The New FMLA Regulations: What You Need to Know

1. The New FMLA Regulations: What You Need to Know Presented By: Kelly A. Hayden, JD Assistant General Counsel The Management Association of Illinois

2. The New Family Military Regulations The FMLA was amended by the National Defense Authorization Act for Fiscal Year 2008 on January 28, 2008. Copyright 2009. The Management Association of Illinois.

3. Copyright 2009. The Management Association of Illinois. Leave to Care for Injured Service Member • Available for spouse, child, parent or next of kin of covered service member. The parent-employee may take leave to care for the servicemember-child who is over the age of 18. • Up to 26 weeks in a 12 month period to care for service member with a serious injury or illness. • Employers must use the “rolling forward” method to measure this leave, regardless of what measurement is used for other types of leaves. • Leave is on a per-covered servicemember, per injury basis. • Special certification form: no second/third opinions, no recertification. • Confirmation of relationship may be required. • If leave also qualifies as FML serious health condition, it must be designated as servicemember family leave.

4. Copyright 2009. The Management Association of Illinois. Relevant Definitions • Next of kin: the nearest blood relative of the servicemember (aside from those already named). • Next of kin prioritized by the regulations, but servicemember can override by designating a specific blood relative as next of kin. In this event, that designee is the servicemember’s only next of kin. • Covered service member: a current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status , or is otherwise on the temporary disability retired list, for a serious injury or illness. This definition does not include former members of the Armed Forces, National Guard or Reserves or one who is on the permanent disability retired list.

5. Copyright 2009. The Management Association of Illinois. Relevant Definitions • Serious injury or illness: an injury or illness incurred by the member in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.

6. Copyright 2009. The Management Association of Illinois. Exigency Leave • An employee may take up to 12 weeks of leave in a 12 month period due to a qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of any impending call or order to active duty) in the Armed Forces in support of a contingency operation. This section does not apply to family members of military members who are in the regular armed forces.

7. Copyright 2009. The Management Association of Illinois. Relevant Definitions • Contingency Operation: a military operation designated by the Secretary of Defense as an operation in which members of the Armed Forces are or may become involved in military force or results in the call, order or retention on active duty, or under any provision of law during a war or national emergency.

8. Copyright 2009. The Management Association of Illinois. Relevant Definitions Qualifying Exigency: • Short notice deployment (limited to seven calendar days from the date notified of deployment); • Military events and related activities; • Childcare and school activities; • Financial and legal arrangements; • Counseling; • Rest and recuperation (limited to five days); • Post-deployment activities; and • Additional activities that may agreed to between the employee and employer

9. Copyright 2000. The Management Association of Illinois. What Do You Need To Know? • Applies to retired military members of the Regular Armed Forces, retired Reserve, Ready Reserve, Select Reserve, Individual Ready Reserve or the National Guard. Does not apply to retired members of state Reserve or state National Guard units. • Employer can apply standard leave year used for FMLA policy.

10. Copyright 2009. The Management Association of Illinois. Certification Issues • Certification form developed by the DOL. • If employee is meeting with a third party during the exigency leave (i.e., using the leave to make financial arrangements), the employee must provide the employer with information about the third party so that the reason for the leave can be verified.

11. Non-Military Regulations A summary of significant changes to regulations concerning the administration of non-military FML

12. Copyright 2009. The Management Association of Illinois. Eligible Employees Old Rule New Rule • At least 12 months of service; • At least 1250 hours worked in the last 12 months; and • Employed at worksite that employs 50 or more employees within a 75 mile radius. • 12 months of service need not be consecutive. Employers do NOT have to count a break in service of seven years or more. • Exceptions to this rule: military leave or a period of approved absences or unpaid leave where a written agreement or c.b.a. exists concerning the employer’s intent to rehire the employee. In either case, the break in service counts toward the 12 months of employment. • Remember, employee may become eligible for FMLA leave while out on non-FMLA leave!

13. Copyright 2009. The Management Association of Illinois. Serious Health Condition Old Rule New Rule • To meet the “continuing treatment” prong, the employee needed more than three consecutive days of incapacity AND two visits to a health care provider (or one visit and a continuing regimen of treatment). • Now, to satisfy the “continuing treatment” prong, must visit the hcp two times within the first 30 days of the incapacity, absent extenuating circumstances. • Must see the hcp within seven days of the first incapacity. • Must visit the hcp in person. • With a chronic serious health condition, must see the hcp at least twice per year.

