The Family and Medical Leave Act and 2008 Revised Department of Labor Regulations Labor Center University of Iowa
Dec 13, 2015
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
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
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?
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?
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