THE FAMILY AND MEDICAL LEAVE ACT Table of Contents Page No. 1. What is the FMLA?..........................................................................................................1 2. Who is a Covered Employer Under the FMLA?..............................................................1 3. Which Employees are Eligible for FMLA Leave?...........................................................1 4. How Long is 1,250 Hours ................................................................................................1 5. What are the Categories of FMLA Leave? ......................................................................1 6. How Much Leave is Eligible Employee Entitled to? .......................................................5 7. What are the Notice Requirements for FMLA Leave? ....................................................7 8. What are the Medical Certification Requirements for FMLA Leave?.............................8 9. What are the Record Keeping and Employer Notice Requirements of the FMLA?........9 10. Must an Employer Continue an Employee’s Benefits During FMLA Leave? ..............10 11. What Reinstatement Rights Does an Employee Returning From FMLA Leave Have? 11 12. What Does the FMLA Prevent an Employer from Doing?............................................12 13. Employees’ Possible Remedies under the FMLA..........................................................13 WARNER NORCROSS & JUDD LLP THE FAMILY AND MEDICAL LEAVE ACT 1. WHAT IS THE FMLA? The Family and Medical Leave Act ("FMLA") is a federal law requiring covered employers to provide up to 12 workweeks of unpaid leave to eligible employees within a 12-month period. Such employers must continue health insurance benefits for an employee on FMLA leave and at the end of the leave, reinstate the employee to his or her former position or an equivalent position. 2. WHO IS A COVERED EMPLOYER UNDER THE FMLA? An employer is covered under the FMLA if it has 50 or more employees on its payroll for each working day of 20 or more weeks during either the current or prior calendar year. Public employers, and public and private schools, are covered by the FMLA regardless of the number of employees that they have. 3. WHICH EMPLOYEES ARE ELIGIBLE FOR FMLA LEAVE? Employees are eligible for FMLA leave if they work for a covered employer and if all of the following are true: A. They have been employed by the employer for at least 12 months (not necessarily consecutive) before the beginning date of the requested leave. B. They have worked at least 1,250 hours in the last 12 months. C. They work at a site where the employer has 50 or more employees within 75 miles. 4. HOW LONG IS 1,250 HOURS? An employee must have actually worked at least 1,250 hours during the preceding 12 months to qualify for leave. Time paid but not worked and time off work on FMLA leave does not count toward FMLA eligibility. A full-time employee who works 40 hours per week for each of the 52 weeks in a year works 2,080 hours in a year, so an employee needs to average only slightly more than 24 hours per week to meet the 1,250 hour test. 5. WHAT ARE THE CATEGORIES OF FMLA LEAVE? A. New Child Leave. There are several categories of New Child Leave, and they are governed by some special rules. New Child Leave cannot be taken intermittently or on a reduced schedule unless the employer agrees. The leave must all be taken within 12 months after the birth or placement of the child. New Child Leave must be allowed for the following: WARNER NORCROSS & JUDD LLP 1 1. Birth of a Child. Leave for the birth of a child. Both fathers and mothers are eligible for this leave (need not be married). 2. Care for the Newborn. A parent or a person in loco parentis may take time off work to care for the newborn child—regardless of the child's health. If the time off is to help care for a child who has a serious health condition, the leave is not "New Child Leave," but rather is “Serious Health Condition Leave.” 3. Placement with the Employee of a Son or Daughter for Adoption or Foster Care. The regulations provide that this type of leave is available not only for the actual placement or adoption, but for procedures related to the adoption or placement such as counseling, legal consultations, visits to an adoption agency and trips to pick up the child. a) The adoption need not be through a licensed placement agency. b) The regulations define "foster care" as 24-hour care for children in substitution for an away-from-the-child's parents or guardian. Only foster care arrangements under the color of law qualify. B. Other Considerations. If a husband and wife work for the same employer, the total New Child Leave available to both parents is 12 weeks. The leave may be taken in any combination, for example, the mother may take seven weeks and the father, five weeks. This limitation does not, however, apply to parents who are not married and work for the same employer. If two employees are not married and have a child, each parent is entitled to 12 weeks of leave. In addition, married employees are entitled to the remainder of the 12 weeks for other qualifying FMLA purposes. C. Serious Health Condition Leave. 