FAMILY AND MEDICAL LEAVE

I. INTRODUCTION

The Family and Medical Leave Act (FMLA) of 1993 was signed by President Clinton on February 5, 1993. As a result, employers who employ 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding calendar years are required to grant certain eligible employees up to 12 weeks of unpaid leave.

Further amendments to the FMLA which became effective on January 28, 2008 expanded its coverage to the family of service members. The FMLA was further expanded by provisions of the Fiscal Year 2010 National Defense Authorization Act (NDAA), which became effective on October 28, 2009. As a result, employees with family members in the military may qualify for “Qualifying Exigency” leave and “Covered Servicemember” leave.

II. LEAVE ALLOWED

A. General Leave Provisions

Under the law, “eligible employees” are entitled to a total of 12 work weeks of unpaid leave during any 12 month period: (1) for the birth of a child; (2) for the placement of a child with the employee for adoption or foster care; (3) to care for a spouse, son, daughter, or parent with a serious health condition; or (4) if the employee cannot perform his or her job duties due to a serious health condition.

The Act defines serious health condition to mean an illness, injury, impairment, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider. The law also provides that entitlement to leave related to the birth or placement of a son or daughter must be taken by the end of the 12 month period beginning on the date of the birth or placement of the child.

B. Military Caregiver Leave

Under the FMLA amendments, which became effective on January 28, 2008, eligible employees who are spouses, children, parents or next of kin, are provided with up to 26 weeks of leave in a 12-month period to care for a service member recovering from an illness or injury sustained in active duty. This leave is in addition to that otherwise permitted under FMLA, but an employee’s combined total annual FMLA leave entitlement may not exceed 26 weeks. The FMLA regulations clarify that, for purposes of military caregiver leave, the “need to care for” includes psychological as well as physical care.

C. Qualifying Exigency Leave

Under the FMLA amendments, an employee will be allowed to take the 12-week FMLA leave “because of a ‘qualifying exigency’ arising out of the fact that the spouse, son, daughter, parent, or next of kin of the employee is on active duty or has been notified of an impending call or order to active duty.” The provisions of the NDAA expanded

“qualifying exigency leave” to families of active duty members of the Armed Forces. To be eligible, the military member must be on active duty in a foreign country or called to active duty in a foreign country. The FMLA regulations define “qualifying exigency” to include attending military events related to the call to active duty, arranging for childcare, attending school activities, making financial or legal arrangements, attending counseling, spending time with a covered military member on short-term temporary rest or leave, attending post-deployment activities, etc.

D. Covered Servicemembers Leave

The FMLA amendments also allow up to 26-weeks of unpaid leave in a single 12-month period to allow the spouse, son, daughter, parent, or next of kin to care for a servicemember who suffers a “serious illness or injury” while on active duty in the Armed Forces, including the National Guard or Reserve. The NDAA expanded this form of leave to families of veterans. A “veteran” is defined as “a person who served in the active military, Naval, or Air Service, and who was discharged or released therefrom under conditions other than dishonorable.”

A “serious injury or illness,” is defined as one incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty or active duty in the Armed Forces), and that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating. With regard to veterans, because they do not have current “office, grade, rank, or rating,” the employee must show only that the serious injury or illness is one “that manifested itself before or after the member became a veteran.” However, the right to take Covered Servicemember Leave for the care of veterans extends only to family members of veterans if the veteran was a member of the Armed Forces within five years from the date on which the veteran undergoes the medical treatment or receives the therapy that necessitates the leave.

E. Holidays During FMLA Leave

The Department of Labor (DOL) has issued an Opinion Letter (FMLA 2023-2-A) to clarify how the amount of leave used is calculated when an employee takes Family and Medical Leave Act (FMLA) leave for less than a full week during a week that includes a holiday.

