Employers must provide information to employees about their eligibility for FMLA leave and the designation of leave. Similarly, employees must provide sufficient information to employers, making it easier for employers to determine FMLA eligibility and application.
Employers of 50 or more employees for at least 20 weeks of the year are covered by the law. It is not necessary for all 50 employees to work at a single location, but this can affect whether a particular employee is eligible for leave. Other covered employers include all public agencies such as schools, police departments, and fire departments.
Most eligible employees are those who:
Employers have to look back only as far as seven years to determine if an employee has worked for the company previously to determine the 12 months eligibility criterion.
The employee is counted as employed if he or she was on the payroll for any part of a week, including periods of sick leave or vacation or when other benefits have been provided, such as disability or workers’ compensation. However, paid time off (sick leave, vacation, holiday pay, etc.) does not have to be counted to determine if the 1,250 hours worked criteria has been met.
Airline crewmembers, must meet the following eligibility criteria:
The “applicable monthly guarantee” is the minimum number of hours for which an employer has agreed to schedule an employee for any given month, and the number of hours for which an employer has agreed to pay an employee on reserve status for any given month as established in an applicable collective bargaining agreement or by employer policy.
Employers must maintain on file with the Department of Labor information specifying the applicable monthly guarantee for each category of employee to which the guarantee applies.
Employers covered by the law must allow eligible employees unpaid, job-protected leave in a 12-month period for any of the reasons listed below. Also, any group health benefits must be maintained during the leave.
There is a special provision for spouses employed by the same employer. They may be limited to a combined 12 weeks of leave in the following situations:
Spouses employed by the same employer may also be limited to a combined total of 26 weeks of leave to care for a servicemember.
Covered employers must post a notice of FMLA rights; this must be done even if the employer has no eligible employees (such as locations with fewer than 50 employees). If an employer has an employee handbook, the same information contained in the poster (also known as the General Notice), must be included in the handbook. If the employer has no employee handbook, a copy of the General Notice must be provided to employees upon hire and to any employees who request information about FMLA. Electronic posting is allowed.
Upon learning of the need for leave, employers must determine whether the leave qualifies for FMLA and designate the leave as such. Employers must provide employees with information on their eligibility as well as their rights and responsibilities. This must be provided to employees within five days of learning of the need for leave.
This “rights and responsibilities notice” is also to include such information as the following:
The employer may require employees to provide a certification in support of the need for leave. Such a requirement is to be included in the rights and responsibilities information. The FMLA has four different certification forms for different situations:
Employees must provide certification within 15 days if requested by the employer.
Certifications for medical situations can include diagnosis, medication, and symptoms. Certifications should be used to establish that the employee cannot perform essential functions of the job, that a family member needs care, or that a qualifying exigency exists.
Employers can require employees to provide complete and sufficient certification, meaning nothing is missing, vague, or misleading in the certification. Employers must let employees know if a certification needs fixing. Employees must fix any certification problems within seven days, or risk denial of their leave.
Employers may require a second opinion from another health care provider, as long as that health care provider is not one under contract with the employer. If the second opinion differs from the first, the employer can authorize a third opinion. All expenses for the second and third opinions are the employer’s responsibility. Obtaining the opinions is the employee’s responsibility.
If leave is foreseeable, the employee must give notice as soon as practicable, preferably at least 30 days in advance. If leave is unforeseeable, the employee must give notice as soon as possible. Employees are to provide sufficient information to allow the employer to determine whether the FMLA applies.
When an employee seeks leave for the first time for an FMLA-qualifying event, the employee need not expressly assert FMLA rights or even mention the FMLA. When an employee seeks leave for which the employer has previously provided, the employee must specifically reference either the qualifying reason of the need for FMLA leave. Simply “calling in sick” with no other information is not sufficient FMLA notice. Employees are expected to follow the employer’s usual call-in procedures for reporting an absence.
Employers may need to obtain more information, and employees are to answer employer questions relating to FMLA qualification.
