The Family and Medical Leave Act (FMLA)

Transcription

1 Brught t yu by Emplyee Benefit Advisrs, Inc. The Family and Medical Leave Act (FMLA) The Family and Medical Leave Act (FMLA) generally requires cvered emplyers t allw eligible emplyees t take unpaid, jb-prtected leave fr certain reasns. Cvered emplyers must als cntinue the emplyee s grup health benefits while n leave and restre the emplyee t the same r equivalent jb upn return frm leave. The FMLA generally applies t emplyers with 50 r mre emplyees during 20 r mre calendar wrkweeks in the current r preceding calendar year. OVERVIEW OF THE FMLA The FMLA was enacted in 1993 t allw eligible emplyees t take unpaid, jb-prtected leave fr certain family and medical reasns, such as t care fr an immediate family member with a serius health cnditin r fr the birth r adptin f a child. Tw years later, the Department f Labr (DOL) issued regulatins implementing the FMLA. In 2008, President Gerge W. Bush signed the first majr revisin t the FMLA since its enactment, expanding the FMLA fr military families. The DOL issued revised regulatins, effective Jan. 16, 2009, t update and further clarify the law and riginal regulatins. In Octber and December f 2009, President Obama signed laws that further expanded FMLA leave rights. On Feb. 6, 2013, the DOL released a set f final FMLA regulatins, which became effective n March 8, The final regulatins implemented tw statutry expansins f FMLA leave prtectins fr families f eligible military veterans and airline persnnel and flight crews. In cnnectin with the final regulatins, the DOL updated sme f its mdel FMLA frms, including the mdel FMLA pster. The mdel FMLA frms are available n the DOL s FMLA webpage. On Feb. 25, 2015, the DOL issued a final rule that expands the FMLA leave prtectins fr emplyees with same-sex spuses. Under the final rule, eligible emplyees in same-sex marriages may take FMLA leave t care fr their spuses r family members, regardless f where the same-sex cuple resides. The final rule becmes effective n March 27, COVERED EMPLOYERS The FMLA applies t all: Public agencies, including state and federal emplyers; Public and private elementary and secndary schls; and Private-sectr emplyers with 50 r mre emplyees during 20 r mre calendar wrkweeks in the current r preceding calendar year. 1

2 ELIGIBLE EMPLOYEES Emplyees are eligible fr FMLA leave if they: Currently wrk fr a cvered emplyer; Have wrked fr this emplyer fr a ttal f 12 mnths (need nt be cnsecutive, and can lk back up t several years); Have wrked at least 1,250 hurs ver the previus 12 mnths (hwever, special hurs f service rules apply t airline flight crew members); Wrk in the United States r any territry r pssessin f the United States; and Wrk at a lcatin where the emplyer has 50 r mre emplyees within a 75- mile radius at the time the emplyee requests leave. Special Rules fr Airline Flight Crew Members Whether an emplyee wh is an airline flight crew member meets the hurs f service requirement is determined by assessing the number f hurs the emplyee has wrked r been paid ver the previus 12 mnths. An airline flight crew member will be cnsidered t meet the hurs f service requirement if he r she has: Wrked r been paid fr nt less than 60 percent f the emplyee s applicable ttal mnthly guarantee during the previus 12-mnth perid; and Wrked r been paid fr nt less than 504 hurs during the previus 12-mnth perid. LEAVE ENTITLEMENT 12 WORKWEEKS IN ANY 12-MONTH PERIOD Eligible emplyees may take up t 12 weeks f leave during any 12-mnth perid fr any f the fllwing reasns: Birth and care f a newbrn child* f the emplyee; Placement f a child* under the age f 18 with the emplyee fr adptin r fster care; Care fr an immediate family member (spuse, child* r parent) with a serius health cnditin; The emplyee is unable t wrk because f his r her wn serius health cnditin; r Any qualifying exigency arising ut f the cvered active duty r impending call/rder t cvered active duty f a family member (spuse, sn, daughter r parent) in the Armed Frces. *On June 22, 2010, the DOL-Wage and Hur Divisin issued an Administratr s Interpretatin letter expanding the definitin f sn r daughter under the FMLA as it applies t an emplyee standing in lc parentis t a child. The Administratr s Interpretatin letter cncludes that either day-t-day care r financial supprt may establish an in lc parentis relatinship where the emplyee intends t assume the respnsibilities f a parent with regard t a child. This is a brad interpretatin in favr f expanded cverage fr nntraditinal family relatinships. 26 WORKWEEKS DURING A SINGLE 12-MONTH PERIOD Cvered emplyers must grant eligible emplyees up t a ttal f 26 weeks f unpaid leave during a single 12-mnth perid t care fr a cvered service member with a serius injury r illness wh is their spuse, sn, daughter, parent r next f kin. 2

