FMLA – Compliance Essentials : Introduction –
Covered Employers Covered Employees Covered Family Members
Basic Time Calculations Serious Health Conditions Military Leaves Forms and Notices Administration Process
15 minutes allotted to complete a 10 question test. You must get 70% to receive HRCI credit. Britt Rascoe Llc. Copyright 2011 FMLA – Compliance Essentials Covered EmployersIn addition to (50/20 wks-Public) : Where one corporation has an ownership interest in another
corporation, it is a separate employer unless it meets the or
The “integrated employer” or “joint employment” test.
Integrated Employer Test
Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility.
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control. Britt Rascoe Llc. Copyright 2011 Covered EmployersIn addition to (50/20 wks-Public) Covered Employers In addition to (50/20 wks-Public) : Joint Employment (not necessarily common ownership)
Where two or more businesses exercise some control over the work or working conditions of the employee.
(1) Where the employee performs work which simultaneously benefits two or more employers. (2) Where the employee works for two or more employers at different times during the workweek.
(a) Where there is an arrangement between employers to share an employee's services or to interchange employees;
(b) Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or,
(c) Where employers may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer. Britt Rascoe Llc. Copyright 2011 Covered Employers In addition to (50/20 wks-Public) Covered Employers In addition to (50/20 wks-Public) : Successor in Interest
When an employer is a “successor in interest,” employees‘ are viewed as being employed continuously by a single employer.
Tests for liability - A determination of whether or not a “successor in interest” exists is not determined by the application of any single criterion, but rather the entire circumstances are to be viewed in their totality:
(1) Substantial continuity of the same business operations;
(2) Use of the same plant;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products or services; and
(8) *The ability of the predecessor to provide relief. Britt Rascoe Llc. Copyright 2011 Covered Employers In addition to (50/20 wks-Public) General Notice RequirementsWorkplace Posters and Employee Distribution : Posters
Must be in a conspicuous place, at each location (even if no eligible employees are at that location) , electronic postings OK, and there is a $110.00 fine per violation.
In handbooks/orientation packets, In native language for those illiterate in English, Available in sensory impaired format (if applicable), Electronic versions are OK. General Notice RequirementsWorkplace Posters and Employee Distribution Britt Rascoe Llc. Copyright 2011 Eligible employeesAn eligible employee has these characteristics: : Been employed at least 12 months
Including breaks of up to 7 years.
Including breaks of more than 7 years where military duty does not count towards the break.
Including in agreement made between employer and employee or CBA Eligible employeesAn eligible employee has these characteristics: Britt Rascoe Llc. Copyright 2011 Eligible employeesAn eligible employee has these characteristics: : And for at least 1,250 hours of service during the 12-month period immediately preceding the leave.
Pursuant to USERRA, an employee returning from fulfilling his
or her National Guard or Reserve military obligation shall be
credited with the hours of service that would have been
In order to determine the hours that would have been worked
during the period of military service, the employee's pre-service
work schedule can generally be used for calculations.
*Note: Elevator clause Eligible employeesAn eligible employee has these characteristics: Britt Rascoe Llc. Copyright 2011 Eligible employeesAn eligible employee has these characteristics: : Employee works at a worksite where 50 or more employees are employed, by the employer, within 75 miles of that worksite.
The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation ( e.g. , airline miles). Eligible employeesAn eligible employee has these characteristics: Britt Rascoe Llc. Copyright 2011 Worksite : Generally, a worksite can refer to either a single location or a group of contiguous locations such as:
Separate buildings or areas which are not directly connected or in immediate proximity are a single worksite if they are in reasonable geographic proximity, are used for the same purpose, and share the same staff and equipment.
For employees with no fixed worksite, the “worksite” is the site to which they are assigned as their home base, from which their work is assigned, or to which they report
In the case of joint employment, the employee's worksite is the primary employer's office from which the employee is assigned or reports, unless the employee has physically worked for at least one year at a facility of a secondary employer. Worksite Britt Rascoe Llc. Copyright 2011 The FMLA Year : The year long period for which an employee is entitled to leave under the FMLA can be calculated by one of these methods
Any “fixed” 12 month period such as a calendar year, employees anniversary date, company’s fiscal year, or “year” as provided by state law.
A 12 month period measured “forward” from the employee’s first use of their FMLA entitlement.
A “rolling” 12 month period measured backward from each use.
