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FMLA BASICS

FMLA BASICS. Purpose of the FMLA. Balance work and family life Provide job security Provide benefits protection. The FMLA basics. Entitles employees to leave The leave is “protected” The employer must designate the leave as FMLA and ensure that it maintains a record of that leave.

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FMLA BASICS

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  1. FMLA BASICS

  2. Purpose of the FMLA • Balance work and family life • Provide job security • Provide benefits protection

  3. The FMLA basics • Entitles employees to leave • The leave is “protected” • The employer must designate the leave as FMLA and ensure that it maintains a record of that leave

  4. FMLA 12 Week Leave Entitlement • 12 weeks is maximum amount of FMLA-protected leave in any postal leave year (480 hours for full-time regular employees) • Additional leave beyond the 12 weeks may be granted, but the leave is not designated as FMLA • 12 week entitlement is for all types of FMLA conditions combined • When FMLA leave is taken in less than full day increments, only the hours actually required are counted against the employee’s FMLA entitlement

  5. 12 weeks of protected leave for: • Birth, adoption or foster care placement and bonding time • Employee’s own serious health condition • Employee is needed to care for a parent, spouse, or child with a serious health condition

  6. Employees • An employee for FMLA purposes may include: • Prospective Employees • Some Contract Employees

  7. Covered Family Members Spouse - common law, where recognized - does not include same-sex partners Parent - includes one who acted as a parent when the employee was under 18 (in loco parentis) Son or Daughter - adopted, foster, stepchild, legal ward and inloco parentis - child must be under 18 unless he/she has a disability as defined under the ADA

  8. Needed to Care for a Family Member • Medical needs • Hygiene • Nutrition • Safety • Cannot drive oneself to the doctor

  9. Needed to care for a Family Member • “Psychological comfort and reassurance” for a family member with a SHC • “Who is receiving inpatient or home care”

  10. Birth, Adoption and Foster Care • Leave to care for and bond with the child • Must be taken within a year of the birth or placement • Preplacement adoption/foster care leave available

  11. Serious Health Conditions (1) Overnight stay in the hospital and any follow-up care (2) A period of incapacity over 3 days plus treatment (3) Any period of incapacity due to pregnancy or prenatal care (4) Any period of incapacity or treatment for a chronic serious health condition (5) Permanent or long-term incapacity due to a condition for which treatment may not be effective (6) Absence for multiple treatments for a condition that, without such treatment, could result in an absence over 3 days

  12. Incapacitated from Work • Unable to work at all • Unable to perform any one of the essential functions of the position • Absent for medical treatment

  13. Hospitalization • Overnight stay • Any period of incapacity for that condition • Any period of follow up treatment for that condition

  14. Incapacity of more than 3 consecutive Calendar Days Plus Treatment • Incapacity must be consecutive • Treatment is: (A) two visits to a health care provider or (B) one visit to a provider and a regimen of continuing treatment

  15. Regimen of Continuing Treatment • Includes: prescription medication (e.g., an antibiotic) or therapy requiring special equipment (e.g., oxygen) • Does not include: taking over-the-counter medications, bed rest, drinking fluids, exercise

  16. Pregnancy or Prenatal Care • Any period of incapacity due to the pregnancy • Absence for prenatal care

  17. Chronic Serious Conditions • Requires periodic visits for treatment with provider • Continues over an extended period of time • May cause episodic flare-ups • Any period of absence due to incapacity or treatment

  18. Permanent or Long Term Incapacity for a Condition Where Treatment May Not be Effective • Parent with Alzheimer’s • Spouse with terminal cancer

  19. Condition Likely to Result in Incapacity of More than Three Consecutive Calendar Days If Not Medically Treated • Any period of absence • To receive multiple treatments, or to recover there from • Examples: - Chemotherapy - Kidney dialysis

  20. Who is Eligible for FMLA Leave? • Employees must meet two eligibility requirements: (1) Have 12 months postal employment (which need not be consecutive) (2) Work at least 1250 hours in the year preceding the start of the leave Note: Employer must make eligibility determination and notify employee of status

