Family and Medical Leave Act _FMLA_

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					Family and Medical Leave Act

            (FMLA)

    A Guide for Personnel Officers
What is FMLA?

    FMLA is a federal law which
     entitles eligible employees to
     up to a total of 12 workweeks
     of unpaid leave (may be used
     intermittently and an
     employer may allow for paid
     or unpaid leave) in any 12-
     month period for any of the
     following reasons:
        Eligible FMLA Reasons:

Birth of a child and to
 care for the newborn
 child
        Eligible FMLA Reasons:

Birth of a child and to   Placement with the
 care for the newborn       employee of a child for
 child                      adoption or foster care
        Eligible FMLA Reasons:

Birth of a child and to    Placement with the
 care for the newborn        employee of a child for
 child                       adoption or foster care

A serious health
 condition that makes an
 employee unable to
 perform functions of the
 employee’s job
        Eligible FMLA Reasons:

Birth of a child and to    Placement with the
 care for the newborn        employee of a child for
 child                       adoption or foster care

A serious health           To care for the
 condition that makes an     employee’s spouse,
 employee unable to          child, or parent with a
 perform functions of the    serious health condition,
 employee’s job              or an adult child who
                             cannot care for himself
           FMLA Eligibility

Employee must have worked at least 12
 months for the State and at least 1,250 work
 hours during the preceding 12 months.
The time of employment may be separated by
 a break in service as long as the total time
 worked is at least 12 months.
Overtime hours are included but any paid and
 unpaid leave is not included.
             FMLA Eligibility
The State has determined that a “rolling” 12 month
 period shall be used to calculate FMLA entitlement.
             FMLA Eligibility
The State has determined that a “rolling” 12 month
 period shall be used to calculate FMLA entitlement.

The date on which an employee begins FMLA leave
 is the beginning of the “rolling period”.
             FMLA Eligibility
The State has determined that a “rolling” 12 month
 period shall be used to calculate FMLA entitlement.

The date on which an employee begins FMLA leave
 is the beginning of the “rolling period”.

One an employee has used the 12 week entitlement,
 the determination of when additional leave may be
 granted shall be made by counting 12 months from
 the date on which the employee first used FMLA
 leave.
            FMLA Eligibility
State Personnel and Pensions Article, Section
 9-505, allows an employee to use up to 30 days
 of accrued sick leave, without certification of
 illness or disability, to care and nurture a child
 immediately after birth or placement for
 adoption.
            FMLA Eligibility
State Personnel and Pensions Article, Section
 9-505, allows an employee to use up to 30 days
 of accrued sick leave, without certification of
 illness or disability, to care and nurture a child
 immediately after birth or placement for
 adoption.
This State allowance for use of leave runs
 concurrently with FMLA leave.
            FMLA Eligibility
State Personnel and Pensions Article, Section
 9-505, allows an employee to use up to 30 days
 of accrued sick leave, without certification of
 illness or disability, to care and nurture a child
 immediately after birth or placement for
 adoption.
This State allowance for use of leave runs
 concurrently with FMLA leave.
FMLA leave may also run concurrently with
 worker’s comp or accident leave.
Definition of a Serious Health Condition

An illness or injury that
 requires inpatient stay
 in a hospital, hospice, or
 residential medical care
 facility or continuing
 treatment by a health
 care provider.
Otherwise, a period of
 incapacity must be for
 more than 3 consecutive
 days and involve one or
 more of the following:
Definition of a Serious Health Condition


Treatment 2 or more times by a health care
 provider

Treatment by a health care provider at least
 once which results in a regimen of continuing
 medical treatment
Definition of a Serious Health Condition

Also includes any period of absence or
 incapacity due to any of the following:
  pregnancy or prenatal care
  treatment for a chronic condition (asthma,
   diabetes, etc.)
  a permanent or long-term illness where treatment
   may not be effective (Alzheimer’s, terminal stages
   of a disease, etc.)
  Multiple treatments of an illness or restorative
   surgery after illness (chemotherapy, dialysis,
   physical therapy, etc.)
    Benefits During FMLA Leave

An employee on FMLA absence does not lose
 any “employment benefits” accrued prior to
 the FMLA leave.
The term “employment benefits” is broadly
 defined to include all retirement, health,
 disability, and life insurance benefits as well
 as sick leave, annual leave, and personal leave
 benefits.
   Benefits During FMLA Leave

Furthermore, commendations, bonuses, and
 awards for perfect attendance may not be
 jeopardized by FMLA absence.