** Exception – The Military Injury “single 12-month period”. The FMLA Year Britt Rascoe Llc. Copyright 2011 The FMLA Year : (continued)
The method must be the same for all employees.
Lack of a policy allows for the employee to choose which method is most favorable to them.
Changes to the method must be accompanied by a 60 day notice to employees. If any employee requests leave during the 60 day transition period, the employee must be afforded the option which is the most favorable to them. The FMLA Year Britt Rascoe Llc. Copyright 2011 The FMLA Weekcontinuous blocks of leave : “Continuous Blocks” are counted in full week increments.
Whether an EE works 40-50-60 hours is immaterial in this
scenario. However it is still a good idea to calculate the actual
hours they are entitled to in case at a later time intermittent
leave is taken and the hours need to be accumulated.
Holidays will be counted against leave entitlements when they are part of a continuous block week.
Temporary office or plant closings of 1 week or more will not count against the leave entitlement. The FMLA Weekcontinuous blocks of leave Britt Rascoe Llc. Copyright 2011 The FMLA WeeK Intermittent Leave -partial/fractional weeks : Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason.
The available Intermittent leave is calculated by the number of
hours the EE normally works in a week x 12.
*For example a 35 hour a week employee is entitled to 420 hours during the leave year. (not 480)
*Variable schedule – use their 12 month average. The FMLA WeeK Intermittent Leave -partial/fractional weeks Britt Rascoe Llc. Copyright 2011 The FMLA WeeK Intermittent Leave -partial/fractional weeks : Permanent or long term changes to an employees schedule will be used to calculate the EE hours
However they must occur before the notice for leave in order to use the new schedule as the basis for calculating hours normally worked.
* Note: Interference may result if for wrong motives. The FMLA WeeK Intermittent Leave -partial/fractional weeks Britt Rascoe Llc. Copyright 2011 The FMLA WeeK Intermittent Leave -partial/fractional weeks : Greater Than 40 hours Worked
Non-exempt employees who are required to work overtime
have those hours calculated into their leave amount.
Ex – EE with 8 hours/wk mandatory OT
48 x 12 = 576 hours intermittent leave entitlement
Exempt Employees also have their total normal work hours calculated.
**Note: Even though they are exempt you need a method of tracking their hours worked. If you don’t, the burden of proof is on you if an employee disputes their entitlement. The FMLA WeeK Intermittent Leave -partial/fractional weeks Britt Rascoe Llc. Copyright 2011 The FMLA WeeK Intermittent Leave -partial/fractional weeks : Holidays will only count against the employees entitlement if the employee was scheduled and expected to work on that holiday.
Temporary office or plant closings of 1 week or more will not count against the leave entitlement.
Shifts - where it is physically impossible to end the work day at some point before the end of the shift, will have the entire time of the shift counted against the leave. (airlines diff) Britt Rascoe Llc. Copyright 2011 The FMLA WeeK Intermittent Leave -partial/fractional weeks The FMLA WeeK Intermittent Leave -partial/fractional weeks : An EE is only allowed to be charged with time taken within these rules:
The minimum increment for accumulating time is the same increment used for other forms of leave, but not more than 1 hour. (e.g. sick leave)
* For example, your policy allows an EE to be 30 minutes late to work due to illness and the EE is paid that 30 minutes as S/L, then you will have to track FMLA in 30 minute increments.
The maximum mandatory increment for accumulating time is one (1) hour
*For example, if you have a S/L policy that dictates a usage of at least 4 hours per incident , you can’t charge 4 hours for an FMLA incident that only last 1 hour. The FMLA WeeK Intermittent Leave -partial/fractional weeks Britt Rascoe Llc. Copyright 2011 Number of FMLA Weeks allowed per FMLA year - SHC : 12 weeks total for the following:
Own serious health condition
Spouse serious health condition
Parents SHC (no in-laws except in some states)
Children serious health condition including:
“In loco parentis”
Children over age 18 that “incapable of self-care” Number of FMLA Weeks allowed per FMLA year - SHC Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Serious Health Condition” : For purposes of FMLA, “serious health condition” entitling an employee to FMLA leave means - an illness, injury, impairment or physical or mental condition that incapacitates (meaning making unable to work, attend school or perform other regular daily activities) an EE.
I. In patient care (meaning an overnight stay in a hospital, hospice, or residential medical care facility)
OR Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Serious Health Condition” Qualifying Reason For Leave“Serious Health Condition” : II. Continuing Treatment
Incapacitation and treatment
> 3 consecutive calendar days of incapacitation(weekends ?)
