The Family and Medical
Leave Act (FMLA)
JENNIFER MILLER-LOUW
SANDBERG PHOENIX & VON GONTARD, P.C.
2015 West Main, Suite 111
Carbondale, IL 62901
(800) 875-0794
jmiller@sandbergphoenix.com
This law requires certain employers to grant an
eligible employee up to 12 weeks of unpaid
leave during any 12-month period for one or
more qualifying reasons.
Does the Act apply to you?
The Act applies to employers IF they are:
– Engaged in commerce or in any industry or activity
affecting commerce
– Who employs 50 or more employees for each working
day during each of 20 or more calendar workweeks in
the current or preceding calendar year
Which Employees are Covered?
• Eligibility for FMLA
– 12 months of employment during the past seven years
– 1,250 hours worked in the 12 months immediately preceding the
date leave is to begin
• Maximum Length of Leave
– Up to 12 weeks of medical and/or qualifying exigency FMLA
leave in a fiscal year
– Up to 26 weeks of military caregiver leave in a 12 month period
– Continuous, intermittent or reduced schedule leave
Qualifying Reasons
• Qualifying Reasons for FMLA Leave
– Birth of a son or daughter and to care for the newborn child
– Placement of a son or daughter for adoption or foster care
– Care for the employee’s spouse, son, daughter or parent with
a serious health condition
• If an adult son or daughter is determined to be incapable of selfcare because of a disability, he or she will be considered a “son
or daughter” under the FMLA. In order for a parent to take FMLA
leave to care for an adult child, the son or daughter must also:
– 1. have a serious health condition, and
– 2. need care because of the serious health condition.
– Serious health condition that makes the employee unable to
perform the functions of the employee’s job
– Qualifying exigency for covered military member
– Care for ill or injured covered servicemember
Required Posting
Employee Rights And Responsibilities Under
The Family And Medical Leave Act
• Provided to each employee when hired
• Printed and posted for employees that
do not have access to computers at
work
• WHD Publication 1420 (Rev. Feb.
2013)
• http://www.dol.gov/whd/regs/complianc
e/posters/fmlaen.pdf
Employee Notice Obligations
• Employers may require that employees follow
“usual and customary” procedures for requesting
leave, absent unusual circumstances
– Such requirements may include written notice or
notice to a specific individual (i.e., HR professional or
Leave Administrator)
– Employer policies for timing of notice cannot be more
stringent than timing for FMLA notice
– Exception for unusual circumstances
Notice Requirements
• For foreseeable leaves, 30 days.
– birth or placement for adoption/foster care;
– planned medical treatment for serious health condition;
– planned medical treatment for serious injury or illness of covered
service member.
• For foreseeable leaves when less than 30-days notice is
not possible, notice must be given “as soon as
practicable” and employee must explain why 30-days
notice was not practicable if employer requests
– “As soon as practicable” – when employee becomes aware of
the need for FMLA leave, should give employer notice the same
day or the next business day, taking into account the individual
facts and circumstances
Notice Requirements (cont.)
• For non-foreseeable leaves, “as soon as practicable”
– Normal policy for reporting off work.
Required Employer Notices
Two Notices:
1. Notice of Eligibility and Rights & Responsibilities
– Provided to an employee within 5 business days of the date
•
•
•
•
An employee requests FMLA; or
Employer becomes aware that an employee’s leave may be
FMLA‐qualifying
Request for medical certification (and consequences)
Form WH-381 (revised February 2013)
2. Designation Notice
– Provided to an employee once employer has sufficient
information or knowledge to determine that is FMLA‐covered ,
paid, unpaid
– Employee must be notified within 5 business days that the leave
has been designated as FMLA
– Designate retroactively? If in doubt, designate provisionally
•
Form WH-382 (Revised February 2013)
Does the Employee have to
Mention “FMLA LEAVE”?
• NO!!
• An employee is obligated only to tell you enough
facts which indicate potential FMLA coverage.
• It is UP TO YOU to properly investigate the
circumstances and designate leave as FMLA
leave if applicable.
How Much Notice is Required?
• Employees are required only to place employers
on notice of the probable basis for an FMLA to
qualify.
– Issues have arisen over how much notice is required.
– General reference to being “sick” is not enough, but
specifics provided to an employer about serious
medical concerns is often sufficient.
– 2 recent 7th Circuit cases regarding notice.
Nicholson v. Pulte Homes Corp.
• The court held casual comments to a supervisor about a
parent’s poor health did not constitute adequate notice.
