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You’re listening to the Disability Law Lowdown, show number 23.

On today’s podcast, we’re going to be talking about the Family and Medical Leave Act, commonly known as FMLA. There are a lot of misconceptions about FMLA and I’m going to try and give you some basic information on FMLA, but the real point of the webcast is to tal about a new rule that goes into effect on January 16th, 2009. Now, this rule is 201 pages long, so we’re not going to be able to get into it in great detail, but we will cover the high points and I’ll let you know where you can go to get more information about FMLA and the new regulations that are about the become effective in mid-January.

Ok, so first of all, just some background on FMLA. In general, as you may already know, it’s a law that provides that eligible employees of covered employers, and we’ll talk about what that means in a minute, may get up to 12 work weeks of unpaid leave during a 12-month period and it has to be for one of these reasons: either for the birth and care of a newborn child of the employee, or for the placement with the employee of a son or daughter for adoption or foster care. Also to care for an immediate family member, and that means a spouse, a child or a parent, who has a serious health condition, or of course, to take medical leave when the employee is unable to work because of a serious health condition.

Now, remember, as an eligible employee under FMLA, you are entitled to 12 weeks of leave during a 12-month period. Now, the 12-month period is something that an employer has to select way in advance. Like, it isn’t that the employer can say “For you, we’re going to start the 12 months the day after tomorrow.” They had to decide, really, when the Act went into effect or when they went into business, how they would calculate their 12-month period. It can either be a calendar year, January 1st through December 31st, or it can be any kind of 12-month leave year. Usually it’s may a fiscal year they have. Maybe their fiscal year is Sept 1st through August 31st and so they can use that. They can use a year that’s required by state law in some cases. They can even use a year that starts on the employee’s anniversary date – when they began work. They can use that fiscal year for that employee. And it can be – actually, if it’s decided in advance that this is the way it’s going to be, it can be measured from the date of the employee’s first FMLA leave or it can be a rolling 12-month period that’s measured backward from the date an employee uses FMLA leave. But they have to tell you that in advance of you ever taking FMLA leave. I mean, technically, they don’t have to “tell” you, but they have to have that policy in place in advance.

So, the law does not guarantee paid time off. That’s probably one of the greatest misconceptions about FMLA. FMLA only requires unpaid leave. Now, many employers do pay when you’re off sick or you’re taking maternity leave or paternity leave or any of that. They will pay you but they’re not required to under FMLA. The law does permit that an employee can elect, or the employer may require the employee to use their accrued paid vacation time or even sick or family leave time for some or all of that FMLA leave period. So when that paid leave gets substituted for the unpaid FMLA leave, then they can count that against the 12-week FMLA entitlement.

Let me give you an example of that because I know that was a lot of words.

Ok, so let’s say I’m going to take off six weeks maternity leave when I have my baby. And that’s what the employer gives, he gives six weeks of paid maternity leave. And so I’m going to take that six weeks but I would like to have as much time as possible off so I know I get six weeks of paid leave and I know I’m entitled to 12 weeks of FMLA leave, so what I want to do is I want to take my six weeks of paid leave, and then I would like to go ahead and that that 12 weeks of unpaid leave and that means I’ll have 18 weeks off. And, I have two weeks of vacation this year that I haven’t taken, so I can actually get 20 weeks off. So that sounds great to me, even though I realize that 12 weeks of that is unpaid.

Well, no. It doesn’t work that way. Most of the time the employer requires that, yes, you can have your 12 weeks that they’re required to give you, but if they say you can have six weeks of paid leave, that’s part of that 12 weeks. And if you already have accrued sick time that you can take, they can make you take that also. So, although I can only get 12 weeks in my scenario, 8 weeks of that would be paid and only 4 would be unpaid. So moneywise, it’s a better deal, but it’s not going to be the deal I hoped for in terms of taking off when I had my baby because that 12 weeks of unpaid leave they have to give you can include that paid leave that they’re going to give you that you’ve accrued or that you’ve earned.