Two in-person treatments with health care provider within 30 days of 1st day of leave. Extenuating circumstances excluded.
One in-person treatment with health care provider which results in a prescribed regimen of care supervised by health care provider . Extenuating circumstances excluded.
Note for both: First or only visit within 7 calendar days of 1st day of leave. Extenuating circumstances excluded. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Serious Health Condition” Qualifying Reason For Leave“Serious Health Condition” : Continuing Treatment with no minimum days of incapacitation
Chronic conditions. A chronic SHC is one which:
(1)Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(2)Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3)May cause episodic rather than a continuing period of incapacity ( e.g. , asthma, diabetes, epilepsy, etc. ) Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Serious Health Condition” Qualifying Reason For Leave“Serious Health Condition” : Continuing Treatment with no minimum days of incapacitation
Pregnancy or prenatal care
Absences attributable to incapacity due to pregnancy qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Serious Health Condition” Qualifying Reason For Leave“Serious Health Condition” : Continuing Treatment
Conditions requiring multiple treatments. Any period of absence to receive multiple treatments (including any period of recovery) for either:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment. Examples: cancer (chemotherapy, radiation, etc. ), severe arthritis (physical therapy), or kidney disease (dialysis). Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Serious Health Condition” Qualifying Reason For Leave“Serious Health Condition” : (continued)
Continuing Treatment with no minimum days of incapacitation
Permanent or long-term conditions. A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer's, a severe stroke, or the terminal stages of a disease. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Serious Health Condition” Qualifying Reason For Leave“Military Exigency” : Eligible employees may take FMLA leave while the employee's spouse, son, daughter, or parent (the “covered military member”) is on active duty or call to active duty status.
Exigency eligible service members are members of the reserve that are on duty and regular military members* Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Number of FMLA Weeks allowed per FMLA year - Exigency : The following Military Exigency leave entitlements are
12 weeks total for the following:
Military Qualifying Exigency for:
Child including “In loco parentis”
Parent including “In loco parentis” Number of FMLA Weeks allowed per FMLA year - Exigency Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” : Short-notice deployment
To address any issue that arises from the fact that a covered military member is notified of an impending call or order to active duty in support of a contingency operation seven or less calendar days prior to the date of deployment;
Leave taken for this purpose can be used for a period of seven calendar days beginning on the date a covered military member is notified of an impending call or order to active duty in support of a contingency operation Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Exigency” : Military sponsored events and active duty/call to duty status
related activities .
To attend any official ceremonies or programs or events.
To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or call to active duty status of a covered military member; Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Exigency” : Childcare and school activities
To arrange for alternative childcare.
To enroll in or transfer to a new school or day care
To provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care arises from the active duty or call to active duty status
To attend meetings with staff at a school or a daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Exigency” : Financial and legal arrangements
Preparing and executing financial and healthcare powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust.
To act as the covered military member's representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on active duty or call to active duty status, and for a period of 90 days following the termination of the military member's active duty status. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Exigency” : Counseling
To attend counseling for the covered military member, or child, provided that the need for counseling arises from the active duty or call to active duty status of a covered military member.
Not for the EE their self Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Exigency” : Rest and recuperation
To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment.
Eligible employees may take up to five days of leave for each instance of rest and recuperation. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Exigency” : Post-deployment activities
To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member's active duty status.
To address issues that arise from the death of a covered military member while on active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Exigency” : Additional activities
To address other events which arise out of the covered military member's active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Exigency” Qualifying Reason For Leave“Military Injury” : (VSI) Very Seriously Ill/Injured – Illness/Injury is of such a severity that life is imminently endangered. Family members are requested at bedside immediately.
(SI) Seriously Ill/Injured – Illness/injury is of such severity that there is cause for immediate concern, but there is no imminent danger to life. Family members are requested at bedside.
OTHER Ill/Injured – a serious injury or illness that may render the servicemember medically unfit to perform the duties of the member’s office, grade, rank, or rating.
