Family & Medical Leave Act Includes January 2009 Revisions

Agenda Types of leave Types of leave Employee’s eligibility Employee’s eligibility Serious health conditions Serious health conditions Birth or placement of children Birth or placement of children Military leave types Military leave types Recordkeeping and certifications Recordkeeping and certifications Employee doesn’t/can’t return to work Employee doesn’t/can’t return to work

 What constitutes leave for FMLA purposes?  Eligibility  Leave periods  What constitutes leave for FMLA purposes?  Eligibility  Leave periods

“Types” of FMLA Leave Basic Basic Own serious health condition Own serious health condition Family member’s serious health condition Family member’s serious health condition Birth, placement, adoption Birth, placement, adoption Military (eff. January 2009) Military (eff. January 2009) Qualifying exigencies Qualifying exigencies Care for an injured service member Care for an injured service member

Employee’s Leave Eligibility 12 months Must have worked for you for at least 12 months (doesn’t have to be consecutive) Must have worked for you for at least 12 months (doesn’t have to be consecutive) Count every week in which someone is on your payroll (even if paid leave) Count every week in which someone is on your payroll (even if paid leave)

Employee’s Leave Eligibility 1250 hours Employee must have worked at least 1,250 hours in immediately preceding 12 months. Employee must have worked at least 1,250 hours in immediately preceding 12 months. Count up all hours worked in 52 weeks prior to date leave would begin. Count up all hours worked in 52 weeks prior to date leave would begin. If > 1,250, eligible. If > 1,250, eligible. If <1,250, ineligible. If <1,250, ineligible. Must have some kind of timekeeping system. Must have some kind of timekeeping system.

To Avoid Mistakes... Calculate months/hours accurately Calculate months/hours accurately Keep accurate records of time worked Keep accurate records of time worked Give first response (Notice of Eligibility) on time Give first response (Notice of Eligibility) on time Give approval or request for more information (Designation Notice) on time Give approval or request for more information (Designation Notice) on time Use Attachments 2A, 2B and 2C Use Attachments 2A, 2B and 2C

Types of FMLA Leave Year Calendar year or other fixed period Calendar year or other fixed period “Counting forward” leave year “Counting forward” leave year “Rolling” leave year—we use “Rolling” leave year—we use All qualifying reasons apply to annual entitlement. All qualifying reasons apply to annual entitlement.

Rolling leave year Measured backward from first day leave is taken Measured backward from first day leave is taken Based on employee’s normal workweek Based on employee’s normal workweek Rolls out throughout the year, incrementally. Rolls out throughout the year, incrementally. Accrues, like vacation or sick. Accrues, like vacation or sick. See example spreadsheet. See example spreadsheet.

Military Caregiver Leave Year 26 weeks in 12-month period. 26 weeks in 12-month period. Always begins on employee’s first day of leave—no choice. Always begins on employee’s first day of leave—no choice. Only one leave per servicemember per injury or illness. Only one leave per servicemember per injury or illness.

Own Serious Health Condition For employee’s own illness For employee’s own illness Includes Includes Inpatient care Inpatient care Incapacity for more than 3 calendar days Incapacity for more than 3 calendar days Incapacity for pregnancy or prenatal care Incapacity for pregnancy or prenatal care Incapacity for chronic serious health condition Incapacity for chronic serious health condition Permanent or long-term incapacity Permanent or long-term incapacity Absence for multiple treatments Absence for multiple treatments

Family Member’s Serious Health Condition “Family” definition “Family” definition Spouse Spouse Child Child Parent Parent Not in-laws Not in-laws Employee needed to care for family member (not just comfort) Employee needed to care for family member (not just comfort) Can ask for proof of family relationship Can ask for proof of family relationship

To Avoid Mistakes... Always get medical certification—don’t make decisions on your own Always get medical certification—don’t make decisions on your own “3-day rule” may not apply in every case “3-day rule” may not apply in every case Think of FMLA immediately when employee talks of leave for physical or mental ailment Think of FMLA immediately when employee talks of leave for physical or mental ailment

Birth of a Child 12 weeks total only 12 weeks total only Serious medical condition Serious medical condition Caring for ill wife or newborn (males) Caring for ill wife or newborn (males) Caring for ill newborn (males & females) Caring for ill newborn (males & females) Parenting leave (to bond with new baby) Parenting leave (to bond with new baby) Males & females Males & females Must conclude within one year of birth Must conclude within one year of birth

