FAMILY AND MEDICAL LEAVE ACT

1. FAMILY AND MEDICAL LEAVE ACT For audio, dial: 1-800-974-4575

2. FAMILY AND MEDICAL LEAVE ACT We will start the conference at 12:05 to allow everyone time to log in.

3. FAMILY AND MEDICAL LEAVE ACT(FMLA)Considerations for Employers AWPHD Webcast June 20, 2006

4. Presenters Karen Sutherland Ogden Murphy Wallace, PLLC Angela Belbeck

5. Outline • Employee rights under the federal leave law (FMLA) • Entities covered by the FMLA • Criteria for taking FMLA leave • Designation of FMLA leave • Who is a “health care provider?”

6. Outline (cont’d) • Certification by the health care provider • Intermittent and reduced schedule leaves • Role of the employee handbook in FMLA leave • State family leave law • Resources

7. Employee Rights • Applies to “eligible” employees of a covered employer. • Employed for at least 12 months (52 weeks). • Need not be consecutive months. • If on the payroll for any part of a week, the week counts as a week of employment. • Employed for at least 1,250 “hours of service” (as tracked by employer for Fair Labor Standards Act purposes) during the 12 months immediately preceding the leave.

8. Employee Rights (cont’d) • Provides for: • Job-protected, unpaid leave; and/or • Paid leave if the employee has earned or accrued it. • Length of leave: Up to a total of 12 work weeks in a 12-month period. • Hours of leave available depends on employee’s regular schedule: • Full-time employee: 480 hours/yr. • ¾ time employee: 360 hours/yr. • ½ time employee: 240 hours/yr. • Can be taken in small increments.

9. Employee Rights (cont’d) • Four methods to calculate 12-month period: • Calendar year; or • Any fixed 12-month period (such as a fiscal year or starting on an employee’s anniversary date); or • Measured forward from the date an employee’s first FMLA leave begins; or • Rolling 12-month period measured backward from the date of FMLA leave use. Note: If employer fails to select one of these four options in advance, the method with the most beneficial outcome to employee will be used.

10. Employee Rights (cont’d) • Entitled to benefits as if still working. • Payment of health insurance premiums during leave: Continues as if employee had not taken leave. • Employer may recover its share of health insurance premiums paid only if employee does not return to work for: • A reason other than employee’s or his/her family member’s serious health condition; or • A reason within employee’s control.

11. Employee Rights (cont’d) • At conclusion of FMLA leave: Generally have the right to return to: • Same position or • Equivalent position with equivalent pay, benefits and working conditions. • Taking of FMLA leave: Cannot result in the loss of any benefit that accrued prior to start of leave.

12. Covered Entities • Public agencies regardless of the number of employees. • Employers with 50 or more employees during each of 20 or more calendar work weeks in the current or preceding calendar year. • Any person acting in the interest of a covered employer. • Any successor in interest.

13. Criteria for Taking FMLA Leave • Birth of a child and to care for the newborn child; or • Placement of a child with employee for adoption or foster care; or • The employee is needed to care for a family member (child, spouse, or parent) with a serious health condition; or • The employee's own serious health condition makes the employee unable to perform the functions of his/her job.

14. Criteria for Taking FMLA Leave (cont’d) • “Serious Health Condition” includes an illness, injury, impairment, or physical or mental condition that: • Involves inpatient care or • Continuing treatment by a health care provider. Note: There are several different tests for “continuing treatment” in the FMLA regulations (29 CFR 825.114).

15. Designation of FMLA Leave • Employee does not need to specifically ask for FMLA leave: • Employee could ask for leave for a medical condition and employer realizes request may fit FMLA criteria. • Employer could designate leave as FMLA leave even if employee does not want it to be FMLA leave. • U.S. Dept. of Labor form for requesting and granting FMLA leave: WH-381.

16. Designation of Leave (cont’d) • Leave usually cannot be designated as FMLA leave after the fact. • Employer must designate leave as FMLA leave within 2 business days of learning that leave is for an FMLA required reason. • If employer’s designation is oral, it must be followed with written notice by employee’s next payday (unless next payday is within a week of oral notice).