An FMLA absence may NOT be counted
 against an employee as a leave occurrence for
 attendance control purposes. (May not be used
 against employee during PEP process.)
Job Restoration Upon Return From
              FMLA

                  An employee who is
                   returning from an
                   approved FMLA
                   absence must be
                   restored to the same or
                   equivalent benefits, pay,
                   and other terms and
                   conditions of
                   employment.
   Job Restoration Upon Return From
                 FMLA

An equivalent position     The appointing
 must ordinarily be on       authority is obligated to
 the same shift or work      place the employee in
 schedule as the position    the same or equivalent
 held by the employee        position even if a
 prior to the FMLA           replacement has been
 absence and must be         hired
 located in a
 geographically
 proximate work site.
   Job Restoration Upon Return From
                 FMLA

When a FMLA absence
 is requested for the
 employee’s own serious
 health condition, the
 employee is required,
 prior to returning to
 work, to provide
 medical certification
 indicating that the
 employee is fit to
 resume work. (Form
  MS 411)
   Job Restoration Upon Return From
                 FMLA

When a FMLA absence      An employee must be
 is requested for the      notified if a fitness for
 employee’s own serious    duty certification is
 health condition, the     required.
 employee is required,
 prior to returning to
 work, to provide
 medical certification
 indicating that the
 employee is fit to
 resume work. (Form
  MS 411)
   Job Restoration Upon Return From
                 FMLA

When a FMLA absence      An employee must be
 is requested for the      notified if a fitness for
 employee’s own serious    duty certification is
 health condition, the     required.
 employee is required,    Any fitness for duty
 prior to returning to     certification must be
 work, to provide          job-related and may be
 medical certification     required only with
 indicating that the       regard to the medical
 employee is fit to        condition that caused
 resume work. (Form        the FMLA absence.
  MS 411)
FMLA Notice Requirement
     In all circumstances, it is the
      employer's responsibility to designate
      leave, paid or unpaid, as FMLA-
      qualifying, and to give notice of the
      designation to the employee. DOL 29
      CFR 825.208
      With certain exceptions, the employer must
       make the designation within 2 business days
       of learning of the eligibility under FMLA.
     The notice shall contain the following
      7 items:
          FMLA Notice Requirement
              Form MS 412
 Notification that all eligible    Requirement for fitness for
  leave shall be counted             duty certificate (if applicable)
  against the 12 week               Employee’s right to receive
  entitlement                        the same or equivalent
 Requirements for medical           position upon return to work
  certification (if applicable)     Whether the agency
  and any consequences for           requires that paid leave be
  failing to do so                   substituted for an unpaid
 Requirement for the                FMLA absence
  employee to pay health            Employee’s potential
  insurance premiums                 liability to pay health
  including how to make              insurance premiums if
  payments and consequences          he/she does not return to
  of failing to do so                work
      Unlawful Acts Under FMLA
 An employer is prohibited from
  interfering with, restraining, or
  denying the exercise of (or attempts to
  exercise) any rights provided by
  FMLA.
 An employer may not discharge or in
  any other way discriminate against a
  person for opposing or complaining
  about any unlawful practice under the
  Act.
 Discouraging an employee from using
  FMLA leave or manipulating
  circumstances relating to eligibility
  under the Act are both prohibited.
 Employee FMLA Responsibilities

 Employee shall provide not less than 30 days notice
  before the absence is to begin. (Form MS 410)

 If 30 days notice is not practical, an employee or his/her
  representative is required to give notice no later than 2
  business days after learning of the need for the
  absence.

