FMLA/MFLA ISSUES

What a Supervisor Needs to Know

March 2010

Objectives

  Overview of the FMLA   Identify the purpose and benefits of the

FMLA   Recognize when and to whom it applies   Assist employees in handling leaves

appropriately   Protect yourself and your county from

liability

Family Medical Leave Act

Department of Labor Wage and Hour Division Effective August 5, 1993

Revised 1995 Revised 2008, 2009, 2010

Family Medical Leave Act

FMLA applies to all public agencies

  All Counties with 50 or more employees employed with 75 miles of workplace must grant FMLA to covered employees.

TIP: Seasonal and temps count toward the 50 employees, but not Elected Officials

Family Medical Leave Act

FMLA applies to all public agencies

  All Counties are required to post the FMLA poster, even if they have below 50 employees.

Employee Eligibility   Employee has worked for county for at least 12 months (break > 7 years not counted unless military call up; > 3 years burden on employee

 ); and

  Has worked at least 1250 hours during the last 12 months prior to FMLA leave (part-timers might qualify)

What is FMLA?

FMLA = Leave Entitlement   Can be paid leave but the law does

not require it to be paid.

  County policy dictates when to pay FMLA.

TIP– Require in policy use of all paid time off to be used under FMLA

What is FMLA?

  FMLA entitles employees to have 12 weeks of job protected leave (paid or unpaid) in a 12-month period for specified family and medical reasons.

Reasons for FMLA

  For the birth, adoption or foster care placement of a child

Reasons for FMLA

  To care for an immediate family member with a serious health condition.

Spouse, Child or Parent

Reasons for FMLA

  When the employee is unable to work because of their own serious health condition.

Military Qualifying Exigency Leave

1) Qualified employee: 12 weeks of leave in a 12 month period for:

  Spouse, child or parent of the employee is on or called to active duty in the armed forces.

Reserves – National Guard – Retired

Does Not Extend FMLA 12 weeks

Military Qualifying Exigency Leave Defined as:

1. Short term deployment (7 days)

2. Military events and related activities

3. Childcare and school activities

4. Financial and legal arrangements

5. Counseling

6. Rest and recuperation (5 days)

7. Post deployment activities (during first 90 days home)

8. Any additional agreed upon activities

Military Care Giver Leave

2) Qualified employee: up to 26 weeks of leave in a single 12 month period to care for:

  Spouse, child, parent or next of kin recovering from a serious injury or illness sustained while on active duty in the military. Leave is applied per-service member, per-injury basis – but no more than 26 weeks in single 12 month period.

Does extend FMLA 12 weeks to up to 26 weeks.

Military Care Giver Leave Reasons for leave:

  Undergoing medical treatment, recuperation, or therapy that was incurred in the line of duty

  In military outpatient treatment

  On the temporary disability retired list for a serious illness or injury that occurred in the line of duty.

Intermittent Leave

  May be taken when medically necessary to care for a seriously ill family member or because of the employees own serious health condition.

 Usually Chronic Conditions

Intermittent Leave

  May be taken to care for a newborn, newly adopted or newly placed foster child with county approval.

Serious Health Condition – Def.

  Physical or mental condition

  Pregnancy or prenatal care

  Chronic, serious health condition (2 visits/year)

  Lasts for > 3 full days

 2 visits to health care provider within first 30 days of incapacity

 1 visit to health care provider within first 7 days and a regimen of continuing treatment (prescription)

Medical Certification

  A county may require that the need for leave for a serious medical condition be supported by a certification from health care provider.

The county must allow 15 calendar days to obtain.

Medical Certification

  Medical recertification’s for intermittent leave can only be required every 6 months and in connection with an absence

  Employer must provide written notice of requirement to provide fitness for duty

What is a Health Care Provider?

  Doctor, Podiatrist, Dentist, Clinical Psychologist, Optometrist, Chiropractor and the list goes on…

Employee Protections

  A covered employee:   Maintains county-paid benefits

  Be restored to their original job or equivalent job in terms of pay, benefits and other conditions of employment.

