MASTERING THE NEWFAMILY AND MEDICAL LEAVE

ACT

Jay A. EbelharBaker, Donelson, Bearman, Caldwell & Berkowitz,

P.C.165 Madison Avenue, Suite 2000

Memphis, Tennessee 38103(901) 577-8204 (direct dial)

jebelhar@bakerdonelson.com

The “New” Family Medical Leave Act

The “New” Challenges

• Two brand new categories of leave

• New forms, and more of them

• Many new rules

The new categories of leave:

1) Military Caregiver Leave

2) Qualifying Exigency Military Leave

How could these impact my employer?

• In WWII, 30% of Americans injured in combat died-- in Vietnam the number dropped to 24%

• The number is about 10% for Iraq and Afghanistan

• “a far larger proportion of soldiers are surviving their injuries”

Source: The New England Journal of Medicine,Vol 351:2471, Dec. 9, 2004

How could these impact my employer?

• There is already speculation about whether the new administration will be able to withdraw troops at the rates discussed during the recent campaign

• Deployment of National Guard and Reserve forces in Afghanistan and Iraq is expected to continue

Military Caregiver Leave

• New leave entitlement – up to 26 weeks during a single 12 month period

• Must be used to care for a “covered family member” with a serious illness or injury incurred in the line of active duty

• A “covered family member” is broadly defined as a spouse, child, parent, or next of kin who is a “covered servicemember”

• A “covered servicemember” is one who meets the strict definition

Definition of “Covered Servicemember”

• A person who is a member of the armed forces, National Guard, or Reserves and 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 incurred in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the servicemember’s office, grade, rank or rating.

• Only current members of the armed forces included.

Calculation of the 26 Week Period

• Limited to 26 workweeks of leave within each 12 month period, per covered servicemember, per injury

• Leaves open the possibility of 26 workweeks of military caregiver leave in different 12 month periods in order to care for multiple servicemembers or to address qualifying health issues of the same servicemember that arise after the initial serious injury or illness

• The "single 12-month period" in which up to 26 weeks of leave may be taken must be measured from the date the caregiver leave begins forward, regardless of the method used to calculate the 12 month period for other types of FMLA leave

Evaluating whether the injury or illnesswas “incurred in the line of duty” while on active duty

• Employers may require employees obtain a certification from the Department of Defense or its authorized health care representative that the servicemember’s injury or illness was incurred in the line of duty

• This is a standard question on the Certification form for military caregiver leave (Form WH-385, at p. 3)

Qualifying Exigency Military Leave

• New leave entitlement – up to 12 weeks of job-protected leave for a “qualifying exigency” arising from the employee’s spouse, child or parent who is in the National Guard or Reserves being notified of an impending federal call or order to active duty in the armed forces in support of a military operation.

• Not available to family members of soldiers in the regular armed forces

• Not available in cases where the call to duty comes from a state

Eight situations for Qualifying Exigency Leave

1) in “short-notice deployment” situations, where a covered military member is notified of an impending call or order to active duty 7 or fewer days from the date of deployment – eligible employee in such a case may take up to 7 days beginning on the notification date of the deployment

2) to attend military events, ceremonies or programs related to active duty or the call to active duty – must be sponsored by the military (such as family support programs or briefings)

3) for certain childcare and school activities

Eight situations for Qualifying Exigency Leave

4) to make or update financial or legal arrangements to address a covered military member’s absence while on active duty

5) to attend certain counseling arising from active duty or the call to active duty status

6) to spend time with a covered military member who is on short-term, temporary rest or recuperation leave during a period of deployment

Eight situations for Qualifying Exigency Leave

7) to attend certain post-deployment activities such as arrival ceremonies and reintegration briefings and to address issues arising from the death of a covered military member while on active duty status

8) for certain additional activities arising out of a covered military member’s active duty or call to active duty where the employer and employee both agree on the timing and duration of the leave

Key Revisions and Additions

Key Revisions and Additions to Existing FMLA Rules – Employer Notice

Requirements

• New rule that employers must give their employees notice of the new FMLA requirements, including in any employee handbook– Easiest way to accomplish this is to distribute

the new “Employee Rights and Responsibilities Under the Family Medical Leave Act” form (WHD Publication 1420) to all employees now, and to include it in your next handbook

– This is the same document that should also be posted immediately as your new FMLA poster

Key Revisions and Additions to Existing FMLA Rules – Employer Notice

Requirements

• “Electronic posting” of FMLA regulations is a viable possibility if done correctly

• Employers must consider the English literacy rate of its employees. – If a “significant portion” of workers are not

literate in English, the employer must provide the general FMLA notice in a language in which the employees are literate

• New 5 business day requirement for notifying employees who have requested FMLA leave of their eligibility

Key Revisions and Additions to Existing FMLA Rules – Employer Notice

Requirements

• A written “Rights and Responsibilities” notice now required to each employee taking FMLA leave– It must detail the specific expectations and

obligations of the employee and the consequences of not meeting those terms

– A optional notice that can be used for this purpose has been issued by DOL (Form WH-381)

Key Revisions and Additions to Existing FMLA Rules – Employer Notice

Requirements• Employers now have five days, instead of two,

to designate leave as FMLA leave– DOL has supplied a new optional

“Designation Notice” form for this purpose (Form WH-382)