 If an employee is unable to give advance notice but
  gives notice within 2 days of returning to work, the time
  off may be treated as an FMLA absence.
Medical Certification Under FMLA

 An employee requesting an FMLA absence for the
  serious condition of a family member or the employee’s
  own serious health condition shall be provided a form
  MS 411 within 2 business days of the request.

 The employee must provide the completed certification
  form within 15 calendar days, unless it is not practical to
  do so.
  Medical Certification Under FMLA
           Form MS 411

Form MS 411, if properly completed,
 contains all of the required information:
  medical facts supporting certification (a diagnosis
   is not required)
  date of commencement and duration of absence
  additional treatments required/needed for
   intermittent absence (a diagnosis is not required)
  ability of employee to perform essential job
   functions
  Medical Certification Under FMLA
           Form MS 411

The appointing authority may NOT request
 additional information from the employee’s
 health care provider.

However, with the employee’s permission, a
 health care provider representing the
 appointing authority (Concentra) may contact
 the health care provider of the employee or the
 employee’s family member.
 Recertification of Medical Conditions

Employees not under MOU - recertification
 may be requested not more than once every 30
 days unless the circumstances have changed
 significantly.

Employees under MOU - recertification may
 not be requested more than once every 6
 months.
       FMLA Record Requirements
The following records must be kept for at
 least 3 years:
   Payroll and identifying employee data
   Dates of any FMLA absences (either in full
    days or hours)
   Copies of notices and requests for absence as
    well as notices given to the employee
   Documents describing employee benefits or
    State policies regarding paid and unpaid
    leave
   Premium payments of employee benefits
   Records of any disputes regarding
    designation of leave as an FMLA absence
    FMLA Record Requirements

Records and documents relating to medical
 certifications, recertifications, or medical
 histories of employees or their family
 members must be maintained in separate files
 and be treated as confidential medical records.
    FMLA Record Requirements

The only persons who can obtain access to
 these confidential records are:
  Supervisors and managers who need to be
   informed of the employee’s work restrictions
   and/or accommodations
  First aid and safety personnel (if applicable)
  Government officials investigating compliance
   with FMLA
Enforcement of FMLA

         The U.S. Department of
          Labor is authorized to
          investigate and resolve
          complaints of violations.

         An eligible employee may
          bring civil action against
          an employer for violations.
             FMLA Cases


George v. Associated Stationers, 932 F. Supp.
 1012 (N.D. Ohio 1996) - An employer’s sick
 leave policy that does not exempt as an
 “occurrence” an absence caused by an FMLA
 qualifying event violates the FMLA.
              FMLA Cases


Brannon v. Oshkosh B’Gosh, Inc., 897 F. Supp.
 1028 (M.D. Tenn. 1995) - Employees need not
 expressly assert rights under FMLA, or even
 mention FMLA, but need only state that leave
 is needed. It is the employer’s duty to make
 further inquiry to determine if leave qualifies
 for FMLA protection.
               FMLA Cases

Manuel v. Westlake Polymers, Inc., 66 F. 3d. 758
 (5th Cir. 1995) per DOL regulations - “in all
 circumstances, it is the employer’s responsibility to
 designate leave, paid or unpaid, as FMLA qualifying,
 based on the information provided by the employee.”
 If the employer does not have sufficient information
 about the employee’s reason for leave, “the employer
 should inquire to further ascertain whether the paid
 leave is potentially FMLA-qualifying.”
              FMLA Cases

Manuel v. Westlake Polymers, Inc., 66 F. 3d.
 758 (5th Cir. 1995) - Under regulations issued by
 the DOL, an employer who grants an
 employee leave but does not designate the
 leave as FMLA leave will still owe the
 employee 12 weeks of leave, regardless of the
 amount of leave already taken. An employer
 cannot retroactively designate leave as FMLA.
            FMLA Resources

DBM FMLA Guide

Department of Labor
  http://www.dol.gov/elaws/fmla.htm


Society for Human Resource
 Management (SHRM)
  http://www.shrm.org

				
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