You can also, of course, while we’re on maternity leave, take some of that before you have a baby. Let’s say that your doctor puts you on bedrest before you have the baby or something like that. You can take some of that then. You can also take some and then come back to work if the doctor says “Why don’t you stay in bed for a couple of weeks” and then the problem resolves and then ok, you can go back to work. You can take those two weeks and if it’s within that 12 month period, it will count against that 12 weeks that you have. For some employers who use a calendar year for their FMLA leave, it is true that since you can have 12 weeks in each calendar year you could, in fact, put 24 weeks together, if you took 12 weeks at the end of one year and 12 weeks at the beginning of the next year, particularly in the case of a child if your baby cooperates with coming when they’re supposed to, then you can do it that way.

Now, you know, the part of FMLA that says that you can take off if you are caring for an immediate family member. “Immediate family member” really includes only your spouse, your children -- and that means your son or daughter, not grandchild or nieces or nephews, not just any child, but your own son or daughter – or parents. So it includes any of those, but those are the only people that are included in “immediate family member”. The term parent does not include a mother-in-law or father-in-law and the child, the son or daughter, does not include children who are age 18 or over unless they are incapable of self care because of a mental or physical disability that limits one or more of the major life activities as defined by the ADA. So unless the child has a disability that would meet the ADA definition of “disability”, then a child under FMLA does not include a child once they reach 18.

You can use FMLA leave for intermittent things like, say you need to have physical therapy 3 times a week after you return to work. You can use FMLA leave to take three mornings or three afternoons off a week. You can use it a little at a time like that.

Now, employees are not eligible to take FMLA leave unless they have worked for the employer for at leave 12 months and they have to have works 12,050 hours. Now that’s of course not hard if you’re working full time, but if you’re only working part time, and especially if it’s a part-time schedule where some weeks they put you on for six hours and some weeks they give you 14 hours, like sometimes retail, for example. So you have to have worked 12 months and at least 12,050 hours over the previous 12 months and you have to have worked at a location where at least 50 employees are employed by the employer within a 75 mile area. So, what that means is that small employers are not covered. Now, you might remember, if you’ve listened to other podcasts, that in employment discrimination laws, the employer has to have at least 15 employees. But for FMLA, the employer must have 50 or more employees in order to be a covered employer.

You do not have to provide medical records for the employer to show that a leave was taken for a serious health condition. But you can be required to provide medical certification that confirms that a serious health condition exists and most employers have a form that they use for that, for the doctor to complete, that doesn’t require a lot of overly specific information but does require the doctor to certify the serious health condition.

The employer can ask you questions during your leave to confirm whether the leave is still needed and whether it qualifies for FMLA purposes. They can’t ask other people – your spouse or your children or any of that – but they can ask the employee. And if the employer wants to get another opinion, the employer can required you to get additional medical certification as long as the employer pays for it, or sort of a re-certification while you’re on FMLA leave. The employer might have a health care provider that represents the employer contact your health care provider, with your permission, just to verify medical certification information or to confirm that that information was provided. But remember they may not seek any other information about your condition or that of a family member from anyone else.

An employer must grant you FMLA leave if you request it and you’re eligible for the leave and you provide this certification. And it would be unlawful for an employer to interfere with or deny you any right that’s provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions like hiring or promoting or disciplinary actions and it can’t be counted as leave under no-fault attendance policies. Under certain circumstances, an employer may deny reinstatement to work, but not the use of FMLA leave to highly paid salaried, what the law calls “key” employees. The FMLA requires that employees who return from FMLA leave be restored to the same or an equivalent position. If an employee was eligible, for example, for a bonus before taking FMLA leave, the employee would be eligible for this bonus when the employee returns to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus and the employee did not miss any work prior to taking the FMLA leave, the employee would still be eligible for the bonus upon returning from the FMLA leave.

And in any circumstance, it’s the employer’s responsibility to designate leave that’s taken for FMLA reasons as FMLA leave and that designation must be based on information furnished by the employee or the employee’s representative.

