NEW FMLA RULES
JANUARY 16, 2009
IN A NUTSHELL:
The FMLA provides:
• 12 weeks of generally unpaid leave to employees
for their own or their family members’ serious
health condition;
• 12 weeks of generally unpaid leave for a qualifying
exigency arising from a family member’s call to
active duty;
• Or, a one-time 26 weeks unpaid leave to care for an
injured covered service member
ELIGIBILITY - covered employer
50 or more employees:
• Who have been on the payroll for
20 or more weeks during the
current or preceding calendar
year.
• And who work within 75 miles of the
employee’s work site.
ELIGIBILITY - covered employee
• worked for employer for at least 12 months
– not necessarily consecutive but less
than 7 year break in service (unless
CBA permits longer break)
• worked for 1,250 hours
in past 12 months
REASONS FOR LEAVE - Medical
• Birth or adoption of child
• To Care for Family Member’s
Serious Health Condition
• Own Serious Health Condition
REASONS FOR LEAVE – Military
• For qualifying exigency arising from family
member in National Guard call to active
duty
• To care for a family member who is a
covered service member with a
serious injury or illness (including
regular Armed Forces)
FAMILY MEMBER – Serious Health
Condition
Employee’s Parents – not in-laws
Employee’s Spouse
as defined by state law
Employee’s Minor Children
(foster, step, biological)
No need to be only family member who
could provide services
FAMILY MEMBER – Military Leave
• 12 Weeks: Spouse, adult child
or parent who is a covered
military member
• 26 Weeks: if you are the
Spouse, child, parent or next of kin of
service member
QUALIFYING EXIGENCY
(not regular Armed Forces)
1) Short Notice Deployment (7 days or less)
2) Attend military events, support service
3) Childcare and school activities caused by
military leave
4) Financial and legal arrangements caused by
military leave
5) Counseling caused by military leave
6) Rest and recuperation (up to 5 days)
7) Post-deployment activities
8) Other events caused by
military leave
SERIOUS HEALTH CONDITION
A period of incapacity of 3 or more consecutive,
full calendar days AND continuing medical care
i.e. 2 or more visits to doctor within 30
days; or 1 visit within 7 days of incapacity
and prescription
Any overnight stay in an in-patient facility
Chronic conditions (must
require at least 2 visits to
doctor per year)
Pregnancy
ENTITLEMENTS
12 weeks of unpaid leave in a
12 month period
26 weeks military leave per incident,
per family member in a single 12
month period
Employer must maintain Health Benefits
(employee must keep up any
contributions she/he makes)
Guarantee of being returned to same or
substantially same job on return from
FMLA leave
INTERMITTENT LEAVE
• Intermittent Leave is Permissible (except for birth or
adoption of a child) in the smallest increment
employer uses for other leave so long as not
more than 1 hour.
• Cannot reduce by more than time actually taken.
• FA’s and others for whom it is impossible to start
late, entire period is counted FMLA.
• When foreseeable, employee must make reasonable
effort not to unduly disrupt employer operations.
OVERTIME
If unable to work mandatory overtime
because of FMLA, that time counts against
FMLA entitlement
EMPLOYEE RESPONSIBILITIES:
Notice: - calling in “sick” not sufficient.
• Give enough information to put employer
on notice that the reason the employee
is requesting leave may be FMLA-qualifying.
• If for a reason already granted FMLA (i.e. chronic
condition) must specifically reference it.
• If there is dispute, should be resolved through discussions of
employer and employee. Discussions and decision should be
documented §825.301(c).
EMPLOYEE RESPONSIBILITIES:
(Notice continued)
• Employer can require employee to follow
regular leave procedures unless it is an
emergency.
• 30 days notice when leave is foreseeable.
• “As Soon as possible and practicable” when
leave is not foreseeable. Usually within
employer’s customary notice procedures and
typically at least same day or next business
day.
CERTIFICATION
Employer can insist on
(1) a medical certification or
(2) a certification of qualifying exigency
Employer can insist it be returned within
15 days unless it is not practical to do
so despite employee’s diligent,
good faith efforts
CERTIFICATION
• If certification is insufficient, employer must tell
employee in writing what information is necessary
to make it sufficient.
• Employer must give employee at least 7 calendar days
to cure deficiency unless it is not practical to do so despite
employee’s diligent, good faith efforts.
• If employee fails to provide sufficient
certification (after above steps) employer
may deny leave.
