“The NEW Family & Medical Leave rules : 2009”

“The NEW Family & Medical Leave rules : 2009” Dan Murphy, Esq. McLocklin, Murphy & Dishman LLP (770) 867-7446 The Center for School Law & Policy, Inc. Danmurphy_1@msn.com; www.cslap.org

FMLA 2009 & Military Leave Provisions: Qualifying Exigency • FMLA can be taken for the following reasons: • Birth/adoption • Employee own serious health condition (SHC) • To care for a family member with an SHC • Qualifying Exigency of a family member Who is eligible to take FMLA leave? How do we know a request is valid? How long can employees take leave? (c) 2009 The Center for School Law & Policy, Inc.

Qualifying Exigency Leave: What is it? • Eight specific grounds listed, including; • (1) Short-notice deployment • (2) Military events & related activities • (3) Childcare & school activities • (4) Financial & legal arrangements • (5) Counseling • (6) Rest & recuperation • (7) Post-deployment activities • (8) Additional activities (c) 2009 The Center for School Law & Policy, Inc.

Qualifying Exigency Leave • Short notice deployment • For any issue • Up to 7 days, for order or call w/n 7 days of duty • Military events & related activities • Ceremonies, family assistance, etc. • Post-deployment activities • Ceremonies, reintegration or death of service member

Qualifying Exigency Leave, cont’d • Childcare & school • To arrange alt care, but only to provide care on urgent basis • Enroll/transfer new school or daycare • School meetings • Necessity for meeting? • Rest & recuperation • W/ service member up to 5 days • Financial & Legal • Representative for service benefits • Counseling • Non-medical • Arises from active duty? • Additional activities • District & employee agree as to - • Exigency, timing & duration (c) 2009 The Center for School Law & Policy, Inc.

Certification of the Q.E.? • 1st time employee requests Q.E. leave • Copy of active duty orders or other doc issued by military • New orders or documentation shall also be provided to District • Certification- a statement from yee which includes • Description of facts re: Q.E. • Confirmation of counselor appt, or, lawyer’s bill. • Date of commencement • Block leave? • Begin/end dates • Intermittent or RSL? • Estimate frequency/duration • See DOL WH-384 (c) 2009 The Center for School Law & Policy, Inc.

Verification of Q.E.? • If certification is complete & sufficient, no new info may be requested • But, District may contact DoD to verify active duty or call to active duty • If Q.E. is to meet w/ 3rd party, may contact 3rd party to verify schedule & nature of meeting • Childcare & school meeting, financial or legal appt, or counseling • Other basis for Q.E.? • No additional info may be requested (c) 2009 The Center for School Law & Policy, Inc.

Qualifying Exigency Leave: Who Employee w/ a spouse, son, daughter, or parent in the Reserves, National Guard or retired members of Regular Armed Forces/retired reserve Active duty is “a call or order to active duty.” Q.E. leave does NOT apply to employees w/ family members in the regular Armed Services on active duty. (c) 2009 The Center for School Law & Policy, Inc.

Qualifying Exigency: How long? • Q.E. woven into existing entitlements & subject to 12 weeks in a leave year • Counts toward total 12 week entitlement • Compare w/ leave to care for a covered service-member • May take up to 26 weeks (c) 2009 The Center for School Law & Policy, Inc.

FMLA: Military Caregiver Leave (the Big Enchilada) • What are the basis for FMLA leave today? • Birth/adoption • Employee’s own serious health condition • To care for a family member with an SHC • Qualifying Exigency of a family member • To care for a service-member with a serious injury or illness (c) 2009 The Center for School Law & Policy, Inc.

Who is a covered service member? • Current member of the armed services (inc. National Guard, Reserves) • Not retired, unless on temporary disabled retired list (TDRL) • Treatment for a serious illness or injury that may render them unfit to perform the duties of their office, grade or rank • Note: Caregiver leave DOES extend to active duty military (c) 2009 The Center for School Law & Policy, Inc.

When can our employee take leave to care for them? • Serious injury or illness incurred in line of duty & on active duty that may render member unfit to perform duties of office, grade, rank or rating, OR • Temporary disability retired list, OR • Outpatient status-assigned to military medical treatment as O/P, or unit est for purpose of providing command and control of Armed forces receiving care as O/P (c) 2009 The Center for School Law & Policy, Inc.

