The New FMLA Regulations - The “

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					The New FMLA Regulations
                Presented by:

   Catherine E. Reuben and David B. Wilson


               January 7, 2009
The Department of Labor’s Updated
FMLA Regulations
   Effective January 16, 2009
   Based on:
     Fifteen years of history enforcing the FMLA
     Court cases interpreting or invalidating the prior
     Comments received in response to December
       2006 DOL Request for Information
     Passage of the National Defense Authorization
       Act (NDAA) providing two new types of military
       FMLA Leave
Overview of First Changes to 15 year
old law:
   Clarified regulations to help combat FMLA
   Gave new leave rights to military families
       To care for injured returning family service
       To give relief to military reserve families
   Failed to adequately address problems with
    intermittent leave
FMLA Basics
   Passed in 1993
 Allows eligible employees to take up

to 12 weeks of job protected leave for:
       Birth, adoption or placement of a child
       Care of a spouse, son, daughter or parent with a
        serious health condition
       The employee’s own serious health condition that
        makes the employee unable to perform the
        functions of the employee’s job
   Applicable to private employers with 50 or more employees
    NDAA adds two new types of leave:
   Qualifying Exigency leave: For
    a “qualifying exigency” arising
    out the fact that the employee’s
    spouse, son, daughter or parent is
    called to active duty in support
    of a contingency operation
   Military Caregiver Leave: To
    care for a current member of the
    armed forces who has a serious
    injury or illness incurred in the
    line of duty
Are you a covered employer?
   Private employers who
    have employed more than
    50 employees during 20 or
    more workweeks in the
    current or preceding
    calendar year
     Anyone on the payroll
   Public agencies
   Elementary and secondary
    schools, regardless of the
    number of employees
Are you a covered employer (cont.)
The new regulations address issues related to “joint employers”
 In joint employment relationships, the “primary” employer is
   largely responsible for compliance with the FMLA
 Factors considered in determining who is primary include
   authority to hire, fire, assign, place and compensate the
 For employees of temporary agencies, the agency is usually
   the primary employer
 For employees of Professional Employment Organizations
   (PEO’s), the client company is usually the primary employer
Is the employee eligible for FMLA leave?
   Worked for the employer for 12 months
       Military service counts
       Employment prior to a break in service of less than seven years

   Worked for 1250 hours in the past year
       Military service counts
       Employer has burden of proof

    The determination for both is made as of the date the FMLA leave is to
    start (i.e., employees can become eligible in the middle of a leave)
Is the employee eligible for FMLA leave
   Is employed at a worksite where 50 or more
    employees are employed by the employer within 75
    miles of that worksite
     For telecommuting employees, the worksite is not
        the employee’s personal residence, but the office
        they report to and from which assignments are
     For joint employers, the worksite is the primary
        employer’s worksite, unless the employee has
        worked at the secondary employer’s site for more
        than a year
    Is the leave for an FMLA-qualifying
   Leave for birth/adoption/placement
       Expires 12 months after birth/placement/adoption
       No automatic right to intermittent leave for healthy child

   Leave to care for employee’s spouse, son/daughter or
    parent with a serious health condition
       Spouse is defined under state law
       In-laws are not included
       son/daughter must be under 18, or over 18 and incapable of
        self-care due to a disability
       The employer can require the employee to provide
        reasonable documentation of the family relationship
       The employee need not be the only person available to care
        for the family member
Is the leave for an FMLA-qualifying reason
   Leave due to the employee’s own serious health
    condition that makes the employee unable to
    perform the functions of the employee’s job
     The employer now has the option of providing
       the employee with a statement of the essential
       functions of the position, and requiring the health
       care provider to certify which of them the
       employee is unable to perform
     The new regulations provide more detail
       regarding what is a serious health condition
Is the leave for an FMLA-qualifying reason
Qualifying Exigency Leave
 The employee’s spouse, parent or
  son/daughter (of any age) is a called to active
  duty in support of a contingency operation
 Applies to National Guard and Reserves

