1. FMLA & Military Family Leave Updates 2009

2. What is the Family and Medical Leave Act?
Family Medical Leave is a Federal benefit provided to eligible employees.
A 1993 Federal Act which provides:
up to 12 work weeks of unpaid, job-protected leave
maintenance of pre-existing health benefits
Enforced by the Department of Labor
for the birth and care of the newborn child of the employee;
for placement with the employee of a son or daughter for adoption or foster care;
to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
to take medical leave when the employee is unable to work because of a serious health condition.

3. The final regulations become effective on January 16, 2009.
FMLA Updates
On November 17, 2008, the DOL issued its final regulations under the Family and Medical Leave Act (FMLA), which include expansions to cover military leave along with changes to the current regulations.
The final regulations become effective on January 16, 2009.
The President signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA), Pub. L Among other things, section 585 of the NDAA amends the Family and Medical Leave Act of 1993 (FMLA) to permit a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." The NDAA also permits an employee to take FMLA leave for “any qualifying exigency (as the Secretary [of Labor] shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” By its express terms, this provision of the NDAA is not effective under the Secretary of Labor issues final regulations defining “any qualifying exigency.” Additional information and a copy of Title I of the FMLA, as amended, are available on the FMLA NDAA Web site. (January 28, 2008)

4. Key Changes Military Leave Serious Health Condition
Employer Obligation
Employee Notice
Employee Eligibility

5. Key Changes Continued
Medical Certification Process (Content, Clarification and Timing)
Fitness for Duty
Light Duty
Calculation of Leave Minimum Increments

6. Military Leave
Military Caregiver Leave (also known as Covered Service member Leave): Under the first of these new military family leave entitlements, eligible employees who are family members of covered service members will be able to take up to 26 workweeks of leave in a “single 12-month period” to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty.
This 26 workweek entitlement is a special provision that extends FMLA job-protected leave beyond the normal 12 weeks of FMLA leave. This provision also extends FMLA protection to additional family members (i.e., next of kin) beyond those who may take FMLA leave for other qualifying reasons.

7. Military Leave Continued
Qualifying Exigency Leave: The second new military leave entitlement helps families of members of the National Guard and Reserves manage their affairs while the member is on active duty in support of a contingency operation.
Certification
Certification that the covered military member is a member of the National Guard or Reserves who is on active duty or called to active duty in support of a contingency operation.
Statement from the employee (including available written support documentation) about the nature and details of the specific exigency, the amount of leave needed, and the employee’s relationship to the military member.
This provision makes the normal 12 workweeks of FMLA job-protected leave available to eligible employees with a covered military member serving in the National Guard or Reserves to use for “any qualifying exigency” arising out of the fact that a covered military member is on active duty or called to active duty status in support of a contingency operation. The Department’s final rule defines qualifying exigency by referring to a number of broad categories for which employees can use FMLA leave: (1) Short-notice deployment; (2) Military events and related activities; (3) Childcare and school activities; (4) Financial and legal arrangements; (5) Counseling; (6) Rest and recuperation; (7) Post-deployment activities; and (8) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.
An employer may require two different types of certification with respect to military exigency leave. One is a certification that the covered military member is a member of the National Guard or Reserves who is on active duty or called to active duty in support of a contingency operation. A copy of the military member’s active duty orders can normally be required and will contain the necessary information. Once an employee furnishes the certification, the employer may not require the same certification again for subsequent absences related to the same active duty of that particular military member. The other certification is a statement from the employee (including available written support documentation) about the nature and details of the specific exigency, the amount of leave needed, and the employee’s relationship to the military member. DOL has developed a prototype form for the exigency certification. The employee must provide both certifications within 15 days absent unusual circumstances.
Contact Staff and Labor for assistance with clarifying the exigency leave.

8. Military Exigency Leave
Short-notice deployment
Military events and related activities
Childcare and school activities
Financial and legal arrangements
Counseling
Rest and recuperation
Post-deployment activities;
Additional activities not encompassed in the other categories, but agreed to by the employer and employee.
See Handout

9. Serious Health Condition – Continuing Treatment
Continual Treatment - measured by the duration of the incapacity itself (more than 3 full consecutive days)
requires 2 in-person treatments by a health care provider at least once within seven days of the first day of incapacity; and
requires either (i) a regimen of continuing treatment initiated by the health care provider within 30 days of the start of incapacity.
The final rule clarifies here also that the first visit to the health care provider must take place within seven days of the first day of incapacity. Thirdly, the final rule defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year since that provision is also open-ended in the current regulations and potentially subjects employees to more stringent requirements by employers.

