FMLA BASICS Bowie State University Supervisor Compliance Training March 3, 2016 Presented by: Peter D. Guattery, Esquire Whiteford Taylor & Preston LLP (410)

Employer Coverage §  Private sector employers with 50 or more employees  Public Agencies  Public and private elementary and secondary schools

Employee Eligibility §  Employed by covered employer  Worked at least 12 months  Have at least 1,250 hours of service during the 12 months before leave begins  Employed at a work site with 50 employees within 75 miles

FMLA Eligibility Minimum Service Requirement  Worked for the employer for at least 12 months at the time the leave is to commence (do not have to be consecutive months)  Break in service of 7 years or more need not be counted (except for USERRA service or written agreement/CBA)  Any part of a week on payroll counts, paid or unpaid (sick, vacation) in which other benefits or compensation are provided (workers’ compensation, health benefits, etc.)

FMLA Eligibility Minimum Hours Requirement  Employee must have worked for the employer for at least 1,250 hours during the 12-month period before the leave begins.  FLSA rules apply to count hours actually worked (unlike minimum service requirement):  Vacation or leave hours do not count  USERRA leave counts  Hours worked counted to date leave is scheduled to start.

FMLA Eligibility Minimum Worksite Requirement  Employee must work at a worksite that has at least 50 employees at that worksite or within 75 miles of that worksite.  75-mile distance is measured by surface miles.  Count is made when the employee gives notice of the need for leave, not when the employee begins leave.  Worksite can refer either to a single location or to a group of contiguous locations.

Qualifying Leave Reasons §  Eligible employees may take FMLA leave: -- For the birth or placement of a child for adoption or foster care -- To care for a spouse, son, daughter, or parent with a serious health condition -- For their own serious health condition -- Military Family Leave  Because of a qualifying reason arising out of the covered active duty status of a military member who is the employee’s spouse, son, daughter, or parent (qualifying exigency leave)  To care for a covered service member with a serious injury or illness when the employee is the spouse, son, daughter, parent, or next of kin of the covered service member (military caregiver leave)

Qualifying Family Members §  Parent - A biological, adoptive, step or foster father or mother, or someone who stood in loco parentis to the employee when the employee was a son or daughter. Parent for FMLA purposes does not include in-laws.  Spouse - A husband or wife as defined or recognized in the state where the employee was married and includes individuals in a same- sex marriage or common law marriage.  Son or Daughter - For leave other than military family leave, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age, or 18 or older and incapable of self-care because of a mental or physical disability.

Overview of FMLA Serious Health Conditions  Serious Health Conditions  Obtaining Medical Information  Deadlines  Information you may obtain  Clarifying, authenticating information

Serious Health Conditions  Inpatient care; or  Continuing treatment by healthcare provider, defined as:  Incapacity plus treatment  Incapacity from pregnancy/prenatal care  Chronic conditions  Permanent or long-term conditions  Conditions requiring multiple treatments

Serious Health Conditions Incapacity Plus Treatment  Employee must be incapacitated more than 3 consecutive, full calendar days and either:  Receive two treatments by healthcare provider; or  Receive one treatment plus regimen of continuing treatment

Serious Health Conditions Two Treatments by Healthcare Provider  More than 3 days of incapacity, plus:  One treatment within first 7 days of incapacity; AND  Second treatment within 30 days of first day of incapacity  Health care provider decides whether and when 2nd treatment is warranted  Treatment in this context means an in-person visit with healthcare provider

Serious Health Conditions Regimen of Continuing Treatment  More than 3 days of incapacity, plus both:  At least one treatment by healthcare provider in first 7 days of incapacity  Treatment in this context means in- person visit with healthcare provider  Regimen of continuing treatment  Continuing treatment includes course of prescribed medication, therapy  Does not include over-the-counter meds, rest, fluids, exercise, etc.

Serious Health Conditions Chronic Conditions  At least two treatments by healthcare provider per year  Again, this means in-person visits  Healthcare provider decides whether and when treatment is warranted  Need not visit healthcare provider for every episode or flare-up  Self-care allowed if healthcare provider advises (e.g., asthmatic told to stay home if pollen count is high)  No requirement of more than 3 days’ incapacity per episode or flare-up

Serious Health Conditions “Needed to Care For”  Covers both physical and psychological care (comfort and reassurance)  Can be intermittent, even if condition is not  Includes making arrangements for changes in care, such as transfer to nursing home  Employee need not be only possible caregiver

Certification of Serious Health Condition  You can require certification for:  Employee’s serious health condition  Family member’s serious health condition  No certification for leave to care for healthy newborn/adopted/foster child  May require documentation of absences due to adoption/foster process or complications related to pregnancy  Documentation of family relationships

Medical Certification How to Request  Certification info is covered in eligibility notice, rights and responsibilities notice  Attach certification form  May want to include job description/essential functions  Request first medical certification in writing; may make later requests orally  Inform employees of consequences if they don’t furnish certification