The DOL issued the Letter in response to a request for information on whether an employee who takes leave during a holiday week is: (a) using a fraction of the employee’s usual work week (i.e., as if the workweek did not include the holiday); or (b) using a fraction of the reduced workweek (i.e., the employee’s usual workweek, less the holiday day)

In general, the FMLA entitles eligible employees to up to 12 “work weeks” of leave in a 12-month period: a) for one’s own "serious health condition"; b) to care for a seriously ill or injured spouse or dependent; c) for the birth, adoption or placement of a child; or d) to deal with “exigencies" related to their spouse’s military deployment. Eligible employees may take intermittent FMLA leave which consists of separate blocks of leave for a single illness or injury.

The Opinion Letter explains that, if a holiday falls during the week when an employee takes a full work week of FMLA leave, then a full work week is counted as FMLA leave.

Under certain circumstances, an employee may use FMLA leave intermittently or on a reduced leave schedule by reducing the number of hours worked during a day of the week. The Opinion Letter explains that the DOL has taken a consistent position that when an employee is taking less than a full work week of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled to work on the holiday and used FMLA leave for that day. The Opinion Letter notes that “subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would impermissibly reduce the employee’s leave entitlement because the employee would have to use a larger amount of FMLA leave than needed.”

The Opinion Letter concludes “that under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement." If the employee is not scheduled to work on the holiday, the fraction of the work week of leave used is the amount of FMLA leave taken (not including the holiday), divided by the total workweek (including the holiday).

III. ELIGIBLE EMPLOYEES

To qualify for benefits under the FMLA, an employee must satisfy the definition of eligible employee. This term is defined under the Act to include any employee who (1) has worked for the employer for at least 12 months; (2) has worked at least 1,250 hours during the previous 12 months; (3) has not used unpaid leave within the last 12 months; and (4) works at a work site having 50 or more employees or having 50 or more employees within 75 miles of that work site.

IV. INTERMITTENT LEAVE

Intermittent or reduced hours leave is not required to be provided for the birth or adoption of a child. However, the intermittent leave must be provided in the case of a serious health condition and the employer and employee are free to agree to a system of intermittent leave.

In cases where an employee seeks intermittent leave based on foreseeable treatments for a serious health condition, the employer may require the employee to temporarily transfer to an alternative position, as long as the position has equivalent pay and benefits and better accommodates a recurring period of leave than the regular position held by the employee.

V. UNPAID LEAVE

The FMLA does not require an employer to provide the leave on a paid basis. However, if an employer provides paid leave of less than 12 weeks, the additional weeks of leave necessary to provide a total of 12 weeks of leave may be granted without compensation. In addition, the employer may place further restrictions on the leave. For example, if an employee is entitled to sick leave, the employer may require the employee to count such sick leave as part of the 12 week leave period if the reason for the leave is based upon an illness of the employee or a member of the employee’s family.

VI. EMPLOYEE NOTICE REQUIREMENTS

Employees must provide at least 30 days advance notice – at least verbally – before FMLA leave is to begin if the need for leave is foreseeable and based on “an expected birth, placement for adoption or foster care, planned medical treatment for a serious health condition of the employee or of a family member, or the planned medical treatment for a serious injury or illness of a covered servicemember.” If 30 days advance notice is not practicable (i.e., lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency), notice must be given as soon as practicable.

Where the employee fails to give timely notice the employer may delay FMLA coverage to the date that would apply if sufficient notice was given. For example, if the leave was foreseeable and 30 days notice could have been given, the employer may delay FMLA leave until 30 days after the date notice is given.

VII. MEDICAL CERTIFICATIONS

If the employer requires a medical certification, the employee must be notified at the time the employer provides the notice of FMLA eligibility – i.e., generally within five business days after the employer has knowledge of the potential FMLA-qualifying leave. The FMLA regulations include a model Certification of Health Care Provider that can be used for this purpose.

The employer must allow at least 15 calendar days for the employee to provide the certification. If the certificate is incomplete or insufficient – as defined in the regulations – the employer must identify in writing the additional information needed and provide the employee with at least seven calendar days to cure the deficiency. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave.