– Nicholson informed her supervisor that she might need off work
on the possibility her father would need chemotherapy. Around
the same time, plaintiff had another informal conversation with
her supervisor about only working during normal business hours
due to the need to care for her mother.
– Court determined that the plaintiff’s indication that she might need
time off in the future if her father needed chemotherapy was too
indefinite to put the employer on notice that she might qualify for
FMLA leave.
– Further, plaintiff’s statements about her mother’s condition did not
convey the seriousness of her mother’s illness or that the time
she needed out of the office was sufficient to put the employer on
notice of the possible FMLA leave.
Pagel v. TIN, Inc.
• Court found the employer was on notice due to
the employer’s knowledge of an employee’s own
health condition.
– In 2006, the plaintiff experienced chest pain and
labored breathing. He had various tests performed
and was admitted to the hospital. His employer knew
of the plaintiff’s chest pain and hospital admission.
– The court concluded, “it is difficult for us to imagine a
scenario where [the plaintiff’s] notice of hospitalization
did not include an implicit demand for leave.”
Content of Notice – first-time vs.
subsequent leaves
• First-Time Leave: when seeking FMLA leave for
the first time, the employee need not expressly
assert rights under the FMLA or even mention
the FMLA
• Subsequent Leave: when seeking FMLA leave
for a reason for which the employer has
previously provided FMLA leave, the employee
must specifically reference the qualifying reason
for leave or the need for FMLA leave
Employee Medical Certification Form
Certification of Health Care Provider for Employee’s
Serious Health Condition (Form WH-380-E Jan. 2009)
• Provides space for employee’s essential job
functions
• Check off to indicate that the employee’s job
description is attached
• Due back within 15 calendar days
Employee allowed 7 calendar days to provide
the additional information if the certification
is incomplete or insufficient
Family Member Medical Certification Form
Certification of Health Care Provider for Family Member’s
Serious Health Condition (WH-380-F, Jan 2009)
• Asks for detailed information
about the family members’
condition
• Amount of time the employee
might need to care for the family
member
Employee allowed 7 calendar days to provide additional information if
the certification is incomplete or insufficient
Incomplete or Insufficient
Certification
• Employers may deny FMLA leave if the
certification is incomplete or insufficient
• Incomplete: one or more entries have not been
completed
• Insufficient: information is vague, ambiguous, or
nonresponsive
• Employers must give employees at least 7
calendar days to cure the deficiencies
• Failure to cure deficiencies may result in the
denial of FMLA leave
Clarification and Authentication
• Employer may contact the health care provider to
– Clarify information on medical certification form
– Authenticate medical certification form
• Limited to contacting health care provider to:
– understand handwriting on the certification
– understand the meaning of a response
– request verification that information 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 and Authentication
• HIPAA requirements must be satisfied when
employee health information is shared with an
employer by a HIPAA‐covered health care provider
• Employee’s responsibility to provide complete and
sufficient certification and to clarify if necessary
• If employee does not provide a required HIPAA
release, and;
• If employee does not authorize employer to clarify the
certification with the health care provider, and does
not otherwise clarify the certification, FMLA leave may
be denied
Clarification and Authentication
• Employer contact must be made by
–
–
–
–
Health care professional
Human resources professional
Leave administrator
Management official
As determined by the employing department
• Under no circumstances may the employee’s
direct supervisor contact the employee’s
healthcare provider
Second/Third Certification Opinions
• Employer may not unilaterally reject a properly
completed certification form by a healthcare
provider that is timely submitted by an
employee.
– If dispute certification that health condition qualifies as
serious – may seek second opinion at own expense.
– Employer can designate healthcare provider, but not
one employed on a “regular basis”.
– If 1st and 2nd opinion conflict, get 3rd final/binding
opinion. Selection of provider approved by both
employer and employee.
Re-Certification
• Pregnancy and Chronic or Permanent/Long
Term Conditions
– Employer may request no more often than
every 30 days, and in connection with
absence.
– In cases of a medical condition lasting longer
than 30 days, as noted on FMLA certification,
an employer may not require re-certification
before the minimum duration expires, unless
an exception applies.
Re-Certification
– Exceptions:
• If the employee requests an extension of
the leave
• If the situation described in the earlier
certification has changed significantly
• If employer has information that casts
doubt on the employer’s stated reason for
the absence or the continuing validity of the
certification.
Re-Certification
• Intermittent Certified Condition
– An employer may require a re-certification of
a medical condition requiring intermittent
leave every six months.
– May require more than every 30 days in
instances where there is a pattern of
absences occurring on Mondays and/or
Fridays.
Intermittent Leave
Scruggs v. Carrier Corp.
