Family and Medical Leave Act Update
Employer Postings and Notices
Employers must notify employees of their FMLA rights both by postings, and by including a notice of rights in any written guidance to employees, such as an employee handbook or personnel manual. Attached are the required FMLA poster (En Español), and the new “poster insert” for the new military leave rights. For more information, visit the DOL website at https://www.dol.gov/whd/resources/posters.htm.
Any notice of rights in guidance to employees should include information concerning employee rights and responsibilities under the FMLA, as well as an explanation of the employer’s policies related to the FMLA. The sample policy, below, is designed to satisfy that requirement. The sample policy summarizes some key aspects of the FMLA, such as the requirements for employee eligibility, the reasons for which an FMLA-protected leave may be taken (including the new military leave rights), the statutory definition of “serious health condition,” an employer’s obligation to continue group health plan coverage and to reinstate employees on FMLA leave, and the employee notice, health-care provider, and military leave certification requirements. The sample policy also contains examples of several policy choices that employers must make in administering the FMLA.
FMLA Military Leave
As noted, an addendum or poster-insert giving notice of the new FMLA military leave rights is attached and should be placed adjacent to the usual FMLA poster notice. New certification forms from the DOL are also attached for use in facilitating the certification requirements for military family leave.
Qualifying Exigency Leave is a new military leave right which helps employees with a family member in the National Guard or Reserves manage their affairs while the member is on active duty or called to active duty in support of a contingency operation. This makes the normal 12-week FMLA leave available to be used for a “qualifying exigency.” More specifically, it allows an employee with a spouse, son, daughter, parent of next of kin on active duty (or one who has been notified of an impending call or order to active duty) to take up to twelve weeks of FMLA leave when there has been a “qualifying exigency.” The Department of Labor’s final rule defines a qualifying exigency by referring to some broad categories for which such leave can be taken:
- Short-notice deployment;
- Military events and related activities;
- Childcare and school activities;
- Financial and legal arrangements;
- Rest and recuperation;
- Post-deployment activities; and
- Additional activities not encompassed in the other categories, but agreed to by the employer and employee.
It is important to remember that these activities must be related to being on, or being called to active duty, and that ordinary regular routine matters do not qualify. Also, any leave taken by an eligible employee for one or more of these reasons is counted against that employee’s annual 12-week FMLA leave entitlement.
The new Military Caregiver Leave (also known as the Covered Servicemember Leave), now allows employees to take up to 26 weeks of leave to care for a family member who is a Covered Servicemember with serious illness or injury incurred in the line of duty or on active duty. The definition of Covered Servicemember is quite broad, and includes a spouse, son, daughter, parent, or ‘next of kin’ who is a member of the armed forces and who is undergoing medical treatment, recuperation, or therapy, is otherwise on outpatient status or is otherwise on the temporary disability retired list, due to a serious injury or illness sustained in the line of duty on active duty. Note that for the new military leave for providing care to a covered Servicemember, the leave must be taken within a single 12-month period beginning with the first day of leave, a concept different than the traditional “leave year” for other types of FMLA leave. Eligible employees utilizing the Military Caregiver Leave are entitled to a combined total of up to twenty-six (26) weeks for all types of FMLA leave.
The sample policy defines the FMLA leave year as the year beginning on the date in which the employee first takes any FMLA-protected leave. Employers have broad discretion in defining the leave year, provided that they employ the same method for all employees. Employers may define their FMLA leave year as the calendar year, the company’s fiscal year, the year beginning on the employee’s anniversary date of employment, or the date on which the employee first takes any FMLA-protected leave. The employer also may elect to use what the FMLA regulations define as a rolling leave year, in which the employer measures backwards 12 months from the date the employee takes any FMLA leave. Whichever method is selected, the leave year should be defined in the employer’s policy. It is likely the leave year will be calculated on a different calendar than the single 12-month period for the Military Caregiver Leave, and the regulations provide helpful examples on how these are reconciled.
Notice and certification requirements
Another decision that employers must make is the extent to which they wish to impose the notice and health-care-provider certification requirements upon employees. The sample policy represents the maximum obligation employers may impose for foreseeable leave. Some employers, however, may elect to require less of their employees, as for example by requiring only 15-days’ advance notice of the need for foreseeable FMLA leave rather than 30.
Employees may be required to follow the employer’s usual and customary call-in procedures for requesting foreseeable leave, absent unusual circumstances. For example, employers may require employees to set forth reasons for the requested leave, the expected duration of the leave, the anticipated start date of the leave, and may require employees to contact a specific individual. In any event, if an employee needs to give notice of leave that is foreseeable but less than 30 days in advance, notice must be given as soon as practicable. An employee needing qualifying exigency FMLA leave must be given as is practicable too. It generally should be considered practicable to give notice under the usual and customary method and timing for reporting an absence, such as a sick-call number.
