In this webinar, our HR expert reviewed the purpose and definition of the Family Medical Leave Act (FMLA), the rights and responsibilities of both employees and employers under FMLA, as well as how to recognize potential reasons for covered leave and what necessary steps you can take as outlined under FMLA.

1. Fundamentals
of
FMLA
Presented
by:
Torrence
Freeman,
PHR
G&A
Partners
–
HR
Generalist

2. Agenda
• What
is
the
Family
and
Medical
Leave
Act
(FMLA)?
• Who
is
covered
by
FMLA?
• Employers
• Employees
• Eligibility
• Reasons
for
Leave
• How
is
FMLA
processed?
• What
am
I
responsible
for
as
an
employer?
• What
are
my
employees
responsible
for?
2

3. Before
we
get
started…
• I
am
not
an
aMorney
• This
material
is
not
legal
advice
• This
presentaNon
is
not
a
subsNtute
for
experienced
legal
counsel
3

4. The
Family
and
Medical
Leave
Act
4

5. What
is
FMLA?
The
FMLA
enNtles
eligible
employees
of
covered
employers
to
take
unpaid,
job-­‐
protected
leave
for
specified
family
and
medical
reasons
with
conNnuaNon
of
group
health
insurance
coverage
under
the
same
terms
and
condiNons
as
if
the
employee
had
not
taken
leave.
Source:
Department
of
Labor,
Wage
and
Hour
Division
5

6. Purpose
of
FMLA
• Balance
the
needs
of
the
workplace
with
the
needs
of
families
• Promote
stability
and
economic
security
• To
promote
equal
employment
opportunity
for
men
and
women
Source:
Public
Law
103-­‐3
6

7. Who
is
a
covered
employer?
• Private
sector
employer
with
50
or
more
employees
in
20
or
more
weeks
in
the
current
or
preceding
year.
• Includes
joint
employers
and
successors
in
interest
to
a
covered
employer
• Public
agency,
including
a
local,
state,
or
Federal
government
agency,
regardless
of
number
of
employees
• Public
or
private
elementary
school
or
secondary
school,
regardless
of
number
of
employees
Source:
DOL
Fact
Sheet
#28
7

8. What
makes
an
employee
eligible?
• Works
for
a
covered
employer
• Has
worked
for
the
employer
for
at
least
12
months
• Non-­‐consecuNve
• Has
worked
1,250
hours
in
12
months
immediately
prior
to
leave
• Works
at
locaNon
with
50
or
more
employees
in
a
75
mile
radius
Source:
DOL
Fact
Sheet
#28
8

9. What
is
an
employee
enNtled
to?
• Up
to
12
workweeks
of
leave
in
a
12-­‐month
period
• Up
to
26
workweeks
of
leave
in
a
single
12
month
period
to
care
for
a
covered
service
member
with
a
serious
injury
or
illness
9

10. What
can
an
employee
use
FMLA
for?
• Birth,
adopNon,
or
foster
care
• Care
for
a
spouse,
child,
or
parent
who
has
a
serious
health
condiNon
• Employee’s
own
serious
health
condiNon
• For
qualifying
exigency
(situaNon
arising
from
military
deployment)
10

11. Types
of
leave
• ConNnuous
Leave
• Leave
taken
at
one
Nme
• IntermiMent
Leave
• Leave
taken
in
days,
hours,
or
less
on
a
habitual
basis
• Smallest
increment
of
Nme
allowed
based
on
increment
policies
for
other
types
of
leave
(e.g.
sick
or
vacaNon)
• Employer
not
required
to
grant
for
bonding
leave
11

12. IntermiMent
leave
• Employee
is
sNll
enNtled
to
up
to
12
workweeks
of
leave
in
a
12
month
period
• Employee
must
work
with
employer
to
schedule
leave
to
not
disrupt
operaNons
if
able
• May
transfer
employee
temporarily
to
alternaNve
posiNon
(with
equivalent
pay
and
benefits)
12

13. What
is
the
12-­‐month
period?
• The
calendar
year
• Any
fixed
12-­‐month
“leave
year”
such
as
a
fiscal
year,
a
year
required
by
State
law,
or
a
year
starNng
on
the
employee’s
“anniversary
date”
• 12-­‐month
period
measured
forward
from
the
date
any
employee’s
first
FMLA
leave
begins
• A
“rolling”
12-­‐month
period
measured
backward
from
the
date
an
employee
uses
FMLA
leave
13

