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NAVIGATING THE FMLA HIGHWAY

NAVIGATING THE FMLA HIGHWAY. The Family and Medical Leave Act of 1993 (FMLA or Act) allows ‘‘ eligible ’’ employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for

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NAVIGATING THE FMLA HIGHWAY

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  1. NAVIGATING THE FMLA HIGHWAY

  2. The Family and Medical Leave Act of 1993 (FMLA or Act) allows ‘‘eligible’’ employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months for qualifying reasons.

  3. THINK YOU WILL NEED TO DEAL WITH FMLA?

  4. The Department of Labor estimates that: There were an estimated 95.8 million workers in establishments covered by the FMLA regulations,

  5. • There were approximately 77.1million workers in covered establishments who met the FMLA’srequirements for eligibility, and about 7.0 million covered and eligible workers took FMLA leave in 2005. About 1.7 million covered and eligible employees who took FMLAleave took at least some of it intermittently—and may have taken that intermittent leave multiple times overthe course of the year. 73 FR 7877

  6. DEFINITIONS

  7. Eligible Employee. An Eligible Employee is an Employee who has been employed for at least: 12 months by the Employer with respect to whom leave is requested; and who had 1,250 hours of service with such Employer during the 12-month period immediately preceding the commencement of the leave.

  8. Counting the required hours the 1, 250 hours necessary to qualify for FLMA leave includes only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

  9. Eligible Employee does not include an employee of an employer who is employed at a worksite at which the employer employs less than 50 employees, and the total number of employees employed by that employer within 75 miles of that worksite is less than 50 employees. 26 U.S.C. § 2611(2).

  10. DEFINING WHAT CONSTITUTES 12 MONTHS

  11. BREAKS IN SERVICE: The 12 months of employment need not be consecutive in order for the employee to qualify for FMLA leave. Employment periods prior to a break in service of seven years or more need not be counted in determining whether the employee has been employed by the employer for at least 12 months; BUT

  12. Employment periods preceding a break in service of more than seven years must be counted in determining whether the employee has been employed by the employer for at least twelve months where: 1. Break due to National Guard or Reserve military obligation 2. Written agreement including collective bargaining or other written agreement. Response to Rucker v. Lee Holding, Co., 471 F.3d 6 (1st Cir. 2006).

  13. WHO IS A COVERED EMPLOYER?

  14. FMLA applies to all: Public agencies, including local, State and Federal employers and local education agencies (schools). Private sector employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 26 U.S.C. § 2611(4). This includes joint employers and successors of covered employers.

  15. QUALIFYING REASONS FOR LEAVE Who Can You Care For?

  16. QUESTION An Employee requests FMLA leave for a serious health care condition of Employee’s brother-in-law. Is Employee entitled to leave?

  17. Employers covered by FMLA are required to grant leave to eligible employees: (1) For birth of a son or daughter, and to care for the newborn child (see § 825.120); (2) For placement with the employee of a son or daughter for adoption or foster care (see § 825.121);

  18. (3) To care for the employee’s spouse,son, daughter, or parent with a serioushealth condition ; and (4) Because of a serious healthcondition that makes the employee unable to perform the functions of the employee’s job. (5) For qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserve, or regular Armed Forces.

  19. Bonding with a newborn child • FMLA leave is appropriate for bonding with a newborn child or newly placed adopted or foster child but the FMLA leave must conclude within 12 months after the birth or placement.

  20. ESSENTIAL FUNCTIONS “An employee is ‘‘unable to perform the functions of the position’’ where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., . . . An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.”

  21. Equal application. The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption or foster care of a child. 29 CFR Section 825.112

  22. WHAT IS A “SERIOUS HEALTH CONDITION?”

  23. FMLA Definition of a “Serious Health Condition” For purposes of FMLA, ‘‘serious health condition’’ entitling an employee to FMLA leave means an illness, injury,impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115. 29 CFR Section 825.113

  24. Inpatient care. Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity as defined in § 825.113(b), or any subsequent treatment in connection with such inpatient care. 29 CFR 825.114

  25. Continuing treatment by a health care provider requires incapacity to work due to a serious healthcondition “of more than three consecutive calendar days”. 29 C.F.R. § 825.114(a)(2).

  26. SERIOUS HEALTH CONDITION (CONT.) (1) Treatment two or more times by a healthcare provider, or(2) Treatment one time by a health careprovider resulting in a regimen ofcontinuing treatment under the health careprovider’s supervision.

  27. INCAPACITY 29 CFR 825.13 provides that “[t]he term “incapacity” means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom.”

  28. CLARIFICATION OF CONTINUING TREATMENT Incapacity and treatment. A period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (1) Treatment two or more times, within a 30-day period unless extenuating circumstances exist, OR (2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.73 FR 7966

  29. The term ‘‘treatment’’ includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations.

  30. EMPLOYER MISSTEPS WITH FMLA Employers must remember that: (1) incapacity for more than three consecutive days is not a prerequisite for leave if there is an overnight hospitalization, pregnancy, or chronic serious health condition, and (2) treatment alone—even without “incapacity”—is a sufficient basis for FMLA leave in cases of overnight hospitalization, prenatal care, chronic serious health conditions, or conditions that would likely result in more than three consecutive days of incapacity.