NONE OF THE ABOVE (Note to Employee: If this box is checked, you may still be eligible to take leave to care for a covered family member with a “serious health condition” . If such leave is requested, you may be required to complete DOL FORM WH-380 or an employer-provided form seeking the same information. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Injury” Number of FMLA Weeks allowed per “single 12 mth period” -Military Injury : (continued)
26 weeks total to care for an injured or seriously ill covered service member who is one of the following:
Next of Kin Number of FMLA Weeks allowed per “single 12 mth period” -Military Injury Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Injury” : The “single 12-month period” begins on the first day the eligible employee takes FMLA leave to care for a covered service member and ends 12 months after that date, regardless of the method used by the employer to determine the employee's 12 workweeks of leave entitlement for other FMLA-qualifying reasons.
An eligible employee is entitled to 26 workweeks of leave per covered service member with a serious injury or illness during a “single 12-month period”. Reinjured or new injury.
*Possible overlap of one “single 12 mth period on to another.
26 weeks total combined between caring for an injured service member and some other FMLA leave.
If an eligible employee does not take all of his or her 26 workweeks of leave entitlement to care for a covered service member during this “single 12-month period,” the remaining part of his or her 26 workweeks of leave entitlement to care for the covered service member is forfeited. Britt Rascoe Llc. Copyright 2011 Qualifying Reason For Leave“Military Injury” Exigency vs. Injury : Exigency Injury
Amount of Leave 12 wks 26 wks
S/E Spouses Split Time NO Yes
Next of Kin NO Yes
Usage Availability During /90 days 5 yrs Post-
DOL Forms WH – 384 WH - 385 Britt Rascoe Llc. Copyright 2011 Exigency vs. Injury Leave Sharing : In the case of husband and wife being employed by the company, the leave entitlements must be shared ,equally or unequally, during “bonding” leave, parental care, or injured service member care.
An exception to this rule is in the case of a newborn child with a serious health condition, in which case they may both take 12 weeks less any leave already exhausted that FMLA year. Leave Sharing Britt Rascoe Llc. Copyright 2011 Documenting Relationships : For purposes of confirming a family relationship, the employer may require the employee to provide reasonable documentation or statement of family relationship. The employer is entitled to examine documentation such as a birth certificate, etc ., but the employee is entitled to the return of the official document submitted for this purpose.
A simple written statement from the employee can suffice. Britt Rascoe Llc. Copyright 2011 Documenting Relationships Procedural Steps(perfect world) : I. Employee gives notice (30 days or ASAP same or next bus. day)
II. 5 Business days - Employer gives Eligibility/Rights and Responsibilities Notice. If eligible also send forms, with notice of consequences of not returning completed forms
III. 15 Calendar days - Employee returns certifications
IV. 5 Business days -Employer gives Designation Notice Procedural Steps(perfect world) Britt Rascoe Llc. Copyright 2011 FMLA Request ProcessEmployee/Employer Requirements : When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA.
An employee must provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.
An employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. Britt Rascoe Llc. Copyright 2011 FMLA Request ProcessEmployee/Employer Requirements FMLA Request ProcessEmployee/Employer Requirements : When an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave.
*In all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. Britt Rascoe Llc. Copyright 2011 FMLA Request ProcessEmployee/Employer Requirements FMLA Request ProcessEmployee/Employer Requirement : WH-381 Notice of Eligibility and Right & Responsibilities
1. If not eligible, you must select a reason why
2. List required documents and expected date of return*.
3. Contact Info/Insurance info
4a. Substitution requirement or 4b. leave policy
5. Key Employee Notice
6. Required status reports
7. Leave Year calculation
8. 12 month Military Injury year Britt Rascoe Llc. Copyright 2011 FMLA Request ProcessEmployee/Employer Requirement “Key Employees” : Key Employees
Characteristics of a key employee:
Top 10% of local wages (within 75 miles of the worksite) i.e. could be multiple groups of KEY employees where multiple locations are “covered”. *(salaried and non-salaried wages considered for calculation but only salaried/exempt can be KEY)
Formula = YTD earnings/weeks worked (including paid leave weeks, bonuses) “Key Employees” Britt Rascoe Llc. Copyright 2011 Key Employee Notice : Key Employee Rights if not being reinstated due to causing substantial and grievous economic injury.
Employer must provide timely written notification and explanation of intent to deny restoration and the consequences with respect to maintenance of health benefits or right to deny may be lost even if the harm will result.
Does not have to repay employer share of benefits if not allowed to return to work.
May request a review at the end of the leave to determine at that time whether the harm will occur. If yes, employer must give additional written denial letter. Key Employee Notice Britt Rascoe Llc. Copyright 2011 Leave Substitution : The term “substitute” means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave.
