FMLA Update

This overview has been summarized from the Family Medical Leave Act, the applicable regulations as published in the Code of Federal Regulations, and, in some parts, from educational materials prepared by Miller, Canfield, Paddock and Stone, P.L.C., Labor and Employment Law Practice Group, 150 West Jefferson, Suite 2500, Detroit, Michigan 48226.

The information as presented should not be considered or relied upon as legal advice.  Further questions regarding application of the Act to a specific municipality should be referred to legal counsel for the municipality.

FAMILY MEDICAL LEAVE ACT OVERVIEW

Significant changes to the Family Medical Leave Act (FMLA) have been adopted requiring immediate compliance action.  The U.S. Department of Labor (DOL) is the enforcement agency for the FMLA and its websiteis extremely helpful.  You may also want to attend the League’s comprehensive workshop.  Following is summary information and important links related to the FMLA.

FMLA Rights
FMLA Protections
Covered Employer
Covered Employee (Non-military related leave)
Military Personnel and Families
     Who Qualifies
     FMLA Leave to Care for a Service Member
     FMLA Leave for Qualifying Exigencies
     New Forms
Employer Responsibility to Notify

FMLA RIGHTS

The FMLA provides eligible employees up to twelve (12) weeks of unpaid, job-protected leave in a 12 month period:

1. for the birth or care of a child

2. to care for a child after placement through adoption or foster care

3. to care for a close family member (spouse, parent, son or daughter) with a serious health condition

4. for the employee’s own serious health condition which makes the employee unable to perform his or her job

5. for “qualifying exigencies” arising from military service of a covered service member.

FMLA now also allows up to 26 weeks of leave within a 12 month period for an employee to care for a covered military service member with a serious illness or injury. 

In some cases the FMLA allows an employee to take intermittent leave or to work a reduced schedule for a limited time period.

Coordination with Other Leaves and/or Paid Time Off Plans

Employers may require non-union employees to substitute accrued paid leave for any or all of a FMLA leave (unionized workplaces must bargain this.)  Further, the employer may designate a leave that qualifies as both FMLA and another type of leave under the employer’s paid benefit plan as running concurrently (i.e. disability leave, worker’s compensation.)

Where the employer and employee agree, the employer may also require employees to coordinate compensatory time off with FMLA leave.  Note, employers may freely substitute cash for compensatory time, and employees retain the right to request the cash-out at any time.  

Health and Other Benefits

The employer must continue to provide health benefits under any group health plan (which may include dental) as if the leave had not been taken.  The employee must continue to pay their portion of the premium(s) if normally required, and the employer may recoup to cost of premiums paid on the employee’s behalf if the employee fails to return after FMLA leave for circumstances outside their control.

An employer must also continue other benefits, including unconditional pay increases that otherwise would occur while the employee is on FMLA if there is an established policy that provides such benefits to employees who are on other forms of paid or unpaid leave.

FMLA PROTECTIONS

The FMLA requires that, upon return from FMLA leave, an employee is returned to his/her same position or an equivalent position with equivalent benefits, pay and other terms and conditions of employment.

The FMLA prohibits discrimination or retaliation against employees who assert FMLA rights or who charge an employer with an FMLA violation.

COVERED EMPLOYER

The FMLA defines a “covered employer” to include any public employer, regardless of the number of persons employed.  Public employers will need to make individual determinations about which employees, if any, are eligible for FMLA, but all public employers are considered covered employers. 

COVERED EMPLOYEE (Non-military related leave)

A “covered employee” must:

1. Have worked for the employer for at least 12 months

1. Does NOT need to be consecutive

2. Paid and unpaid leaves should be counted as employment if the employee remained on the payroll

3. NEW REGULATION:  a service break of 7 years or more need NOT be counted; Exception 1:  military service  Exception 2:  union contract provides otherwise

4. USERRA requires that for FMLA purposes (calculating 12 month/1,250 hours) an employee on USERRA protected military leave be given credit for time worked as if he/she had not taken the military leave and had worked continuously during that time