After receiving sufficient information, the employer is to provide the employee with information on whether the leave will or will not be designated as FMLA and counted against the employee’s 12- or 26-week entitlement. This “designation notice” is to be provided within five days of obtaining sufficient information. If the employer will require a fitness-for-duty certification at the end of leave, this requirement must be included in the designation notice.
Retroactive designation is allowed if it does not cause harm to the employee.
The new incarnation of the FMLA stresses the importance of communication between the employer and employee. It offers employers new and revised forms as tools for communicating with employees and health care providers. While you must use the poster as written, you may create your own certification forms. You may not, however, require the employee to provide more information than required under the FMLA regulations. You may want to use the prepared forms as guides.
Serious health conditions under the law involve certain illnesses, injuries, impairments, or physical or mental conditions. These include the following:
Serious health conditions that require an absence of three or more calendar days must include at least two visits to their health care provider within 30 days of any incapacity. The first visit must be within seven days of the incapacity.
Chronic conditions must include a visit to the health care provider at least twice per year.
Qualifying exigencies include situations that need immediate attention because of a family member’s “covered active duty.” Qualifying exigencies include the following:
Previously, leave for a qualifying exigency was not allowed for active members of the regular Armed Forces - only for members in the Reserves or Guard. As of October 28, 2009, leave to handle qualifying exigencies is available to family members of the Regular Armed Services. Also, the term “covered active duty” includes deployment to a foreign country, instead of being restricted to those engaged in a “contingency operation.”
Eligible employees may take up to 26 weeks of leave to care for a family member who was seriously injured or made ill in the line of active military duty. Such leave is also available if the injury or illness resulted from the aggravation of an existing or pre-existing condition as a result of active duty. Finally, servicemember care is also available for family members of veterans when treatment, recuperation, or therapy for a serious injury or illness begin within five years after the member left military service. For example, the family members of a veteran who suffers from Post Traumatic Stress Disorder may be eligible to take such leave.
The 26 weeks is a separate leave year than other types of leave; it does not matter what the employer has identified as the leave year for the other reasons for leave. It runs on a “measured forward” basis and begins at the time the employee first takes leave and runs for 12 months from that date.
Leave taken during the 12-month period for servicemember care is limited to a combined total of 26 weeks. Therefore, during that separate 12-month period, if an employee takes two weeks off to care for a child, the employee would have 24 weeks remaining to care for a servicemember. Where the servicemember care leave year does not overlap with the leave year for other reasons, the total is not combined.
Leave may be taken for larger blocks of time, but FMLA also allows for leave to be taken on an intermittent basis. Employers may grant intermittent leave for the care of a newborn or newly placed child, but they are not required to do so.
FMLA generally provides for unpaid time off. Employees may request or employers may require that employees substitute accrued paid leave time during an absence qualifying as FMLA. In such situations, FMLA and accrued time off would run concurrently. Employers must adhere to existing paid-leave policies that cover all employees.
“Job protection” means the employee must be restored to his original job, or to an equivalent position with equal pay and roughly equal responsibilities upon the end of leave. There is an exception for “key employees.” Key employees are highly-paid, salaried employees whose reinstatement would cause “substantial and grievous economic injury” to the employer’s operations. In this case, the employer must provide notice to the employee of his or her key employee status and the reason for denying job restoration. Reasonable efforts must be made to allow the employee to return to work after such notification.
Employees may be required to provide a fitness-for-duty certification if this requirement was made known to the employees in the designation notice. Employees are responsible for obtaining and paying for any fitness-for-duty certifications.
It’s important to track employee hours, benefits, and, of course, FMLA leave time carefully. Make sure all medical information is kept confidential and maintained separately from the general personnel files. FMLA-related records must be retained for at least three years.
The FMLA remains a challenge for employers and HR professionals. The new rules should make it easier to obtain the information you need to make the right decisions concerning FMLA leave. Take advantage of the new FMLA notices to keep yourself and your employees informed and your records up to date. As always, Prospera is here to help you stay ahead of the changes and to comply with the law.