Employee Notification   No magic language needed … just sufficient information for county to understand the employee needs leave for an FMLA qualifying event.

  30 day notice for foreseeable” leave or “as soon as practicable” when leave is not foreseeable. Tip: “I’m having surgery” – action required.

Employer Notification

  Post the notice approved by the Secretary of Labor

  Include information about employee rights in handbook

  Must provide written notice designating leave as FMLA

FMLA Supervisor Duties

  Recognize the need to designate a leave as Family Medical Leave

  Cooperate with employees seeking leave

  Be cautious when dealing with attendance problems

FMLA Supervisor Duties   Be consistent!!!!

  Make certain employees understand their rights

  Don’t retaliate against employees who request or take FMLA

DOL FORMS

  New forms – Notification and Designation

WH-381 – Notice of Eligibility and Rights and Responsibilities

WH-382 – Designation Notice

www.dol.gov

DOL Forms

  New forms – Medical Certification

WH-380-E – Certification of Health Care Provider for Employee’s Serious Health Condition

WH-380-F – Certification of Health Care Provider for Family Member’s Serious Health Condition

DOL Forms

  New forms – Military Family Leave

WH-384 – Certification of Qualifying Exigency for Military Family Leave

WH-385 – Certification for Serious Injury or Illness of Covered Service member for Military Family Leave

Summary of FMLA/MFLA Regulatory Changes

  Substitution of paid leave can include:

Vacation, Sick, Personal Leave, Worker’s

Compensation Leave, Short-term Disability,

Compensatory Time

Summary of FMLA/MFLA Regulatory Changes

  Can deny perfect attendance awards based on taking FMLA leave, as long as you treat all other absences the same way

  Count FMLA leave allotment in weeks or fraction of weeks for altering schedules

  Must provide written notice of eligibility and rights within 5 business days (WH-381)

  Must provide written designation notice within 5 business day (WH-382)

Summary of FMLA/MFLA Regulatory Changes

  Employer – never the immediate supervisor – may contact the health care provider regarding information provided on the medical certifications (WH-380-E or WH-380-F) – but to authenticate or clarify what is written on the form

  If certification is incomplete, you must notify the employee – in writing – and give them 7 days to correct

Summary of FMLA/MFLA Regulatory Changes

  Must provide information regarding how to report a complaint regarding FMLA/MFLA to the DOL in your employee handbook

  Employee may reject light duty and elect FMLA/MFLA leave instead, however, if the employee accepts light duty it may not be counted toward FMLA/MFLA

TIP– Place poster in employee handbook

Summary of FMLA/MFLA Regulatory Changes

  May track leave increments as small as 1 hour, but may not charge for any time spent working.

  If it is physically impossible for employee to access the worksite after start time, entire period employee is forced to be absent is counted as FMLA leave.

Summary of FMLA/MFLA Regulatory Changes

  Holidays that occur during a full week of FMLA count as FMLA, but if the employee works during the holiday week and is not scheduled to work on the holiday, the holiday is not counted as FMLA leave.

  If employer requires or permits use of paid time off while on leave, employer must notify employee of their requirements in writing.

Summary of FMLA/MFLA Regulatory Changes

  Poster must be posted where all employees and all applicants have access, $110 fine for failure to do so.

  Needed to care for a family member with a serious health condition does not require that the employee be the only person available to provide the care – care does include “psychological care”

What now?

  Don’t interfere with an employees rights to FMLA/MFLA

  Don’t retaliate against any employee for taking or asking for FMLA/MFLA

  Remember as a supervisor – if you violate an employee’s rights under the FMLA, you may be personally liable.

What now?

  Make certain your FMLA/MFLA policies are up to date

  Make certain you use the new FMLA/MFLA forms

  Make certain you have the new FMLA/MFLA posters up and available to all employees and applicants

  Make sure all supervisors in your county understands the changes to the FMLA/MFLA

QUESTIONS?

FMLA/MFLA ISSUES

What a Supervisor Needs to Know