Medical Certification Timing of Employer’s Request  Employer must provide notice/request certification within 5 business days of: 1)receiving notice of need for leave; or 2)beginning of leave  See DOL Form WH-381 (as amended)  Failure to provide notice may constitute FMLA interference  Even with lack of proper notice, employer may retroactively designate leave as FMLA if:  It provides notice of such designation to employee and no harm will result; or  Employee agrees to retroactive designation

Medical Certification Timing of Employee’s Response  Employee must provide certification within 15 calendar days  Extension possible if doing so was not practicable despite diligent efforts  If no valid reason for extension, employer may deny leave  According to recent case, employer must wait full 15 days to deny leave even if certification form indicated no serious health condition  FMLA doesn’t protect any leave taken without proper certification

Medical Certification How Often?  Recertification allowed:  Every 30 days (with exceptions);  However long certification form states EE would need leave; or  Every 6 months for a continuing condition in connection with an absence.  May not seek second and third opinions  Annual certification for condition lasting more than one leave year  May seek authentication, clarification, second and third opinions

Medical Certification Contents  When condition began, probable duration  Enough medical facts to support leave  Medical necessity for intermittent leave and expected duration  Info on planned treatment

Medical Certification Contents  If leave is for employee’s serious health condition, must show he or she can’t perform job’s essential functions, for how long, job restrictions  If leave is to care for family member, show need for care, frequency, duration of leave

Medical Certification Problems with Certification  Incomplete certifications: Some required entries are left blank  Insufficient certifications: All entries are completed, but answers are vague, ambiguous, or nonresponsive  Questions of authenticity  It is employee’s responsibility to provide sufficient certification

Medical Certification Addressing Problems  First, inform employee in writing what additional info is needed  Employee has 7 calendar days to obtain corrected certification  Unless impracticable to do so despite good efforts  If employee doesn’t fix, employer may:  Deny FMLA leave; or  Contact healthcare provider for authentication or clarification

Medical Certification Reasons to Contact Healthcare Provider  Authentication: Ask the Healthcare Provider who signed certification to confirm that the Healthcare Provider completed or authorized the information it contains  Clarification: Ask Healthcare Provider to help you understand handwriting, meaning of responses

Failure or Refusal to Provide Medical Certification If the employee refuses or fails to provide certification within FMLA’s 15-day limit, the employer may:  Deny FMLA leave  Discipline or terminate employee under employer’s attendance policy, if employee has no time off remaining.  Remember: Must give employee notice of med certification requirements

Medical Certification Recertification Generally, you may request recertification every 30 days, only in connection with an absence  May request before 30 days have passed if:  Employee requests more leave  Significant change in circumstances  You learn info that causes you to doubt certification  May not request every 30 days if first certification says EE will be incapacitated more than 30 days  But recertification may in any event be requested every 6 months

Fitness-for-Duty Certification  You may require one before allowing employee to return to work if:  Leave is for employee’s own condition  You have uniformly applied policy that similarly situated employees provide fitness-for-duty (FFD) certification  You provided proper notice of the requirement (in handbook or Designation Notice)  At employee’s expense

Fitness-for-Duty Certification Intermittent Leave  You may require Fitness for Duty certification every 30 days (max) if you have reasonable safety concerns related to reason for leave  Reasonable concerns = Reasonable belief in significant risk of harm to employee or others  Example: Police officer who takes leave to address mental health issues

Serious Health Conditions Intention to Return to Work  May ask employees to report periodically on their status and/or intent to return to work  If employee expresses unequivocal intention not to return to work, your FMLA obligations end  May not terminate early even if:  Employee says she thinks she won’t be able to return at end of leave, and  It turns out that she actually couldn’t have

Employer Notice Requirements General Notice  Advises workers of FMLA rights  If substantial number of employee’s lack English literacy, must provide translation  May be provided electronically if all employees/applicants have access  Post notice conspicuously at worksite  Provide written notice to all employees  Provide notice in handbook or at hire

Employer Notice Requirements Eligibility Notice  Give within 5 days of receiving notice of need for leave  Combined with Rights and Responsibilities Notice (which advises on certification requirements, use of paid leave, benefits, including premiums, key employee status)  If not eligible, give at least one reason

Employer Notice Requirements Rights and Responsibilities  Notice of rights and responsibilities must:  Be given with each eligibility notice  Advise employees on:  Substituting paid for unpaid leave  Certification requirements and consequences  Premiums for health care  Include all forms employee needs to fill out and submit  Combined with Eligibility Notice in DOL Form WH-381

Employer Notice Requirements Designation Notice  Informs employee in writing whether leave qualifies as FMLA. It must:  Be provided within 5 days after employer has enough info to determine whether employee qualifies for leave  May take longer with extenuating circumstances  Advise employee about substitution of paid leave requirements  Inform employee of any fitness-for-duty requirements  Attach list of essential job functions

