FMLA FAMILY AND MEDICAL LEAVE ACT OF 1993

What Is FMLA?  The FMLA entitles eligible employees who work for covered employers to take unpaid, job- protected leave in a defined 12- month period for specified family and medical reasons.

FMLA is a LAW… Not a Benefit  Employers who meet the eligibility requirements MUST offer FMLA to its employees  An employee has a legal right to decline FMLA Usually this is done by the employee not completing the required paperwork. However, they are also declining the right and protections that FMLA offers

FMLA Leave Usage  FMLA is un-paid leave However:  Employees may choose or employers may require use of accrued paid leave while taking FMLA leave.  It is important to specify this in your procedures

FMLA Basic Leave Entitlement: Qualifying Event  The birth of a child and/or to care for the child  Placement of a child through adoption or foster care  The care of an employee’s spouse, child, or parent who has a serious health condition  The employee’s own serious health condition which prevents the employee from performing their essential duties

Military Family Leave Entitlement:  Eligible employees whose spouse, son, daughter or parent is on covered active duty or call to covered active duty status may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying  exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.  FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered servicemember during a single 12-month period.

Eligibility Requirements:  Employees are eligible if they have worked for a covered employer for at least 12 months,  have work 1,250 hours of service in the previous 12 months*, paid time off does not apply.  and if at least 50 employees are employed by the employer within 75 miles.

When does FMLA start?  The FMLA clock begins at the time of the qualifying event

How to Define the 12- Month Calendar Year  (1) the calendar year – 12-month period that runs from January 1 through December 31;  (2) any fixed 12-months – 12-month period such as a fiscal year (for example, October 1 through September 30), a year starting on an employee’s anniversary date (for example, September 22 through September 21), or a 12-month period required by state law;  (3) the 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or For example, Lucia’s FMLA leave begins on November 6, 2012 so her 12-month period is November 6, 2012 through November 5,  (4) a “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Requirements for Use of FMLA  The employee must provide thirty (30) days advance notice when the leave is “foreseeable”, unless it is medically impossible or impractical to provide such notice  The employee may provide medical certification for all FMLA requests due to a serious health condition of the employee or a covered family member  This medical certification must be returned to Human Resources within 15 calendar days of notice to use leave

Definition of a Serious Health Condition  A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.  Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.

Serious Health Condition  Allergies?  Migraines?  Back Problems?  Morning Sickness?  Depression?  Drug or Alcohol Addictions?  Voluntary Cosmetic Procedures?

Intermittent FMLA  Intermittent leave is also allowed under FMLA, with the same requirements for medical certification and leave usage  You are not required to provide intermittent leave for a birth of a child

Can FMLA run concurrent to Work Comp? Yes it can …provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

Can FMLA run concurrent to ADA? Yes it can …..An employee who has exhausted the 12 weeks of FMLA leave time may be entitled to additional leave under the ADA. If, after 12 weeks, a disabled employee is still medically unable to perform the job, the ADA requires the employer to make a reasonable accommodation for that employee that would enable him to perform the essential functions of the employment position

Maintaining Benefits while on FMLA:  A covered employer is required to maintain group health insurance coverage, including family coverage, for an employee on FMLA leave on the same terms as if the employee continued to work.  What about other benefits?

Returning from FMLA  Employees returning from FMLA must be returned to their former position, or an equivalent position with equivalent benefits.  Especially with a serious health condition, it is important to get a return to work certification from the Dr. releasing them back to work. In some cases, light duty will be necessary.

Resources for FMLA:  U.S. Department of Labor, Wage and Hour Division For an electronic copy,