CUNY Offices of HR Management, General Counsel and Labor Relations

March 23, 2015

Review of basic FMLA law: ◦ Leave eligibility and grounds ◦ Focus on employees taking leave for their own

serious health condition ◦ Interaction with other types of paid and unpaid

leave available to employee ◦ Procedures and use of forms ◦ Case studies

The 1993 Family and Medical Leave Act is the only U.S. family leave statute, and it provides only for unpaid leave (compare to other countries).

The FMLA was signed in January 1993 and amended in 2009 (military-related leaves), and to a lesser extent, in 2013 (expand military-related leaves to veterans) and 2015.

When in doubt, see FMLA regulations at 29 CFR Part 825—they are very comprehensive

FMLA entitles eligible employees up to 12 weeks of leave in a 12-month period (for CUNY: 9/1-8/31) for: (a) the birth of a child and to care for the newborn child within one year of birth; (b) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; (c) to care for the employee’s spouse, child, or parent who has a serious health condition; (d) a serious health condition that makes the employee unable to perform the essential functions of his or her job;

(e) to care for a family member who is a current service member or veteran with a serious injury or illness incurred in the line of duty on active duty (or exacerbated by it) -up to 26 weeks of leave during a single 12-month period; (f) for “qualifying exigencies” arising out of the fact that a family member in the military has been on or called to active duty (qualifying exigency leave).

In order to be eligible to take leave under the FMLA, an employee must:

have worked 1,250 hours during the 12 months prior to the start of leave (this means hours actually worked; does not include paid and unpaid leave, including FMLA leave) NOTE: Under USSERA, military time counts; and

have worked for CUNY for 12 months.

Faculty who have worked full-time for 36 weeks of the preceding 12 months are eligible, meaning:

A faculty member who worked for the Fall and Spring semesters but not the summer is eligible

Fellowship leave is not considered work time by the DOL

Staff members reach 1250 hours as follows: ◦ 35 hour work week – 36 weeks ◦ 40 hour work week – 31.5 weeks

The FMLA permits, and CUNY requires an employee to use applicable accrued paid annual, temporary disability or other paid leave (such as paid parental leave), before taking unpaid FMLA leave.

a. For a serious health condition of an employee (including pregnancy-related conditions), paid sick leave accruals must be used first, followed by all other available time and leave accruals.

b. For other kinds of leaves where the employee is not sick (e.g. care of a newborn, placement of a adopted or foster child, serious health condition of a family member), all available paid time and leave accruals (paid parental leave or annual leave) must be charged before unpaid leave may be granted. c. Pursuant to the Blue and White Collar Contracts, and the PSC-CUNY Agreement a covered employee may use three days of accrued sick leave for the care of an ill family member.

PSC states its members VERY CONFUSED about terminology used by CUNY HR offices

FMLA refers to an employee’s entitlement to take leave, but the specific description of how leave will be charged needs should be given i.e. annual, sick/temporary disability, PPL, unpaid FMLA.

Paid FMLA leave counts as service, so an employee on paid FMLA does not break service for purposes of reappointments, tenure clock etc. which require years of continuous service

Unpaid FMLA leaves serve as a bridge between prior and subsequent service. Unpaid non-FMLA leave breaks service.

Example: tenure-track faculty member is out for surgery and recuperation for 4 months, using paid sick leave for 3 months and unpaid leave for 1 month

Regular – taking up to 12 weeks in a block of time for a qualifying reason

Intermittent – taking leave in separate blocks of time for a single qualifying reason – does not apply to leaves for child care (newborn or adoption). Leaves can be taken in intervals similar to other leaves, at CUNY generally ¼ hour increments.

Reduced leave schedule – reducing the employee’s usual weekly or daily work schedule (i.e. part-time).

Spouses and domestic partners who are both employed by CUNY are limited to a combined total of 12 weeks of leave during any 12-month period if leave is taken for birth or adoption of child or caring for child after birth/adoption. NOTE: PSC Agreement 16.8 provides for a one-year unpaid child care leave to care for a newborn infant

Employees may take FMLA leave before the actual placement or adoption of a child if required for the placement for adoption or foster care to proceed, e.g., to attend counseling sessions, appear in court, consult attorney/doctor representing the birth parent, travel to another country to complete an adoption.

Employees unable to work due to a “serious health condition” are entitled to FMLA leave.

The statute defines “serious health condition” extremely broadly so that it covers most medical conditions other than the common cold or flu.

As a result, CUNY has little leeway in rejecting an employee’s request for FMLA leave based on the seriousness of his/her medical condition if sufficient documentation is provided

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An illness, injury, impairment or physical or mental condition that involves ◦ inpatient care (i.e. overnight stay in a hospital or other

overnight medical care facility, including any period of incapacity or any subsequent treatment in connection with that inpatient care) OR

◦ continuing treatment by a health care provider. For this, you need to be incapacitated for three or more days and (1) get treatment 2 or more times, within 30 days of the first day of incapacity by various listed health care providers (1st visit within 7 days) ; or (2) get treatment by a health care provider at least once, resulting in a regimen of continuing treatment under the supervision of the health care provider.

