FAMILY AND MEDICAL LEAVES: CLARITY OR MORE CONFUSION? Presented By: Helen A. Palladeno Karen M. Morinelli

EMPLOYERS & LAWYERS, WORKING TOGETHER U.S. Government photo of Quonset huts as seen in front of Laguna Peak, Point Mugu, in 1946

EMPLOYERS & LAWYERS, WORKING TOGETHER 1. Employer Notice Requirements Old: Must have poster and written policy $100 a day fine for violation New: Covered employer must post general notice for applicants and employees even if there are no eligible employees Posting can be by hard copy, electronically or combination $110 a day fine for violation

EMPLOYERS & LAWYERS, WORKING TOGETHER 2. “12-Month” Eligibility Requirement Old: One year of service required; need not be continuous Determined on the “date the leave commences” New: Service prior to a 7-year break in service is not counted unless: Break was due to National Guard/Reserve military service, or Written agreement (CBA) exists stating employer’s intention to rehire employee after break in service Determined on the “date the FMLA leave commences”

EMPLOYERS & LAWYERS, WORKING TOGETHER Old: Employee must notify employer of need for leave as soon as practicable, usually within 2 business days New: Foreseeable: 30 days notice or as soon as practicable, normally within 2 business days of learning of leave need Unforeseeable: as soon as practicable Unforeseeable: can require compliance with usual call in procedures, absent emergency circumstances 3. Employee Notice Obligations

EMPLOYERS & LAWYERS, WORKING TOGETHER 4. Timing of Doctor Visits Old: For leave, no time requirement for two visits or visit + continuing regimen For chronic, “regular” but undefined visits New: First visit within 7 days; twice within 30 days of absence For chronic, twice each year

EMPLOYERS & LAWYERS, WORKING TOGETHER Old: Company has 2 business days to: (a) orally notify worker of eligibility; (b) give certification forms; (c) determine coverage New: Must notify employee if eligible or not within 5 business days after leave is requested Notice must state specific reason for ineligibility Must give “Notice of Eligibility and Rights & Responsibilities” Form (WH-381) 5 business days to give certification forms 5. Employer Obligations

EMPLOYERS & LAWYERS, WORKING TOGETHER 6. Designation Notice Old: Implied rule that you were to tell an employee whether absences were covered (or not) New: Requires written notice of determination within 5 days of receipt of sufficient information Must tell employee how much FMLA they will use (if possible) Must give again if designation changes (e.g., when the employee runs out of leave) Must “document” any conversations where the employee challenges the designation

EMPLOYERS & LAWYERS, WORKING TOGETHER Old: If incomplete or incomprehensible, company could either: (a) send back and give “reasonable” amount of time, or (b) get written permission for company doctor to call employee’s doctor New: Can give 7 day deadline to fix incomplete or incomprehensible certification form If still insufficient, company may call doctor directly (not direct supervisor) HIPAA must be satisfied – if employee refuses, may deny leave 7. Certification

EMPLOYERS & LAWYERS, WORKING TOGETHER 8. Recertifications Old: Once every 30 days, unless circumstances warrant requiring one sooner New: Same rule, subject to exceptions (which become the rule) If the certification suggests the condition will last longer, then recertification not permitted until the time period runs out For conditions lasting longer than 6 months, then once every six months

EMPLOYERS & LAWYERS, WORKING TOGETHER 9. Intermittent Leave Old: Must grant leave in the smallest increment you use for pay purposes Amount of leave used for intermittent leave was based upon the employee’s regular work schedule averaged over the past 12 weeks New: May require employee to take leaves in minimum increments of one hour Regular work schedule determined on the date of notice Regular work schedule determined by looking back 12 months

EMPLOYERS & LAWYERS, WORKING TOGETHER Alternate Positions Old: Only for foreseeable treatment scheduled in advance New: For foreseeable treatment Other conditions If allow intermittent or reduce leave related to bonding leave Periods of recovery for one’s own serious health condition For a first degree relative’s serious health condition For an injury/illness of a covered servicemember Time working an alternate position does not count as FMLA leave, but reinstatement right ceases after one year