  31. Beware, several conditions which individually would not constitute serious health conditions can, when taken together, rise to the level of a serious health condition. Price v. City of Fort Wayne, 117 F.3d 1022 (7th Cir. 1997)

  32. WHAT IS NOT A SERIOUS HEALTH CONDITION?

  33. Ordinarily, unless complications arise, these are not “Serious Health Conditions”: common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., They do not qualify for FMLA leave.

  34. EMPLOYER MISSTEPS WITH FMLA DO NOT BECOME THE DOCTOR Failure to Grant FMLA Leave Because of a Misunderstanding of What Qualifies as a “Serious Health Condition” [29 C.F.R. 825.114] Must be left entirely to health care professionals. Incapacity to perform the essential functions of the position the employee applies at the time the employee misses work

  35. Serious Health Conditions Decisions

  36. Beaver v. RGIS Inventory Specialists, Inc. 2005 WL 1607045 (6th Cir. Jul. 7, 2005) Employee’s sinusitis, bronchitis, and ear infection did not constitute a “serious health condition” under the FMLA because “[t]he legislative history of the FMLA makes it clear that routine, commonplace illnesses of short duration are not covered by the statute.” S. Rep. No. 103-3 (1993): Minor illnesses lasting only a few days and outpatient surgical procedures requiring a brief recovery period are normally not covered.

  37. BUT WAIT . . . . . . . . . . . Caldwell v. Holland of Texas, Inc., 208 F3d 671 (8th Cir. 200) An employee’s 3 year old son, who had an ear infection that required emergency room treatment, continuing treatment with antibiotics and would ultimately require surgery, could be subject to a “serious health condition” for purposes of FMLA.

  38. Russell v. North Broward Hosp. 346 F.3d 1335 (11th Cir. 2003) When defining a “serious health condition,” the phrase “more than three consecutive calendar days” means a continuous period of incapacity extending more than 72 hours, and therefore, a hospital employee who was absent from work for seven consecutive partial days of incapacity after she slipped and fell at work did not have a “serious health condition” covered by the FMLA.

  39. Perry v. Jaguar of Troy 353 F.3d 510 (6th Cir. 2003) The fact that an employee’s child has ADD and/or ADHD does not necessarily qualify as a “serious health condition” under the FMLA. In this case, plaintiff’s son’s conditions were not “incapacitating.” He could attend school and engage in the same daily activities in which most children engage.

  40. Brenneman v. MedCentral Health Sys. 366 F.3d 412 (6th Cir. 2004) Employee did not receive continuing treatment under physician’s supervision for his intestinal flu, as required for such illness to constitute FMLA-qualifying serious health condition based upon one visit to physician, where FMLA certification document indicated that treatment regimen involved only leave from work, rest, and fluids.

  41. Conrad v. Eaton Corp. 303 F.Supp. 2d 987 (N.D. Iowa 2004) The fact that employee can perform his or her job functions at some hypothetical, non-existent workplace is irrelevant; the inquiry is focused on whether employee is able to perform the requisite job functions at his or her current place of employment.

  42. Intermittent and Reduced Schedule Leave

  43. FMLA Definition of Intermittent/ Reduced Schedule Leave Intermittent: Leave taken in separate blocks of time due to to a single qualifying reason. Reduced: Leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A change in employee’s schedule for a period of time, normally from full-time to part-time. 29 C.F.R. § 825.203(a)

  44. When Intermittent/Reduced Schedule Leave is Permitted (1) “for planned and/or unanticipated medical treatment of a related serious health condition . . .;” (2) “for recovery from treatment or recovery from a serious health condition;” (3) “for prenatal examinations or for [a pregnant employee’s] own condition;”

  45. When Intermittent/Reduced Schedule Leave is Permitted (4) “to provide care or psychological comfort to an immediate family member with a serious health condition;” and even (5) “for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition . . . .” 29 C.F.R. § 825.203(b)

  46. Intermittent leave is not available for the birth or placement of a child.

  47. Length of Intermittent Leave • Employer may limit leave increments to the shortest • period of time that employer uses to account for absences • of leave under its payroll system. • Under the 2008 regulations, the employer could limit • Leave increments to the shortest period of time allowed • for any absence. • 2013 regulations clarified that an employer may not • require the employee to take more leave than necessary • to address the circumstances that precipitated the need • for leave. Employers must track FMLA leave using the • smallest increment of time used for other forms of leave, • subject to the a one hour maximum.

  48. Employee Requests for Intermittent Leave Intermittent leave need only be requested and approved one time during any given FMLA 12-month period. 29 C.F.R. § 825.302(a)

  49. Pay for Intermittent Leave • Employee’s pay may be docked for any day or part of a day taken pursuant to FMLA leave without affecting employee’s status as exempt under the FLSA. • Pay may be docked only for the time actually taken for leave. • 29 C.F.R. §§ 825.206(a), 825.205(a).

  50. Scheduling of Intermittent Leave • Employees seeking intermittent leave “must • attempt to schedule their leave so as not to disrupt • the employer’s operations . . . Subject to the • approval of the health care provider.” • Section 825.302(e) effectively puts the burden on • the employer to “initiate discussions with the • employee and require the employee to attempt to • make such arrangements, subject to the approval • of the health care provider.”

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