14. The
“Rolling”
12-­‐month
period
• The
look-­‐back
method
• Avoids
“stacking”
of
leaves
• Amount
of
FMLA
leave
available
can
be
constantly
changing
• To
determine
available
leave
on
a
given
date,
subtract
all
leave
taken
in
the
12
months
preceding
that
date
from
12
weeks
• Leave
is
accrued
back
on
anniversary
of
use
14

15. Qualifying
Reasons
for
FMLA
15

16. Birth,
adopNon
or
fostering
• Can
be
taken
by
both
parents
• Employer
not
required
to
approve
intermiMent
leave
for
bonding
• Leave
must
be
taken
within
1
year
of
birth
or
placement
• Can
be
taken
prior
to
placement
for
related
acNviNes
16

17. Serious
health
condiNon
• For
employee
themselves
• For
a
family
member
• Spouse
• Parent
• Child
• In
loco
parenNs
• ConNnuous
or
intermiMent
• Cannot
deny
intermiMent
if
it
is
needed
17

18. Serious
health
condiNon
• Illness,
injury,
impairment
or
physical
or
mental
condiNon
that
involves
any
period
of
incapacity:
• connected
with
inpaNent
care
(i.e.,
an
overnight
stay)
in
a
hospital,
hospice,
or
residenNal
medical
care
facility
• requiring
absence
of
more
than
three
calendar
days
that
also
involves
conNnuing
treatment
any
period
of
incapacity
due
to
pregnancy,
or
for
prenatal
care
• due
to
a
chronic
serious
health
condiNon
• that
is
permanent
or
long-­‐term
• Any
absences
to
receive
mulNple
treatments
that
likely
would
result
in
incapacity
of
more
than
three
consecuNve
days
if
lej
untreated
18

19. Serious
health
condiNon
• The
following
condiNons
are
excluded,
unless
inpaNent
care
or
complicaNons
develop
that
would
meet
the
above
criteria:
• cosmeNc
treatments
• common
colds
• Flu
• ear
aches
• upset
stomach
• minor
ulcers
• headaches
other
than
migraine
• rouNne
dental
or
orthodonNa
problems
• periodontal
disease
19

20. Qualifying
exigencies
• Covered
acNve
duty
definiNon
• Family
member
includes
spouse,
son,
daughter
or
parent
• Qualifying
exigencies
include:
• Responding
to
short-­‐noNce
deployment,
• AMending
military
events
and
related
acNviNes,
• AMending
to
childcare
and
school
acNviNes,
• Receiving
counseling,
• AMending
to
financial
and
legal
maMers,
• Periods
of
rest
and
recuperaNon,
• Post-­‐deployment
acNviNes,
• Parental
care
(military
member’s
parent),
and
• Other
acNviNes
agreed
to
by
the
employee
and
the
organizaNon.
20

21. Military
caregiver
leave
• Up
to
26
in
a
12-­‐month
period
• To
care
for
a
current
service
member
or
veteran
• Undergoing
medical
treatment,
recuperaNon,
or
therapy
for
a
qualifying
serious
injury
or
illness.
• Incurred
in
line
of
duty
or
condiNon
exacerbated
by
service
• For
veterans,
for
treatment
of
injury
or
illness
incurred
or
exacerbated
while
an
acNve
member
of
the
armed
forces
21

22. 12-­‐month
period
for
military
caregiver
leave
• Single
12-­‐month
period
begins
the
day
of
leave
and
ends
12
months
later
• Not
always
the
same
as
the
12-­‐month
period
available
for
other
FMLA
leave
reasons
• Eligible
employee
limited
to
combined
total
of
26
workweeks
• Including
leave
used
for
other
FMLA
qualifying
reasons
• Military
caregiver
leave
available
once
per
servicemember,
per
serious
injury
or
illness
• Eligible
employee
can
care
for
more
than
one
covered
servicemember
at
a
Nme
during
leave
22

23. Employer
ResponsibiliNes
23

24. Posted
noNce
• Post
a
general
noNce
explaining
rights
and
responsibiliNes
(WH
PublicaNon
1420)
• Posted
for
all
worker
to
see
in
common
area
• Must
be
in
plain
view
• Provided
in
other
languages
when
porNon
of
workforce
is
not
fluent
in
English
• Provides
informaNon
regarding
filing
a
complaint
• May
be
assessed
a
fine
for
not
posNng
24

25. WriMen
policy
• Provide
wriMen
FMLA
policy
• Best
place
is
in
an
employee
handbook
• Contains
same
informaNon
as
in
poster,
at
minimum
• Best
pracNce
to
include
further
detail
25