• Court held that an employer may terminate an
employee based on an honest belief that an
employee is misusing FMLA benefits.
– P worked at a plant and filed for FMLA 5 times. The last
certification requested leave to take his mother to the Dr. every 6
months.
– D hired a private investigator and found that P did not leave the
house on the day he requested leave and P was fired.
– On P’s FMLA interference claim, the appellate court ruled that an
employee is entitled to reinstatement under the FMLA only if he
takes leave for the intended purpose. An employer can defeat
an interference claim by showing the employee didn’t take leave
for the intended purpose.
Intermittent Leave
Danek v. County of Cook
• District court disposed of P-employee’s FMLA
interference claim in part because the court determined
the employee’s “medical” trip to Mexico was partly a
vacation.
– In addition to not giving the required 30 day notice
without an emergent reason, it was revealed that P
was in Mexico and “retreated” with friends and went
to several vacation destinations.
– The employer could not have interfered with the
plaintiff’s FMLA reinstatement because the P was not
entitled to FMLA leave due to improper notice and
misuse of leave.
Military Family Leave
• NDAA, signed by President Bush on
January 28, 2008, created two new leave
entitlements for family of military
servicemembers
• Qualifying Exigency Leave
– National Defense Authorization Act for Fiscal
Year 2010 (FY 2010 NDAA)
• Military Caregiver Leave
– National Defense Authorization Act for Fiscal
Year 2010 (FY 2010 NDAA)
Military Family Leave
• Qualifying Exigency Leave
– A covered employer must grant an eligible employee
up to 12 workweeks of unpaid, job-protected leave
during any 12-month period for qualifying exigencies
that arise when the employee’s spouse, son,
daughter, or parent is on covered active duty or has
been notified of an impending call or order to covered
active duty.
• Military Caregiver Leave
– Leave taken by an eligible employee to care for a
covered servicemember with a serious injury or
illness.
Military Family Leave
Qualifying Exigency
• Qualifying Exigencies Include
–
–
–
–
–
–
–
–
Short‐notice deployment – up to 7 days
Military events and related activities
Childcare and school activities – not routine child care
Financial and legal arrangements – up to 90 days after service
ends
Counseling
Rest and recuperation – short‐term only, up to 15 days (new)
Post‐deployment activities – up to 90 days after service ends
Parental Care –
• Parent of military member must be incapable of self-care when the care is
necessitated by the member’s covered active duty.
– Additional activities – as agreed upon by employer and the
employee
Qualifying Exigency Leave
• Maximum Length of Leave
– 12 weeks of qualifying exigency leave
• Covered Military Member
– Employee’s spouse, son, daughter or parent who is on active
duty or call to active duty
• Covered active duty means:
– for members of the Regular Armed Forces, duty during
deployment of the member with the Armed Forces to a foreign
country; or
– for members of the Reserve components of the Armed Forces
(members of the National Guard and Reserves), duty during
deployment of the member with the Armed Forces to a foreign
country under a call or order to active duty in support of a
contingency operation.
Request Qualifying Exigency Leave
Certification of Qualifying Exigency for Military
Family Leave (Form WH-384 – Feb. 2013)
An employee must provide
notice of the need for
qualifying exigency leave
as soon as practicable
Military Caregiver Leave
• Serious Injury or Illness
– Injury or illness incurred in the line of duty on active
duty that may render the servicemember medically
unfit to perform the duties of the member’s office,
grade, rank or rating.
– A serious injury or illness also includes injuries or
illnesses that existed before the servicemember’s
active duty and that were aggravated by service in the
line of duty on active duty.
Military Caregiver Leave
• Covered Servicemember
– Member of Armed Forces (including National Guard or
Reserve)
– Undergoing medical treatment, recuperation, or therapy
– In outpatient status
– Temporary disability retired list
– Serious injury or illness
– Incurred in the line of duty on active duty
Military Caregiver Leave
• Covered Servicemember
– Covered veteran who is undergoing medical
treatment, recuperation or therapy for a serious injury
or illness.
– Covered veteran:
• Individual who was a member of the Armed Forces, and
• was discharged or released under conditions other than
dishonorable,
• at any time during the 5-year period prior to the first date the
eligible employee takes FMLA leave to care for the covered
veteran.
