Fundamentals of FMLA
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The document outlines the fundamentals of the Family and Medical Leave Act (FMLA), including definitions, eligibility criteria, covered employers, and employee responsibilities. It explains entitlements for leave, reasons for taking leave, and the employer's obligations, including providing written policies and notifications. Additionally, it covers details regarding military caregiver leave and the process for certification related to health conditions.
Fundamentals of FMLA
- 1. Fundamentals of FMLA Presented by: Bri8any Cullison, PHR G&A Partners – HR Client Advisor
- 2. Agenda • Purpose and definiDon of FMLA • Covered employers • Eligible employees • Reasons for leave • CerDficaDon process • Employer responsibiliDes • Employee responsibiliDes
- 3. Before we get started… • I am not an a8orney • This material is not legal advice • This presentaDon is not a subsDtute for experienced legal counsel
- 4. Poll • How many FMLA-‐covered leave cases do you address each year?
- 5. Family and Medical Leave Act • An effort to balance the demands of employment and the needs of families • To promote economic securiDes of families • To promote equal employment opportunity
- 6. FMLA Defined EnDtles eligible employees of covered employers to take unpaid, job protected leave for specified family and medical reasons Source: DOL Fact Sheet #28
- 7. Covered Employers • Private employer with 50 or more employees • 20 or more workweeks in current or preceding calendar year • Includes joint employer or successor in interest • Public agencies • Regardless of employee count • Public or private elementary school or secondary school • Regardless of employee count Source: DOL Fact Sheet #28
- 8. Eligible Employees • Works for a covered employer and has worked for the employer for at least 12 months • 12 months does not have to be consecuDve • If break in service is greater than 7 years, prior service does not have to be counted, unless leave is covered by USERRA or there is a wri8en agreement otherwise • Has worked at least 1250 hours for the employer during the preceding 12 months • Different for airline flight employees • Works at a locaDon where the employer has at least 50 employees within 75 mile radius
- 9. Leave EnDtlement • 12 workweeks of leave in a 12 month period for any of the following reasons: • Birth of a child or placement of child with employee for adopDon or foster care; • To care for a spouse, child or parent with a serious health condiDon; • Due to a serious health condiDon of the employee that makes the employee unable to perform the essenDal funcDons of their job; or • For any qualifying exigency NOTE: CalculaDon of leave is different for airline flight employees
- 10. Intermi8ent Leave • Leave can be taken in weeks, days, hours or possibly minutes • Determined by the increment used in other leave categories (sick, vacaDon) • For intermi8ent leave less than a week in duraDon, holidays do not count as FMLA leave
- 11. Birth of a Child/Bonding Leave • Both mothers and fathers are eligible • Same employer rules • Birth and bonding leave enDtlement expires 12 months aeer the date of birth • Not required to be offered as intermi8ent leave, unless employer agrees to such
- 12. Child Placement and Bonding • Mothers and fathers are both eligible • Leave can be taken before the actual adopDon for related acDviDes • Bonding leave enDtlement expires 12 months aeer the date of placement • Not required to be offered as intermi8ent leave, unless employer agrees to such
- 13. Serious Health CondiDon • For employee or employee’s family member • Parent • Spouse • Child • In loco parenDs • Can be taken intermi8ently
- 14. Serious Health CondiDon • Illness, injury, impairment or physical or mental condiDon that involves: • any period of incapacity or treatment connected with inpaDent care (i.e., an overnight stay) in a hospital, hospice, or residenDal medical care facility; or • a period of incapacity requiring absence of more than three calendar days from work, school, or other regular daily acDviDes that also involves conDnuing treatment by (or under the supervision of) a health care provider; or • any period of incapacity due to pregnancy, or for prenatal care; or
- 15. Serious Health CondiDon • Illness, injury, impairment or physical or mental condiDon that involves: • any period of incapacity (or treatment therefore) due to a chronic serious health condiDon (e.g., asthma, diabetes, epilepsy, etc.); or • a period of incapacity that is permanent or long-‐term due to a condiDon for which treatment may not be effecDve (e.g., Alzheimer's, stroke, terminal diseases, etc.); or, • any absences to receive mulDple treatments (including any period of recovery therefrom) by, or on referral by, a health care provider for a condiDon that likely would result in incapacity of more than three consecuDve days if lee untreated (e.g., chemotherapy, physical therapy, dialysis, etc.).
