September 12, 2018
Author: Greg Guidry
Organization: OneBane Law Firm
EMPLOYEE LEAVE ENTITLEMENTS
A. Computing FMLA Leave During a Holiday Week (§ 825.200): Whether a holiday is counted as FMLA leave depends on whether the employee takes FMLA leave for a full or partial work week.
1. If an employee is taking FMLA leave in full week increments, the holiday is counted against his/her FMLA allotment. See § 825.200(h).
2. If an employee is taking leave in less than full week increments during a week containing a holiday, the employee will not have the holiday counted against his/her FMLA allotment unless the employee was otherwise scheduled and expected to work the holiday. See § 825.200(h).
3. If an employer temporarily ceases operations (such as closing for a week for the Christmas/New Year holiday or closing a plant for repairs) and employees are generally not expected to work during this time, the days that the employer has ceased operations do not count toward the FMLA entitlement.
B. Scheduling Intermittent or Reduced Leave (§ 825.203): Employees must make a \"reasonable effort\" to schedule treatment so as not to unduly disrupt an employer's operations. The language \"reasonable effort\" replaces the word \"attempt\" in the previous regulations.
C. Transferring Employees While Taking Intermittent or Reduced Leave (§ 825.204): An employer may only transfer an employee to a position that better suits the leave schedule when an employee is taking intermittent or reduced leave that is foreseeable based on planned medical treatment. In other words, employers may not transfer employees on unforeseeable leave.
D. Increments of Intermittent or Reduced Leave (§ 825.205):
1. If it is physically impossible for an employee to work a partial day, the employer may count more time as FMLA leave than an employee needs.
(Examples: flight attendant, railroad conductor). DOL intends to apply this exception narrowly. See § 825.205(a)(2).
2. If an employee’s schedule would normally include mandatory overtime and the employee is unable to work the overtime, this time can be counted as FMLA leave. This rule does not apply to voluntary overtime. See § 825.205(c).
3. For an employee who works a variable schedule, the employer must calculate the average hours worked by looking at the scheduled hours over the prior 12 months (versus 12 weeks) from the date leave commences. See § 825.205(b)(3).
4. The employer must account for leave using increments no greater than shortest period of time the employer uses to account for other forms of leave, provided it is not greater than one hour. See § 825.205(a)(1).
E. Substitution of Paid Leave (§ 825.207): The FMLA allows an employee to \"substitute\" paid leave for unpaid FMLA leave, and it also allows an employer to require this \"substitution.\" The substituted paid time counts against the employee's FMLA entitlement.
1. An employee who chooses to take paid leave must follow the employer's paid leave policies applicable to using that leave. See § 825.207(a). (Note: In the comments provided by the DOL with the revised regulations, the DOL states that if an employee wants to use accrued vacation, but only needs two hours of leave, the employee can be required to take a full day of vacation if the employer's paid leave policies require, for example, that vacation be taken in increments of no less than a full day. The employee's other option would be to take two hours of unpaid time.)
2. An employer must make employees aware of any additional procedural requirements related to the use of paid leave. This information must be provided to employees in the rights and responsibilities notice.
3. The regulations clarify the interaction between FMLA leave and paid disability leave and workers' compensation benefits. Because an employee is not on unpaid leave while receiving paid disability or workers' compensation benefits, the rules pertaining to substitution of paid leave do not apply. This means an employer cannot require an employee to use full days of paid time off while receiving these other paid benefits.
However, if an employee's short-term disability or workers' compensation benefits only partially replace his/her wages, which is usually the case, the employer and employee may agree to have paid leave supplement the benefits to equate to the employee’s full wages. See §§ 825.207(d) & (e).
4. In the public sector, the regulations now allow accrued compensatory time to count towards the employee's FMLA leave entitlement if accrued compensatory time is substituted for unpaid FMLA leave. See § 825.207(f).
F. Light Duty (§ 825.220):
1. An employee who is eligible for FMLA leave and who is unable to perform any one of the essential functions of his/her job because of a serious health condition is entitled to FMLA leave and may not be required to accept a light duty assignment.