26. Eligibility
noNce
• Provide
eligibility
noNce
• Must
state
whether
the
employee
is
eligible,
and
if
not
eligible,
the
reason
why
• Provided
within
5
business
days
• Only
provided
once
in
a
12
month
period
unless
the
FMLA
qualifying
reason
is
different
or
eligibility
has
changed
• Form
WH-­‐381
26

27. Rights
and
responsibiliNes
• Provide
Rights
and
ResponsibiliNes
noNce
• Form
WH-­‐381
• Qualified
leave
may
be
designated
and
counted
against
annual
leave
enNtlement
• Requirements
of
cerNficaNon
of
the
need
for
leave
• SubsNtuNon
of
paid
leave
• Premium
payments
to
maintain
benefits
• “Key
Employee”
• Maintenance
of
benefits
during
leave
• Job
restoraNon
• Employee
potenNal
liability
of
health
insurance
premiums
if
employee
fails
to
return
to
work
ajer
leave
• Other
informaNon
27

28. CerNficaNon
of
leave
• Medical
cerNficaNon
for
serious
health
condiNon
• WH-­‐380-­‐E,
WH-­‐380-­‐F
• Employer
must
allow
15
days
to
be
completed
• Employee
responsible
for
any
costs
• If
incomplete
or
insufficient,
provide
wriMen
noNce
to
employee
to
cure
(7
calendar
days)
• Employer
representaNve
can
authenNcate
and
clarify
cerNficaNon
(not
direct
supervisor!)
• Employer
can
request
second
opinion
at
employer
cost
28

29. CerNficaNon
of
leave
request
• Qualifying
exigency
• Copy
of
orders
• Statement
of
facts
• Approximate
Nmes
of
leave
• Contact
informaNon
for
third
parNes
• Proof
of
relaNonship
• Cannot
request
second
or
third
opinions
• Cannot
require
recerNficaNon
• Must
allow
15
days
to
complete
• Form
WH-­‐384
29

30. CerNficaNon
of
leave
request
• Military
caregiver
• Completed
by
authorized
health
care
provider
• DOD,
VA,
DOD
TRICARE,
Non-­‐military
• Second
or
third
opinions
only
for
non-­‐military
affiliated
HCP
• Must
allow
15
days
to
complete
30

31. Designate
the
leave
• DesignaNon
noNce
• Employer
is
responsible
for
designaNng
leave
as
FMLA
leave
• NoNce
should
be
provided
within
5
business
days
• Should
be
provided
for
each
qualifying
reason
per
applicable
12
month
period
• Employer’s
determinaNon
• Any
concurrent
use
of
paid
leave
requirements
• Any
fitness
for
duty
requirements
• Provides
amount
of
leave
counted
against
enNtlement
• Form
WH-­‐382
31

32. Recordkeeping
• Dates,
documents
and
records
of
FMLA
leave
• Hours
if
leave
is
intermiMent
• Keep
for
no
less
than
three
years
• Maintain
medical
informaNon
in
a
confidenNal
manner
32

33. Benefits
• Maintenance
of
employee
benefits
• Employer
maintains
payment
of
their
contribuNon
to
premiums
• Employee
must
pay
their
premium
porNon
• During
leave
at
specific
Nme
or
upon
return
• Same
condiNons
applied
as
if
the
employee
were
conNnuously
employed
33

34. Reinstatement
• Employee
reinstatement
• Same
posiNon,
or
to
an
equivalent
posiNon
with
equal
pay,
benefits
and
other
terms
and
condiNons
• Pay
includes
bonuses,
uncondiNonal
pay
increases,
pay
premiums
and
opportunity
for
overNme
• Benefits
include
insurance,
paid
Nme
off,
pensions,
educaNonal
benefits
• Other
terms
and
condiNons
may
include
duNes,
condiNons,
responsibiliNes,
schedule,
locaNon
34

35. Fitness-­‐for-­‐duty
• NoNfy
employee
of
need
when
designaNng
leave
• Releases
employee
to
return
with
or
without
accommodaNons
• Provide
a
list
of
job
duNes
employee
would
need
to
be
able
to
perform
• Remind
employee
of
need
approximately
two
weeks
prior
to
expected
return
35