With the employee’s permission, the employer is permitted to have its own healthcare provider contact the employee’s healthcare provider to clarify or authenticate the certificate. The employer’s representative must be a human resource professional, a leave administrator, or a management official, but in no case may it be the employee’s direct supervisor. The

employer may not request information beyond that in the certification form, and any sharing of individually identifiable health information must be in compliance with the HIPAA privacy rules. Importantly, before making any contact with the employee’s health care provider, the employer must provide the employee with the opportunity to cure any deficiencies in the certificate.

VIII. CERTIFICATION OF QUALIFYING EXIGENCY & CERTIFICATION OF SERIOUS INJURY OR ILLNESS OF COVERED SERVICEMEMBER

As with medical certification, an employer may request certification of a qualifying exigency or of the serious illness or injury of a covered service member when FMLA leave is taken for those reasons. The request must be made at the same time a medical certificate must be requested – i.e., when the employer provides notice of FMLA eligibility and responsibilities (generally within 5 business days after the employer has knowledge of possible FMLA-qualifying leave).

In the case of a qualifying exigency, the employer may request a copy of the active duty orders, a description of the exigency, the beginning and end dates of the exigency, and contact information if the exigency involves a meeting with a third-party. Beyond the items enumerated in the regulations (a statement or description of appropriate facts regarding the qualifying exigency for which FMLA leave is requested; commencement date of qualifying exigency; beginning and ending dates of qualifying exigency for single, continuous period of time; estimate of frequency or duration of qualifying exigency for an intermediate or reduced schedule basis; information regarding the individual entity for whom the employee is needing for qualifying exigency involving meeting with a third party), the employer may not request additional information from the employee. However, if the qualifying exigency involves a meeting with a third party the employer may contact the third party to verify the nature and time of the meeting. The FMLA regulations include a model Certification of Qualifying Exigency that can be used for this purpose.

In the case of leave taken to care for a covered servicemember, the employer may request certification of the serious illness or injury, as well as additional information about the servicemember and the care to be provided. The FMLA regulations include a model Certification for Serious Injury or Illness of Covered Servicemember that can be used for this purpose. In any event, an employer must accept as sufficient certification “invitational travel orders” or “invitational travel authorization” issued to any family member to join an injured or ill servicemember at his or her bedside.

IX. CONSOLIDATED NOTICE REQUIREMENTS – NEW MODEL FORMS

The regulations streamline the notice requirements and provide the following new model forms for administration of the employer’s FMLA program:

A. Certification of Health Care Provider for Employee’s Serious Health Care Condition

B. Notice to Employee of Rights under FMLA

C. Notice of Eligibility and Rights & Responsibilities

D. Designation Notice

E. Certification of Qualifying Exigency for Military Family Leave

F. Certification for Serious Injury or Illness of Covered Service Member for Military Family Leave

The new FMLA forms are available at: https://www.dol.gov/agencies/whd/fmla/forms.

X. EMPLOYER NOTICE REQUIREMENTS

Employer notice obligations are broken down into five major topics: General, Eligibility, Rights and Responsibilities, Designation, and Consequences of Failing to Provide Notice.

A. General Notice: The general notice – e.g., the Notice to Employee of Rights under FMLA – can now be posted electronically. The notice must also be provided to the employees by distributing it – either in hard copy or electronically – in an employee handbook or in other written guidance concerning employee leaves or by distributing a copy to each new employee upon hire.

B. Eligibility Notice: When the employer acquires knowledge that an employee’s leave may be for FMLA-qualifying reasons it must provide notice orally or in writing to the employee of his or her eligibility to take FMLA leave within five business days, absent extenuating circumstances. Notice must also be given in hard copy or electronically of the specific obligations of the employee and the consequences of failing to meet those obligations (e.g., the requirement to submit certification of a serious health condition, certification of a qualifying exigency, or certification for serious illness of a covered servicemember). The Notice of Eligibility and Rights & Responsibilities may be used to satisfy this notice requirement.