2. The regulations recognize that many employers have light duty programs, especially for work-related injuries, and refusing light duty often leads to a denial of workers' compensation benefits. The following rules apply regarding the impact that taking a voluntary light duty job position has on an employee eligible for FMLA leave.
a. Light duty work does not count against an employee's FMLA entitlement. See § 825.220(d).
b. An employee retains the right to be reinstated while he/she is on light duty until the end of his/her l2-month FMLA leave year. See § 825.220(d).
c. An employee does not waive prospective rights under the FMLA (including the right to be reinstated to the same or substantially similar job positions) by accepting a light duty assignment. See § 825.220(d).
G. Employee Notice Requirements
1. General Rules: Where qualifying leave is foreseeable, the employee must provide the employer with at least 30 days’ notice. Where leave is unforeseeable, the employee must provide employer with notice “as is practicable.”
2. The notice of the need for unforeseeable leave must be given as soon as practicable under the facts and circumstances of the particular case (the reference to 1 to 2 business days has been eliminated). See §825.303(a).
3. An employee must comply with an employer's usual and customary notice/procedural requirements for requesting leave, except in unusual circumstances. In other words, an employer can require that an employee provide written notice of his or her need to take leave or notify a specific individual of the need for leave if the employer’s policies set these requirements. See §§ 825.302(d), 825.303(c).
4. An employee's failure to comply with his/her employer's leave policies and procedures can now be grounds for delaying or denying an employee's request for FMLA-qualifying leave. See §§ 825.302(d), 825.303(c).
5. An employee seeking additional FMLA leave (for a previously certified condition) must specifically make reference to the need for FMLA leave or the previous condition for which FMLA leave was used. See §§ 825.302(c), 825.303(b).
6. To be able to delay or deny an employee's request for FMLA leave because of an employee's failure to provide the required notice, it must be clear that the employee had actual notice of FMLA's notice requirements. Proof of notice can be satisfied by compliance with general posting requirements. See § 825.304(a).
H. Employer Notice Requirements (§ 825.300):
1. Poster/General Notice (Form WH-1420). The DOL has published a form entitled \"Notice to Employees of Rights Under FMLA\". Employers are advised that the DOL form may require revisions to suit the needs of their particular workplace. A covered employer is required to post and distribute a general notice, even if its employees are not eligible to take FMLA leave. Posting requirements may be satisfied through electronic posting. Covered employers with eligible employees also must distribute the general notice either by including it in an employee handbook or other policy guide, or if employers do not handbooks or policy guides, by providing the notice to new employees at the time of hire.
2. Notice of Eligibility & Rights and Responsibilities (Form WH-381). An employer is required to provide an eligibility notice within five business days (absent extenuating circumstances) of being advised by the employee that he/she needs to take FMLA leave or has been made aware of the employee's need for FMLA leave. If an employer advises the employee that he/she is not eligible for FMLA leave, the employer has to provide at least one reason why the employee is not currently eligible for leave. An employee's eligibility is determined the first time leave is requested in the applicable 12-month period. If an employee provides notice of a subsequent need for leave during that year for a different reason and the employee's eligibility has not changed, the employer does not have to provide a new eligibility notice. If, however, the employee's eligibility status has changed, the employer must notify employee of the change within five days of the leave request. See § 825.300(b)(1)-(3) & App. D to the regulations. Along with the eligibility notice, an employer must provide the employee with a notice containing his/her FMLA rights and responsibilities (e.g., submitting medical certification, requiring substitution of paid leave, maintenance of benefits, etc.). This information is contained the second section of the DOL's new Form WH-381 and is entitled \"Rights and Responsibilities for Taking FMLA Leave.\"
3. Designation Notice (Form WH-382). Once an employer has sufficient information to determine that an employee's leave qualifies as FMLA leave (for example, the certification has been returned), an employer has five business days (absent extenuating circumstances) to provide the employee with a notice stating that the leave (specifying the amount) has been designated as FMLA qualifying or, in the alternative, that additional information is needed to make a determination as to whether the leave is FMLA qualifying with an explanation of what additional information is needed. If an employer requires the substitution of paid leave, the designation form must include a statement to that effect. The DOL form also advises the employee of the right to request from the employer the amount of FMLA leave that will be counted against the FMLA entitlement once in a 30-day period if leave was taken in the 30-day period. If an employer wants an employee returning from FMLA leave to provide a fitness-for-duty certification, a statement to that effect must be included in the Designation Notice, along with a list of the employee's essential job functions, to be provided to the physician responsible for completing the fitness-for-duty certification. See § 825.300(d)(l)-(6) & App. E.