Employer Notice Requirements Retroactive Designation  Employer may designate leave retroactively unless it would cause harm or injury to employee  Example: Employee wouldn’t have taken leave if she had known it would be counted as FMLA, later runs out of leave  Employer and employee may mutually agree to retroactive designation, regardless of harm

Employer Notice Requirements Failure to Give Notice  May be considered unlawful interference with, restraint, denial of FMLA rights  Employer may be liable for lost pay, lost benefits, other money losses, and other relief tailored to the harm employee has suffered  No categorical penalties (i.e., employer is still allowed to count leave against FMLA bank)

Amount of Leave Employee’s workweek is basis for entitlement Eligible employees may take up to 12 workweeks* of FMLA leave: – for the birth or placement of a child for adoption or foster care; – to care for a spouse, son, daughter, or parent with a serious health condition; and – for the employee’s own serious health condition. * Eligible airline flight crew employees are entitled to 72 days of FMLA leave

Amount of Leave Intermittent Leave Employee is entitled to take intermittent or reduced schedule leave for: – Employee’s or qualifying family member’s serious health condition when the leave is medically necessary – Covered service member’s serious injury or illness when the leave is medically necessary – A qualifying exigency arising out of a military member’s covered active duty status Leave to bond with a child after the birth or placement must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave

Amount of Leave Intermittent Leave In calculating the amount of leave, employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour * Shortest increment may vary during different times of day or shift Required overtime not worked may count against an employee’s FMLA entitlement

12-Month Period Method determined by employer Calendar year Any fixed 12-month leave year A 12-month period measured forward A rolling 12-month period measured backward

Substitution of Paid Leave “Substitution” means paid leave provided by the employer runs concurrently with unpaid FMLA leave and normal terms and conditions of paid leave policy apply Employees may choose, or employers may require, the substitution of accrued paid leave for unpaid FMLA leave Employee remains entitled to unpaid FMLA if procedural requirements for employer’s paid leave are not met

Substitution of Paid Leave - Limitations Workers’ compensation leave – may count against FMLA entitlement – “topping off” allowed if state law permits Disability leave – may count against FMLA entitlement – “topping off” allowed if state law permits Compensatory time off (public sector only) – may count against FMLA entitlement – subject to FLSA requirements

Employer Responsibilities – Job Restoration Same or equivalent job – equivalent pay – equivalent benefits – equivalent terms and conditions Employee has no greater right to reinstatement than had the employee continued to work Bonuses predicated on specified goal may be denied if goal not met Key employee exception

Prohibited Employment Actions Employers cannot: interfere with, restrain or deny employees’ FMLA rights discriminate or retaliate against an employee for having exercised FMLA rights discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA use the taking of FMLA leave as a negative factor in employment actions

FMLA Military Family Leave The FMLA military family leave provisions include: Qualifying exigency leave, which provides up to 12 workweeks of FMLA leave to help families manage their affairs when a military member has been deployed to a foreign country; and Military caregiver leave, which provides up to 26 workweeks of FMLA leave to help families care for covered servicemembers with a serious injury or illness Generally, FMLA rules and requirements continue to apply

Qualifying Exigency Leave Eligible employees may take up to 12 workweeks* of FMLA leave because of a qualifying reason that arises out of the fact that the employee’s spouse, son, daughter, or parent is on, or has been notified of an impending call, to “covered active duty” For qualifying exigency leave, son or daughter refers to a son or daughter of any age Leave for this reason counts against an employee’s normal FMLA entitlement for other leave reasons within the 12-month leave year

Qualifying Exigencies Short-notice deployment (up to seven days) Military events and related activities Childcare and school activities Financial and legal arrangements Non-medical counseling Care of the military member’s parent Rest and recuperation (up to fifteen days) Post-deployment activities (90-day period) Additional activities by agreement

Military Caregiver Leave  Eligible employees may take up to 26 workweeks* of FMLA leave in a “single 12-month period” to care for a “covered servicemember” with a “serious injury or illness” if the employee is the covered servicemember’s spouse, parent, son, daughter, or next of kin  For military caregiver leave, son or daughter refers to a son or daughter of any age  All FMLA leave is limited to a combined total of 26 workweeks during the “single 12-month period”; no more than 12 workweeks can be taken for other leave reasons

Covered Servicemember A covered servicemember may be: a current member of the Armed Forces; OR a veteran of the Armed Forces.

Current Servicemember – Serious Injury or Illness  A serious injury or illness is one that:  was incurred by a servicemember in the line of duty on active duty; or  existed before the servicemember’s active duty and that was aggravated by service in the line of duty on active duty; and  may cause the servicemember to be medically unfit to perform the duties of his or her office, grade, rank, or rating