Department of Personnel & Administration

1. Department of Personnel & Administration Division of Human Resources

2. Family Medical Leave Act The Final FMLA/MFLA Entitlements

3. Final Regulations • Number of changes in the amended Act • Improves accessibility of information • Improves communication between workers, employers, and healthcare providers

4. Objectives for Today • Review the more significant changes to the FMLA and new military leave entitlements • Provide opportunities for questions and answers

5. Increased Qualifying Reasons for Leave • Qualifying exigency (active duty family leave) for covered military member for employee’s spouse, son, daughter or parent called to active duty or impending call to active duty • For an employee to care for a covered servicemember (military caregiver leave) with a serious injury or illness – if spouse, son, daughter, parent, or “next of kin”

6. Continuing Treatment • Period of incapacity exists if: • The period of incapacity lasts more than 3 full consecutive calendar days • Treatment by a healthcare provider on at least one occasion resulting in a regiment of continuing treatment • Treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist • “In-person” treatment at least once within 7 days of first day of incapacity • Chronic health condition means: • Requires periodic visits at least twice a year

7. Leave for Pregnancy or Birth • Clarifies that both mother and father are entitled to take leave for a child with a serious health condition • Specifies specifically that the husband of a wife/spouse who is incapacitated due to pregnancy or flowing birth as apposed to a boyfriend or fiancé • Clarifies that both spouses are entitled to leave regardless of working for same employer

8. Definition of Familial Relationships • Clarifies parent does not include “parents in-law” • Clarifies definition of child, over age of 18 means one that is incapable of self care because of a mental or physical disability at the time leave is to commence

9. Definition of Familial Relationships • Next of kin means nearest blood relative otherthan spouse, parent, child in order of priority: • Blood relatives granted legal custody by court decree • Brothers & Sisters • Grandparents • Aunts & uncles • First cousins

10. Definition of Familial Relationships • Child on active duty means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis who is on active duty or call to active duty status who is of any age • Child of a covered servicemember means servicemember’s biological, adopted, or foster child, stepchild, legal ward or a child for whom the servicemember stood in loco parentis who is of any age

11. Leave for A Qualifying “Exigency” • Employee can take leave for spouse, child, or parent on active duty or called to active duty in support of contingency operation as a military service member who is part of the National Guard or Reserves • Does not apply to regular servicemembers who are part of the Armed Forces • Only applies to federal call to active duty that is declared by the president or congress; does not apply to local state call declared by the governor.

12. Leave for A Qualifying “Exigency” • Short – notice deployment • Address any issues when called or ordered to active duty 7 or less calendar days prior to date of deployment • Can be used for a period of 7 days beginning on the date military member is notified of impending call or order to active duty

13. Leave for A Qualifying “Exigency” • Military Events and Related Activities • Attend official ceremony program or event sponsored by the military related to active duty or the call to active duty • Attend family support or assistance programs, or informational briefings sponsored by the military or Red Cross

14. Leave for A Qualifying “Exigency” • Child Care and School Activities • The active duty or call to active duty necessitates a change in existing child care • To provide child care on an urgent basis • To enroll or transfer to a new school or day care facility when the active duty or call to active duty necessitates the change

15. Leave for A Qualifying “Exigency” • Financial and legal arrangements • To make or update financial legal arrangements to address the military members absence • Act as the military members representative before federal, state, or local agency to obtain, arrange, or appeal military service benefits while on active duty or the call to active duty and for up to 90 days following the termination of active duty

16. Leave for A Qualifying “Exigency” • Counseling • To attend counseling sessions provided by someone other than a healthcare provider for self or child • Intended to cover counseling not already covered under non-military FMLA certified by a healthcare provider

17. Leave for A Qualifying “Exigency” • Rest & Recuperation • To spend time with the military service member while on short-term leave during the period of deployment • Up to five days per instance

18. Leave for A Qualifying “Exigency” • Post deployment activities • Attend arrival ceremonies, briefings, events, or other official ceremonies sponsored by the military up to 90 days following the return of the service member, demobilization, or termination of the active duty status • Address issues arising from the death of the military member

19. Leave for A Qualifying “Exigency” • Additional activities • Any other activity that the employer and employee agree on, including the timeframe and duration of the leave

20. Military Caregiver Family Leave Covered “Servicemember” • Member of the armed forces including member of National Guard or Reserves • Undergoing medical treatment, recuperation or therapy • Is in “outpatient status” or on the temporary disability retired list for a “serious injury or illness”

21. Military Caregiver Family Leave • Entitlement is for 26 weeks in a single 12-month period • Leave applies per covered servicemember-per injury • No more than 26 weeks may be taken in a single 12-month period for the same servicemember

22. Military Caregiver Family Leave • Employer is responsible for designating the leave as FML-qualifying • In cases were regular FMLA and MFML apply, the employer must designate the MFML first

23. Holidays • Employees that take a block of leave, holidays are counted against the leave entitlement • For weeks of partial leave FML does not count against the holidays • If employee is scheduled to work the holiday FML may be counted against the employee’s leave entitlement

24. Intermittent Leave or Reduced Schedule • Employees may take intermittent leave for all forms of FMLA • Employees are required to make a reasonable effort to schedule treatment where medically necessary so that the scheduling of the treatment does not unduly disrupt the employer operations • Employees that need to schedule leave but cannot physically resume the shift can be charged FMLA for entire shift

25. Light Duty • Employee may reject light duty and elect for FMLA leave instead • Employee has reinstatement rights until the end of the applicable 12-month FMLA leave year • Light duty does not count against 13 week entitlement

26. Application of FMLA and Overtime • If employees are scheduled to work overtime and cannot – that time can be counted against the FML allotment • Compensatory time by public employers runs concurrently with FML