4. Penalties for Noncompliance. In the event an employer fails to comply with the notice requirements, this may constitute interference with, restraint of, or denial of the exercise of an employee's FMLA rights. An employer may be liable for monetary losses caused as a direct result of employer's failure to comply with the notice requirements. Remedies include employment, reinstatement and other relief. See § 825 .300(e). To determine what an employee is entitled to recover, the regulations focus on what the employee has lost or been deprived of.
I. Designation of Leave (§ 825.301):
1. An employer may retroactively designate leave as FMLA qualifying unless the employee is able to show harm or injury from the employer's failure to timely designate the leave as FMLA leave. See § 825.301(d).
2. An employer may be liable for lost compensation and benefits, other actual monetary losses, and appropriate equitable or other relief (e.g., employment, reinstatement) if the employee suffered an actual injury due to the employer's failure to designate the leave as FMLA qualifying. See § 825.301(e).
3. The regulation provides examples of how an employee may suffer actual harm because of an employer's failure to designate leave properly. For example, an employee who believed the time taken off was not being counted as FMLA leave may have chosen to make alternative arrangements for the care of seriously parent to save his or her FMLA leave to take time off for his or her own surgery later in the year. See § 825.301(e).
J. Medical Certification
1. An employer can require medical certification of an employee or his family member’s “serious health conditions” and if so, should consider using the form developed by the Department of Labor. (See www.dol.gov).
2. An employer may request (1) information about a health care provider's specialization and his/her fax number, an employee or family member's diagnosis, (2) certification from health care provider that intermittent or reduced leave is medically necessary, (3) a statement pertaining to which essential job functions an employee cannot perform, and (4) more detailed information on the anticipated frequency and duration of intermittent and reduced schedule leaves. See § 825.306(a).
3. When an employee submits a medical certification form that is incomplete or insufficient the employer must advise the employee in writing as to what additional information is needed and give the employee seven calendar days (or longer if unable to comply within that time frame despite the employee's diligent good faith efforts) to complete and return the form.
A certification is considered insufficient if it contains information that is vague, ambiguous or non-responsive. See § 825.305(c).
4. An employer may request that an employee provide annual medical certifications for medical conditions lasting in excess of a leave year. See § 825.305(e).
5. An employer may consider information about an employee's medical condition that the employer has obtained while trying to determine disability status under the ADA, a workers' compensation program or qualification for benefits under a disability plan. See § 825.306(c), (d).
K. Clarification and Authentication of Certifications (§ 825.307):
1. An employer may directly contact an employee's health care provider to authenticate information provided on a medical certification form without first obtaining an employee's permission. The rule specifies who may contact an employee's health care provider on behalf of the employer: a health care provider as a representative of the employer, a human resource professional, a leave administrator, or a management official. An employee's direct supervisor cannot contact an employee's health care provider. See § 825.307(a).
2. An employer may directly contact an employee's health care provider, in accordance with HIPAA, to clarify information provided on the medical certification form. As discussed above, the same rules apply as to which individuals who may contact an employee's health care provider. See § 825.307(a).
3. If an employee refuses or otherwise does not authorize his/her employer to contact his/her health care provider to clarify or does not otherwise clarify information on his/her own, an employer may deny FMLA leave on grounds that the certification form is unclear. See § 825.307(a).