36. “Key”
employee
• Salaried,
FMLA-­‐eligible
employee,
among
highest
paid
10
percent
of
all
employees
within
75
miles
of
employee’s
worksite
• Employer
may
deny
to
reinstate
employee,
not
the
request
for
leave
• Must
show
that
if
reinstated
it
would
case
“substanNal
and
grievous
economic
injury”
• NoNfy
employee
of
possibility
when
FMLA
is
approved
• Must
maintain
FMLA
rights
unNl
end
of
leave
36

37. Employee
ResponsibiliNes
37

38. Requirements
for
employees
• Eligible
employees
may
be
required
to
provide:
• 30
days
advance
noNce
for
foreseeable
leave
• NoNce
as
soon
as
pracNcable
when
not
foreseeable
• Sufficient
informaNon
for
the
employer
to
understand
why
the
leave
is
needed
• Timely
noNce
of
leave
being
FMLA
qualifying
if
not
addressed
prior
to
absence
38

39. AddiNonal
requests
• And
if
requested,
employee
should:
• Provide
cerNficaNon
requests
in
a
Nmely
manner
• Must
be
given
at
least
15
days
to
provide
• Provide
periodic
status
reports
• Submit
fitness
for
duty
upon
return
to
work
• “Working”
while
on
leave
• Reasonable
requests
for
assistance
only
39

40. AddiNonal
FMLA
Concerns
40

41. Reducing
abuse
• Use
“rolling”
12-­‐month
period
• Require
medical
cerNficaNons
• Seek
recerNficaNon
when
circumstances
change
• Confirm
cerNficaNon
with
HCP
• Enforce
call-­‐in
procedures
• Train
supervisors
and
management
41

42. Most
common
violaNons
• Failure
to
noNfy
of
rights
• Failure
to
designate
leave
appropriately
• Considering
FMLA
leave
in
disciplinary
acNons
• Failure
to
reinstate
employee
appropriately
• Denying
coverage
to
an
eligible
employee
with
a
qualifying
reason
42

43. What
happens
when
violaNons
occur?
• Failing
to
post
noNce
-­‐
$110
• Employees
who
feel
that
their
FMLA
rights
have
been
violated
can
go
to
the
Department
of
Labor,
Wage
and
Hour
Division
• Costs
from
law
suits
can
include
back
wages,
reinstatement
of
terminated
employees,
medical
bills,
legal
fees,
as
well
as
other
expenses
and
fees.
43

44. Court
cases
• DOL
v.
D.S.
Waters
of
America
(Sparklets)
• Employee
terminated
by
company’s
new
owners
while
on
FMLA
leave.
• Smith
v.
Genon
Energy
• Employee
was
asked
to
perform
20
to
40
hours
of
work
while
on
an
FMLA
leave.
• Alexander
v.
Boeing
Company
• Employee
terminated
when
she
took
a
4-­‐day
leave
of
absence
for
migraine
headaches.
• Hurley
v.
Kent
of
Naples
Inc.
• Employer
denied
leave
for
depression
and
terminated
employee.
44

45. Don’t
forget
the
Americans
with
DisabiliNes
Act
(ADA)
• Employee
isn’t
eligible
for
FMLA
• FMLA
exhausted
• Do
not
automaNcally
terminate
when
an
employee
is
unable
to
return
to
work
• Employee
returns
to
work
with
accommodaNons
45

46. In
closing
• Employers
cannot
interfere
with,
restrain
or
deny
employees’
FMLA
rights.
• It’s
prohibited
to
retaliate,
discriminate,
discharge
or
otherwise
consider
a
negaNve
factor
against
an
employee
for
exercising
FMLA
rights.
46

47. HRCI
Cer;fica;on
Credits:
"This
webinar
has
been
pre-­‐cerNfied
for
1
hour
of
general
recerNficaNon
credit
toward
PHR,
SPHR
and
GPHR
recerNficaNon
through
the
HR
CerNficaNon
InsNtute.
We
will
send
out
a
confirma;on
e-­‐mail
to
all
those
that
are
confirmed
as
aAended
with
the
program
ID
code
to
note
on
your
HRCI
recer;fica;on
applica;on
form.
The
use
of
this
seal
is
not
an
endorsement
by
the
HR
CerNficaNon
InsNtute
of
the
quality
of
the
program.
It
means
that
this
program
has
met
the
HR
CerNficaNon
InsNtute's
criteria
to
be
pre-­‐approved
for
recerNficaNon
credit."
QUESTIONS?
G&A
Partners
info@gnapartners.com
(800)
253-­‐8562
*This webinar has been recorded and will be posted on the G&A website by Friday.
47