27. Substitution of Paid Leave/Employers Paid Leave Policies • Regulations clarify that substitution of paid leave runs concurrently with FMLA • If employee does not comply with employer’s paid leave policy, the employee is not entitled to the pay but is protected under FMLA • Leave taken for on the job injury counts towards FMLA entitlement – paid leave can be supplemented if employer/employee agree

28. Perfect Attendance Awards • Employers can disqualify an employee from perfect attendance awards where an employee fails to meet the achievement goal due to FML absence • Must treat those employees on FMLA and non-FMLA the same

29. Employer Notice Obligations • Increased notice requirements on employers so employees have a better understanding of their rights • Eligibility and designation notice must be conveyed within 5 business days – changed from 2 days • If require fitness to return certificate must include statement of employee’s essential job functions

30. Employer Notice Obligations • Eligibility notice • Determined at the commencement of leave • Must contain one reason employee not eligible • If employee requests leave for a subsequent condition and status is not changed, no additional eligibility notice is required

31. Employer Notice Obligations • Rights and Responsibilities • Must be provided at the same time as eligibility notice • Must detail employee’s obligations, expectations, and consequences for failure to meet the obligations • If during leave the information changes, employer must notify employee within 5 business days

32. Employer Notice Obligations • Designation • No conditional FML designations allowed unless seeking 2nd or 3rd opinion • Do not designate until sufficient information has been received • Only 1 designation notice is required per condition in a 12-month period • Must indicate if paid/unpaid • Fitness for duty must be included along with a list of essential functions (if required)

33. Employee Responsibilities • Not required to assert rights but must explain reason for the leave • Where leave is unforeseen, employee must provide sufficient information for the employer to designate • If an employee does not disclose their reason for using paid leave and the employer denies the leave, the employee must explain why the employer cannot deny the leave • If an employee is out on annual leave and requests an extension of that leave, the employee must provide an explanation so the employer can count the leave that is FML against the leave entitlement

34. Disputes and Retroactive Designation • Disputes regarding the FML qualifying leave should be resolved through discussions and documented • Employer may retroactively designate FML with proper designation notice provided it does not harm the employee • In all cases, employer and employee can agree to retroactively designate the leave

35. Employee Notice Requirements • Leave for qualifying exigency must be provided as far in advance as practicable regardless of how foreseeable • “As soon as practicable” means: • Both possible/practical • Taking into accounts all facts and circumstances of the individual case

36. Employee Notice Requirements • Must provide at least verbal notice to make employer aware of need for leave • Timing • Length of leave • Specify qualifying reason • Failure to respond to the employer’s reasonable request for more information may result in the denial of FMLA protection

37. Employee Notice Requirements Unforeseeable Leave • Time frames prescribed by usual customary practice of employer • For certified condition, simply calling in sick is not sufficient – must provide a reason • Employees must comply with employer call-in policies absent extenuating circumstances

38. Employee Notice Requirements Foreseeable leave (30 days) • If leave is foreseeable at least 30 days in advance and employee fails to give notice with no reasonable excuse leave may be delayed until 30 days after the date the employee provides notice • The need for leave and approximate date must be clearly foreseeable 30 days in advance

39. Employee Notice Requirements Foreseeable leave (less than 30 days) • When the need for leave is less than 30 days in advanced and employee fails to give notice as soon as practicable • Employer may delay leave depending on the facts and circumstances

40. Medical Certification • Allows direct contact with the healthcare provider to authenticate or clarify information on certification form only after the employee has been allowed to cure the deficiencies– HIPAA requirements must be met • Only a healthcare provider or HR professional • Direct supervisors not allowed

41. Certification and Verification for Military Family Leave • For a qualifying exigency the employer may contact the individual or entity (third party) to verify the meeting or appointment and the nature of the meeting • Employer may contact the Department of Defense (DOD) to request verification that the military member is on active duty or call to active duty status • The employees permission is not necessary • No additional information may be requested

42. Certification and Verification for Military Caregiver Leave • Must accept “invitational travel orders” (ITOs) and “invitational travel authorizations” (ITAs) in lieu of certification forms • Second/third opinions not permitted • Recertification not permitted • If an employee needs leave beyond the expiration date specified, a certification may be requested • Can request documentation of familial relationship

43. Fitness-for-Duty Certifications • Employer may require that the certification address the employee’s ability to perform the essential functions • List of essential functions must be included with the designation notice • Employees are required to cooperate and provide sufficient certification much the same as the FMLA certification process

44. Fitness-for-Duty Certifications • Employers can clarify and authenticate the fitness-for-duty • Employer cannot delay the employee’s return while contacting the provider • Second or third opinions not permitted • Employer may delay restoration until employee submits the fitness-for-duty • If an employee does not provide the fitness for duty, they are not entitled to restoration

45. Fitness-for-Duty Certifications • Where reasonable safety concerns exist may require fitness-for-duty certification before an employee can return to work – for intermittent or reduced leave schedule • No more than once every 30 days • Employees must be notified at the same time as designation notice

46. Fitness-for-Duty Certifications • Employees cannot be terminated during the period they are waiting for the certification for intermittent leave or reduced schedule • Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others • To determine if safety concerns exist: • Nature and severity of potential harm • The likelihood the potential harm will occur

47. What’s Next? • DHR revamping all technical training including the supervisory training recently published • DHR reviewing all rules to identify necessary changes

48. Contact Information Joi Simpson Total Compensation Division of Human Resources Department of Personnel & Administration 1313 Sherman Street, 1st Floor Denver, CO 80203 Joi.simpson@state.co.us PH:303.866.5496 FX:303.866.2458