When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. (i.e. *doctor’s notes, company request forms etc.)
If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer's plan. Leave Substitution Britt Rascoe Llc. Copyright 2011 Required FormsCertifications : If the employee is eligible they will have (15 )calendar days to return any required certification information, including an additional 7 calendar days to cure any deficiencies.
Certification of Qualifying Exigency For Military Family Leave http://www.dol.gov/whd/forms/WH-384.pdf
Certification of Health Care Provider for Employee’s Serious Health Condition http://www.dol.gov/whd/forms/WH-380-E.pdf
Certification of Health Care Provider for Family Member’s Serious Health Condition http://www.dol.gov/whd/forms/WH-380-F.pdf
Certification for Serious Injury or Illness of Covered Servicemember http://www.dol.gov/whd/forms/WH-385.pdf Britt Rascoe Llc. Copyright 2011 Required FormsCertifications Additional Forms : HIPAA Release- The requirements of the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule, which governs the privacy of individually-identifiable health information created or held by HIPAA-covered entities, must be satisfied when individually-identifiable health information of an employee is shared with an employer by a HIPAA-covered health care provider.
GINA Disclosure - The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. Britt Rascoe Llc. Copyright 2011 Additional Forms Medical Certification ProcessHIPAA Compliance : There are 2 situations which allow for additional communication with health care provider.
“Authentication” means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document; no additional medical information may be requested.
“Clarification” means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Britt Rascoe Llc. Copyright 2011 Medical Certification ProcessHIPAA Compliance Medical Certification ProcessHIPAA Compliance : Before “clarifying”, you must give the employee notice that they have 7 calendar days to cure the deficiencies.
To make such contact, the employer must use a contracted health care provider, a human resources professional, a leave administrator, or a management official.
Under no circumstances, however, may the employee's direct supervisor contact the employee's health care provider. Britt Rascoe Llc. Copyright 2011 Medical Certification ProcessHIPAA Compliance Medical Certification ProcessGINA Compliance : Genetic information , as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Any information gained despite this disclosure will not result in penalty as long as the information is kept in a confidentially secured file and that the information is not acted upon by the employer. Britt Rascoe Llc. Copyright 2011 Medical Certification ProcessGINA Compliance Employee Obligations to Return Forms : If the medical certification is returned without the HIPAA or GINA documents, you must grant leave if the certification is complete and sufficient.
However, if you need to “authenticate or “clarify” the documents and you do not have these releases signed, you may deny leave on the basis that the information needed is incomplete of insufficient.
Note: It is at the employees expense to have the HCP fill out forms if there is a charge for doing so. Britt Rascoe Llc. Copyright 2011 Employee Obligations to Return Forms Medical Certification Process2nd Opinions : An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer's expense.
The employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider may not be employed on a regular basis by the employer.
Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to the benefits of the Act, including maintenance of group health benefits. Britt Rascoe Llc. Copyright 2011 Medical Certification Process2nd Opinions Medical Certification Process3rd Opinions : The third health care provider must be designated or approved jointly by the employer and the employee and is at the employers expense.
The employer and the employee must each act in good faith to attempt to reach agreement on whom to select for the third opinion provider.
If the employer does not attempt in good faith to reach agreement, the employer will be bound by the first certification.
If the employee does not attempt in good faith to reach agreement, the employee will be bound by the second certification.
This third opinion is final and binding. Britt Rascoe Llc. Copyright 2011 Medical Certification Process3rd Opinions Employee Obligations to Return FormsFor 2nd or 3rd Opinions : The process is the same as it was for the original certification.
The employee must return certification forms within 15 calendar days.
If the forms are incomplete or insufficient the employee must be give 7 additional calendar days to cure the deficiencies.
Note: if the 3rd opinion favors the employer, the provisionally granted leave will revert to unprotected leave. Britt Rascoe Llc. Copyright 2011 Employee Obligations to Return FormsFor 2nd or 3rd Opinions Designating Leave : When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason ( e.g. , after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within 5 business days absent extenuating circumstances.
Only one approval designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave will be a continuous block of leave or intermittent leave. Britt Rascoe Llc. Copyright 2011 Designating Leave Designating Leave : The employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement.
If unknown (as is typical with intermittent leaves), the employee may request this information once every 30 days and the employer will provide this information in written form*.