10. Serious Health Condition – Chronic Condition
A chronic condition is one that:
(a) requires visits for treatment by a health care provider at least twice a year;
(b) continues over an extended period of time (including recurring episodes of a condition); and
(c) may cause episodic incapacity rather than a continuing period of incapacity

11. Employee Eligibility
If an employer grants a non-FMLA leave to an employee before that employee is eligible for FMLA leave, and if the employee becomes eligible for FMLA leave while on the non-FMLA leave, the leave period after the date the employee becomes eligible is FMLA leave
If an employee has a break in service that lasts more than 7 years, the prior service does not need to be counted toward eligibility for FMLA except if the break in service was due to National Guard or Reserve military service, or if there was an agreement when the break in service occurred that the employer would later rehire the employee.
If an employee has a break in service that lasts more than 7 years, the prior service does not need to be counted toward eligibility for FMLA except if the break in service was due to National Guard or Reserve military service, or if there was an agreement when the break in service occurred that the employer would later rehire the employee. Since an employer is not required to retain an employee’s personnel records longer than the 3-year FMLA record retention period, the burden is on the employee to prove prior service with the employer if the employer has not retained the documentation.
Joint Employment and Work Site ( , ) For purposes of employee eligibility under the “50 employees within 75 miles rule,” an employee’s “work site” is the site to which the employee reports to work or, if none, from which the employee’s work is assigned. In the case of joint employment, the primary employer’s office (to which the employee is assigned or reports) is the employee’s work site, except if the employee has physically worked for at least one year at a facility of the secondary employer, in which case that facility is the employee’s work site.
Separate stints of employment will be counted for breaks-in-service of 7 years or longer if one of the following applies: 1) break-in-service due to National Guard or Reserve military service obligation; or 2) written agreement (includes CBA) reflecting an employer’s intention to rehire the employee after the break-in-service.

12. Employer Notice Obligation
FMLA information must be posted in conspicuous places that are accessible to both applicants and employees.
The employer must also distribute the general notice to employees by including it a handbook (or other written materials) or by providing it to each new hire.
Electronic posting and distribution is permissible.
The final rule consolidates all the employer notice requirements into a “one-stop” section of the regulations and reconciles some conflicting provisions and time periods under the current regulations. Further, the final rule clarifies and strengthens the employer notice requirements in order to better inform employees and allow for a better exchange of information between employers and employees. Employers will be required to provide employees with a general notice about the FMLA (through a poster, and either an employee handbook and upon hire); an eligibility notice; a rights and responsibilities notice; and a designation notice. In order to ensure employers are able to better inform employees under the new notice provisions, the final rule extends the time for employers to provide various notices from two business days to five business days.
If employer requires or permits use of paid time off benefits while on leave, must notify employee (in or with new rights and responsibilities notice) of employer’s requirements for using paid time off and presumably of employee’s right to still take FMLA leave even if employee fails to meet those requirements.

13. Employer Notice Obligation
An Eligibility Notice; Employer must notify employee in writing of eligibility or noneligibility within 5 business days (absent extenuating circumstances) after the first time in the employer’s FMLA leave year that an employee requests leave for a particular qualifying reason, and thereafter during the same FMLA leave year, only if the employee’s eligibility status changes (even if a subsequent request is for a different qualifying reason)
Current statute is 2 business days after the request.
Eligibility notice must state: (a) whether or not employee is eligible; and (b) if not eligible, at least one reason why the employee is not eligible (i.e., doesn’t have 1 year of service and approximately how much service the employee has, doesn’t meet 1,250-hour requirement, or doesn’t work at a site that has 50 or employees within 75 miles) If employee has exhausted his/her 12-week FMLA entitlement, that is not a reason for “ineligibility;” use new designation notice instead to deny leave Also, must add ending date for leave

14. Employer Notice Obligation Continued
Rights and Responsibilities Notice; Employer must provide written rights & responsibilities notice:
(a) each time an eligibility notice is required;
(b) if any info on it changes thereafter, within 5 business days after employee’s first request for leave after the changes occur, including reference to prior notice and info that has changed (e.g., method of paying premiums may change if paid LOA becomes unpaid LOA)
DOL has developed a prototype rights & responsibilities notice (Part B of Form WH-381) which is combined on the same form as the eligibility notice (must add ending date of leave due to typo on prototype) or employer can develop its own form as long as it contains, at a minimum, all info required by the regulations Rights and responsibilities notice must include numerous pieces of information that are itemized in the regulations
The information includes:
􀁺 Employer’s designated 12-month FMLA leave year
􀁺 Whether certification or other documentation will be required (and attaching it)
􀁺 Whether employer will require use of paid time off benefits while employee is on leave (and terms & conditions of same)
􀁺 Whether periodic reports on status and intent to return to work are required