Health condition related to pregnancy and prenatal care

Chronic serious health condition, defined as one that (1) requires periodic visits (at least 2x a year) for treatment; (2) continues over an extended period of time (including recurring episodes of a single condition); and (3) may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

Permanent or long-term conditions, due to a condition for which treatment may not be effective. The employee must be under the continuing supervision of a health care provider. Examples: Alzheimer's, severe stroke, terminal stages of a disease.

Conditions requiring multiple treatments for: (1) restorative surgery after accident/injury or (2) a condition that would likely result in incapacity of more than 3 days absent medical intervention (e.g. chemotherapy & radiation for cancer, physical therapy for severe arthritis, dialysis for kidney disease)

Substance abuse may be a serious health condition if treated provided by or referred by a health care provider.

“Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc. are examples of conditions that do not meet the definition of a serious health condition. . . .”

An employee is entitled to an FMLA leave for a serious health condition if he/she is “unable to perform the functions” of his/her job

An employee is unable to perform the functions of the position when the health care provider finds that he/she is “unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the . . .ADA.”

What if CUNY were willing to remove this function?

“Leave for illness granted under the University’s temporary disability leave policy which extends beyond five (5) workdays is presumed to be leave for a serious health condition, unless the employee proves otherwise, and will be counted as part of the annual FMLA entitlement, starting from the first day of leave.” NOTE: An employee who did not ask for FMLA leave but whose leave was so designated under this rule need not always fill out a medical certification NOTE: CUNY Bylaws and collective bargaining agreements provide rules about when CUNY can require a doctor’s note for absences (Bylaw 13.1(a) – 5 days)

Per agreement with the PSC, instructional staff employees get an 8-week paid parental leave to care for a newborn or newly adopted child (up to 5 years old)

The paid parental leave follows any applicable sick leave related to childbirth; an FMLA medical certification would be required for the sick leave portion

PPL runs concurrently with FMLA leave

Employees may take intermittent FMLA leave when medically necessary for “planned and/or unanticipated medical treatment of a serious health condition . . . or from recovery from a serious health condition”

When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.

Also, employee may take intermittent/reduced leave where employee is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition, even if he/she does not receive treatment by a health care provider.

The FMLA regulations provide that if an employee needs an intermittent leave, the employer can require the employee to transfer temporarily, during the period of the leave, to an available alternative position for which the employee is qualified which better accommodates the recurring periods of leave than the employee’s regular position. The pay and benefits must be equivalent, but the duties need not be.

An employee is entitled to FMLA leave to “care for the employee’s spouse, son, daughter or parent with a serious health condition. CUNY also includes domestic partners. NOTE: no in-laws

Child includes any kind of child, including “in loco parentis”

“Needed to care for a family member” means both physical and psychological care.

This kind of leave can be either continuous or intermittent.

Includes situations where the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself/herself to the doctor.

Includes providing “psychological comfort and reassurance which would be beneficial to a child, spouse or parent . . . who is receiving inpatient or home care.” This is interpreted very broadly by courts.

Includes where employee has to substitute for the usual caregiver or to make arrangements for changes in care. The employee need not be the only available family member providing care.

A HEO-series employee who is pregnant files FMLA leave papers for a 3-month FMLA leave to care for a newborn. The employee calls her supervisor in her 8th month of pregnancy saying that she is required to be on bed-rest and cannot work. 5 weeks later she has the baby by C-section and seeks to start her 3-month child care leave. How much leave is the employee entitled to, and how should CUNY classify it?

A HEO series employee has recovered from a stroke but tires easily. The employee submits a medical certification stating that because of the employee’s diminished energy, he needs a 4 day work schedule for the following year. In the following year, he submits another medical certification for another 4 day per week schedule for a year. Should you approve this request?

A faculty member requests an FMLA leave to provide care for her mother, who is in the terminal stages of breast cancer. You later learn that the employee has three sisters, and they are all caring for the mother at the same time. Also, they all went on a trip together as a final family get-together. Was this a qualifying FMLA leave?

Employees may take FMLA leave for qualifying reasons related to the fact that their spouse, son, daughter or parent is on covered active duty or called to active duty.

Qualifying reasons are set forth in CUNY’s administrative procedures and 29 CFR 825.126

Eligible employees can take up to 26 weeks to care for a service member or veteran with a serious injury or illness incurred or exacerbated by active duty in the military

Eligible employees include spouse, son/daughter or parent, or “next of kin” which can include guardians/brothers/sisters, and so forth (a service member/veteran can designate “next of kin” out of order)

Right to maintain group health care benefits during leave, including family coverage, on the same grounds as if a working employee

Right upon return from FMLA leave to be returned to the same position, or an “equivalent” position.

Equivalent position must be “virtually identical” to the former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It is must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.