3 SPECIAL RULES FOR ELIGIBLE AIRLINE FLIGHT CREW MEMBERS Eligible airline flight crew emplyees are entitled t: 72 days f leave during any 12-mnth perid fr FMLA-qualifying reasns ther than military caregiver leave; and 156 days f leave during any single 12-mnth perid fr military caregiver leave. Serius Health Cnditin Defined A serius health cnditin is an illness, injury, impairment r physical r mental cnditin that invlves: Any perid f incapacity r treatment cnnected with inpatient care in a hspital, hspice r residential medical care facility, r any perid f incapacity r subsequent treatment in cnnectin with this inpatient care; r Cntinuing treatment by a health care prvider that includes any perid f incapacity (that is, inability t wrk, attend schl r perfrm ther regular activities) due t: A health cnditin (including treatment fr, r recvery frm) lasting mre than three cnsecutive full calendar days, and any subsequent treatment r perid f incapacity relating t the same cnditin, that als includes: Treatment tw r mre times within 30 days f the first day f incapacity, unless extenuating circumstances exist, by r under the supervisin f a health care prvider; r One treatment by a health care prvider with a cntinuing regimen f treatment (the treatment must invlve an in-persn visit t a health care prvider that takes place within seven days f the first day f incapacity); Pregnancy r prenatal care (a visit t the health care prvider is nt necessary fr each absence); A chrnic serius health cnditin that cntinues ver an extended perid f time, requires peridic visits t a health care prvider, and may invlve ccasinal episdes f incapacity (fr example, asthma r diabetes). A visit t a health care prvider is nt necessary fr each absence; A permanent r lng-term cnditin fr which treatment may nt be effective (fr example, Alzheimer s, a severe strke r terminal cancer). Only supervisin by a health care prvider is required, rather than active treatment; r Any absences t receive multiple treatments fr restrative surgery r fr a cnditin that wuld likely result in a perid f incapacity f mre than three full days if nt treated (fr example, chemtherapy r radiatin treatments fr cancer). Cvered Service Member Defined A cvered service member is: A current member f the Armed Frces (including a member f the Natinal Guard r Reserves) wh is underging medical treatment, recuperatin r therapy, is in utpatient status, r is n the temprary disability retired list, fr a serius injury r illness; r A veteran wh is underging medical treatment, recuperatin r therapy, fr a serius injury r illness and wh was a member f the Armed Frces, including a member f the Natinal Guard r Reserves, and was 3