17. Designation of Leave (cont’d) • If employee is required to use accrued paid leave for FMLA leave: • Employer must designate as paid before leave starts if employer has enough information to determine FMLA applies. • Employer must decide leave is paid within 2 business days of notice of need for leave. • If there is insufficient information to determine if leave is FMLA leave, employer must give notice when employer learns FMLA applies.

18. Designation of Leave (cont’d) Generally employer cannot designate paid leave as FMLA leave retroactively. Exceptions: • If absent for an FMLA reason and employer did not learn the reason until employee's return. • Employer must give notice to employee within two business days of employee’s return to work. • If leave is for an FMLA reason employer was not aware of and employee wants it to count as FMLA leave. • Employee must notify employer within two business days of returning to work. • If no timely notification by employee, employee may not later assert FMLA protections for the absence.

19. Designation of Leave (cont’d) Exceptions (cont’d.) • If employee waits until the middle of paid leave to tell employer it is for an FMLA reason, employer can count whole leave as FMLA leave.

20. Designation of Leave (cont’d) • Paid leave taken after employer realizes it is FMLA-qualified and gives employee notice can be counted as FMLA leave. • Employee is entitled to FMLA protection for the leave, but only the portion of leave taken after notice counts towards 12-week limit.

21. Who is a “Health Care Provider?” • U.S. Provider: Authorized to practice by the State and performing within the scope of his/her practice as defined by that State’s law. • Includes: • Doctors of medicine or osteopathy • Podiatrists • Dentists • Clinical Psychologists • Optometrists

22. Health Care Providers (cont’d) • Chiropractors • Limited to manual manipulation of the spine to correct an abnormality shown by X-ray • Nurse Practitioners • Nurse-Midwives • Clinical Social Workers • Christian Science Practitioners

23. Health Care Providers (cont’d) • Foreign Provider: Authorized to practice in accordance with the law of a country other than the U.S. and performing within the scope of his/her practice as defined by that country’s law.

24. Health Care Providers (cont’d) • Any provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits.

25. Certification by the Health Care Provider An employer may obtain a certification of: • Employee’s condition or • Family member’s condition where the employee needs time off to care for family member.

26. Certification (cont’d) The certification may include: • The part of the definition of “serious health condition” (if any) that applies to the condition. • The medical facts that support the medical condition. • A brief statement as to how the medical facts meet the criteria of the definition of “serious health condition.”

27. Certification (cont’d) The approximate date of commencement and probable duration. • Whether intermittent or reduced schedule leaves are necessary and: • Their probable durations. • Number and interval between treatments (if known). • Recovery period (if any).

28. Certification (cont’d) • For pregnancy or a chronic condition: Whether the patient is presently incapacitated and the likely duration and frequency of episodes of incapacity. • If additional treatments will be required for the condition: An estimate of the probable number of treatments.

29. Certification (cont’d) • Whether treatments will be provided by another provider of health services (e.g., physical therapist) and the nature of the treatments. • A general description of the regimen of continuing treatment required under the supervision of the health care provider.

30. Certification (cont’d) • The easiest way to obtain the necessary information: U.S. Department of Labor form WH-380. • Some providers may be unwilling to fill out forms or may provide incomplete information.

31. Certification (cont’d) Remedies for Incomplete Information: • A health care provider representing the employer may contact the employee's health care provider – with the employee's permission – to clarify and authenticate the medical certification. • Employer may obtain second and third opinions. • If none of the above correct the situation, the employer may deny leave.

32. Certification (cont’d) If FMLA Leave Is Concurrent with a Workers' Compensation Absence • Washington law allows the employer or its representative to directly contact the employee's workers' compensation health care provider.

33. Certification (cont’d) If Employer Has a Reason To Doubt the Validity of a Medical Certification: • May require the employee to obtain a second opinion at the employer's expense. • If the second opinion is inconsistent with the first, employer may require a third opinion. • Provider of third opinion is jointly designated or approved by employer and employee. Third opinion is at employer’s expense. • Pending receipt of the second (or third) medical opinion, employee is provisionally entitled to FMLA benefits, including maintenance of group health benefits.

34. Intermittent and Reduced Schedule Leaves (I & RS Leaves) FMLA Leave for a Single Condition Need Not Be Taken in a Single Block of Time. • Intermittent leave • Taken in separate blocks of time, with a return to work in between leave periods. • Reduced schedule leave • Reduction in usual number of working hours per week or day. (May change employee from full-time to part-time or reduce schedule of a part-time employee to work fewer hours.)