INFORMATION ON MEDICAL
CERTIFICATION
Employers cannot:
* insist on more information than what’s
on Dept. of Labor’s form
* insist on a diagnosis, but can request it
* insist that employee waive all medical
records except as it relates to this
incident
Are separate forms for employee and for employee’s
family member
INFORMATION ON QUALIFYING
EXIGENCY CERTIFICATION
Employers can require
• copy of Military Orders
• statement from employee
• 3rd party contact information
RECERTIFICATION
Employers cannot:
• require recertification more frequently
than every 30 days and then only
in connection with absence unless
circumstances change or doubt
arises within 30 days
• require recertification until original
period designated by doctor lapses except
may always require recertification every
6 months
• require 2nd or 3rd opinion
Recertification
Employer may provide Doctor with record
of pattern of absence and ask if the
serious health condition and need for
leave is consistent with the pattern
FITNESS FOR DUTY - Test
• Employers can insist on a Fitness for
Duty test if it does so for all similarly
situated employees
• A fitness for duty test must be job-related
and consistent with business necessity
FITNESS FOR DUTY - Certification
• Employers can require Fitness for Duty Certification
before return – not more frequently than every 30 days
• Employer must provide list of essential job duties at time
of designation of leave and notice that Fitness for Duty
Certification will be required.
• Certification must address essential job duties.
• No 2nd or 3rd opinions.
• Intermittent leave – can only require Fitness
for Duty Certification 1 x 30 days if “reasonable
safety concerns” exists, unless CBA says
otherwise.
CLARIFICATION & AUTHENTICATION
• Employer may contact doctor for clarification and
authentication -- not for more information.
• Only health care provider, Human Resources professional,
leave administrator or management may make contact
with doctor.
• Direct supervisor may not contact doctor.
• Second opinion if employer doubts validity of certification
(original only)
• Employer must give employee copy of 2nd
opinion within 5 days of employee’s request.
EMPLOYER DESIGNATION
Employers must tell the employee the amount of leave
designated as FMLA if known at the time it provides
designation notice.
If unknown, must tell employee how much
leave used upon request of employee but
no more frequently than every 30 days in connection
with absence.
Must include essential job functions if Fitness
for Duty Certificate will be required.
SUBSTITUTION OF PAID LEAVE
• Always at Employee’s Choice
• Except must follow employer’s leave policies
for that kind of leave.
• Employer may require unless CBA says
otherwise.
• Disability or workers compensation – if less than
100% pay may substitute remainder
only by agreement of both.
Non-Discrimination
• Employers may not discriminate against
employees due to their use of FMLA
leave
• Employers may deny an employee an
attendance bonus if the employer
denies the attendance bonus to
other employees who use the
same type of leave
ENFORCEMENT:
DOL
Grievance Procedure
Courts
BARGAINING
Many ways to bargain greater rights
FMLA is floor
Can protect vacation leave to employee’s choice
Can bargain maintenance of benefits in addition to
health
Can limit use of Fitness for Duty tests
Can negotiate form employer will use for
Certification
Can bargain for paid FMLA leave
Can bargain for FMLA leave for other family
members, domestic partners or for school
events
Genetic Information
Nondiscrimination Act or GINA
New law effective November 2009
Prohibits Employer from Asking or
Requiring Genetic Information
Requires Employer to Keep “inadvertent” Genetic
Information confidential and in separate folder (i.e.
employer learns you need FMLA leave for heart
condition; employer learns you need bereavement
leave for mother who died of breast cancer, etc….)
Prohibits Employer from taking adverse employment
action based on Genetic Information
FAMILY RESPONSIBILITY
DISCRIMINATION
A form of sex discrimination in which employees
are treated worse because of their caregiving
responsibilities for newborns, children, elderly
parents, or ill spouses
“A schedule change in an employee’s work
schedule may make little difference to many
workers, but may matter enormously to a young
mother with school age children.” BNSF v.
White, 126 S.Ct. 2405, 2415 (2006).
WHO CAN BE IMPACTED
Pregnant employees
Mothers
“do you want babies or do you want a career?”
Assuming Mothers will not travel or work overtime
Assuming a Mother will not move family for
promotion
Employees who work flex
schedules
ALSO IMPACTED:
Non-mothers
Fathers –
roughly 55% of FRD arbitrations involve men
Refusing Flex schedule for man because a woman
should be the caregiver
Disciplining male who refuses overtime because of
child care responsibilities
Assuming men with child care responsibilities are
un-ambitious
Employees caring for aging, ill and disabled family members
taking away perks for employees caring for
elderly parents because they put family
before work
LAWS THAT CAN PROTECT
AGAINST FRD
Title VII – EEOC has regulations specifically addressing
FRD
Pregnancy Discrimination Act
FMLA
ADA
Equal Pay Act
State Statutes – many states now allow a certain number
of hours per year to attend school functions
BARGAINING TO PROTECT
AGAINST FRD
Allow sick leave to be used for family
responsibilities
Negotiate paid leave to attend to family
responsibilities including school functions
Negotiate for Voluntary Overtime
Allow employees to take leave in small
increments
Negotiate for child care