The Family and Medical Leave Act and 2008 Revised

Department of Labor Regulations

Labor CenterUniversity of Iowa

The struggle to get—and keep—the FMLA

1980s: 10 years of pressure; vetoed twice by GHW Bush

1993: Compromise version signed 1995: DOL regulations finalized 2007: DOL request for information 2008: expansion of FMLA for military

family leave 2008: DOL proposes and adopts new

regulations

Basic FMLA RightsUp to 12 weeks of UNPAID leave

-Medical leave: for serious health condition

-Family leave: to care for ill family member

-Newborn leave: for birth or adoption

-Military family leave: for qualifying exigencies

-up to 26 weeks: to care for injured military member

FMLA-qualifying absences cannot be used against workers

Benefits and job are protected

What does your contract say about FMLA? What other leave rights do members have

under your contract?

… for their own medical conditions or medical appointments?

… to take care of family members?

Questions

Whichever is stronger

FMLA may not weaken contract

Contract may not weaken FMLA

FMLA and Collective Bargaining Agreements

Who is eligible?

Eligible employees: Work for a covered employer (50+ or public) 12 months of service 1250 hours worked within 12 months prior

to leave Work site with 50 employees within 75 miles

Leave year

12-month period in which 12 weeks of leave available:

What is your “leave year”?

When can workers use FMLA?

Worker’s own serious health condition

Care for a spouse, child or parent with a serious health condition

Birth and care of newborn or placement and care of adopted or foster child

Is the flu a “serious health condition”?

Questions

1. Inpatient care

2.Incapacity of more than 3 calendar days involving a “continuing regimen of treatment”

3. Pregnancy, childbirth, and prenatal care

4. Chronic conditions that cause episodic incapacity

5. Incapacity from untreatable permanent disabilities or terminal diseases

6. Multiple treatments for otherwise incapacitating conditions

7. Examinations to detect serious health condition

Serious Health Conditions

Cheryl missed work for five days due to flu symptoms. She went to a “quick care” clinic, where a nurse practitioner prescribed Tamiflu for her. Did she have a serious health condition?

Questions

Serious Health ConditionCriteria #2

Incapacity of more than 3 calendar days plus two visits to health care provider within 30 days

OR

Incapacity of more than 3 calendar days plus one visit within seven days and a “regimen of continuing treatment”

Cheryl’s daughter caught her mom’s flu. She missed school for eight days. Cheryl called the clinic she had visited and the nurse practitioner phoned in another Tamiflu prescription for her daughter.

Questions

Serious Health Conditions

Who decides whether a health condition is really “serious” enough for FMLA?

Questions

Can I take a couple hours of FMLA leave for an asthma attack?

Rights to intermittent leave or reduced schedule

Can be one hour or several weeks

Can be as short as the smallest increment of time the employer uses to account for other types of leave

Must make a “reasonable effort” to schedule treatments so as not to disrupt employer’s operations

Worker’s own serious health condition

Care for a spouse, child or parent with a serious health condition

Birth and care of newborn or placement and care of adopted or foster child

When can workers use FMLA?

Questions

An employee who is going through a divorce recently found out his wife was diagnosed with cancer. They have been separated for about three months. Can he take FMLA leave to accompany her to medical appointments and watch their son on days when she is recovering from chemotherapy?

Who is a spouse?

“a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides”

includes common law marriage in states where it is recognized

Who is a child?

Son or daughter under 18 years old

OR

Son or daughter 18 or older who is incapable of self-care due to a disability

Who is a parent?

Biological parent

OR

Person acting (or who acted) in loco parentis—in place of a parent, including day-to-day care and financial support

Questions

Can you use FMLA to visit your father (an Alzheimer’s patient), who is in a nursing home three hours away?

CARE may include

Physical care

Psychological care and reassurance

Assistance with transportation

Worker’s own serious health condition

Care for a spouse, child or parent with a serious health condition

Birth and care of newborn or placement and care of adopted or foster child

When can workers use FMLA?

Questions

A new employee had a baby and used three weeks of sick leave and vacation because at the time she was not eligible for FMLA. Five months later, she becomes eligible after having worked a full year for the company. Can she now take FMLA to care for her baby?

Birth, adoption, or foster placement

For care of healthy child Up to 12 weeks during first year

following birth/adoption Guaranteed right to single block of time

—thereafter at employer’s discretion If both parents work for same

employer, must share 12 weeks

Questions

Can you use FMLA leave to care for a healthy child?

Can you use FMLA to care for a child with an earache?

Questions

I plan to use two weeks of vacation for a planned surgery and recovery time.

Can my boss also count this time off as FMLA?

Using paid leave along with FMLA leave

Paid leave may be used along with FMLA leave at option of worker or employer:

If at worker’s option, may be required to follow “usual policies and procedures” for paid leave: what are these in your workplace?

If at employer’s option, worker must be notified

12 weeks FMLA leave

2 weeks vacation

10 weeks unpaid FMLA leave

Employer notification duties

Display FMLA poster or post electronically and include FMLA information in employee handbook in language workers can read

Ask relevant questions to determine if an absence may be FMLA-qualifying and “responsively answer” questions from workers about their FMLA rights

Notify individual employees in writing of eligibility, rights, and responsibilities

Employer notification duties

Respond within 5 days of worker’s request for FMLA leave (Form 3971)

If the worker is not eligible, indicate at least one reason why

State any policies and procedures that must be followed for using paid leave

Indicate the “leave year” Regularly inform workers of how much time designated

as FMLA—up to once every 30 days at worker request

First request for leave Give “sufficient information”: calling in

“sick” is not considered sufficient notice

Subsequent requests for leave Refer to the reason for leave or the

need for FMLA

Worker notice requirements

What is “sufficient” information? Medical condition causing incapacity Pregnancy Hospital over night Under care of health care provider Call to active duty Injured/ill military servicemember

Worker notice requirements

Foreseeable leaves 30 days ahead or as soon as practicable:

“same day or next business day”

Unforeseeable leaves As soon as practicable: “within the time

prescribed by usual and customary notice requirements”

Worker notice requirements

Medical Certification

Employer must request within 5 days of notice

Worker must turn in within 15 days of request or show “good faith effort”

Limited information required, but new DOL forms include “diagnosis” in list of “medical facts”

New DOL form requires identifying job functions employee cannot perform

If the employer questions the certificate

1) State in writing what else is needed on form and give the worker 7 days to fix it (or show “good faith effort”)

2) Contact the health care provider to “clarify” and “authenticate” the certification

4) ask for a 2nd (and possibly 3rd) opinion-2nd: Employer choice, at employer’s expense-3rd: Joint choice, at employer’s expense

Recertification

NOT during the period of incapacity specified in the medical certification

For chronic or other long-term conditions: No more often than every six months Only in connection with an absence

UNLESS…-employee requests extension of leave-circumstances change significantly-employer receives information casting doubt upon the original

certificate; may include absence pattern with recertification form for health care provider