35. I & RS Leaves (cont’d) • I &RS leaves must be provided even if job requirements are full-time. • Employers should not confuse request for intermittent or reduced leave schedule with request for “reasonable” accommodation under Americans with Disabilities Act (ADA). • Intermittent or reduced leave request does not need to be “reasonable.”

36. I & RS Leaves (cont’d) Both leaves require: • A medical need for leave (as distinguished from voluntary treatments and procedures). • That the medical need can be best accommodated through an intermittent or reduced leave schedule. • Attempts by employee to schedule leaves so employer’s operations are not disrupted. • Employer convenience: An employee may be assigned an alternative position with equivalent pay and benefits that better accommodates the intermittent leave or reduced schedule leave.

37. I & RS Leaves (cont’d) • Intermittent leave: • Generally from an hour or more to several weeks. • Employer may limit increments of leave: • Shortest period of time used by payroll system for absences or leaves (one hour or less). • If employee is absent longer than required for the leave, the extra time off is not FMLA leave (skipping half a day of work for a one-hour appointment).

38. I & RS Leaves (cont’d) Examples of intermittent leave include: • Leave for medical appointments. • Leave taken several days at a time spread over a period of six months (e.g., chemotherapy). • Leave for pregnant employee’s own condition (severe morning sickness).

39. I & RS Leaves (cont’d) Intermittent and Reduced Schedule Leave May Be Taken for Absences: • Where the employee is incapacitated or unable to work; or • Where the employee’s family member is incapacitated or unable to work; and • Even if the employee or family member does not receive treatment by a health care provider during the absence.

40. I & RS Leaves (cont’d) Both intermittent and reduced schedule leave may be taken to provide care or psychological comfort to an immediate family member with a serious health condition.

41. I & RS Leaves (cont’d) • Employer agreement is required: For intermittent or a reduced schedule leave when taken after the birth or placement of a child for adoption or foster care. • Employer's agreement is not required: • For leave when the mother has a serious health condition in connection with the birth of her child or • If the newborn child has a serious health condition.

42. The Role of the Employee Handbook • Information concerning FMLA entitlements and employee obligations must be included in written guidance to employees maintained by an employer concerning employee benefits or leave rights (such as an employee handbook). • If no employee handbook, provide written notice of FMLA rights and obligations.

43. State Law - Substitute Senate Bill 6185 • Effective June 7, 2006. • Lowers the State Family Leave Law threshold from 100 employees to 50 employees. • Changes certain definitions to mirror federal law. • State law is to be construed consistent with the federal FMLA (to the extent possible).

44. Other State Law Provisions • Employers’ benefits can be more generous than those required by law. • State law leave runs concurrently with federal FMLA leave. • Exception: State (and federal) leave is in addition to any leave for sickness or temporary disability due to pregnancy or childbirth. • Employers must post notices about State Family Leave law.

45. State Law: Civil Suits • Lost wages. • Other compensation denied or lost to the employee by reason of the violation. • Actual monetary losses (such as the cost of providing care, plus interest) if there was no loss of wages. • Equitable relief (such as job reinstatement or promotion).

46. State Law: Civil Suits (cont’d) • Double damages; • Exception: If the employer can prove good faith and reasonable grounds for believing conduct was not unlawful, court has discretion to reduce to single damages. • Attorneys’ fees; • Expert witness fees; and • Other costs to bring action.

47. Resources • U.S. Department of Labor: http://www.dol.gov • Washington State Department of Labor & Industries: http://www.lni.wa.gov/WorkplaceRights/files/policies/esc10.pdf • Ogden Murphy Wallace PLLC: http://www.omwlaw.com

48. Resources • FMLA regulations (29 CFR Section 825): http://www.access.gpo.gov/nara/cfr/waisidx_05/29cfr825_05.html • Substitute Senate Bill 6185:http://www.access.gpo.gov/nara/cfr/waisidx_05/29cfr825_05.html • Washington State FMLA Act (RCW Chapter 49.78): http://apps.leg.wa.gov/rcw/default.aspx?Cite=49.78&full=true

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