4 discharged r released under cnditins ther than dishnrable at any time during the five-year perid prir t the first date the eligible emplyee takes FMLA leave t care fr the veteran. Fr a current service member, a serius injury r illness is an injury r illness that was incurred by the service member in the line f duty n active duty (r existed befre the beginning f active duty and was aggravated by service in the line f duty n active duty) and that may render the service member medically unfit t perfrm the duties f his r her ffice, grade, rank r rating. Fr a veteran, a serius injury r illness means a qualifying injury r illness that was incurred by the service member in the line f duty n active duty (r existed befre the beginning f active duty and was aggravated by service in the line f duty n active duty) and that manifested itself either befre r after the service member became a veteran. Qualifying Exigency Defined A qualifying exigency is: Shrt-ntice deplyment. This leave can be used fr a perid f seven calendar days beginning n the date the cvered military member is ntified f a call t active duty; Military events and related activities, such as attendance at fficial ceremnies, prgrams/events, family supprt r assistance prgrams and infrmatinal briefings; Childcare and schl activities, such as arranging fr alternative childcare when the active duty requires a change t the existing childcare, prviding childcare n an urgent, immediate need basis, enrlling in r transferring t a new schl r day care r attending schl meetings; Financial and legal arrangements, such as addressing r updating financial and healthcare pwers f attrney and wills r appearing befre agencies regarding military benefits; Attending cunseling, arising frm the active duty status; Rest and recuperatin. This leave can be used fr up t 15 days fr each instance f rest and recuperatin t spend time with a cvered military member n shrt-term leave; Parental care. Under this type f leave, an eligible emplyee may take qualifying exigency leave t care fr the parent f a military member, r smene wh std in lc parentis t the military member, when the parent is incapable f self-care and the need fr leave arises ut f the military member s cvered active duty r call t cvered active duty status; Pst-deplyment activities, such as attending arrival ceremnies r any ther fficial ceremny r prgram fr a perid f 90 days fllwing the terminatin f active duty status, and addressing issues that arise frm the death f a cvered military member; Additinal activities, such as t address ther events that the emplyer and emplyee agree qualify as an exigency. RESTRICTIONS ON HOW FMLA LEAVE CAN BE TAKEN Cvered spuses f the same emplyer may be limited t a cmbined ttal f: 12 weeks f family leave, if the leave is taken fr the birth r placement f a child, r fr the serius health cnditin f an emplyee s parent. 4

5 26 weeks f leave during a single 12-mnth perid, if the leave is taken t care fr a cvered service member r a cmbinatin f leave is taken t care fr a cvered service member and fr the birth r placement f a child r fr the serius health cnditin f an emplyee s parent. Leave fr a child s birth r placement fr adptin r fster care must be cncluded within 12 mnths f the birth r placement. In sme cases, emplyees may take FMLA leave intermittently. When leave is taken after a child s birth r after the placement f a child fr adptin r fster care, an emplyee may take intermittent leave nly if the emplyer agrees. Hwever, an emplyee is entitled t take leave because f a serius health cnditin r t care fr a cvered service member n an intermittent r reduced leave schedule when medically necessary. If intermittent leave is taken, the emplyee may be transferred t an alternative psitin (with equal pay and benefits) that better accmmdates the intermittent perids f leave. SUBSTITUTION OF SICK PAY, VACATION BENEFITS AND HOLIDAYS Emplyers and emplyees may chse t use accrued paid leave (fr example, sick r vacatin leave) t cver sme r all f the unpaid FMLA leave. Hlidays ccurring during FMLA leave d nt extend the leave. Hwever, if the wrkplace shuts dwn temprarily fr ne r tw weeks (fr example, fr a summer vacatin r a plant clsing fr retling r repairs), this perid des nt cunt against the FMLA leave entitlement. PAYMENT ON LEAVE Generally, FMLA leave is unpaid. Althugh an emplyer r emplyee can chse t apply accrued sick, vacatin r ther benefits tward FMLA leave, the emplyer is nt required t cntinue t pay the emplyee under federal law. MAINTENANCE OF HEALTH BENEFITS DURING FMLA LEAVE While an emplyee is n FMLA leave, the emplyer must maintain the emplyee's cverage under any grup health plan n the same terms as if the emplyee cntinued t wrk. An emplyee, while n leave, is required t pay the emplyer his r her prtin f the grup health benefit premiums. In the absence f an established emplyer plicy prviding a lnger grace perid, an emplyer's bligatin t maintain health cverage ceases under the FMLA if an emplyee's premium is mre than 30 days late. The emplyer must prvide written ntice t the emplyee at least 15 days befre cverage will terminate. The emplyer shuld als infrm the emplyee that cverage will expire 15 days after the date f the letter unless payment is received. Emplyers may terminate an emplyee's health benefits retractively if: The emplyer has plicies ffering ther frms f unpaid leave and thse plicies permit the emplyer t terminate cverage retractively t the first date f the perid t which the unpaid premium applies; and The emplyee was prvided with a 15-day ntice. If benefits are cancelled as a result f a failure t pay premiums, the emplyer must restre the emplyee t benefits equivalent t thse the emplyee wuld have had if leave had nt been taken, including family r dependent cverage, upn his r her return t wrk. The emplyee may nt be required t serve a new pre-existing cnditin waiting perid, wait fr pen enrllment r pass a medical examinatin t btain reinstatement f cverage. 5