  21. Employer Notice Requirements • Assess whether leave is potentially FMLA qualifying • Give notice of FMLA rights and responsibilities via Pub 71, 3971 and DOL’s Form WH-380 • Note on 3971 that (1) absence is provisionally protected, pending documentation; (2) make eligibility determination • Notify employee if medical documentation is insufficient, explain deficiency and allow 15 days to provide complete documentation • Designate leave on 3971 as FMLA when appropriate and notify employee

  22. Employee Notice Requirements • Employee does not have to mention FMLA; need only provide enough information for employer to believe the absence may be covered • Advance notice when leave is foreseeable • Notice as soon as practicable (1-2 days) when leave is not foreseeable • For foreseeable leave, employee must make effort to schedule leave so as not to disrupt operations

  23. Employee Notice Obligations “When planning medical treatment, the employee must consult with the employer and make a reasonable effort to schedule the leave so as not to disrupt unduly the employer’s operations, subject to the approval of the health care provider.” 29 C.F.R. 825.302(e)

  24. Managing Intermittent or Reduced Schedule Leave • Employees are only entitled to intermittent or reduced schedule leave when it is medically necessary • Such leave must be the best way of accommodating the medical need • When leave is to care for a child after birth or placement, intermittent or reduced schedule leave is discretionary • Employees must attempt to schedule foreseeable leave in a manner that is least disruptive to operations

  25. Absence from Overtime • Absence from overtime may be an appropriate use of FMLA intermittent leave • Ensure that medical certification supports absence from overtime (e.g., clarification, second and third opinion) • Absence from overtime hours are protected as FMLA, but are not counted against the employee’s 12 week FMLA entitlement

  26. FMLA and Charging Leave • FMLA is not a separate leave category • FMLA is unpaid leave (LWOP) • Employees may request to substitute paid leave, subject to USPS regulations: • AL • SL or SLDC • COP/OWCP • PERSONAL LEAVE • FMLA is approved leave and therefore, is never AWOL

  27. Paid Leave and FMLA Protection If employees do not follow postal leave policies for documenting sick leave, they can be denied paid sick leave However, if they have complied with FMLA notification policies, they cannot be denied FMLA protection or have it delayed

  28. Paid Leave and FMLA Protection “An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave….However, failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee’s taking FMLA leave if the employee gives timely verbal or other notice.” 29 C.F.R. 825.302(d)

  29. Record Keeping • FMLA certifications are confidential medical records and must not be disclosed • FMLA medical certifications are filed in the FMLA office, in a locked cabinet. • FMLA records must be retained 3 years • Note: Due to ongoing litigation, all FMLA records are to be retained until you are notified by the Law Dept that the litigation hold covering the Cyncar litigation has been lifted. Until such notification, under no circumstances can any FMLA records be altered or destroyed. This requirement overrides any document retention policies or practices otherwise in effect. Includes PS3971s for FMLA protected leave.

  30. Record Keeping • Employers must maintain all records relating to their notice and obligations, leave designation and use, employee notices, and even disputes between the employee and an employer. 29 C.F.R. 825.500(r)

  31. Return to Work • Employees are entitled to the same or virtually identical position • Employees must be able to perform all the essential functions of their job • Non-bargaining unit employees need only provide a statement of their ability to return to work and perform essential functions • No return to work documentation required for non-bargaining unit employees with intermittent absences

  32. Rehabilitation Act A disability under the Rehabilitation Act may also be a SHC under the FMLA Qualified disabled employees may be entitled to more than 12 weeks of leave as a reasonable accommodation Qualified disabled employees may be entitled to job modifications as reasonable accommodation Worker’s Comp Workplace illness/injury can also be a SHC under the FMLA Employees may use entire 12 week entitlement prior to returning to work Employer cannot require employee to return to work and accept a modified duty position if FMLA leave remains FMLA, Rehab Act and Worker’s Comp

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