 Does not apply to members of the regular
  armed forces or certain state calls to duty
Is the leave for an FMLA-qualifying reason
Qualifying Exigencies:
 Short-notice deployment (for orders to active duty within 7
   days or less)
 Military events and related activities
 Childcare and school activities (but not everyday childcare)
 Financial and legal arrangements
 Counseling related to the call to active duty
 Rest and recuperation (up to 5 days)
 Post-deployment activities
 Additional activities as agreed with employer
Is the leave for an FMLA-qualifying reason
Military Caregiver Leave
 To care for current (not former)
  member of armed forced who
  has a serious injury or illness
  incurred in the line of duty
 Employee must be spouse,
  son/daughter, parent or next of
  kin of service member (not in-
How much leave can the employee take?
   For all but military caregiver leave: 12 weeks during “any 12-
    month period”
   Employer can choose the method for determining the 12-
    month period, provided they do so consistently
   If the employer changes methods, must give 60 days notice
   Holidays falling during a full week of leave count as FMLA
    leave. If the leave is less than a week, holidays do not count
    unless the employee was scheduled/expected to work the
   You cannot force an employee to take more FMLA leave than
    they actually need (limited exceptions for teachers)
How much leave can the employee take?
Military Caregiver Leave
 26 weeks of leave in a single 12-month period
   measured from the first day the employee takes
   leave, regardless of employer’s usual method
 The 26 weeks is applied on a per-service member
   per-injury basis, except that no more than 26
   workweeks can be taken in any single 12-month
 Husbands and wives working for the same employer
   get a combined total of 26 workweeks of leave
What Notice obligations do employers
General Notice
 Poster
   In conspicuous place
   Must be posted even if no employees are eligible
 Written general notice
   Must have at least what is in the poster
   Included in handbook OR distributed to new
     employees on hiring
 For both, electronic notice is acceptable.
 For both, must provide in a language in which the
  employees are literate
What Notice obligations do employers
Eligibility Notice
 Use DOL “Notice of Eligibility and Rights and
   Responsibilities” Form
 Due 5 business days from date leave is requested,
   absent extenuating circumstances
 If the employee’s eligibility changes, the employer
   must notify the employee
 If the employee is not eligible, the employer must
   state why
 Eligibility notice can be oral or in writing, but must
   be translated
What Notice obligations do employers
Rights and Responsibilities Notice
 Use DOL “Notice of Eligibility and Rights
  and Responsibilities” Form
 Due at the same time as the eligibility notice

 Details the specific expectations and
  obligations of the employee and the
  consequences for failing to meet them
What Notice obligations do employers have?

Rights and Responsibilities Notice includes:
   That the leave is designated and counted as FMLA
   Any certification requirements and the consequences of failing to provide them
   Employee’s right to substitute paid leave and any conditions related to it
   Any requirement that the employee make premium payments and the
    consequences of failing to do so
   Whether employee is a key employee
   The employee’s right to maintenance of benefits
   The employee’s right to job restoration
   The employee’s potential liability for payment of the employer’s share of
    premiums if the employee does not return
   Other information, such as whether the employer will require periodic reports of
    the employee’s status and intention to return
What Notice obligations do employers have?
Designation Notice
   Use DOL form
   Due within 5 days of when the employer has enough information to
    determine whether the leave is FMLA-qualifying
   Includes:
       Whether or not the leave is designated as FMLA and how much
       Whether the employer will require substitution of paid leave
       Whether a fitness for duty certificate will be required
   If the information changes, the employer must notify the employee
   Failure to designate can entitle an employee to damages, but not to leave
    that they would otherwise not be eligible to receive
   If there is a dispute over whether leave if FMLA-qualifying, the dispute
    should be resolved through discussions, which must be documented
   Retroactive designation is permitted if no injury/harm to employee
    What notice obligations do employees have?