6 CERTIFICATION TO SUPPORT A REQUEST FOR FMLA LEAVE An emplyer may require an emplyee t prvide a certificatin if the emplyee requests FMLA leave: T care fr a family member with a serius health cnditin; Due t the emplyee s wn serius health cnditin; T care fr a cvered service member with a serius injury r illness; r Because f a qualifying exigency. The DOL has prvided several sample certificatin frms fr this purpse. The emplyer may require the certificatin t be returned within 15 days, unless it is nt practicable fr the emplyee t meet this deadline despite his r her diligent, gd faith effrts. If an emplyer has reasn t dubt the validity f the certificatin f the health care prvider, it may require the emplyee t btain a secnd (r third) pinin at the emplyer's expense. The emplyee is entitled t cntinue leave while the emplyer seeks this infrmatin. In additin, the emplyee may request a cpy f the secnd r third medical pinin. If the additinal certificatins d nt establish the emplyee's entitlement t leave, the leave may be retractively designated nn-fmla leave. An emplyer may directly cntact the emplyee's health care prvider t seek clarificatin r authenticatin f the medical certificatin, but nly after the emplyer has given the emplyee seven days t cure any deficiency. T make such cntact, the emplyer may use a health care prvider representing the emplyer, a human resurces prfessinal, a leave administratr r a management fficial. If the FMLA leave and wrkers' cmpensatin leave run cncurrently, the emplyer may cntact the emplyee's wrkers' cmpensatin health care prvider if the state wrker's cmpensatin law allws emplyers t cntact the emplyee's wrkers' cmpensatin health care prvider. An emplyer may request recertificatin every 30 days in cnnectin with an absence unless the medical certificatin indicates that the minimum duratin is mre than 30 days. If a lnger perid is prvided, certificatin cannt ccur befre the time perid expires, unless circumstances change, r an emplyer has reasn t dubt the validity f the initial certificatin. In all cases, hwever, emplyers can request recertificatin every six mnths, even where the certificatin states a lnger perid. Each new leave year gives the emplyer the pprtunity t btain a new initial certificatin, and thus btain secnd and third pinins. EMPLOYEE S NOTICE TO EMPLOYERS If leave is freseeable, the emplyee must prvide the emplyer with at least 30 days advance ntice whenever practicable. If a 30-day ntice is nt pssible r if leave is nt freseeable, ntice must be given as sn as practicable. As sn as practicable rdinarily means an emplyee wuld prvide verbal ntice t his r her emplyer within ne r tw business days f when the need fr leave becmes knwn t the emplyee. An emplyer may als require that an emplyee needing FMLA leave fllw the emplyer s usual and custmary ntice and prcedural requirements fr requesting leave (fr example, call-in prcedures), absent unusual circumstances. The emplyee need nt expressly assert rights under the FMLA r even mentin the FMLA, but may nly state that leave is needed fr an expected birth r adptin, fr example. Emplyees may be required t prvide the emplyer with tw business days advance ntice f any change in circumstances that requires an extensin f leave r an early return t wrk. When the leave is due t the active duty f a family member in the Armed Frces and the leave is freseeable, the emplyee must prvide ntice t the emplyer as is reasnable and practicable. 6