14. Copyright 2009. The Management Association of Illinois. Bonuses/Light Duty/Waiver of Rights • Payment of Bonuses: employer may disqualify an employee from a bonus who has not met a goal due to FMLA leave provided that employees on equivalent leave status are treated the same. • Acceptance of light duty does NOT count against an employee’s FMLA entitlement. Restoration rights are held in abeyance while the employee is on light duty up to the end of the 12-month FMLA year. • An employee may release FMLA claims as part of a settlement agreement without first obtaining court/DOL approval.

15. Copyright 2009. The Management Association of Illinois. Employer Notice Requirements Old Rule New Rule • Two notices: an FMLA poster and an Employer Response Form. If Employers had handbooks, they were also required to place a copy of the FMLA policy in the handbook. • Three notices • Poster/General Notice: must be included in handbook or provided to employees at time of hire. • Notice of Eligibility & Rights and Responsibilities: within five business days of learning that employee needs leave. • Designation Notice: within five days of obtaining sufficient information to determine that employee’s leave is FMLA qualifying.

16. Copyright 2009. The Management Association of Illinois. Ragsdale Compliance Old Rule New Rule • Employer was required to provide additional “FMLA” leave to employee where employer did not specifically designate employee’s leave as time off pursuant to the FMLA. • Should an employer fail to designate FMLA leave, an employee must show actual injury for an employer to be liable.

17. Copyright 2009. The Management Association of Illinois. Employee Notice Requirements Old Rule New Rule • 30 days for foreseeable leaves, otherwise as soon as practicable, generally within one to two business days. Employee must provide enough information to establish leave is FMLA-qualifying. • Employee must comply with employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. • Employee’s failure to comply can be grounds to delay or deny the leave. • An employee seeking additional FMLA leave (for a previously certified condition) must make reference to the FMLA or the previously certified condition. • Notice of unforeseeable leave must now be given as soon as practicable.

18. Copyright 2009. The Management Association of Illinois. Medical Certification Old Rule New Rule • One medical certification form • Two medical certification forms—one for employee leave and one for employee’s family member. • Can request hcp’s specialization, fax number, diagnosis, certification that intermittent leave is medically necessary, which essential functions employee can/cannot perform, frequency/duration of intermittent leave.

19. Copyright 2009. The Management Association of Illinois. Clarification/Authentication Old Rule New Rule • Employers may not have direct contact with health care providers. • Direct contact with hcp’s for the purpose of authenticating information on the certification without the employee’s permission. Includes hcp, HR professional, leave administrator or management official. Direct supervisor is NOT included. • May also contact hcp for purpose of clarifying information on the medical certification form in accordance with HIPAA. Same rules above apply. • If medical certification is incomplete/insufficient, employer must advise employee what information is needed and give employee seven calendar days to complete and return.

20. Copyright 2009. The Management Association of Illinois. Other Medical Certification Changes • If second/third opinion is being sought, employee must release medical information to the hcp needed to facilitate this process. • Employer may request annual medical certifications for medical conditions that last in excess of one year. • Employer may consider information about an employee’s medical condition obtained while trying to determine disability status (ADA) or worker’s compensation program. • When an employee submits a certification from a foreign hcp in a language other than English, employee must provide a written translation at employer’s request at employee’s expense.

21. Copyright 2009. The Management Association of Illinois. Recertification • No more than every 30 days and only in connection with an absence. If the minimum duration of the condition is more than 30 days (i.e., 40 days), employer must wait until the minimum duration expires. • Less than 30 days if: • Employee requests extension of leave; • Circumstances change significantly; • Information casting doubt on validity of certification. ***For intermittent leaves in excess of six months, employer may request recertification every six months in connection with absence.

22. Copyright 2009. The Management Association of Illinois. Fitness For Duty • Health care provider may be required to verify employee can perform essential functions if employee was notified of this requirement (Designation Notice). • Intermittent Leave: fitness for duty may be required as often as once every 30 days (in connection with absence) if reasonable safety concerns about ability to perform duties. • No second/third opinions.

23. Copyright 2009. The Management Association of Illinois. Any Questions?