FMLA Update Rebecca Watkins Sather, Byerly & Holloway, LLP February 3, 2010

FMLA Summary Employers –50+ employees Employees –1250 hours in 12 months Rights –12 weeks –Return to job, continued health care

OFLA Summary Employers –25+ employees Employees –180 days, 25 hours per week Rights –12 weeks but up to 36 for pregnancy/new baby –Sick child care

MILITARY LEAVE National Defense Authorization Act for FY 2008 Caregiver Leave –Up to 26 weeks –Serious illness or injury in active duty –Family member or next of kin –Vets with injury or illness within prior 5 years

Qualifying Exigency Leave –Up to 12 weeks in 12 month period –For a variety of “exigencies” broadly defined as related to deployment of employee or family member –Any service member, including armed forces, National Guard, or reserves MILITARY LEAVE National Defense Authorization Act for FY 2008

NOTICE FROM EMPLOYER Four types of Notice 1.General 2.Eligibility 3.Rights & Responsibilities 4.Designation

General Notice: Postings FMLA/OFLA Difference: FMLA can be posted electronically. Electronic postings do not meet OFLA requirement that rights be physically posted in each worksite or building.

Eligibility Notice: Specificity Under FMLA and OFLA, employer must give at least one specific reason why the requested leave is not eligible under FMLA/OFLA.

Designation Notice: Retroactive Retroactive designation is okay when it does not cause individual harm. Under OFLA, because workers’ compensation leave does not count towards OFLA, may have to “correct” designation after claim denial or acceptance.

NOTICE BY EMPLOYEE Employee must provide a specific reason for leave that would indicate the leave is FMLA related. The employee must follow the employer’s normal call-in policy. BOLI regulations: “calling in sick without providing more information is not sufficient to trigger OFLA.”

MEDICAL CERTIFICATION Updated to comply with HIPAA Under both FMLA and OFLA: Employers have duty to inform employees of insufficiencies in certifications – in specific terms. Under FMLA but not OFLA: Employer granted access to employee’s doctors (not direct supervisor).

SUBSTITUTION OF LEAVE All types of paid leave substituted at employee’s or employer’s choice. Employers can require employees to follow normal workplace procedures for use of all types of paid leave – sick leave, vacation leave, or paid time off.

WORKERS’ COMP LEAVE Light duty time worked is not counted as FMLA leave. No workers comp leave counts against OFLA unless refusal of bona fide light duty. If reduced hour restriction (although approved by doctor) is not physically possible, all time can be counted as FMLA leave. Example: airline pilot

ATTENDANCE AWARDS An employee is not entitled to a perfect attendance award if he or she takes protected leave. FMLA/OFLA Difference:OFLA continues to prohibit the employer from counting protected leave periods against an employee when determining perfect attendance.

FITNESS FOR DUTY EXAMS FFD exams can be required of any employee returning from leave for their own serious health condition. –New amendments clarify that the employee’s doctor can be asked to confirm the employee’s ability to perform “essential functions.” –Intermittent leave FFD can be administered if employer has reasonable safety concerns.

RECAP New military leave protections. Clarification to notice provisions and obligations of both the employer and the employee. Changes to medical certification and fitness for duty process.

The provision most favorable to the employee applies. When FMLA and OFLA requirements conflict

Where to find more information BOLI has proposed amendments to OFLA to parallel new FMLA amendments. New FMLA regulations including new forms can be found at Any questions? Please give me a call: Rebecca Watkins (503)