C. Rights and Responsibility Notice: An employer must provide written notice detailing the specific expectations and obligations of the employee and explain any consequences of a failure to meet these obligations. Such specific notice must include, as appropriate:

1. That the leave may be designated and accounted against the employee’s annual FMLA leave entitlement if qualifying and the applicable 12-month period for FMLA entitlement;

2. Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to do so;

3. The employee’s right to substitute paid leave, whether the employer will require the substitution of paid leave, the conditions related to any substitution, and the employee’s entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave;

4. Any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments,

and the possible consequences of failure to make such payments on a timely basis;

5. The employee’s status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial;

6. The employee’s right to maintenance of benefits during the FMLA leave and restoration to the same or equivalent job upon return from FMLA leave; and

7. The employee’s potential liability for payment of health insurance premiums paid by the employer during the employee’s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.

D. Designation Notice: When the employer has enough information to make a determination, it must notify the employee within five business days, absent extenuating circumstances, whether the leave will be designated and counted as FMLA leave. If the employer requires paid leave to be substituted for FMLA leave – or if a fitness for duty certificate will be required to restore employment – the employee must be notified at this time. The employer must also provide the amount of leave counted against the employee’s FMLA leave entitlement. The Designation Notice may be used to satisfy this notice requirement.

E. Consequences of Failing to Provide Notice: Categorical penalties for failure to comply with the notice requirements have been removed. However, the regulations state that an employer may be liable for losses sustained by an employee as a result of the employer’s failure to comply with the FMLA requirements.

XI. RESTORATION TO POSITION

The FMLA requires an employer to restore the employee to his or her original position upon return to the work force. Under federal regulations interpreting FMLA, employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA. The regulation does not, however, prevent an employee’s voluntary and un-coerced acceptance (not as a condition of employment) of a light duty assignment while recovering from a serious health condition. In such cases, the employee’s right to restoration to the same, or equivalent position is available until 12 weeks have passed within the 12-month period, including all FMLA leave taken and the period of light duty. As such, according to the Department of Labor Regulations, an un-coerced period of light duty counts as FMLA leave for job restoration purposes. More specifically, whether on FMLA leave or light duty, an employee who is unable to resume his or her original position after 12 weeks has no further protection under the FMLA. The revocation of the right to job restoration essentially gives the employer the right to terminate the employee’s employment if he or she cannot return to work. (NOTE: The inclusion of light duty time referenced above only affects the calculation of the 12 week period regarding the right of restoration to position, not in calculating the total leave time available. In cases in which the employee eventually returns to full duty prior to expiration of the 12 week period, the time spent performing light duty does not count toward the 12 weeks allotted for leave.)

The restoration requirement does not apply to certain highly compensated employees under certain conditions. If the employee is among the highest paid 10% of the employees and denial of restoration is necessary to prevent “substantial and grievous economic injury” to the operations of the employer, the employer may notify the employee of the intent to deny restoration on such basis.

XII. HEALTH BENEFIT CONTINUATION

Employers are required to maintain coverage under any group health plan, including self-insured plans, for the duration of leave at the same level and under the same conditions coverage would have been provided if the employee had continued employment. However, if an employee fails to return to work (except in cases of continued serious health condition for the employee or a family member, or other circumstances beyond the employee’s control) the employer may recover the premium that the employer paid for maintaining group health coverage for the employee during the period of unpaid leave.

XIII. MISCELLANEOUS REVISIONS

Other revisions of note to the FMLA regulations include:

A. Light Duty: An employee who voluntarily performs light duty is not on FMLA. The employee’s right to restoration is held in abeyance during the light duty period.

B. Waiver of Rights: Employees cannot prospectively waive FMLA rights, although they can release or settle FMLA claims.

C. Serious Health Condition: A serious health condition exists if the individual suffers three consecutive days of incapacity and has “two visits” to a health care provider. Final FMLA regulations make clear that the two visits must occur within 30 days of the beginning of the incapacity and the first visit must occur within 7 days. Another definition of serious health condition is where the individual suffers three consecutive days of incapacity and has a “regime of continuing treatment.” Final FMLA regulations make clear that the first visit must occur within 30 days of the beginning of the incapacity. Final FMLA regulations also make clear that “periodic visits” for chronic serious health conditions means at least two visits per year.