- 16. Serious Health CondiDon • The following condiDons are excluded, unless inpaDent care or complicaDons develop that would meet the above criteria: • cosmeDc treatments • common colds • Flu • ear aches • upset stomach • minor ulcers • headaches other than migraine • rouDne dental or orthodonDa problems • periodontal disease
- 17. Qualifying Exigencies • Covered acDve duty definiDon • Family member includes spouse, son, daughter or parent • Qualifying exigencies include: • Responding to short-‐noDce deployment, • A8ending military events and related acDviDes, • A8ending to childcare and school acDviDes, • Receiving counseling, • A8ending to financial and legal ma8ers, • Periods of rest and recuperaDon, • Post-‐deployment acDviDes, • Parental care (military member’s parent), and • Other acDviDes agreed to by the employee and the organizaDon.
- 18. Qualifying Exigencies • Childcare and parental care • The eligible employee does not need to be related to the parent • The eligible employee must be related to the military member (spouse, child or parent) • The military member should be related to the child or parent
- 19. Qualifying Exigencies • Periods of rest and recuperaDon • Changed from 5 days to 15 • ConDnuous or intermi8ent • Must be during Dme specified on R&R orders
- 20. AddiDonal Leave EnDtlement • 26 workweeks of leave during a “single 12 month period”: • To care for a covered servicemember with a serious injury or illness when the employee is the spouse, son, daughter, parent or next of kin of the servicemember.
- 21. POLL • Have you ever had an employee take military caregiver FMLA leave?
- 22. Covered Servicemember • Current Servicemember: • A current member of the Armed Forces, NaDonal Guard or Reserves and is • undergoing medical treatment, recuperaDon or therapy, or is in outpaDent status, or • is on the temporary disability reDred list, for a serious injury of illness
- 23. Covered Servicemember • Covered Veterans: • Member of the Armed Forces, NaDonal Guard or Reserves; • Discharged or released from service under condiDons other than dishonorable and • Discharged within the five-‐year period before the start of military caregiver leave and • Undergoing medical treatment, recuperaDon, or therapy for a qualifying serious injury or illness
- 24. Serious Injury or Illness • Current Servicemember • Incurred in the line of duty and may cause servicemember to be medically unfit to perform the duDes of the servicemember’s office, grade, rank, or raDng • Includes injuries or illnesses that existed prior to acDve duty that were aggravated by service in the line of duty
- 25. Serious Injury or Illness • Covered Veterans • a conDnuaDon of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and rendered the servicemember unable to perform the duDes of the servicemember’s office, grade, rank, or raDng; or • a physical or mental condiDon for which the veteran has received a U.S. Department of Veterans Affairs Service-‐Related Disability RaDng (VASRD) of 50 percent or greater, and the need for military caregiver leave is related to that condiDon; or • a physical or mental condiDon that substanDally impairs the veteran’s ability to work because of a disability or disabiliDes related to military service, or would do so absent treatment; or • an injury that is the basis for the veteran’s enrollment in the Department of Veterans Affairs Program of Comprehensive Assistance for Family Caregivers
- 26. 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 • Military caregiver leave available once per servicemember, per serious injury or illness • Eligible employee can care for more than one covered servicemember at a Dme during leave
- 27. Next of Kin • a blood relaDve who has been designated in wriDng by the servicemember as the next of kin for FMLA purposes • blood relaDve who has been granted legal custody of the servicemember • brothers and sisters • grandparents • aunts and uncles • first cousins
- 28. Employee ResponsibiliDes • Eligible employees may be required to provide: • 30 days advance noDce for foreseeable leave • NoDce as soon as pracDcable when not foreseeable • Sufficient informaDon for the employer to understand why the leave is needed • Timely noDce of leave being FMLA qualifying if not addressed prior to absence
- 29. Employee ResponsibiliDes • And if requested, employee should: • Provide cerDficaDon requests in a Dmely manner • Provide periodic status reports • Submit fitness for duty upon return to work
