Family & Medical Leave Act

Private Employer Coverage

Private employers with 50 or more employees for each working day during 20 or more calendar weeks in the current or preceding calendar year

What if the leave is to care for their child, but he and the mother are not married?

Protected leave

What if he raised the child, but it is not his natural child and he has not adopted the child?

Protected leave - in loco parentis

Public Agencies Coverage

Public agencies are covered regardless of number or employees.

If an employee has complained about being sick on several occasions over several months is sufficient notice.

True

An employee wants leave to care for the woman he lives with. Can he take FMLA?

Unprotected leave unless married (including common law married)

Intermittent Leave

leave taken in separate blocks of time due to a single qualifying event

Care for spouse/child/parent with a serious health condition

-"Spouse" requires a legal relationship under state law (including common law marriage) -"Child" includes stepchildren, adopted children, in loco parentis -parent includes stepparents, individuals in loco parentis - NO IN LAWS

Birth of a Child

-12 month eligibility period -Father and mother both eligible -leave may be pre-birth for mother

Adoption or State Arranged Foster Care

-12 month eligibility period -father and mother both eligible -Required to grant FMLA leave before actual placement if required for placement to proceed

Purpose of FMLA

-12 weeks of unpaid leave -qualifying reasons -job protection -benefit continuation

Military Caregiver Leave Pt. III

-Caregiver leave available to spouses, children, parents, and "next of kin" of the covered service member ---includes adult children -Next of kin is defined as the nearest blood relative of the service member (siblings, grandparent, aunts/uncles, cousins") -May require reasonable documentation or statement of family relationship

Military Caregiver Leave Pt. II

-Covered service member is a member of the armed forces, including a member of the national guard or reserves -who is undergoing medical treatment, recuperation, or therapy; is otherwise in outpatient status; or is on the temporary-disability list because of serious injury or illness

Qualifying Exigency Leave Pt. II

-Eligible employees - spouse, son, daughter, or parent of a covered military member who is called or ordered to active duty -Persons who can be ordered to active duty include: retired members of regular armed forces, various reserve members, the national guard, states military, etc.

Certification and Fitness for Duty Tests

-Employer has a right to obtain sufficient medical information to decide if employee's leave qualifies as FMLA leave. -Employer is required to give notice of the fitness for duty requirement to the employee -can contact HCP for clarification (HR can call, not the supervisor) -If the employer doubts the validity of the medical certification, it may require a second opinion

12 weeks of total leave

-If employee uses 12 weeks for birth of a child, does not get more for a serious health condition -Limit of 12 weeks per year

Military Caregiver Leave Pt. 1

-Leave for employees caring for family members with a serious injury or illness incurred in military duty -26 weeks of leave to care for covered service member in a "single 12-month period" -unpaid

Qualifying Exigency Leave Pt. I

-Leave may be taken to handle non-medical exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or on call to active duty status (NOTE: does not apply to next of kin) -Maximum of 12 weeks of total FMLA leave in a year ---this includes regular FMLA

More about Intermittent Leave

-May require that absences be scheduled to minimize disruption -Medically necessary -Does not necessarily require treatment

Examples of Intermittent Leave

-Medical appointments -Chemotherapy -Prenatal Examination -Severe Morning Sickness -Asthma Attack

Employee Eligibility

-Must have worked at least 12 months for the employer (need to be consecutive) -Must have worked at least 1250 hours over the past 12 months (not including vacation, sick leave, holidays, layoffs or other time not worked). -There must be 50 employees within 75 miles of the worksite

Form of Employee Notice

-No magic words -do not need to mention FMLA by name -Sufficient if employee states leave is needed for a potentially qualifying reason

Incapacity or treatment for chronic serious health conditions

-Requires periodic visits for treatment -continues over extended period of time -may cause episodic rather than continuing period of incapacity (asthma, epilepsy, etc.)

If the husband and wife work for the same employer, they each get their 12 months of FMLA, except leave related to:

-birth of a child -placement for adoption/foster care -parent with a serious health condition

Unpaid Leave

-generally, all FMLA leave is unpaid -employees can use paid leave for which they are eligible -employers can force employees to exhaust paid leave for which they are eleigible

Things that are not usually a serious health condition

-plastic surgery for cosmetic purposes -treatment for acne, unless hospital care required -earaches -upset stomach -minor ulcers -headaches (other than migraines) -routine dental or orthodontia problems

8 Qualifying Exigencies

1. Short-notice deployment 2. military events and related activities 3. childcare and school activities 4. financial and legal arrangements 5. counseling 6. rest and recuperation 7. post-deployment activities 8. additional activities arising from the military duty

Foreseeable Leave

30 days advance notice before leave is to begin or as soon as is practicable: -expected birth -adoption -planned surgery Penalty for failing to provide 30 days notice - employer may delay the taking of FMLA

Notes about Intermittent Leave

An employer is required to grant employees intermittent or reduced schedule leave when such leave is medically necessary for: -the employee's own serious health condition -the serious health condition of a child, spouse, or parent

Serious Health Condition

An illness, injury, impairment, or physical condition that involves: -inpatient care -continuing treatment by a health care provider -continuing care for chronic serious health conditions

Inpatient Care

An overnight stay in a hospital, hospice, or residential care facility, or any subsequent treatment or recovery in connection with inpatient care.

Unforeseeable Leave

As soon as is practicable absent extraordinary circumstances

Hypothetical: John is out Friday and Monday, can that be FMLA?

Depends on why - where was he? Home - no Hospital - maybe Mom in hospital - yes Husband/wife in hospital - yes

Non-Military Types of Leave

Eligible employees receive up to 12 weeks of unpaid leave each year for: -birth of a child placement of a child for adoption or foster care -care for a child, parent, or spouse with a serious health condition -to obtain treatment for or recover from a serious health condition

Military Related Leave Requirements

Employer coverage the same as FMLA Employee eligibility the same as FMLA

Incapacity involving permanent or long term medical condition that requires continuing supervision of a health care provider

Ex: stroke, terminal stages of a disease

Care for Family Member

Includes physical and psychological care Includes situations where the family member is unable to care for himself/herself, such as: -medical, hygienic, nutritional needs or safety, unable to transport to the doctor, etc.

Reduced Leave schedule

Leave schedule that reduces employee's usual number of work hours

Can an employee saying they are sick qualifying as notice for FMLA?

No

Does it matter whether or not he was scheduled to work the weekend?

No it does not matter

Continuing Treatment

Period of incapacity of more than 3 days requiring: A. treatment two or more time B. Treatment at least once which results in a regimen of continuing treatment supervised by health care provider.