If the information provided by the employer to the employee in the designation notice changes ( e.g. , the employee exhausts the FMLA leave entitlement), the employer shall provide, within five (5) business days , written notice of the change. Britt Rascoe Llc. Copyright 2011 Designating Leave Designating Leave - Fitness for DutyIntermittent leave rules : " You may require the employee to provide a once every 30 days under the following conditions:...a) You inform the employee at the same time you issue the designation notice; that for each subsequent instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness-for-duty certification unless one has already been submitted within the past 30 days.
...b) Reasonable safety concerns exist with regard to the employees return, where "reasonable safety concerns", means a reasonable belief of significant risk of harm to the individual employee or others.Example - Bipolar/manic depressive - Yes that's a reasonable safety concernExample - Migraines - No that's not a safety concern (see form) Britt Rascoe Llc. Copyright 2011 Designating Leave - Fitness for DutyIntermittent leave rules Re-certifications : For leave taken because of an employee's own serious health condition or the serious health condition of a family member
(a) 30-day rule. An employer may request recertification no more often than every 30 days and only in connection with an absence by the employee.
(b) More than 30 days. If the medical certification indicates that the minimum duration of the condition is more than 30 days, an employer must wait until that minimum duration expires before requesting a recertification. But you may request a re-certification every 6 months regardless of the stated duration .
Note: 2nd/3rd opinions are not allowed.
Note: You also may get a new annual medical certification. Britt Rascoe Llc. Copyright 2011 Re-certifications Re-certification < 30 days : (1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have changed significantly ( e.g. , the duration or frequency of the absence, the nature or severity of the illness, complications). For example, if a medical certification stated that an employee would need leave for one to two days each time the employee suffered a migraine headache and the employee's absences actually lasted four days each.
(3) The employer receives information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification Britt Rascoe Llc. Copyright 2011 Re-certification < 30 days Maintenance of Health Benefits : During any FMLA leave, an employer must maintain the employee's coverage under any group health plan or multi employer pooled program on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.
If an employer provides a new health plan or benefits or changes health benefits or plans while an employee is on FMLA leave, the employee is entitled to the new or changed plan/benefits to the same extent as if the employee were not on leave. Maintenance of Health Benefits Britt Rascoe Llc. Copyright 2011 Maintenance of Health Benefits : An employee may choose not to retain group health plan coverage during FMLA leave. However, when an employee returns from leave, the employee is entitled to be reinstated on the same terms as prior to taking the leave, including family or dependent coverage, without any qualifying period, physical examination, exclusion of pre-existing conditions.
Except as required by the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) and for “key” employees, an employer's obligation to maintain health benefits during leave under FMLA ceases if and when the employment relationship ends. Maintenance of Health Benefits Britt Rascoe Llc. Copyright 2011 Maintenance of Health Benefits : Any share of group health plan premiums which had been paid by the employee prior to FMLA leave must continue to be paid by the employee during the FMLA leave period. *
If premiums are raised or lowered, the employee would be required to pay the new premium rates.
Maintenance of health insurance policies which are not a part of the employer's group health plan are the sole responsibility of the employee (technically). The employee and the insurer should make necessary arrangements for payment of premiums during periods of unpaid FMLA leave between their selves. Maintenance of Health Benefits Britt Rascoe Llc. Copyright 2011 Maintenance of Health Benefits : If the FMLA leave is substituted paid leave, the employee's share of group premiums must be paid by the method normally used during any paid leave, presumably as a payroll deduction.
Note: STD and WC are considered “paid leave”
If FMLA leave is unpaid, and the employer decides to process payments unrelated to the group plan, no additional charge may be added to the employee's premium payment for administrative expenses. Maintenance of Health Benefits Britt Rascoe Llc. Copyright 2011 Maintenance of Health Benefits : If leave is unpaid the employer may require employees to pay their share of premium payments under any of the following schedules:
Payment would be due at the same time as payroll deduction;
Payment would be due on the same schedule as COBRA;
Payment would be prepaid at the employee's option;
The employer's existing rules for payment by employees on “leave without pay” would be followed, provided that such rules do not require prepayment.
Another system voluntarily agreed to between the employer and the employee. Maintenance of Health Benefits Britt Rascoe Llc. Copyright 2011 End of Health Benefits : Health plan coverage must be maintained for an employee on FMLA leave until:
The employee's FMLA leave entitlement is exhausted;
The employer can show that the employee would have been laid off and the employment relationship terminated; or,
The employee provides unequivocal notice of intent not to return to work.
