Family Medical Leave Act-Faculty and Staff Disability Services

FMLA Regulation (Principal) Changes:
Self, Family, Birth and Military

Effective January 16, 2009

Eligibility:

Twelve (12) months of employment; does not include employment prior to a seven year break in service.

Serious Health Condition:

Employee must see THP within seven days of the start of capacity and receive a regimen of treatment or see the THP again within the next 21 days.

Chronic Serious Health Condition:

Caring for a Family Member:

Employee need not be the only individual available to care for the covered family member.
Adult child must be unable to perform at least three ADL’s (grooming and hygiene, bathing, dressing and eating) or IADL’s (cooking, cleaning, shopping, taking public transportation, paying bills, maintaining residence, using telephones and directories, using a post office, etc.) and be a person with a disability. Not yet certain of the ADAAA impact on this definition.

Birth:

Spouse/registered same sex domestic partner may use FMLA to care for pregnant mother prior to birth including participating in prenatal care.

Scheduling Treatment:

Employees must make a “reasonable effort” to schedule treatment so as not to unduly disrupt an employer’s operations.

Increments of Intermittent or Reduced Leave:

Need to calculate average hours worked of employee who works a variable schedule by looking at the scheduled hours over the prior 12 months from the date leave commences.

Substitution of Paid Leave:

The employee using paid leave while on FMLA must follow paid leave policies-documentation, notification, reporting, etc.
Employers must notify employees of paid leave procedural requirements in Rights and Responsibilities Notice.
Compensation time will be used concurrently with FMLA, as applicable.

Perfect Attendance/Production Bonuses:

Employees who do not achieve the goals established to achieve these bonuses due to FMLA use are disqualified from receiving these awards as long as other employees on Non FMLA leave are also excluded from these awards.

Employer Notice Requirements:

Poster: Notice to Employees of Rights under FMLA is posted (each department) and distributed.

Notice of Eligibility and Rights and Responsibilities: Employer has five business days to advise employee of FMLA (Eligibility and Rights and Responsibilities) when FMLA is known to be used/needed/designated. This notice is only required once during the calendar year unless the eligibility changes.

Designation Notice: When event is determined as FMLA qualifying, the employer has five business days to designate the leave as FMLA. Notice must include release to work requirement if such will be required at time of return to work.

Penalties for Noncompliance:
- Noncompliance may constitute interference with, restraint of, or denial of the employee’s FMLA rights.
- Employer will be liable for monetary losses including employment, reinstatement, or other equitable relief.

Employee Notice Requirements:

Notice of unforeseeable leave must be provided to the employer as soon as practicable.
Notice must comply with employer’s usual and customary absence procedural requirements.
Notice must include reason for absence.

Medical Certification:

Employer has right to know the treating health practitioner specialty, employee’s health diagnosis, that leave is medically necessary, which essential job functions an employee cannot perform and frequency and duration of intermittent leave.
Seven calendar days are granted to address incomplete or unclear forms.
Leave information obtained through workers’ compensation or the ADAAA will be considered under the FMLA eligibility and designation process.
Contact with treating health provider is limited to Senior HR only in conjunction with FSDS, at this time.
Recertification may be required after six months for intermittent or reduced schedule leave.

Release to Work:

THP may be required to verify if the employee can perform the essential functions.

FMLA Military Family Member Leave (Two Types)

Injured Service Member: family member may take up to 26 weeks of leave in a single 12 month period to provide care.

Family: spouse, parent, child, “next of kin”-nearest blood relative aside from spouse, parent, child.
Current member of the Armed Forces includes National Guard and Reserves or on temporary disability retired list.
Leave is per covered service member, per injury.
Designate as FMLA Military Leave even though may also qualify as FMLA for family member.

Qualifying Exigency Leave: family member may take up to 12 weeks of leave in the calendar year when the service member is on active duty or deployment situation meets one of seven criteria.