D. Substitution of Paid Leave: Employees electing to use any type of paid leave in lieu of unpaid FMLA leave must follow the same terms and conditions as other employees using such leave.

E. Perfect Attendance: Employers can deny a perfect attendance award to employees who do not have perfect attendance because of taking FMLA leave, as long as employees taking non-FMLA leave are treated the same way.

F. Medical Certification: Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers can request recertification of an ongoing condition every six months in conjunction with an absence.

G. Fitness for Duty: Employers may require that the fitness-for-duty certification specifically address the employee’s ability to perform the essential functions of the employee’s job. Also, where reasonable safety concerns exist, employers may request a certification before the employee returns to work from intermittent leave. An employer may seek a fitness-for-duty certification only with regard to the particular health condition that caused the employee’s need for FMLA leave.

XIV. RECORDKEEPING

Records must be made and preserved in accordance with the Fair Labor Standards Act and the FMLA regulations. Records must disclose:

A. Payroll and identifying employee data, rate or basis of pay and terms of compensation, daily and weekly hours worked per pay period, additions to or deductions from wages, and total compensation paid;

B. Dates in which FMLA leave is taken by employees;

C. The hours of leave if FMLA leave is taken in increments of less than one full day;

D. Copies of employee notices or leave furnished to the employer under FMLA and copies of all general and specific notices given to employees;

E. Documents that describe employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves;

F. Premium payments of employee benefits; and

G. Records of disputes between employer and employee in regard to leave.

XV. MILITARY FAMILY MEDICAL LEAVE – IMPACT ON EXISTING POLICIES

Employers should be aware of a number of provisions under the new law that could have an effect on existing FMLA policies:

A. During the 12-month period the employee claims the military FMLA leave, he or she is entitled to a maximum of 26 weeks of leave. The 26 weeks include up to a maximum of 12 weeks of leave taken for reasons other than the new military care leave. Accordingly, an employee could not, for example, claim 26 weeks of leave to care for an injured sibling in the military and an additional 12 weeks of leave for the birth of a child, but the employee could claim up to 12 weeks of FMLA

leave which is not related to the military, plus additional weeks of the new military related leave up to 26 (e.g., 12 weeks of pregnancy leave plus 14 weeks of leave to care for a sibling with a qualifying military injury).

B. An employee may elect, or the employer may require, that those seeking to take advantage of the newly established 26-week leave utilize other paid leave (e.g., paid vacation leave, personal leave, family leave, or medical or sick leave) concurrently with the leave.

C. The legislation specifically provides that eligible employees may take the 26-week leave “intermittently or on a reduced leave schedule basis.”

D. Spouses who work for the same employer are limited to an aggregate of 26 weeks between the two of them, unless the leave is solely medical leave, in which case they are still limited to 12 weeks each.

E. The legislation requires that whenever the necessity for the leave is foreseeable, the employee requesting the leave must provide as much notice as is “reasonable and practicable.”

F. The legislation provides employers with a mechanism, subject to regulations promulgated by the DOL, to require certification by the employee that the covered servicemember is indeed on active duty.

XVI. SAME SEX SPOUSE

Effective March 27, 2015, eligible employees in a legally valid same-sex marriage may take FMLA leave to care for a spouse or a family member, regardless of the state in which the employee lives. This definitional change also encompasses individuals in valid same-sex common law marriages and same-sex marriages entered into in a foreign country so long as the marriage was valid in the place it was entered into and could have been entered into in at least one state in the United States. Previously, the FMLA regulations did not allow an eligible employee to take FMLA leave based on the employee’s same-sex marriage if the employee lived in a state that does not currently recognize same-sex marriage.

This change resulted from the U.S. Supreme Court’s 2013 decision in United States v. Windsor, finding Section 3 of the Federal Defense of Marriage Act (“DOMA”) unconstitutional.

XVII. CONCLUSION

While the FMLA law only applies to employers with 50 or more employees, banks who are subject to the provisions of the law should review the preceding materials and consider whether revisions to existing personnel policies and manuals would be in order.

 

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