Provide COBRA Notice – possibly, unless the employee is terminated for cause. End of Health Benefits Britt Rascoe Llc. Copyright 2011 Employee Right to Reinstatement : On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
An employee is entitled to reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee's absence.
If an employee is no longer qualified for the position because of the employee's inability to attend a necessary course, renew a license, fly a minimum number of hours, etc., as a result of the leave, the employee shall be given a reasonable opportunity to fulfill those conditions upon return to work. Employee Right to Reinstatement Britt Rascoe Llc. Copyright 2011 Employee Right to ReinstatementEquivalent Pay : An employee is entitled to any unconditional pay increases which may have occurred during the FMLA leave period, such as cost of living increases. Pay increases conditioned upon seniority, length of service, or work performed must be granted in accordance with the employer's policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave. (i.e. same as S/L policy etc)
An employee is entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential.
If a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. (i.e. treat employees on FMLA the same) Employee Right to ReinstatementEquivalent Pay Britt Rascoe Llc. Copyright 2011 Employee Right to ReinstatementEquivalent Benefits : With respect to pension and other retirement plans, any period of unpaid FMLA leave shall not be treated as or counted toward a break in service for purposes of vesting and eligibility to participate. (i.e. no discontinuing plans just because leave is unpaid)
Unpaid FMLA leave periods need not be treated as credited service for purposes of benefit accrual, vesting and eligibility to participate.
BUT If the plan requires an employee to be employed on a specific date in order to be credited with a year of service for vesting, contributions or participation purposes, an employee on unpaid FMLA leave on that date shall be deemed to have been employed on that date. Employee Right to ReinstatementEquivalent Benefits Britt Rascoe Llc. Copyright 2011 Employee Right to ReinstatementEquivalent Benefits : If the benefit plan is predicated on a pre-established number of hours worked each year and the employee does not have sufficient hours as a result of taking unpaid FMLA leave, the benefit is lost. (i.e. health plan could be lost if the hours worked requirement is not met at the time of enrollment) Employee Right to ReinstatementEquivalent Benefits Britt Rascoe Llc. Copyright 2011 Employee Right to ReinstatementEquivalent Terms and Conditions : The employee must be reinstated to the same or a geographically proximate worksite ( i.e. , one that does not involve a significant increase in commuting time or distance) from where the employee had previously been employed. (unless the worksite closes)
The employee is ordinarily entitled to return to the same shift or the same or an equivalent work schedule. (unless shift was eliminated)
The employee must have the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and non-discretionary payments. Employee Right to ReinstatementEquivalent Terms and Conditions Britt Rascoe Llc. Copyright 2011 Employee Right to ReinstatementEquivalent Terms and Conditions : FMLA does not prohibit an employer from accommodating an employee's request to be restored to a different shift, schedule, or position which better suits the employee's personal needs on return from leave, or to offer a promotion to a better position.
An employer cannot induce the employee to accept a different position against the employee's wishes.
The requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to deminimis, intangible, or immeasurable aspects of the job. Employee Right to ReinstatementEquivalent Terms and Conditions Britt Rascoe Llc. Copyright 2011 Recordkeeping - 3 yearsIn a secure confidential file : FLSA PAYROLL COMPLIANCE INFO – PLUS THE FOLLOWING
Hours of FMLA leave taken in increments of less than one full day
Copies of employee notices of leave furnished to the employer
Copies of all written notices given to employees as required under FMLA
Documents describing employee benefits or employer paid and unpaid leave policies and practices (*policies may change over time)
Premium payments of employee benefits
Records of disputes between the employer and the employee regarding FMLA Recordkeeping - 3 yearsIn a secure confidential file Britt Rascoe Llc. Copyright 2011 Enforcement : (A) CIVIL ACTION BY EMPLOYEES - can result in damages equal to:
(I) In the case of discipline or termination- any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation.
(II) in a case in which the employee was entitled to leave but denied, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care.
(i) the interest on the amount described in clause (ii) calculated at the prevailing rate; and (iii) liquidated damages equal to (2X ) the sum of the amount described in clause (I) and the interest described in clause (II)
(B) for such equitable relief as may be appropriate, including reinstatement and/or promotion. Enforcement Britt Rascoe Llc. Copyright 2011