FMLA Request Form Notice of Eligibility & Rights/Responsibilities Certification of Family Relationship (when

needed) Certification of Health Care Provider (a)

Employee (b) Family Member Designation Notice

*** It is key that the employee be told at all time what his/her status is, and what is expected.

Employee must request FMLA leave ◦ If the need is foreseeable, e.g. expected birth or

adoption, planned medical treatment of employee or family member serious medical condition, must give at least 30 days advance notice, or as soon as practicable ◦ CUNY requires written notice on FMLA Leave

Request Form as soon as possible ◦ If an employee orally says that they will need time

off for a qualifying reason, that must be deemed a request for FMLA leave and treated accordingly

◦ If the leave is unforeseeable, the employee must provide notice as soon as practicable under the facts of the case ◦ Upon receipt of FMLA request, CUNY must send the

Notice of Eligibility and Rights & Responsibilities within 5 business days, absent extenuating circumstances ◦ If the leave is for a medical condition, send the

medical certification with the notice. An employer can require the certifying doctor to specify which essential functions of the job cannot be done by the employee

An employee must provide a “complete and

sufficient” certification within 15 days after employer request unless impracticable under the circumstances [Note: keep track of time]

If the employer finds the certification incomplete or insufficient, employee is required to advise the employee in writing, state what additional information is necessary and give 7 days to cure

“Incomplete” – all entries not completed “Insufficient” – information is vague, ambiguous

or non-responsive

Once a complete and sufficient certification is received, CUNY (i.e. HR or a manager but not employee supervisor) can contact health care provider but ONLY for: ◦ Authentication – showing the certification to the

health care provider for verification he/she completed or authorized it ◦ Clarification– to understand the handwriting or the

“meaning of a response” ◦ Cannot ask for any additional info besides what’s

on the form

Some responses to questions are vague, and it is appropriate to ask clarifying questions:

Vague phrases in certifications: “as needed” “unknown,” “indeterminate” generally require clarification.

Request for intermittent leave: you should try to clarify with the medical provider how often such leave is expected to be needed.

If seeking clarification, employee must authorize CUNY to speak to doctor (use HIPAA form)

If employee refuses to provide authorization or otherwise clarify the certification, CUNY can deny FMLA leave

If CUNY has reason to doubt the validity of a medical certification, it may require the employee to obtain a second opinion by a health care provider chosen and paid for by CUNY

If the 2nd doctor, does not support the leave, CUNY may require a third doctor jointly agreed upon with employee, whose decision is final

Issue: Where can CUNY get doctors?

Certification of Health Care Provider for Family Member’s Serious Health Condition – same rules apply as for employee’s serious health condition, except no second and third opinions

CUNY can require certification of family relationship or submission of supporting documents, if necessary

Generally, CUNY can ask for a recertification no more often than every 30 days, unless the minimum duration of the leave is more than 30 days.

An employer can always ask for a recertification every 6 months (e.g. for chronic conditions)

An employer can ask for a recertification SOONER than 30 days if: ◦ an employee is seeking an extension of the leave ◦ circumstances described in the previous

certification have changed significantly (e.g. the intermittent leave is more frequent, or there is a suspicious pattern of absences) ◦ information casts doubt on the reason for the

absence or the continuing validity of the certification e.g. “The Fortune Cookie”

Upon receipt of appropriate documentation, employee receives a Designation Notice (within 5 business days) approving or disapproving the leave and showing how the time is calculated against the leave entitlement

If the College requires a fitness for duty certification for RTW, that must be noted in the Designation Notice—this requirement cannot be discriminatorily applied

Requirement must be included in the designation notice

Can only be for the condition for which the leave is taken

Essential functions of the job on which fitness will be determined must also be included with the designation notice

Not all FLMA leaves for a serious health condition do not require a fitness-for-duty certification

Employer generally cannot question fitness-for-duty certification by getting a second opinion

Although an employee is only entitled to 12 weeks of FMLA leave for a serious health condition, the employee may be entitled to more leave under the Americans w/ Disabilities Act .

A leave of absence or part-time work may be a reasonable accommodation for a disability under the ADA, unrelated to the 12 weeks the employee receives under the FMLA

How to Survive the�Family & Medical Leave ActSession TopicsFMLAFMLA BasicsFMLA BasicsEligible employeesDetermining eligibility for facultyPaid vs. unpaid leavePaid vs. unpaid leaveLeave terminologyPaid vs. unpaid leave – service creditLeave TypesBirth & AdoptionSerious health conditionNeed a doctor’s note?Serious health condition - definedSpecific covered serious �health conditionsSerious health conditionsNot coveredSerious health conditionCUNY 5-day ruleFMLA and PPLIntermittent/Reduced Leave for Medical ReasonsIntermittent Leave or Reduced Leave ScheduleCaring for a family memberCaring for a family memberExample 1 – Pregnancy and ChildbirthExample 2: Serious Medical Condition – Intermittent LeaveExample 3: Caring for family memberQualifying exigency leavesMilitary caregiver leaveRights of employee taking FMLA leaveProcedures - FormsProcedureProcedureMedical certification – complete and sufficientMedical certification – authenticity and clarificationClarificationMedical certificationSecond & Third OpinionsCertifications for leaves for serious medical condition - family membersRecertificationsRecertificationsDesignation of FMLA leaveFitness for Duty CertificationInteraction with ADA