FAMILY AND MEDICAL LEAVE ACT

1. FAMILY AND MEDICAL LEAVE ACT Rosemary Sage Jones Ramey & Flock P. C. rosemary@rameyflock.com

2. FMLA – Employer Coverage • Covered companies: • 50 or more employees (in 20 or more calendar weeks this calendar year or last) • Count everyone listed on the payroll – full-time, part-time, casual, temporary, owners (e.g., physician owners), etc., whether they received pay in a week or not

3. FMLA – Employee Eligibility • Eligible employees: • 12 cumulative months of employment • 1,250 work hours in the 12 months prior to leave • Site has 50 employees within 75 miles

4. FMLA – Reasons for Leave • Reasons for FMLA leave: • 12 workweeks of unpaid leave in a 12-month period: • Birth, adoption, or foster child placement • Employee’s own “serious health condition” • “Serious health condition” of the employee’s spouse, parent, son or daughter (generally who is under age 18) • Qualifying military exigency leave

5. FMLA – The 12-month Period • Counting methods: • Calendar or other “fixed” year • Fixed 12 months from an employee’s first day of use • Rolling 12-month period looking back from each day of use

6. FMLA – Reasons for Leave • Injured servicemember leave: • 26 workweeks of unpaid leave to care for injured servicemember in the 12-month period starting on the first day of use (and combined together with any of the other reasons for FMLA leave)

7. FMLA Parenting Leave • FMLA Parenting Leave: • Applies to mothers and fathers following the birth or placement • Covers pre-placement activities for adoption or foster care • Must conclude within 12 months of the birth or placement • Intermittent or part-time only if the employer agrees • Runs concurrently with Minnesota parenting leave (if applicable)

8. FMLA Serious Health Condition Leave • Available when • Employee is incapacitated by a “serious health condition” • Employee needs to care for a spouse, child or parent who has a “serious health condition”

9. FMLA Serious Health Condition Leave • Note: • There are six different ways that a medical condition may qualify as a “serious health condition”

10. FMLA Serious Health Condition • “Serious Health Condition” • Inpatient care (hospital, nursing home) and any subsequent incapacity and treatment

11. FMLA Serious Health Condition • “Serious Health Condition” 2. More than three consecutive, full calendar (not just work) days of incapacity with • One in-person health care provider visit within 7 days of the first absence with a regimen of treatment (e.g., prescription), or • Two in-person health care provider visits: the first visit within 7 days of the first absence and the second visit within 30 days NOTE: A full Friday and a partial Monday absence with incapacity in-between may be enough.

12. FMLA Serious Health Condition • “Serious Health Condition” • Any period of incapacity due to pregnancy or prenatal care.

13. FMLA Serious Health Condition • “Serious Health Condition” • Any absence due to a chronic condition: Examples: Asthma, diabetes, epilepsy, migraine headache, irritable bowel syndrome, fibromyalgia, etc.

14. FMLA Serious Health Condition • “Serious Health Condition” • Permanent or long-term incapacity due to a condition for which treatment may not be effective. Examples: Alzheimer’s, a severe stroke, the final stages of a terminal disease

15. FMLA Serious Health Condition • “Serious Health Condition” • Any period of absence to receive multiple treatments and recovery therefrom for • Restorative surgery after an accident or injury, or • A condition that would likely cause incapacity of more than three consecutive, full calendar days if not treated. Examples: Chemotherapy or radiation for cancer, dialysis for kidney disease, physical therapy for severe arthritis, steroid treatments for multiple sclerosis

16. FMLA Medical Certification • For an eligible employee requesting any type of “serious health condition” leave: • Use the DOL’s appropriate “Certification of Health Care Provider” form – “Employee” or “Family Member” (www.dol.gov) • Employee has 15 calendar days to return

17. FMLA Serious Health Condition Leave • Care for a son or daughter: • Son or daughter generally must be under age 18 • If age 18 or older, must be “incapable of self-care because of mental or physical disability”

18. FMLA Serious Health Condition Leave • Consecutive Days of Absence • Intermittent From time-to-time as needed in the smallest increment of time the employer uses to measure work time, but never forced use of increment greater than one hour • Reduced Schedule • Half-time or other reduced schedule

19. FMLA Qualifying Military Exigency Leave • Employee may take 12 workweeks of FMLA leave for a qualifying exigency involving his/her spouse, child (of any age or capacity) or parent • Who is an active or retired member of the Guard or Reserve or an active or retired member of the Regular Armed Forces

20. FMLA Qualifying Military Exigency Leave • Qualifying exigencies: • Issues related to deployment with 7 days or less of notice • Attendance at military events • Arranging for child care and school activities • Making financial or legal arrangements • Attending counseling • Rest and recuperation with the military member (up to 5 days) • Other activities as agreed to by employer and employee

21. FMLA Injured Servicemember Leave • Injured servicemember leave: • 26 workweeks of leave from the first day of use • Applies to eligible employees who are the spouse, son, daughter, parent or “next of kin” of a covered injured servicemember • “Next of kin” means the “nearest blood relative of that individual” other than a spouse, parent, son or daughter

22. FMLA Injured Servicemember Leave • Covered injured servicemembers include: • Current, discharged or retired (veteran) members of the active Armed Forces and the Guard and Reserve

23. A quick summary so far: • Covered employer – 50 or more employees • Eligible employee – 12 months, 1,250 hours and 50 employees w/i 75 miles • Reasons for FMLA leave: • Parenting • Serious Health Condition (6 ways) • Qualifying exigency • Injured servicemember (26 weeks)

24. Employee/Employer Notice Summary • Employee indicates need for leave • Employer responds w/i 5 business days: • DOL’s “Notice of Eligibility and Rights & Responsibilities” form w/ • Appropriate medical certification form (but not if parenting leave) • Employee provides medical certification w/i 15 calendar days • Employer responds w/i 5 business days • DOL’s Designation Notice form

25. Other FMLA Leave Details • Paid/Unpaid: • FMLA leave is unpaid unless a company-provided compensation benefit applies: • Vacation, sick leave, PTO, workers’ comp • Short-term disability, Long-term disability, etc. • Company FMLA policy must state whether paid time may or must be used and give details of use

26. Other FMLA Leave Details • Continuation of Insurance Benefits: • Employer continues to pay its share of the health and dental insurance (individual or family coverage as applicable) • Employee pays his/her share of the insurance • NO COBRA notice unless and until all FMLA time is exhausted

27. Return from FMLA Leave • Fitness for Duty: • Only request for an employee’s own FMLA serious health condition leave, not parenting leave

28. Return from FMLA Leave • Job reinstatement: • Upon completion of FMLA leave, the employee is entitled to return to the same or an equivalent position • Job duties, pay, benefits and terms and conditions of employment • If employee is laid off during FMLA leave, no reinstatement is required (but proceed very cautiously here)

29. After FMLA Leave • Note: • More leave may be required per the Americans with Disabilities Act for an employee who has used all 12 workweeks of FMLA leave but still is medically unable to return to work because of the employee’s own disabling health condition

30. Other FMLA Leave Details • No discrimination • No retaliation (e.g. termination, discipline, pay cut, etc.) Note: Absences covered by FMLA – no adverse action.

31. Recommendations • Good written FMLA policy • Train supervisors and managers • Designate one person to be in charge of employee leaves, including FMLA • Proceed with caution when terminating employee during or following FMLA leave (or request for leave)