1. County Extension Councils FMLA Basics August 26, 2015 Jaki K. Samuelson Whitfield & Eddy, PLC 317 6 th Avenue, Suite 1200 Des Moines, IA 50309 Phone: 515-288-6041 Fax: 515-246-1474 samuelson@whitfieldlaw.com

2. Family Medical Leave Act (“FMLA”) PURPOSE “…to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families and to promote the national interest in preserving family integrity.”

3. U.S. Department of Labor regulations provide that governmental entities (regardless of size) provide FMLA leave ▫A new handbook policy will be distributed ▫Councils should designate who is responsible for administering FMLA for the County office

4. Types of Leave 1.Employees own serious health condition 2.Birth, adoption, newly placed foster child 3.Care of a spouse, child, or parent with a serious health condition 4.Military family member  Caregiver  Exigency

5. Legal Requirements Must provide leave to eligible employees Must reinstate employees to equivalent positions after leave May not interfere with leave May not retaliate against an employee for taking leave

6. Who can be sued for violations? Employer Supervisors Decision makers

7. Who is eligible for FMLA? Employee must have been employed for at least 12 months AND Must have worked at least 1250 hours during last 12 months

8. Total Leave Available (Non Military) Up to 12 weeks (60 business days) in a one year period The new handbook language provides that the 1 year period is calculated starting on the date leave is first taken Right to leave ends when purpose for leave ends

9. Intermittent Leave For chronic, recurrent conditions (i.e. diabetes, asthma, migraine headaches) or conditions requiring periodic treatment (i.e. cancer / chemotherapy), employees may take leave in increments as small as shortest available for other leave, but not greater than one hour Available for employee’s own, or family member’s serious health condition

10. Intermittent Leave Not available for child birth, placement Employee is obligated to work with employer to schedule appointments / treatments to minimize disruption of work

11. Is Leave Paid? Leave is unpaid HOWEVER The new handbook policy requires that employees use available paid leave time contemporaneously with FMLA

12. Substitution of Paid Benefits Paid benefits run concurrently Vacation/sick leave Work comp Cannot substitute more than one form of paid leave but may supplement by agreement  i.e. work comp supplemented with vacation/sick leave

13. Notice Requirements Employee initial notice  Do not need to use words “FMLA”  Can be oral if enough information provided to know absence may qualify  Can request enough detail to determine if it is a “serious health condition” (use caution) What is the reason for the leave (general question – avoid ADA issue) How long will you be gone Are you seeking treatment When do you expect to be back

14. Notice Requirements Employer notices (*use DOL forms) ▫General: policy, DOL posters ▫After leave request  Eligibility notice  Rights and responsibilities (substitution of paid leave; certification requirement; health care premium)  Designation (reminder re: paid leave, health premiums; requirement for return-to-work, fitness- for-duty)

15. Notice Requirements Employer notices  Statutory time deadlines  Retroactive designation possible

16. Certification of Serious Health Condition You may, and generally will want to require certification for:  An 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

17. Certification of Serious Health Condition Documentation of family relationships Medical certification for military caregiver

18. Serious Health Conditions 1.Inpatient care OR 2.Continuing treatment by healthcare provider  Incapacity plus treatment  Incapacity from pregnancy/prenatal care  Chronic conditions  Permanent/long term conditions  Conditions requiring multiple treatments

19. Incapacity Plus Treatment Employee must be incapacitated more than 3 consecutive, full calendar days and either:  Receive two treatments by in person healthcare provider – first within 7 days; both within 30 days  Receive one treatment in person by healthcare provider plus regime of continuing treatment – i.e. medication, therapy prescribed

20. Chronic Conditions At least two in person treatments by healthcare provider per year Do not need to visit healthcare provider for every episode or flare-up No requirement of more than 3 days’ incapacity

21. What Is Not A Serious Health Condition? General rule:  Absent complications, common cold and flu are not serious health conditions  But they can be a serious health condition if they meet one of the “incapacity plus treatment” definitions

22. Leave To Care For Family Member 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

23. Reinstatement Required Same or equivalent position  Compensation  Benefits  Responsibilities

24. Reinstatement Exceptions Unable to perform position due to medical restrictions?  Explore accommodations  May include additional leave  Position elimination during leave  Employee intent not to return  Must be unequivocal  Leave stops when articulated  Fraud/moonlighting  Key employees  Exempt  Highest paid 10%  Substantial economic injury

25. What is Interference? If employee is entitled to leave and employer denies If employer makes it burdensome to take leave

26. What is Retaliation? Basing any adverse employment decision on FMLA leave

27. Thank You