Ok, so that’s sort of basic information about FMLA. Now, let me talk to you about these changes that are going to go into effect on January 16th. These changes implement leave provisions that were created by another law called the National Defense Authorization Act for FY2008 and among other things, this law, this National Defense Authorization Act, amended parts of the FMLA. The new regulations implement two new entitlements to leave that are called Qualifying Exigency Leave and Military Caregiver Leave. And there are also some changes to the definitions of “serious health condition” and that was made in order to conform with a court decision called “Ragsdale v. Wolverine Worldwide Inc.”

So, qualifying exigency leave. Eligible employees can now take 12 weeks of leave due to the reasons we’ve already talked about but also for qualifying exigency that arises from the fact that the employee’s spouse, or son, daughter or parent of the employee, is on active duty or has been notified of an impending call to active to duty in the National Guard and Reserves or if they’re a retired member of the regular Armed Forces or retire reserve who completed 20 years of service and is again called to duty, in support of a contingency operation. So the regulations define a qualifying exigency as short notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities where the agency and the employee agree to the leave.

The FMLA also provides that an eligible employee who is the spouse, son, daughter, parent or next-of-kin of a covered service member who suffers a serious injury or illness on active military duty is entitled to 26 work weeks of leave during a single 12 month period to care for the service member. This includes the 12 weeks of regular FMLA leave, so it’s not 26 extra weeks, but is 14 extra weeks. It’s 26 weeks total of leave that is provided for the eligible employee who is a spouse, son, daughter, parent or next-of-kin of a covered service member who suffers a serious injury or illness on active military duty.

So the rule in terms of the individual definitions of “serious health conditions” remains the same, but it clarifies that if an employee with a serious health condition takes more than three consecutive days leave with at least two visits to a health care provider, the two visits must occur within 30 days of the period of incapacity. It defines “periodic visits to a health care provider for chronic serous health conditions” as at leave two visits to a health care provider per year.

A penalty provision in the old regulations said that when an employer failed to properly notify an employee that it designated leave as FMLA leave, the leave taken did not count against the employees FMLA entitlement. So this was an old rule. The Supreme Court said that because this penalty could result in the employee getting more than 12 weeks of FMLA in a year, it was inconsistent with what the FMLA required, which was only 12 weeks a year. So now the updated rule removes those penalties in order to be consistent with that Supreme Court decision. It clarifies that if an amployee suffers individual harm because the employer did not follow the notification rules, then the employer may be liable.

There’s also some new rules about the medical certification process. It says that if an employee gives insufficient certification from a medical provider, then only specific parties, either a health care provider, HR professional, or leave administrator, or some other official of the employee’s supervisor, can call the employee’s health care provider for purposes of clarification and authentication. The employee’s direct supervisor may not make this contact. So if the medical certification you give the employer is not complete, the employer can deny the FMLA leave and it’s the employee’s obligation to either provide a complete and sufficient certification or any necessary authorization for the health care provider to release this complete and sufficient certification directly to the employer.

Under the previous employee notice provision, employees could notify employers of their need for FMLA up to two full business days after an absence. So you could be out for a week and then you had two days once you came back to notify the employer that what you took was FMLA leave. But now, employees have to follow their employer’s customary call-in procedures unless there are really abnormal circumstances.

The new rules also clarify that time spent in “light duty” does not count against an employee’s leave entitlement. An employ voluntarily doing light duty work is not on FMLA leave. This new rule overrules two court decisions that said the opposite of that, that said if light duty was offered and the employee could do that, then doing that light duty would count against their leave time. That is no longer the case.

So that covers most of the high points of the new FMLA regulations, which are slated to go into effect, again, on January 16, 2009. As always, you know I you have questions about this or about your individual situation, you can contact any of the Disability Business Technical Assistance Centers at 1-800-949-4232. You can also get more information about this on the United States Department of Labor web site which is at www.dol.gov and if you want to get right to the place where you want to be for Family Medical Leave Act, then it’s www.dol.gov/esa/whd/fmla/.

I hope you got a lot of good information. I know it was a little dense at times on the FMLA and do call us if you have any questions.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability-related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research.

You can subscribe to the Disability Law Lowdown at our website, disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.