2. Have worked at least 1,250 hours during the year preceding the start of the leave

1. Determine according to FLSA principles of compensable work

2. Only hours actually worked will count, NOT vacation, holidays, sick leave, etc.

3. FLSA EXEMPT employees are assumed to have worked at least 1,250 hours unless the employer can clearly demonstrate otherwise

4. USERRA requires for FMLA purposes of calculating 12 month/1,250 hours that an employee on protected military leave be given credit for time worked as if he/she had not taken the military leave and had worked continuously during that time

2. Work at a worksite with 50 or more employees within 75 miles of the worksite

1. Count ALL employees on the payroll (29 C.F.R. §825.111(c)

2. Count ALL employees at ALL worksites within 75 miles

3. Beware “joint employment” relationships (i.e. staff placed through a 3rd party employment agency even on a temporary basis)

MILITARY PERSONNEL AND FAMILIES

FMLA now extends FMLA leave protection and other rights for military personnel and their families in need of leave for “qualifying exigencies”   related to call-up or military service or to care for a family member recuperating from a serious illness or injury  (more expansive definition than the typical “serious medical condition”).

Who Qualifies?

The act defines “covered service members”  as members of the armed forces, including the National Guard or Reserves, or who are undergoing medical treatment, recuperation, therapy, or who are otherwise on outpatient status or on temporary disability retired list for a serious injury or illness.

The definition of “family member” for military personnel is more expansive and includes not only “parent, spouse or child,” but also encompasses “next of kin,” as designated by the service member.  When not specifically designated, “next of kin” may include multiple individuals. 

Further, an employee can take FMLA leave to care for a son or daughter who is a service member even if the son or daughter is an adult and does not meet the self-care and disability tests typically prescribed for non-military FMLA leave related to care for an adult child. 

FMLA Leave to Care for a Service Member

FMLA now allows up to 26 weeks of service member caregiver leave within a 12 month period for an employee to care for a covered service member with a serious illness or injury.  An employee may qualify for more than 26 weeks to care for additional service members or to provide care for a subsequent injury or illness.  The 12 month period must be a rolling year beginning on the first day of leave.

A serious injury or illness is incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his/her office, grade, rank or rating.  This includes a covered service member who:

1. is on the temporary disability retired list, a covered service member

2. is undergoing medical treatment, recuperation, or therapy for a serious illness or injury or

3. is assigned to a military medical treatment facility as an outpatient (or is otherwise receiving outpatient care at a unit established for the armed forces.)

FMLA leave does NOT apply to care for former members of the armed forces who are on the permanent disability retired list.

FMLA Leave for Qualifying Exigencies

FMLA now allows up to 12 weeks of leave within the normal FMLA 12 month period to address qualifying exigencies that arise as the result of a covered service member’s military service including:

1. Short-notice deployment (7 days or less)

2. Rest and recuperation (limited to 5 days per military r&r visit)

3. Military events and activities (support groups, briefings, etc.)

4. Childcare and school activities (make child care arrangements, attend school meetings, provide emergency childcare, etc.)

5. Financial and legal arrangements

6. Counseling

7. Post-deployment activities (ceremonies, briefings, etc.)

8. Additional activities (other purposes as agreed to by the employer and employee)

New Forms

Optional forms are available for these two new types of FMLA leave. 

EMPLOYER RESPONSIBILTY TO NOTIFY

The law now requires that an employer provide information concerning FMLA entitlements and employee obligations under the act to all employees.  This requirement may be satisfied by a written policy manual or handbook, which must include FMLA information. 

If you do not have a manual or handbook, you still must provide general notice of FMLA rights to all employees.  The DOL has developed an optional form for this notice to use in place of appropriate manual/handbook language. 

The League provides assistance in developing personnel manuals through its fee-based consulting service

All employers must also prominently post required notices in the workplace.  Link to poster: 

Lastly, an employee is required to provide sufficient information for their employer to determine that a leave is protected by FMLA, which may be as simple as verbal notice.  The FMLA has strict notification requirements, timelines, medical certifications and related obligations that involve both the employer and the employee.