7 DESIGNATING FMLA LEAVE Emplyers are respnsible fr designating any leave taken as FMLA leave and fr ntifying an emplyee f the designatin. This shuld take place within five business days f an emplyer s learning that the leave is being taken fr an FMLA purpse, absent extenuating circumstances. The designatin ntice t the emplyee must be in writing. The DOL has prvided a sample frm fr this purpse. Only ne ntice is required in the case f intermittent leave r leave n a reduced schedule fr each FMLA-qualifying reasn per applicable 12-mnth perid. When an emplyer wants t substitute an emplyee s paid leave fr unpaid FMLA leave r cunt paid leave under an existing leave plan as FMLA leave, the decisin must be made within five business days f the time an emplyee gives ntice f a need fr leave, unless the emplyer des nt have sufficient infrmatin t determine that the paid leave qualifies as FMLA leave. If the emplyer learns that leave is fr an FMLA purpse after leave has begun, the paid leave may be retractively cunted t the extent it qualifies as FMLA leave, prvided that the emplyer's failure t timely designate leave des nt cause harm r injury t the emplyee. In all cases where leave wuld qualify fr FMLA prtectins, an emplyer and an emplyee can mutually agree that leave be retractively designated as FMLA leave. Any dispute ver whether paid leave qualifies as FMLA leave shuld be reslved thrugh discussins between the emplyer and the emplyee. Dcumentatin f thse discussins and the decisin is required by the FMLA. EFFECT ON OTHER LAWS Relatinship between the FMLA and COBRA A COBRA qualifying event ccurs n the last day f FMLA leave if the emplyee n leave des nt return t wrk. Additinally, cancellatin f grup health cverage fr nnpayment f premiums during an FMLA leave, regardless f whether the emplyee returns t wrk, is nt a qualifying event under COBRA. If grup health cverage is maintained by the emplyer during FMLA leave despite nnpayment f premiums, the emplyer may seek recvery fr the premiums paid even if the emplyee later states that cverage was nt desired. Emplyers cannt cnditin COBRA cntinuatin cverage upn repayment f grup health premiums if emplyees default n premium payments while n FMLA leave. Relatinship between the FMLA and the Americans with Disabilities Act (ADA) Emplyers must cmply with bth the FMLA and the ADA. Emplyee rights under the (ADA) are cumulative with the emplyee s rights under the FMLA. Fr example, an emplyee whse health cnditin qualifies as a disability under the ADA may als be entitled t leave benefits and prtectin under the FMLA. Relatinship between the FMLA and Wrkers Cmpensatin Prgrams Emplyee rights under the FMLA and wrkers cmpensatin plans are cumulative. Therefre, an emplyee with an n-the-jb injury that als qualifies as a serius health cnditin may receive benefits under the FMLA and state wrkers cmpensatin laws. Hwever, emplyees cannt receive wrkers cmpensatin benefits and paid FMLA leave cncurrently. Fr example, if an emplyee receives wrkers cmpensatin benefits, neither the emplyee nr emplyer can require substitutin f paid leave fr unpaid leave. An emplyer r emplyee may, hwever, substitute paid leave fr unpaid leave when wrkers cmpensatin benefits cease. Further, an emplyer and emplyee may agree, where state law permits, t have paid leave supplement the disability plan r wrkers cmpensatin benefits, such as in the case where a plan nly prvides replacement incme fr tw-thirds f an emplyee s salary. 7

8 Relatinship between State FMLA Laws and the Federal FMLA The federal FMLA des nt supersede any state r lcal law that prvides greater family r medical leave rights. Nt all emplyers will be "cvered emplyers" under bth state and federal law. A thrugh review f bth laws shuld be made. Where bth laws apply, the emplyee is entitled t the greater f the tw benefits. MORE INFORMATION The DOL s website has additinal infrmatin n the FMLA, including the DOL s sample frms. 8