15. Employer Notice Obligation Continued
A Designation Notice - For each FMLA-qualifying reason within the employer’s designated 12-month FMLA leave year, employer must give written designation that leave qualifies (or not) as FMLA leave:
(a) within 5 business days after acquiring enough info to determine if it qualifies, absent extenuating circumstances;
(b) at any later time as long as the employee is not harmed (the Ragsdale rule); and
(c) if the amount of leave is not known, upon an employee’s request but no more often than every 30 days (if leave was taken during the prior 30 days)
If employer has determined that leave is FMLA-qualifying, designation notice must include: (a) statement that leave is being designated as FMLA leave; (b) amount of leave being counted as FMLA leave if known; (c) whether paid time off benefits will be used during leave and if so that paid leave will count as FMLA leave; (d) whether a fitness-for duty certification (FFD) will be required; and (e) whether a list or job description of essential duties is attached for HCP to use for FFD If employer is not able to determine that leave is FMLA-qualifying because more information is required, employer must orally notify employee that: (a) medical certification is incomplete or insufficient, provide written list of deficiencies, and opportunity to cure; or (b) second or third opinion is being required If employer has determined that leave is not FMLA-qualifying, employer must so notify the employee in writing (and presumably give the reason it is not qualifying, such as employee has exhausted his/her FMLA entitlement, leave was requested for a non-FMLA reason, or leave not approved for some other reason) The written notice may be a simple written statement or employer may use the DOL prototype designation notice (Form WH-382), which includes a section for this purpose and for employer to checkmark the applicable reason why leave has been denied

16. Employee Notice
In the case of foreseeable leave, 30 days’ advance notice is still required or, if 30 days’ advance notice is not possible, notice must be given “as soon as practicable” (meaning the same day or the next business day).
If leave is unforeseeable, the employee must give notice of the need “as soon as practicable” (meaning within such reasonable time frame as is established in an employer’s usual and customary leave and absence notification policies).
Failure to provide timely notice allows the employer to count any absences during the delay as non-FMLA absences and apply the employer’s attendance policy to those absences. In the case of exigency leave (whether foreseeable or unforeseeable), notice must be given “as soon as practicable.”
The final rule modifies the current provision that has been interpreted to allow some employees to provide notice to an employer of the need for FMLA leave up to two full business days after an absence, even if they could have provided notice more quickly. The final rule provides that an employee needing FMLA leave must follow the employer’s usual and customary call-in procedures for reporting an absence, absent unusual circumstances. The final rule also highlights (without changing) the existing consequences if an employee does not provide proper notice of his or her need for FMLA leave.
A request for FMLA leave only needs to be verbal. An employer may, however, require an employee to comply with the employer’s usual and customary notice and procedural requirements absent any unusual circumstances and provided that no written notice may be required in emergency situations or for unforeseeable leave. Otherwise, the policy may require written notice (for foreseeable leave) and that leave be requested from a designated individual or by calling a designated phone number. Leave may be delayed for an employee’s failure to comply with the employer’s policy, and the employer may count any absences during the delay as non-FMLA absences and apply the employer’s attendance policy to those absences.

17. Medical Certification Process (Content)
An employee must submit a complete and sufficient medical certification within 15 days (or longer if the employee has made diligent, good faith efforts to obtain it without success).
If submitted and is not complete or sufficient, the employer must provide the employee with seven days to cure the deficiencies and a list of what information is still needed. If the employee does not correct it within the cure period, leave can be denied.
However, in most cases, leave can be denied if it is not submitted at all within 15 days, and an employer has no obligation to notify the employee that it has not been received.
In addition, the final rule specifies that if an employer deems a medical certification to be incomplete or insufficient, the employer must specify in writing what information is lacking, and give the employee seven calendar days to cure the deficiency.

