1	FMLA Q&A Bill Woodward Office of Counsel X6633 May 16, 2007
2	What Is the FMLA? FMLA = Family and Medical Leave Act
3	What Rights Does FMLA Give an Eligible Employee? Up to 12 weeks of unpaid leave in a 12-month period Restoration rights - Same or equivalent job Continued health benefits during FMLA
4	Could Charges of FMLA Violations Affect Me Personally? Supervisors, managers, and others acting on behalf of UAH may be held individually liable for FMLA violations Violations Include: Denial of leave or other FMLA rights such as job restoration Discrimination Adverse treatment based on an employee’s opposition to action by employer in violation of FMLA Retaliation Adverse treatment based on employee’s exercise of FMLA rights
5	How Do I Know That FMLA Applies? Are All UAH Employees Eligible for FMLA? No Does the Employee Have to Request FMLA Specifically? No
6	Are All UAH Employees Eligible for FMLA? Worked for UAH for a total of 12 months Need not be 12 consecutive months Returning Reservists receive all benefits of employment they would have obtained if they had been continuously employed Worked at least 1,250 hours over the previous 12 months Returning Reservists - Use pre-service work schedule and project through period of active duty Instructors - Deemed to meet this test
7	Does the Employee Have to Request FMLA Specifically? Employee need not mention the FMLA specifically when requesting leave Need only give an FMLA qualifying reason for the leave
8	What Types of Leave Requests Trigger FMLA? Family Birth and care of the newborn child of the employee; Placement with the employee of a son or daughter for adoption or foster care; Care for an immediate family member (spouse, child, or parent) with a serious health condition; GR: Child must be under 18 “Parent” includes those standing in loco parentis Medical Employee is unable to work because of a serious health condition.
9	What Is a “Serious Health Condition”? An illness, injury, impairment, or physical or mental condition that involves either: A period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical-care facility, and any period of incapacity or subsequent treatment in connection with such inpatient care; or Continuing treatment by a health care provider which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities) due to: (1) A health condition (including treatment therefor, or recovery therefrom) lasting more than three consecutive days, and any subsequent treatment or period of incapacity relating to the same condition, that also includes: treatment two or more times by or under the supervision of a health care provider; or one treatment by a health care provider with a continuing regimen of treatment; or (2) Pregnancy or prenatal care. A visit to the health care provider is not necessary for each absence; or (3) A chronic serious health condition which continues over an extended period of time, requires periodic visits to a health care provider, and may involve occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health care provider is not necessary for each absence; or (4) A permanent or long-term condition for which treatment may not be effective (e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a health care provider is required, rather than active treatment; or (5) Any absences to receive multiple treatments for restorative surgery or for a condition which would likely result in a period of incapacity of more than three days if not treated (e.g., chemotherapy or radiation treatments for cancer).
10	How Do I Know if There Really Is a Serious Health Condition? If FMLA leave is planned, the employer should request that an employee furnish medical certification at the time the employee gives notice of the need for leave or within two business days thereafter If FMLA leave is unforeseen, the employer should request that the employee furnish medical certification within two business days after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration. 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. If the opinions of the employee's and the employer's health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding
11	Can I Contact the Employee’s Doctor? If an employee submits a complete certification signed by the health care provider, the employer may not request additional information from the employee's health care provider. However, a health care provider representing the employer may contact the employee's health care provider, with the employee's permission, for purposes of clarifying and authenticating the medical certification HOWEVER, if an employee is on FMLA leave running concurrently with a workers' compensation absence (OJI at UAH), the employer may make direct contact with the employee’s health care provider Any such contact should be made through the Office of Counsel and in coordination with HR.
12	What Words Should Make Me “Think FMLA”? Pregnancy, Prenatal Care, Birth Adoption Foster Care Care for son, spouse, daughter, or parent On-the-job Injury Admission to a hospital, hospice, or residential health care facility Unable to work for over 3 consecutive calendar days Asthma, Epilepsy, Diabetes Alzheimers, Severe Stroke, Terminal State of a Disease Restorative surgery after accident or injury Chemotherapy, radiation, dialysis
13	Is FMLA Leave Always Unpaid? Employee may elect to take paid leave for an FMLA purpose if such leave is available Employer may/should designate that paid leave as FMLA leave If employer does not designate paid leave/OJI leave as FMLA leave, the employee can return from paid leave and apply for unpaid FMLA leave.
14	What Types of Leave are Available Under the FMLA? One block of up to 12 weeks Reduced Scheduling (part-time, reduced hours) Intermittent Leave (small increments of time) If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval. No right to such leave in those cases. FMLA leave may be taken intermittently whenever medically necessary to care for a seriously ill family member, or because the employee is seriously ill and unable to work except intermittently.
15	Are There Limitations on Intermittent/Reduced Leave? Employees must attempt to schedule their leave so as not to disrupt the employer's operations. Employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee's intermittent or reduced leave schedule.
16	Are There Special Rules for Birth or Placement of a Child? FMLA leave to care for an employee’s newborn child or a newly placed child must conclude within 12 months after the birth or placement. Under the FMLA, spouses employed by the same employer may be limited to a combined total of 12 workweeks of family leave for:
17	What Are Restoration Rights? Must be restored to original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave Employers can layoff, discipline, and terminate employees - even while the employees are on FMLA leave - as long as they do so for reasons unrelated to the FMLA leave Heavy burden of proof on Employer to prove not connected to taking of FMLA leave Employer can require medical fitness for duty evaluation prior to restoration
18	Is FMLA All I Have to Worry About? If the FMLA leave is for an employee’s serious health condition, you must consider: Americans with Disabilities Act (ADA) Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) On-the-Job Injury (OJI)
19	Americans with Disabilities Act (ADA) Protects those who Have a mental or physical impairment which impairs/limits a major life function Have a history of having had such an impairment Are perceived as having such an impairment Requires reasonable accommodations by employer (absent undue hardship), to include Intermittent leave Reduced schedule Transfer to equivalent vacant position
20	Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) Requires that returning veterans receive all benefits of employment they would have obtained if they had been continuously employed Affects FMLA Eligibility Requirements: 12 month employment 1250 hours worked during last 12 months Use pre-active duty service work schedule to determine hours/week
21	On-the-Job Injury (OJI) Be sure to designate OJI absence in writing as FMLA leave