Adoption of a Child 12 weeks total 12 weeks total Includes time before placement Includes time before placement Parenting leave applies Parenting leave applies

Leave for a New Foster Child 12 weeks only 12 weeks only Need may arise before or after placement Need may arise before or after placement Must involve the state Must involve the state Informal custody arrangements don’t count Informal custody arrangements don’t count

Parenting Leave Leave must conclude within one year of birth or placement—rigid deadline Leave must conclude within one year of birth or placement—rigid deadline Intermittent or reduced-schedule leave not required to be granted, but you can Intermittent or reduced-schedule leave not required to be granted, but you can If both parents work for you, entitled to 12 weeks combined If both parents work for you, entitled to 12 weeks combined

Pregnancy Incapacity due to pregnancy and prenatal care = serious health condition Incapacity due to pregnancy and prenatal care = serious health condition So, may be taken intermittently or on reduced schedule So, may be taken intermittently or on reduced schedule Husband may take FMLA leave to care for ill wife Husband may take FMLA leave to care for ill wife

To Avoid Mistakes... Make sure both parents are eligible if both work for you Make sure both parents are eligible if both work for you Distinguish parenting leave from leave for a serious illness Distinguish parenting leave from leave for a serious illness

FMLA Intermittent Leave Taken in separate blocks of time for single qualifying reason. Taken in separate blocks of time for single qualifying reason. Must be medically necessary. Must be medically necessary. For PT employee w/ variable week, calculate average hours in prior 52 weeks. For PT employee w/ variable week, calculate average hours in prior 52 weeks.

Recordkeeping for Intermittent Leave Keep accurate and updated records or time. Keep accurate and updated records or time. FFD certifications not applicable. FFD certifications not applicable. Must use smallest increment of time your payroll systems uses to account for other types leave. Must use smallest increment of time your payroll systems uses to account for other types leave.

Other Information Intermittent or reduced schedule leave available Intermittent or reduced schedule leave available Employee may choose—or you may require—paid leave to be used, according to your leave policies Employee may choose—or you may require—paid leave to be used, according to your leave policies

Military Leave

Military Family Leave Family members defined: Family members defined: Spouse Spouse Parent Parent Child, regardless of age. Child, regardless of age. Nearest blood relative Nearest blood relative

Military Family Leave Covered family member (meets all three) Covered family member (meets all three) Member of National Guard or Reserves Member of National Guard or Reserves Could be retired member of regular Armed Forces or Reserves. Could be retired member of regular Armed Forces or Reserves. On active duty or called in support of contingency operation. On active duty or called in support of contingency operation. Called pursuant to federal call (not state). Called pursuant to federal call (not state). Active career military not eligible Active career military not eligible

Military Family Leave Qualifying exigency Qualifying exigency Family member is National Guard or Reserves or retired from Armed Forces Family member is National Guard or Reserves or retired from Armed Forces 12 weeks 12 weeks Caregiver leave Caregiver leave To care for family member with serious injury or illness from active duty To care for family member with serious injury or illness from active duty Regular Armed Forces & Guard and Reserves Regular Armed Forces & Guard and Reserves 26 weeks in single 12-month period 26 weeks in single 12-month period

Qualifying Exigencies Short-notice deployment Short-notice deployment Military events and related activities Military events and related activities Child care and school activities Child care and school activities Financial and legal arrangements Financial and legal arrangements Counseling Counseling Rest and recuperation Rest and recuperation Postdeployment activities Postdeployment activities

Caregiver Leave Up to 26 weeks in single 12-month period. Up to 26 weeks in single 12-month period.  For family member and  With serious injury or illness and  Incurred in line of duty or  Undergoing treatment for same

Leave Rules Employees eligible for military caregiver leave may take no more than 26 total weeks in a single 12-month period Employees eligible for military caregiver leave may take no more than 26 total weeks in a single 12-month period Employees may not take more than 12 weeks FMLA leave for purposes other than military caregiver leave Employees may not take more than 12 weeks FMLA leave for purposes other than military caregiver leave Any unused leave does not carry over Any unused leave does not carry over

Using Both Types of Leave Time off must be designated either as military caregiver leave or as another type, not both. Time off must be designated either as military caregiver leave or as another type, not both. In many instances, military caregiver leave would qualify as leave for a family member’s serious health condition. In many instances, military caregiver leave would qualify as leave for a family member’s serious health condition. BUT revised regs say this must be counted & designated as military caregiver leave only, to give employees full benefit of this time off. BUT revised regs say this must be counted & designated as military caregiver leave only, to give employees full benefit of this time off.