With respect to the health-care-provider certification requirement, the U.S. Department of Labor has prepared a form that may be given to employees to be used by their doctors in certifying a serious health condition under the FMLA (see attached). Employers may choose to use their own form instead, or may simply identify in the policy the specific information to be provided by the doctors. If a medical certification is incomplete the employer must put in writing what information is needed, and give the employee seven days to cure the deficiency before denying leave or asking for other certification. Under no circumstances should a direct supervisor of the employee contact the health-care provider; rather, it should be done by HR, a management level employee, leave coordinator or health care provider.
Employers may require “return to work” or “fitness for duty” certification stating whether the employee can perform the essential functions of the job (see attached). Employers can also require an employee provide a fitness for duty certification before returning from intermittent leave if the employer has reasonable concerns about the ability to perform the job safely. Employers must notify employees at the time their FMLA leave commences if they want to require such certifications before returning to work.
Serious health condition and continuing treatment redefined
The regulations issued by the U.S. Department of Labor include a complex and comprehensive definition of “serious health condition” not fully contained in the sample policy. As explained in the policy, a “serious health condition” is defined as any injury, illness, impairment, or physical or mental condition requiring either inpatient care in a medical facility, or for “continuing treatment” by a health-care provider. “Continuing treatment” is further defined as including: a) incapacity and treatment, b) pregnancy or prenatal care, c) chronic conditions, d) permanent or long-term conditions, and e) conditions requiring multiple treatments. The Final Regulations make some changes, revising the definition of a “serious health condition” in certain respects.
In order to qualify as “continuing treatment” for a serious health condition, any “incapacity and treatment” must now involve incapacity for more than three consecutive calendar days, and any subsequent treatment or incapacity relating to the same condition must involve: 1.) treatment by a health care provider (or nurse or person under a provider’s supervision or on orders of a provider, such as PT) two or more times within 30 days of the first day of incapacity (unless there are extenuating circumstances as defined in the regulations); or 2.) treatment by a health care provider at least once which results in a regimen of continuing treatment under supervision of a health care provider. The first day of such subsequent treatment under either 1.), or 2.), above, now has to take place within 7 days of the first day of incapacity.
Any period of incapacity due to pregnancy or for prenatal care is considered continuing treatment for a serious health condition.
To qualify as continuing treatment of a serious health condition, incapacity due to chronic conditions must now involve the employee visiting a health care provider for the condition at least twice per year, the condition must continue for an extended period of time, and may involve episodic incapacity (e.g., asthma, diabetes, epilepsy, etc.). This is a new requirement under the regulations.
Continuing treatment also includes conditions causing long-term or permanent incapacity and any period of absence to receive multiple medical treatments from a health-care provider. Periods of incapacity due to Alzheimers, a severe stroke, the terminal stages of a disease and the like, qualify as permanent or long-term conditions requiring continuing treatment for a serious health conditions. Absences due to conditions of multiple treatment for restorative surgery after an accident or other injury, or treatment for conditions that would likely result in incapacity of more than three consecutive calendar days in the absence of treatment such as cancer (chemotherapy, ratiation, etc.) severe arthritis (PT), or kidney disease (dialysis) qualify.
Common colds, flu, earaches, and non-migraine headaches are not serious health conditions, and routine physical, eye, or dental examinations are not within the scope of the continuing treatment concept.
Substitution of paid leave
Employers have discretion regarding whether to require employees to take any accrued and unused paid vacation leave, personal leave, or, if applicable, family or sick leave, concurrently with taking the FMLA leave. If the employer requires the employee to take such paid leave, that leave may be counted towards the employee’s FMLA leave. If an employer elects not to require employees to take this leave, as in the sample policy, employees must at least be allowed to use such paid leave at their option, which again may be counted towards the FMLA leave available to the employee. An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer’s policy that apply to other employees for the use of such leave. Whatever rule the employer chooses, it should be included in the FMLA policy
Additional FMLA rules
Additional rules also exist under the FMLA concerning highly compensated key employees, the leave rights of spouses employed by the same employer, waivers and releases, and the process for challenging certifications provided by an employee. Additional information concerning these issues, as well as other questions concerning the FMLA, may be answered in Department of Labor publications or by your attorney.
THIS POLICY IS LEGALLY ESSENTIAL
Kevin R. McManaman
Knudsen, Berkheimer, Richardson & Endacott, LLP
3800 VerMaas Place, Suite 200
Lincoln, NE 68502
(402) 475-7011 (office)
(402) 475-8912 (fax)
(402) 440-2982 (cell)