- 30. Employer ResponsibiliDes • Post a general noDce explaining rights and responsibiliDes (WH PublicaDon 1420) • Posted for all worker to see in common area • Must be in plain view • Provided in other languages when porDon of workforce is not fluent in English • Provides informaDon regarding filing a complaint • May be assessed a fine for not posDng
- 31. Employer ResponsibiliDes • Provide wri8en FMLA policy • Best place is in an employee handbook • Contains same informaDon as in poster, at minimum • Best pracDce to include further detail
- 32. Employer ResponsibiliDes • Provide eligibility noDce • 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
- 33. Employer ResponsibiliDes • Provide Rights and ResponsibiliDes noDce • Qualified leave may be designated and counted against annual leave enDtlement • Requirements of cerDficaDon of the need for leave • SubsDtuDon of paid leave • Premium payments to maintain benefits • “Key Employee” • Maintenance of benefits during leave • Job restoraDon • Employee potenDal liability of health insurance premiums if employee fails to return to work aeer leave • Other informaDon • Form WH-‐381
- 34. CerDficaDon of Leave • Medical CerDficaDon for serious health condiDon • Employer must allow 15 days to be completed • Employee responsible for any costs • If incomplete or insufficient, provide wri8en noDce to employee to cure (7 calendar days) • WH-‐380-‐E, WH-‐380-‐F • Employer representaDve can authenDcate and clarify cerDficaDon (not direct supervisor!) • Employer can request second opinion at employer cost
- 35. CerDficaDon of Leave Request • Qualifying Exigency • Copy of orders • Statement of facts • Approximate Dmes of leave • Contact informaDon for third parDes • Proof of relaDonship • Cannot request second or third opinions • Cannot require recerDficaDon • Must allow 15 days to complete • Form WH-‐384
- 36. CerDficaDon of Leave Request • Military Caregiver • Completed by authorized health care provider • DOD, VA, DOD TRICARE, Non-‐military • For veterans: • VASRD raDng document acceptable; may sDll require confirmaDon of family relaDonship and documentaDon of discharge date • For current servicemembers: • ITO or ITA • Second or third opinions only for non-‐military affiliated HCP • Must allow 15 days to complete
- 37. Employer ResponsibiliDes • DesignaDon NoDce • Employer is responsible for designaDng leave as FMLA leave • NoDce should be provided within 5 business days • Should be provided for each qualifying reason per applicable 12 month period • Employer’s determinaDon • Any concurrent use of paid leave requirements • Any fitness for duty requirements • Provides amount of leave counted against enDtlement • Form WH-‐382
- 38. Employer ResponsibiliDes • Recordkeeping • Dates, documents and records of FMLA leave • Hours if intermi8ent • No less than three years • Medical informaDon must be maintained in a confidenDal manner
- 39. Employer ResponsibiliDes • Maintenance of Employee Benefits • Employer maintains payment of their contribuDon to premiums • Employee must pay their premium porDon • Same condiDons applied as if the employee were conDnuously employed
- 40. Employer ResponsibiliDes • Employee Reinstatement • Same posiDon, or to an equivalent posiDon with equal pay, benefits and other terms and condiDons • Pay includes bonuses, uncondiDonal pay increases, pay premiums and opportunity for overDme • Benefits include insurance, paid Dme off, pensions, educaDonal benefits • Other terms and condiDons may include duDes, condiDons, responsibiliDes, schedule, locaDon
- 41. In closing • Employers cannot interfere with, restrain or deny employees’ FMLA rights • It’s prohibited to retaliate, discriminate, discharge or otherwise consider a negaDve factor against an employee for exercising FMLA rights
- 42. HRCI Cer)fica)on Credits: "This webinar has been pre-‐cerDfied for 1 hour of general recerDficaDon credit toward PHR, SPHR and GPHR recerDficaDon through the HR CerDficaDon InsDtute. We will send out a confirma)on e-‐mail to all those that are confirmed as a:ended 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 CerDficaDon InsDtute of the quality of the program. It means that this program has met the HR CerDficaDon InsDtute's criteria to be pre-‐ approved for recerDficaDon 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