Example Benny’s wife was seriously injured in Iraq. He has taken 20 weeks, starting September 1, to care for her. His son now has a serious medical condition requiring surgery and rehab. He requests 10 weeks of leave, starting April 15, to care for the boy. Do you have to grant that under FMLA?

Answer No. As the spouse of an injured service member, Benny is entitled to a max of 26 in any 12-month period for all FMLA leave. That 12-month period began September 1, and he’s used 20 weeks of it. So, he has only 6 weeks of any type of FMLA leave left until September 1 of following year.

Example Benny took only 8 weeks to care for his wife since September 1 (his mother-in- law took over care). When Benny’s son requires surgery, he asks for 16 weeks, to begin April 15. Should you grant?

Answer No. Even though Benny used only 8 weeks of his 26-week entitlement for military caregiver leave, he is still entitled to only 12 total weeks of FMLA leave for all other purposes. Son’s serious health condition subject to 12-week limit. Still has 18 weeks remaining to care for wife, but may not use all of this for other FMLA purposes.

To Avoid Mistakes... Think of FMLA when employee mentions family member’s military service as reason for time off. Think of FMLA when employee mentions family member’s military service as reason for time off. Ask questions. Ask questions. 26 weeks of caregiver leave starts on first day of leave. 26 weeks of caregiver leave starts on first day of leave. Keep track of limits on timing and duration for particular types of exigency leave. Keep track of limits on timing and duration for particular types of exigency leave.

Certifications Always request Always request Give employees at least 15 days to return completed form Give employees at least 15 days to return completed form Completed by health care provider for all but military exigency Completed by health care provider for all but military exigency But you may confirm meeting with third-party But you may confirm meeting with third-party May confirm with DOD employee’s family member is on active duty or called to active duty. May confirm with DOD employee’s family member is on active duty or called to active duty.

If certification unclear Employee must cooperate with getting clarification or leave may be denied Employee must cooperate with getting clarification or leave may be denied Call me Call me

If employee can’t return to work Your FMLA obligations end Your FMLA obligations end ADA obligations must be reviewed ADA obligations must be reviewed Call me to discuss Call me to discuss

What if employee cannot return to work?

If employee can’t return Basic rule: Employee is entitled to every benefit available under every law that applies Basic rule: Employee is entitled to every benefit available under every law that applies Americans with Disabilities Act Americans with Disabilities Act Continuation coverage Continuation coverage Title VII of Civil Rights Act Title VII of Civil Rights Act USERRA USERRA Workers’ compensation Workers’ compensation

If employee doesn’t return Determine reason Determine reason If voluntary, calculate If voluntary, calculate Employer’s share of health premium Employer’s share of health premium Employee’s share if not paid Employee’s share if not paid Offer continuation coverage Offer continuation coverage

Pregnancy and childbirth Title VII of CRA says employer must treat pregnant employees as it would any other temporarily disabled worker. Title VII of CRA says employer must treat pregnant employees as it would any other temporarily disabled worker. Means: might have to provide time off to pregnant employee who isn’t eligible for FMLA leave IF you provide such time off to employees with other types of short- term disabilities. Means: might have to provide time off to pregnant employee who isn’t eligible for FMLA leave IF you provide such time off to employees with other types of short- term disabilities.

FMLA & Recordkeeping Records may be inspected by DOL Records may be inspected by DOL “make, keep, and preserve” detailed records of FMLA leaves taken (including notices to and from employees) “make, keep, and preserve” detailed records of FMLA leaves taken (including notices to and from employees) No specific order required; must be clear and identifiable by date or pay period No specific order required; must be clear and identifiable by date or pay period Kept for at least 3 years Kept for at least 3 years NOT in employment file! NOT in employment file!

To Avoid Mistakes... Keep good (& up-to-date) payroll & leave records Keep good (& up-to-date) payroll & leave records Keep track of hours available to calculate intermittent leave Keep track of hours available to calculate intermittent leave Keeping easily retrievable copies of forms to and from employee Keeping easily retrievable copies of forms to and from employee