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FMLA ISSUES

FMLA ISSUES. FMLA ELIGIBILITY. Employee has worked at least 12 months and Employee has worked at least 1250 hours. BASES TO TAKE FMLA LEAVE. Birth, adoption, or placement of child. To care for spouse, child, or parent with serious health condition. Serious health condition of employee.

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FMLA ISSUES

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  1. FMLA ISSUES

  2. FMLA ELIGIBILITY • Employee has worked at least 12 months and • Employee has worked at least 1250 hours.

  3. BASES TO TAKE FMLA LEAVE • Birth, adoption, or placement of child. • To care for spouse, child, or parent with serious health condition. • Serious health condition of employee. • Qualifying exigency arising from spouse, son, daughter, or parent who is on active duty or called to active duty in National Guard or Reserves. • For an eligible employee (next of kin) to take 26 weeks leave to care for covered military service member with a serious injury or condition.

  4. 26 WEEKS-MILITARY LEAVE • Next of kin is nearest blood relative. • If not designated by service member, any next of kin qualifies. • Leave year is not measured by employer’s plan, but by first day employee takes leave.

  5. MILITARY EXIGENCY LEAVE • Does not apply to family members of regular armed forces - only Reserve and National Guard • Exigency includes short notice deployment, military and related activities to call up. Can include: • Child care • School activities • Time to update financial-legal matters • Rest and recuperation • Counseling • Post deployment activities

  6. 12 weeks leave per year. • Must be relationship between reason for leave and active duty call up.

  7. SERIOUS HEALTH CONDITION Illness, impairment, injury, or condition: • Involves impatient care or • Continuing treatment

  8. SERIOUS HEALTH CONDITION Continuing Treatment • Employee must receive 2 treatments within 30 days of first date of incapacity. • Must see health care provider within 7 days of first date of incapacity. • Must visit health care provider in person.

  9. SERIOUS HEALTH CONDITION Chronic condition • Must see health care provider at least 2 times during year.

  10. INCAPACITY AND TREATMENT • Incapacity is period of more than 3 consecutive days and treatment.

  11. PREGNANCY • Only spouse may take FMLA leave to care for pregnant woman. • Boyfriend, fiance, or father not eligible.

  12. INTERMITTENT-REDUCED LEAVE • Employee can take reduced leave schedule that reduces hours per week or per day. • Employee can take intermittent leave – leave when needed. • Employee must make reasonable effort to schedule treatment not to disrupt unduly employer’s operation. Former regulation required only an “attempt.”

  13. PAID LEAVE • FMLA leave is unpaid. • Employer can require employee to substitute paid leave – such as vacation, sick leave, PTO. • Employer can require that employee when using paid leave must follow employer’s policies – such as call-in.

  14. ELIGIBILITY NOTICES • Employer must give the employee eligibility notice within 5 business days – form in materials. • Employer needs to say if return to work doctor’s statement will be necessary. • Employer can retroactively designate FMLA leave unless employee can demonstrate harm/injury.

  15. MEDICAL CERTIFICATIONS • Employer can require medical certification. Form in materials. • If employee’s certification incomplete, then employer must notify employee in writing what is needed and give 7 days to provide. • With permission of employee, employer can now contact employee’s doctor for clarification.

  16. Employer cannot use employee’s supervisor to contact doctor – but HR department or other manager can contact doctor. • If employee does not give permission to contact doctor, then employer can deny FMLA leave.

  17. LIGHT DUTY • If employee is on light duty, then right to job restriction held open to the end of the applicable 12 months FMLA leave year. • Normally employee must be able to return to his/her job when leave is over. • Employer must still consider ADA reasonable accommodation if an employee cannot perform his/her job when FMLA leave expires.

  18. DOMA • In determining the meaning of any act of congress, or any ruling, regulation, or interpretation of various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.

  19. DEFINITION OF SPOUSE • Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized. 29 C.F.R. Section 825.122.

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