    30 days advance notice
     for foreseeable leave
    If not foreseeable, notice
     as soon as practicable
    Employee is required to
     follow the employer’s
     usual and customary
     procedures for reporting
     an absence, absent
     unusual circumstances
   Employer can require
    certifications for:
       Employee’s own
        serious health condition
       Family member’s
        serious health condition
       Qualifying exigency
       Service member’s
        serious health condition
   Use the DOL forms
Certifications (cont.)
   Due within 15 calendar days unless not practicable
   Employer is required to advise the employee when a
    certification is incomplete and state in writing what
    additional information is needed. The employee then
    must be given 7 calendar days to cure the defect
   An employee can choose, but cannot be required, to
    comply with the certification requirement by giving
    the employer permission to talk directly to the health
    care provider
Certifications (cont.)
   An employer can request re-certification:
       Every six months
       If employee requests an extension
       If circumstances change
       If the employer receives information casting
        doubt on the stated reason for the absence
   No second or third opinions are permitted for
   No re-certifications allowed for military leave
Certifications (cont.)
   Employer’s manager, HR professional or
    leave administrator (but not the immediate
    supervisor) can call the health care provider
    for authentication and clarification
   Provisions for second and third opinions do
    not apply to military caregiver leave
Compensation and benefits during
FMLA Leave
   Employee can choose, or
    employer can require,
    substitution of accrued paid
   An employee’s ability to
    use accrued paid time is
    determined by the terms and
    conditions of the
    employer’s normal leave
Compensation and benefits during
FMLA leave
   Employer must maintain health benefits under the same terms
    and conditions as if the employee were continuously
   The Rights and Responsibilities Notice should address issues
    of payment of premiums and consequences for failing to do
   Employees must be given a 30 day grace period to make
    payments, and 15 days notice before cancellation of benefits
   Even if coverage is cancelled due to non-payment of
    premiums, at the conclusion of the leave, coverage must be
    reinstated without any new conditions
   Under limited circumstances, and employer can recover its
    share of the premiums
The employee’s return to work
   Employers can require employees to
    report periodically on their status and
    intent to return to work
   Employers can require a fitness for
    duty certificate, but only if they give
    notice and provide a list of essential
The employee’s return to work
   Employee must be reinstated to the position they held or its
    equivalent. Must be “virtually identical”
   Employee must be reinstated even if the employee was
    replaced or the position was restructured to accommodate the
   Employees must get any unconditional pay increases or
   If a bonus or other payment is based on the achievement of a
    specified goal, such as hours worked, products sold or perfect
    attendance, and the employee has not met the goal due to
    FMLA, it can be denied unless offered to others on leave
The employee’s return to work (cont.)
Reinstatement is not required if:
 Key employee, with notice

 Employee would have lost the job even if they had
   not taken the leave. The employer has burden of
 Employee obtained leave fraudulently

 Employer has uniformly-applied policy barring
   outside employment during leave (but be careful)
Intermittent Leave
   For planned medical treatment, employee “must
    consult” with the employer and make a reasonable
    effort to schedule the treatment so as to not unduly
    disrupt the employer’s operation
   Provisions for temporary transfer to available
    alternate position, but only for foreseeable
    intermittent leave
   An employer cannot force an employee to take more
    leave than the employee needs (exception if it’s
    physically impossible for an employee to start or end
    mid-shift, e.g., flight attendant)
Intermittent Leave (cont.)
   An employee cannot be forced to accept light
   If an employee does accept light duty, time
    spent on light duty does not count as FMLA
   Can require a fitness for duty certificate every
    30 days if reasonable safety concerns exist
Enforcement and Protection
   Employers cannot discriminate, or interfere with FMLA
    rights. Interference includes manipulation to avoid coverage,
    changing essential functions to preclude leave, transfer to
    avoid the 50-employee threshold or using FMLA as a
    negative factor in employment decisions.
   Corporate officers can be individually liable for violations
   Employees cannot waive prospective rights, but can waive
    claims based on past conduct without DOL or court approval
   Employees can file a complaint with DOL or go to court.
    Statute of limitations is 2 years (3 if willful)
   Broad range of damages
Record-keeping Requirements
   Basic payroll data
   Dates/hours of FMLA leave
   All notices (medical ones stored separately
    and treated as confidential)
   Leave/benefits policies
   Records about disputes regarding the
    designation of leave
Special Provisions for Schools
   Private and public elementary and secondary
    schools (not trade schools, pre-schools,
    colleges or universities)
   Special provisions for allowing a school to
    have an instructional employee stay out if the
    leave is at the end of a term
So what do I do now?
   Obtain/review DOL
    forms and
   Post the new poster
   Update your FMLA
    and related policies
Policy Checklist
     1. Make sure that your FMLA policy includes everything that is on
      the poster
     2. How the leave year will be calculated
     3. Whether employees must use accrued paid time during leave
     4. Notice and procedural requirements for taking time off generally
     5. Accrual and use of paid time off generally
     6. Whether outside employment is permitted during any type of leave
     7. That employees on any type of leave will be required to
      periodically report on their status and intent to return
     8. That employees on any type of medical leave must submit a
      fitness-for-duty certificate before being permitted to return
     9. That employees can be terminated for use of illegal drugs or
     10. Whether coverage will be terminated retroactively for employees
      who fail to pay premiums
Questions and Answers

Contact Information
     Catherine E. Reuben
       (617) 348-4316

       David B. Wilson
       (617) 348-4314