EMPLOYERS & LAWYERS, WORKING TOGETHER Return to Work Certifications Old: May require return to work or fitness-for-duty certifications New: May require employee to present a return to work certification that states employee can perform essential functions of job (if told in writing at leave designation) Employer can contact doctor to authenticate or clarify Failure to submit may cause job restoration delay Intermittent leave – can ask only once every 30 days

EMPLOYERS & LAWYERS, WORKING TOGETHER Old: Attendance bonuses can be prorated, not denied, due to FMLA absences New: Goal-oriented bonuses (i.e., paid for hours worked, widgets created, etc.) can be denied if failure to achieve due to FMLA leave Must treat all leave the same (i.e., cannot single out FMLA leave) 12. Work-Related Bonuses

EMPLOYERS & LAWYERS, WORKING TOGETHER National Defense Authorization Act (NDAA)- What it Does Gives employees that are parents/spouses/children of Covered Active Duty Members (as defined in the 2010 NDAA) another basis to take leave; Members of the “Regular Component” – duty during employment of the member with the Armed Forces to a Foreign Country Members of the US National Guard and Reserves – duty during deployment of the member with the Armed Forces to a Foreign Country under a call or order to active duty. 13. Active Duty Leave

EMPLOYERS & LAWYERS, WORKING TOGETHER Active Duty Leave How it Works If there is a “qualifying exigency” the employee gets to take up to 12 weeks off of work each year Qualifying Exigency - definition remains unchanged from prior amendment

EMPLOYERS & LAWYERS, WORKING TOGETHER Qualifying Exigencies: Short-Notice Deployment (7 days or less) Military Events Childcare/School Activities Financial/Legal Arrangements Non-medical counseling for employee or kids R&R when servicemember home (5 days) Post-deployment activities (including issues dealing with a posthumous return) Anything else company and employee agree to 13. Active Duty Leave (cont’d)

EMPLOYERS & LAWYERS, WORKING TOGETHER National Defense Authorization Act What it Does Gives eligible employees leave to care for covered service member whose injury/illness was incurred in line of duty while on active duty and extends to families of veterans How it Works Eligible employee gets up to 26 weeks per injury, per family member to care for covered service member Creates separate “leave year” that is distinct from standard “leave year” 14. Caregiver Leave

EMPLOYERS & LAWYERS, WORKING TOGETHER How Caregiver Leave Works (cont’d): Covers employees that have parents, spouse, children, or “next-of-kin” that need care Can only have maximum of 26 weeks of leave once “caregiver leave year” starts, but possible to have more than 26 weeks of leave in one calendar year Married couples must combine the 26 weeks of leave in event child is injured 14. Caregiver Leave (cont’d)

EMPLOYERS & LAWYERS, WORKING TOGETHER Old: Real question of whether FMLA claims could be released as part of settlement and/or severance without court or DOL approval New: DOL reaffirms that companies can settle FMLA cases without involvement by the DOL or a court Not prospectively; cannot ask employee to give up future FMLA benefits 15. Settlement of FMLA Claims

EMPLOYERS & LAWYERS, WORKING TOGETHER What it Does Gives employee or “Family Member” who requires care due to domestic and sexual violence time off How it Works Applies to employers with 50 or more employees Allowance of 3 working days’ leave in a 12-month period With or without pay Eligible after 3 months of employment 16. Florida’s Domestic and Sexual Violence Leave Act

EMPLOYERS & LAWYERS, WORKING TOGETHER Who it Covers: Victim of domestic/sexual violence, whether it be: The employee or Family member or Household member Confidentiality: Employers must maintain Certain Fla. Stat § 119 et seq Exceptions 16. Florida’s Domestic and Sexual Violence Leave Act (cont’d)

EMPLOYERS & LAWYERS, WORKING TOGETHER So Now What??? Immediate Action to Take: Amend company policies and notify employees Update Company Handbooks Utilize New DOL Forms Train your managers!