Allen C. Dobson Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, Arka

1. BASIC FAMILY MEDICAL LEAVE ACT • ARKANSAS SCHOOLS BOARD ASSOCIATION • Embassy Suites • May 1, 2013 Allen C. Dobson Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, Arkansas 72201 (501) 371-9999 Adobson@cgwg.com www.cgwg.com

2. Important Goals • Don’t Try To Be A Doctor! • Some obligations under FMLA conflict with prohibitions under ADA! • Eliminate “Disability” from Vocabulary! • This is for lawyers, judges, and juries • Be Patient!

3. FAMILY MEDICAL LEAVE ACT

4. SUPERVISORS CAN BE HELD INDIVIDUALLY LIABLE!

5. Covered Employers • 50 or more employees in 20 or more calendar weeks in the current or previous year

6. Covered Employers and Employees • The FMLA entitles eligible employees to take up to twelve (12) weeks of unpaid, job protected leave during a twelve month period as a result of the employee’s serious health condition, or to take care of an immediate family member who has a serious health condition

7. Employee Eligibility • Just being employed does not establish eligibility! • Employee must: • Be employed for at least 12 months • Performed at least 1,250 hours of service during past 12 months • Be employed within 75 miles of 50 employees

8. Employee Eligibility • Must have one year of service which need not be continuous; if employee has 7-year break in service, service that is more than 7 years old does not need to be counted unless:

9. Employee Eligibility • Break was due to National Guard or Reserve military Service (which service also counts as service for FMLA); or • Written agreement (including CBA) exists regarding employer’s intention to rehire employee after the break in service

10. Employee Eligibility • Burden on employee to prove employment more than 3 years old, since an employer only has to keep FMLA records for 3 years* • * Lilly Ledbetter Fair Pay Act

11. Employee Eligibility While on Leave • If employee meets one-year service requirement while on non-FMLA leave, employee becomes eligible on that date; leave prior to one-year service date is non-FMLA leave and leave on or after one-year service date is FMLA leave

12. Serious Health Condition • A serious health condition that is not an overnight stay in a facility requires “two visits to a health care provider” • The new rules provide that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider must take place within seven (7) days of the first day of incapacity

13. Medical Definitions • “Period of incapacity” exists if: • Duration of incapacity lasts more than 3 full consecutive calendar days; • There is an in-person treatment at least once within 7 days of first day of incapacity; and • There is either is a regimen of continuing treatment initiated by HCP during first treatment or there is a second in-person visit for treatment (the necessity of which is determined by HCP) within 30 days of first day of incapacity

14. Chronic Health Condition • “Periodic visits” for the purposes of a chronic serious health condition means at least two visits to a health care provider per calendar year

15. FMLA: Examples of Serious Health Conditions

16. Real Examples of Serious Health Conditions • In-patient care • Prenatal care • Heart Attacks • Strokes

17. Examples of Serious Health Conditions • Pneumonia • Severe Arthritis • Back surgery/therapy • Serious accidental injuries

18. Examples of Serious Health Conditions • Ongoing pregnancies • Severe morning sickness • Miscarriages • Childbirth and recovery • Allergies • Stress • Drug/Alcohol abuse

19. Non-Serious Health Conditions • Short-term conditions • Out-patient surgical procedures • Voluntary or cosmetic treatments • (Unless any of the above require in-patient care)

20. Definition of “Spouse” • Husband or wife, under state law • It does not include unmarried domestic partners

21. Definition of “Children” • Biological, adopted, foster child, stepchild, legal ward, or a child for whom the employee acts as parent; and: • Under 18; or • If over 18, is not capable of self care because of mental or physical disability

22. FMLA: Leave to Care for Adult Children • Employees may take FMLA leave to care for a child age 18 or older who is “incapable of self-care because of a mental or physical disability” • The child must meet both requirements: • Incapable of self-care AND • Have a mental or physical disability

23. Incapable of Self-Care • Requires active assistance or supervision to provide daily self-care in 3 or more “activities of daily living” (ADLs) • Includes caring appropriately for grooming and hygiene, bathing, dressing and eating; or • “Instrumental activities of daily living” (IADLs) • Includes cooking, shopping, taking public transportation, paying bills, maintaining a residence, using phones and directories, using post offices, etc.

24. Physical or Mental Disability • Physical or mental impairment that substantially limits one or more of the major life activities of an individual • Includes: developmental disabilities, brain damage, paralysis, long term serious illness • Does NOT include temporary conditions, such as pregnancy and routine out-patient surgery

25. Definition of “Parent” • Biological parents • Person who filled a parental role for the employee when the employee was a child

26. Job Restoration Rights • The same position; or • An equivalent position • Same benefits, pay and other terms and conditions of employment • Same or substantially similar duties and responsibilities • (skill, effort, responsibility, and authority)

27. Paid Time Off • Employer may enforce its normal rules for use of vacation, sick days, PTO and other paid time off benefits even if they are less or more stringent than FMLA requirements

28. Paid Time Off • If employee does not comply with employer’s rules, employee can still take FMLA leave, but without using paid time off benefits while on leave • (unless employer waives its normal rules, which would be required in order to force an employee to use the paid time off benefits) – Employer needs to be consistent.