Next of Kin
• Nearest blood relative other than spouse,
parent, son, or daughter, in order of priority:
– Blood relatives who have been granted legal custody
of the covered service member by court decree or
statutory provisions
– Brothers and sisters
– Grandparents
– Aunts, uncles and first cousins
• Unless service member has designated a single
blood relative as next of kin
Military Caregiver Leave
• Maximum Length of Leave
– Up to 26 weeks of military caregiver leave in a 12
month period
– 12 month period starts on the first day the employee
takes military caregiver leave
– Any combination of absences in the 12 month period,
including medical FMLA, may not exceed 26 weeks
• Healthcare providers authorized to complete a
certification for military caregiver leave is
expanded to include healthcare providers
– Could have second or third opinion
Request Military Caregiver Leave
Certification for Serious Injury or Illness of Covered
Servicemember/Veterant– for Military Family Leave
(Forms WH-385 and WH-385V)
• Must provide 30 days advance notice for planned
medical treatment for a serious injury or illness of a
covered servicemember.
• When 30 days advance notice is not possible, the
employee must provide notice as soon as practicable
• When the need for leave is unforeseeable, an employee
must comply with an employer’s normal notice or call‐in
procedures, absent unusual circumstances.
Paid or Unpaid?
• What does your policy say?
• FMLA is generally unpaid.
• By policy, an employer can require employees to
take any accrued paid vacation, personal, family
or medical or sick leave as offered by the
employer.
• Employee can elect to use paid time off.
Effect of FMLA Leave on Bonuses
• An employer is permitted to disqualify an
employee from a bonus or other payment
based on the achievement of a specified goal
– Hours worked, products sold, perfect attendance
– Be careful! Employers should not disqualify
employees on FMLA leave while allowing
employees on non-FMLA leave to qualify for
bonuses or other awards
Health Insurance
• Maintain coverage under Group Health Plan On
same conditions as pre-leave
• Employee’s share of Premium
– Deduct from any pay
– Submit by certain date
– Failure to Pay within 30 days of due date
• 15 days before coverage to cease
• Employee Does not return to work
– Can collect premiums employer paid in some
circumstances
Returning to Work
• Upon notice to the employer that the employee is ready
to return to work, an employee is entitled to immediately
return to the – same position or to an equivalent position with
equivalent benefits, pay and other terms and
conditions of employment –
– even if the employee has been replaced or the
position has been restructured to accommodate the
employee’s absence.
• Exceptions: Unable to perform essential functions,
fraud, moonlighting, key employees, substantial and
grievous economic injuries.
Relationship Between FMLA and
other Leaves
DURATION OF LEAVE ISSUES
• FMLA
• ADA
• WC
12 weeks in 12 months
» Leave is replenished assuming
continued eligibility
Indeterminate leave may be a reasonable
accommodation
» Absent undue hardship
» Lengthy, indefinite leave generally is not
reasonable
Anti-retaliation provisions apply
ATTENDANCE ISSUES
• FMLA
• ADA
• WC
Absences while on FMLA leave may not be
counted against Employee
Satisfactory attendance is an essential
function of job
» Poor attendance may mean employee is
not “qualified”
» Reasonable accommodation requirement
Anti-retaliation provisions apply
LIGHT DUTY ISSUES
• FMLA
Employer cannot require employee to work a
light duty job rather than take FMLA leave
» Exception of intermittent FMLA leave
» FMLA leave not reduced by time on light duty
• ADA
Light duty assignments may constitute a
reasonable accommodation
» Employer not required to create job
• WC
Employer can force employee to accept light
duty assignment
» Can limit light duty for only workers’ compensation
injuries
RETURN TO WORK ISSUES
• FMLA
Employee entitled to same or equivalent job if
timely returns from FMLA leave
» Perform essential functions
» Unless job would otherwise be eliminated
• ADA
Employee entitled to same job if qualified to
perform essential functions
» Reasonable accommodation required
» Must consider reassignments to vacant
positions
• WC
No right to reinstatement
» Retaliation for exercising WC rights prohibited
Employees Receiving Disability or
Workers’ Comp Benefits
• Neither employees nor employers may require the use of
accrued paid leave to supplement an employee’s
disability or workers’ compensation income – employees
and employers can voluntarily agree to this though
• An employee’s 12-week FMLA leave entitlement is
calculated without regard to whether an employee and
employer agree to supplement the employee’s pay with
accrued paid leave
FMLA Remedies and Enforcement
• Potential for administrative enforcement by the DOL or in civil
suit by any individual adversely affected. Against employer
and supervisor.
• Damages: employee entitled to an amount “equal to the
amount of” any denied or lost “wages, salary, employment
benefits, or other compensation.”
• Equitable relief available.
• Liquidated damages for “willful” violation – amount equal to
the doubling of actual damages awarded to an aggrieved
individual.
• Litigation Costs/Expenses – attorneys’ fees, reasonable
expert fees, and other costs of the action.
Questions