1. Employee. An employee may take FMLA leave if s/he is unable to perform an essential function of his/her job due to the employee’s own serious health condition. 2. Family Member. An employee may take FMLA leave to care for a family member who has a serious health condition. Covered family members include: WARNER NORCROSS & JUDD LLP 2 a) Spouse. As defined by state law in which employee lives. b) Child. Leave may be taken for a child under the age of 18, or a child over 18 who is incapable of self-care because of physical or mental disability. This includes not only biological children, but step and foster children, and any child to whom the employee stands in loco parentis. c) Parent of Employee. This includes a biological parent or an individual who stands, or stood, in loco parentis to an employee when the employee was a child. This type of leave is only available for an employee who is needed to provide care. An individual is needed to provide care when any of the following exist: (1) The family member is unable to care for his own basic needs. Basic needs include medical, hygiene, nutritional needs or the individual's safety; (2) The family member is unable to transport himself to the doctor for needed care, or to other necessary places; (3) The employee is needed to provide "psychological comfort" to the family member; (4) The employee is needed to substitute for others giving such care; or (5) The employee is needed to make arrangements for care of the covered family member. D. Definition of "Serious Health Condition." 1. A serious health condition is defined as an illness, injury, impairment or physical or mental condition that involves any of the following: a) Inpatient Care. Any absence or tardiness caused by a condition involving inpatient care (for example, an overnight stay) in a hospital, hospice or residential care facility, and also including any follow-up treatment or recovery period. WARNER NORCROSS & JUDD LLP 3 b) Absence Plus Treatment. Any absence or tardiness caused by a condition requiring absence from work, school or other daily activities of more than three consecutive calendar days, that involves “continuing treatment” by or under the supervision of a health care provider. This includes any subsequent incapacity or treatment relating to the same condition. c) Chronic Conditions. Any absence or tardiness caused by a chronic or long-term health condition that requires periodic treatments, continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity. Examples may include migraine headaches, depression, ulcers, asthma, and epilepsy. d) Permanent/Long-Term Conditions. Any absence or tardiness caused by a permanent or long-term condition for which treatment may not be effective, if the victim is under the continuing supervision of a health care provider. Examples may include Alzheimer’s disease, a severe stroke, or terminal cancer. e) Multiple Treatments (Non-Chronic Conditions). Any absence or tardiness caused by multiple treatments and/or recovery from treatment involving restorative surgery or a condition that might cause an incapacity of more than three days if not treated. Examples include chemotherapy for cancer, physical therapy for arthritis, dialysis for kidney disease. f) Pregnancy. Any absence or tardiness caused by pregnancy or prenatal care, including morning sickness. E. Definition of Treatment. A covered employee or family member is considered to be under the "continuing treatment" of a health care provider for any of the following: 1. The individual is treated two or more times for the condition by a health care provider or under the health care provider's supervision; 2. The individual is treated two or more times for a given condition by a "provider of health care services" under the orders of a health care provider; 3. The individual is treated by a health care provider at least once which results in a “regime of continuing treatment” under the supervision of the health care provider. WARNER NORCROSS & JUDD LLP 4 4. Over-the-counter medications, bed rest, drinking fluids, exercise and other similar activities that can be initiated without a visit to a health-care provider are not considered a regimen of continuing treatment under the FMLA. F. Definition of Health Care Provider. The statute specifically notes that a doctor of medicine or osteopathy and any other person determined by the DOL “to be capable of providing health care services” is a health care provider. These include: Physicians, podiatrists, dentists, clinical psychologists, optometrists, nurse practitioners, nurse midwives, Christian Science practitioners, chiropractors (in some circumstances), and any other health care provider recognized by the employer’s health plan.