29. Paid Time Off • Example: Under employer’s policy, vacation can only be used in 8-hour increments, but employee has 2-hour FMLA absence • Employee can choose to take 8 hours of FMLA leave and receive 8 hours of vacation pay for it or take 2 hours of unpaid FMLA leave • Comment to § 825.207

30. Paid Time Off • If employer requires or permits use of paid time off benefits while on leave, the employer must notify employee (in or with new Notice of Eligibility and Rights and Responsibilities WH-381) of employer’s requirements for using paid time off and of employee’s right to still take FMLA leave even if employee fails to meet those requirements • § 825.307(a)

31. Medical Certification Process • The new Regulations acknowledge that HIPAA privacy rules apply to employees’ health care providers (HCPs) when dealing with certification • The Regulations now allow specific employer representatives to contact a HCP for clarification and authentication • § 825.307(a)

32. Medical Certification Process • The new forms are: • WH-380E – Certification of Health Care Provider for Employee’s Serious Health Condition • WH-380F – Certification of Health Care Provider for Family Member’s Serious Health Condition

33. Medical Certification Process • Medical certification for a particular condition is in effect for duration of leave as specified on the certification • If certification indicates that employee needs leave for that condition beyond a single leave year (e.g., intermittent or reduced schedule leave), a new certification can be required annually • § 825.305(e)

34. Medical Recertification • Permitted at any time: • If extension to leave needed • If significant change in certification (complications, duration/frequency of absences, nature/severity of illness) • If employer receives information casting doubt upon continuing validity of certification

35. Medical Recertification • Language added to • (b) “significant change” includes pattern of absences before/after scheduled days off, or longer duration of absences than specified on certification for most recent two or more episodes of incapacity

36. Medical Recertification • If employer receives information casting doubt upon employee’s stated reason for absence • (“doubt” could include reliable information that employee’s off-duty activities are inconsistent with need to FMLA leave)

37. Medical Recertification • Employer may also provide employee’s doctor with a record of employee’s absence pattern and ask doctor if the condition and need for leave are consistent with such a pattern

38. Fitness for Duty • The new rules provide that an employer may now require that the Certification (WH-380E) specifically address the employee’s ability to perform the essential functions of the employee’s job

39. Fitness for Duty • For intermittent leave - allows an employer to require a fitness-for-duty certification before an employee may return to work where reasonable job safety concerns exist, and if the employer:

40. Fitness for Duty • Informs the employee that each subsequent instance of intermittent leave will require a fitness-for-duty certification unless one has been submitted within the past 30 days • This notice must be provided at the same time as the designation notice

41. Substitution of Paid Leave • Previously there were different procedural requirements for different types of paid leave (personal, vacation, sick, etc.) • Under new Regulations all forms of leave are treated the same • Employee electing to use paid leave concurrently with FMLA must follow employer’s policy regarding that type of paid leave

42. Employee Notice Requirements • When requesting leave first time for a particular FMLA-qualifying reason, an employee must provide sufficient information, depending on the situation (e.g., state a qualifying reason, explain reason leave is needed, provide anticipated timing and duration of leave if foreseeable), for an employer to reasonably determine whether FMLA may apply

43. Employee Notice Requirements • Calling in “sick” is not enough

44. Employee Notice Requirements • When subsequently requesting leave for the same FMLA-qualifying reason for which leave has previously been provided, the employee should specifically reference the qualifying reason or state “FMLA” leave

45. Employee Notice Requirements • When sufficient notice provided that time off may be for an FMLA purpose: • Employer required to ask employee for any additional necessary information • Employee must respond to the request

46. Employee Notice Requirements • Employee must consult with employer in advance to make “reasonable effort” to schedule planned treatment so as not to unduly disrupt operations • Employee must advise employer as soon as practicable when dates of leave change or become known

47. Employer Notices • Employer must notify employee in writing of eligibility or non-eligibility within 5 business days (absent extenuating circumstances) after the first time in the employer’s FMLA leave year that an employee requests leave for a particular qualifying reason, and thereafter during the same FMLA leave year, only if the employee’s eligibility status changes (even if a subsequent request is for a different qualifying reason)

48. Updated FMLA Forms • WH-380 E – Certification of Health Care Provider for Employee’s Serious Injury • WH-380 F – Certification of Health Care Provider for Family Member’s Serious Health Condition • WH-381 – Notice of Eligibility and Rights & Responsibilities • WH-382 – Designation Notice • WH-384 – Certification of Qualifying Exigency for Military Family Leave • WH-385 – Certification for Serious Injury or Illness of Covered Servicemember

50. FMLA Amendments • Passed in January 2008 as part of the National Defense Authorization Act • Provide that employees may take leave: • To care for an injured servicemember with a serious injury or illness incurred in the line of duty; or • For a “military exigency”