Key Revisions and Additions to Existing FMLA Rules – Employee Notice

Requirements• When the employee becomes aware of a need

for FMLA leave more than 30 days in advance, the employee must provide notice more than 30 days in advance

When an employee becomes aware of a need for FMLA leave less than 30 days in advance, the new regs state that the employee’s obligation is to provide notice no later than the next business day– Employers now have option to request an

explanation if this timeline is not met

Key Revisions and Additions to Existing FMLA Rules – Employee Notice

Requirements

• When the leave is not foreseeable, the new regs clarify that the employee must follow the employer’s usual and customary notice and procedural requirements for requesting leave, absent extenuating circumstances

– If the employer’s attendance policy requires an employee to call in sick by a certain time, the employee must follow that policy for FMLA leave

Key Revisions and Additions to Existing FMLA Rules – Medical Certification

Requirements

• Certain employer representatives, including human resources professionals, leave administrators, and management officials (but not an employee’s direct supervisor) now may contact an employee’s health care provider directly to clarify or authenticate a medical certification

• If a medical certification is going to be required, in most cases it must be requested within five business days after the employee gives notice of the need for leave or within five business days after the leave commences– Requests for clarification/supplementation of the

medical certification must be requested in writing – after which the employee has seven days to respond

Key Revisions and Additions to Existing FMLA Rules – Medical Certification

Requirements• The new regulations also strengthen employers’

rights to obtain medical certifications and recertifications.– Employers may request a new medical

certification each leave year for medical conditions lasting longer than a single leave year

– Employers will be able to request recertification for ongoing conditions at least every six months in conjunction with an absence• more frequently in some cases

Key Revisions and Additions to Existing FMLA Rules – Fitness-for-Duty Certification• Two changes:

1) Employers may now require that these certifications specifically address the employee’s ability to perform essential functions of the job, as long as they provide the employee with a list of these functions no later than when they provide the employee with the FMLA designation notice described above • This provides an incentive for up-to-date

job descriptions

Key Revisions and Additions to Existing FMLA Rules – Fitness-for-Duty Certification

2) Where reasonable job safety concerns exist, up to once every 30 days, employers may now request a fitness-for-duty certification before allowing an employee to return to work from intermittent leave

Key Revisions and Additions to Existing FMLA Rules – “Serious Health Condition”

Three issues relating to the six definitions of “serious health condition” in the existing regulations have been addressed.

Key Revisions and Additions to Existing FMLA Rules – “Reasonable Effort”

Employees who must take intermittent leave for planned medical treatment must make a “reasonable effort” to schedule the treatment so that it will not unduly or unnecessarily disrupt the employer’s operations.

Breaks in Service and Eligibility

• To be eligible, employees must have been employed by the employer for at least 12 months and have at least 1,250 hours of service in the 12 months preceding the leave

• Although the 12 months of employment need not be consecutive, employers need not count employment prior to a continuous break in service of seven years or more– with some exceptions

Light Duty

• Employees on “light duty” assignments while recovering from a serious health condition are not considered to be on FMLA leave– therefore, the light duty assignment time cannot

be counted against the FMLA leave to which an employee is entitled annually

– employees accepting light duty assignments voluntarily in lieu of taking FMLA leave will lose their FMLA-based right to reinstatement if they remain in the light duty position at the end of the 12-month leave year

Light Duty -- Scenario

Where an employer uses a calendar year to calculate FMLA leave, and an employee takes four weeks of FMLA leave and returns in September to a light duty assignment that is not limited in duration and that neither the employer nor the employee chooses to end, the employee has a right to job restoration that runs through the end of that calendar year, but no further.

Substitution of Paid Leave

• Employees who seek to substitute accrued paid leave of any kind for unpaid FMLA leave must now comply with the terms and conditions of the employer’s normal leave policies.

• While employers must allow substitution of paid vacation, personal leave, or “paid time off” for any situation covered by the FMLA, employees can be required to follow normal procedures.

Substitution of Paid Leave -- Scenario

If an employer’s paid personal leave policy requires two days notice for the use of paid personal leave, an employee seeking to substitute paid personal leave for unpaid FMLA leave would need to provide two days notice.

This represents a significant change from the prior rule.

Relief for Employers Failing toTimely Designate FMLA Leave

Under the new regulations, employees must prove on a case-by-case basis that they have suffered actual harm due to the employer failing to follow the FMLA notice requirements

Perfect Attendance Awards

FMLA leave absences are not required to be excused absences when it comes to earning perfect attendance awards.

But employees taking non-FMLA leaves must be treated the same as those taking FMLA leaves.

Professional Employer Organizations (PEOs)

The revised regulations recognize that PEOs do not always enter into joint employment relationships.

The new regulations ensure that small companies are not automatically covered by the FMLA simply because they partner with a PEO.

New Optional FMLA Forms

The DOL also issued several optional forms

1. “Certification of Health Care Provider for Employee’s Serious Health Condition” (Form WH-380-E)

2. “Certification of Health Care Provider for Family Member’s Serious Health Condition” (Form WH-380-F)

3. “Certification of Qualifying Exigency” (Form WH-384)

4. “Certification for Serious Injury or Illness of Covered Servicemember” (Form WH-385)

New Optional Notices

• Employee Rights and Responsibilities Under the Family and Medical Leave act (WHD Publication 1420) (i.e., the new FMLA poster)

• Notice of Eligibility and Rights & Responsibilities (Form WH-381)

• Designation Notice (Form WH-382)