18. Medical Certification Process (Clarification)
Once the employer receives a complete and sufficient certification, the employer may authenticate it (without the employee’s consent and by direct contact with the employee’s health care provider via Dr. Jackson) and may obtain clarification of any vague or unresponsive information (by direct contact with the provider but only with the employee’s consent).
The final rule recognizes the advent of the Health Insurance Portability and Accountability Act (HIPAA) and the applicability of the HIPAA privacy rule to communication between employers and employees’ health care providers. Further, in response to specific concerns raised by employees about medical privacy, the Department has added a requirement to the final rule that specifies that the employer’s representative contacting the health care provider must be a health care provider, human resource professional, a leave administrator, or a management official, but in no case may it be the employee’s direct supervisor. Further, employers may not ask health care providers for additional information beyond that required by the certification form. The final rule also improves the exchange of medical information by updating the Department’s optional Form WH-380 to create separate forms for the employee and covered family members and by allowing—but not requiring—health care providers to provide a diagnosis of the patient’s health condition as part of the certification.
If the employee’s health care provider will not complete the certification or provide subsequent clarification of it without a HIPAA authorization from the employee, the employer cannot
require the employee to provide the consent. However, the employee will lose FMLA protection if the certification is not timely submitted because of failure to provide the HIPAA consent. If an employee submits a certification from a foreign health care provider and it is not in English, the employer can require the employee to translate it or have it translated.

19. Medical Certification Process (Timing)
Recertification can be required every six months in all cases, but only in connection with an absence that has occurred for that medical condition.
A recertification can also be required at any time if an extension to a leave is requested, circumstances described in the last certification have changed (such as a pattern of absences around an employee’s scheduled days off), or the employer receives information casting doubt on the employee’s stated reason for an absence or the continuing validity of the last certification (such as an employee observed engaging in 10 activities that are inconsistent with a need for time off due to the certified condition).
The final rule codifies a 2005 DOL Wage and Hour Opinion letter that stated that employers may request a new medical certification each leave year for medical conditions that last longer than one year. Because many stakeholders have indicated that the current regulation is unclear as to the employer’s ability to require recertification when the duration of a condition is described as “lifetime” or “unknown,” the final rule restructures and clarifies the regulatory requirements for recertification. In all cases, the final rule allows an employer to request recertification of an ongoing condition every six months in conjunction with an absence.
An employer can provide the health care provider with information about the employee’s attendance and ask the provider to evaluate whether the employee’s attendance pattern is consistent with the need to be absent for the condition in question. Recertification for a particular exigency and second/third opinions are not permitted.

20. Fitness for Duty
An employer may require a fitness-for-duty certification that is more than a simple statement releasing the employee to work. The employer may require the health care provider to actually assess whether the employee has the ability to perform the essential functions of the job.
A fitness-for-duty certification can be required for each continuous leave upon the employee’s return to work or, in the case of intermittent or reduced schedule leave, every 30 days if reasonable safety concerns exist (defined as a significant risk of harm to the employee or others).
Any such assessment must be based on a list or job description of essential job duties provided by the employer, if notice that such an assessment will be required is included in the designation notice and the list of duties or job description is provided at that time.
Employers may require employees to present a “fitness or duty” certification when they take intermittent leave and their return to work raises reasonable safety concerns.
You must contact Employee Occupational Health and Wellness and Dr. Jackson if you are considering a fitness for Duty Evaluation

21. Light Duty
An employee performing “light duty” work does not count against an employee’s FMLA leave entitlement and that the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.
At least two courts have held that an employee uses up his or her 12 week FMLA leave entitlement while on a “light duty” assignment following FMLA leave. Under the final rule time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement and that the employee’s right to restoration is held in abeyance during the period of time the employee performs light duty (or until the end of the applicable 12-month FMLA leave year). If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

22. Calculation of Leave Minimum Increments
An entire missed shift may be charged against FMLA leave when it is physically impossible for an employee to begin the shift late, such as working on an airline flight that has already taken off.
Department may track leave in increments of no more than 1 hour but not for any time spent working.
An employer can hold you out of work for one hour or choose to have you begin working.

23. Next Steps
Review the presentation for understanding and ask questions of your Staff and Labor representative
Train employees and supervisors on the FMLA's new obligations and rights.
Remove old FMLA forms effective January 16, 2009
Determine departmental FMLA process (letters, sign offs, verification of eligibility, and etc.)
Visit the Duke HR Web Site for the toolkits, forms, presentations, letters, updates and etc.
Call Staff and Labor or for policy questions
Call EOHW for Medical Questions
Ensure that forms are complete
Send leave forms to Corporate Payroll
Leaves of Absence without Pay- send to Corporate Payroll and Human Resource Information Center

24. End of FMLA Regulations
Q&A