What is care for a covered service member? • Includes physical and “comfort care” • Ex. Doctor visits, arrange nursing home transfer, etc. • Applies when condition requires intermittent/RSL and employee is only needed occasionally (c) 2009 The Center for School Law & Policy, Inc.

Who are the members of the employee’s FMLA “family”? Son or daughter-under the age of 18 or incapable of self-care due to mental/physical disability Military Caregiver son or daughter-biological, adopted or foster child, step child, legal ward or child for whom the covered service-member stood in loco parentis and who is of any age. (c) 2009 The Center for School Law & Policy, Inc.

And Next of Kin-Who’s That? • Next of kin-nearest blood relative (outside FMLA family) in order • Blood relative w/ legal custody • Brothers & sisters • Grandparents • Aunts & uncles • First cousins UNLESS member has designated one of above as “next of kin.” (c) 2009 The Center for School Law & Policy, Inc.

For example • Lt. Larry has 3 teenage brothers, an adult sister and one adult cousin. Larry designates his cousin as “next of kin” • Only Larry’s cousin may take caregiver leave. • But what if no designation w/n same level of kinship? • Anyone in closest level of kinship may take leave • Ex. Major Mark has 2 adult brothers, one adult sister, a grandparent and three cousins. Mark has not designated any “next of kin” • Mark’s 3 siblings are considered “next of kin” and each is eligible to take leave (c) 2009 The Center for School Law & Policy, Inc.

Serious injury or illness (compare with SHC generally) • Who can certify? • 1) DoD health care provider (HCP) • 2) VA HCP • 3) DoDTricare authorized HCP • 4) DoD non-network Tricare authorized HCP (c) 2009 The Center for School Law & Policy, Inc.

Military Caregiver Leave-(Injury/Illness) Certification • Contact info of HCP • Authorized HCP status • I/I incurred in line of duty • I/I commencement & probable duration • Description of medical facts • Fitness to perform duties • Treatment , recuperation & therapy • Covered service-member in need of care • Est begin/end of any block leave necessary • Intermittent/RSL for planned treatment • Medical necessity • Est frequency & duration • Intermittent/RSL (other) • Medical necessity • Est frequency & duration (c) 2009 The Center for School Law & Policy, Inc.

Military Caregiver LeaveEligibility Certification • Contact info of employer, employee and covered service-member • Relationship of yee-covered service member • Covered service members military branch, rank & unit assignment • Current membership in Armed forces, national guard or reserves • Outpatient assignment • Command & control unit providing outpatient care • Temporary disability retired list • Care to be provided and est of leave needed (c) 2009 The Center for School Law & Policy, Inc.

Military Caregiver Leave: ITO & ITA • Invitational Travel Orders or Authorizations must be accepted in lieu of above • Valid for block or intermittent leave • Valid for time specified in Order • Employee does not have to be named in Order (c) 2009 The Center for School Law & Policy, Inc.

Military Caregiver Leave: Certification Limitations • No additional info may be requested • No 2nd or 3rd opinions • No recertification • But, authentication & verification are OK • Confirmation of relationship is OK (c) 2009 The Center for School Law & Policy, Inc.

26 weeks in a single 12 month period • Begins on 1st day yee takes leave to care for eligible service member • Ends 12 months later-regardless of regular leave year • No rollover of unused leave time • Total FMLA leave capped at 26 weeks in 12 month period • BUT regular FMLA does not count against caregiver leave • Ex. In same 12 month period Yee takes 16 weeks of caregiver leave and 10 weeks when baby is born=This is OK (c) 2009 The Center for School Law & Policy, Inc.

Designation of leave • Employer must designate • If caregiver leave and family member both apply, must designate as caregiver leave • Retroactive designation may be OK • 26 week cap may apply to 2 spouses who work for 1 employer (c) 2009 The Center for School Law & Policy, Inc.

Two spouses rule DOES apply • H/W employed by same District limited to total of 26 weeks of leave during ‘single 12-month period’ • Applies to leave for • Birth/adoption • Bonding • Care for parent • Care for covered service member (c) 2009 The Center for School Law & Policy, Inc.

Military Caregiver Leave: Summary • Added basis for leave under the Act • Expanded definition of family for whom yee may take leave • Note “next of kin” • Unique Certification & Verification rules • 26 weeks and a “12 month period”

Can’t get enough?? • What: A full day training and presentation • Where: Gainesville, Florida at Santa Fe Community College • When: October 6, 2009 • For more information please see: • www.cslap.org

“The NEW Family & Medical Leave rules : 2009”