4. To facilitate the second/third opinion process, an employee must authorize the release of relevant medical information pertaining to the condition for which leave is being sought to the appropriate health care provider, if requested to do so by that health care provider. The failure to authorize the release of this information is grounds for denying FMLA leave. See § 825.307(b), (c).
5. When an employee submits a certification from a foreign health care provider that is in a language other than English, the employee must provide a written translation of the certification upon request and at his/her expense. See § 825.307(f).
L. Recertification (§ 825.308):
1. Generally, an employer may request recertification no more often than every 30 days and only in connection with an absence, unless the minimum duration of the condition is more than 30 days. See § 825.308(a).
2. Recertification may be requested in less than 30 days if the following circumstances exist:
a. the employee requested an extension of his/her leave,
b. circumstances stated in previous certification have changed significantly (e.g., duration/frequency of absence, nature/severity of illness), or
c. the employer receives information casting doubt on the continuing validity of employee's certification. See § 825.308(c).
3. For employees requesting intermittent or reduced leave for periods in excess of six months, an employer may request recertification every six months in connection with an employee's absence. See § 825.308(b).
4. In connection with a recertification, an employer may provide an employee's health care provide with a record of the employee's absence pattern and ask the health care provider if the employee's serious health condition and need for leave is consistent with the a pattern of absences. See § 825.308(e).
M. Fitness-For-Duty Certification (§ 825.312):
As outlined in the employee notice section above, an employee cannot be required to submit a fitness-for-duty certification prior to reinstatement (following FMLA leave) unless he/she has been advised of this requirement in the employer's designation of leave notice. Additional fitness-for-duty requirements include:
1. The health care provider may be required to verify that the employee is able to perform the essential functions of the job, if the employee was advised of this requirement in the Designation Notice. See § 825.312(b).
2. For employees on intermittent or reduced leave, an employer may require a fitness-for-duty certification to return from related absences up to once every 30 days if reasonable safety concerns exist regarding employee's ability to perform his/her duties. See § 825.312(f).
a. Reasonable safety concerns mean a \"reasonable belief of significant risk of harm to the individual employee or others.\" Employers should consider the nature and severity of the potential harm and its likelihood of occurring.
3. The authentication and clarification guidelines discussed under the medical certification section apply to fitness-for-duty certifications. See § 825.312(a).
4. Employers may not obtain second or third opinions on a fitness-for-duty certification. See § 825.312(b).
5. If proper notice has been given regarding the need for a fitness-for-duty certification and the employee does not provide the certification (or request additional FMLA leave), the employee is no longer entitled to reinstatement under the FMLA. See § 825.312(e).
V. INJURED SERVICEMEMBER LEAVE
A. Introduction: Effective January 28, 2008, an employee is entitled to take up to 26 weeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.
B. Coverage and Definitions (§ 825.127):
1. Employees may take leave to care for an injured servicemember who is the employee's spouse, parent, child, or relative for whom the employee is the \"next of kin.\" “Next of kin” is defined as the servicemember's nearest blood relative (aside from those individuals already named). The regulations prioritize who is considered \"next of kin\" but allow a servicemember to designate another blood relative as his or her nearest blood relative. If the employee makes this designation, the designated individual will be the servicemember's only next of kin. See §
825.127(a)(3).
a. “Next of kin” means nearest blood relative, other than a spouse, parent or child of the servicemember, in the following order of priority: blood relatives who have been granted legal custody, brothers or sisters, grandparents, aunts and uncles, and first cousins, unless the servicemember makes a declaration as to next of kin as discussed above. If no declaration is made all of the listed family members are considered next of kin and all can take leave to care for the injured servicemember.
2. Employees may take leave to care for an injured son or daughter who is 18 years of age or older. See § 825.122(g).
3. A covered servicemember is defined as a current member of the Armed Forces (including National Guard, Reserves or Regular Armed Forces) or a member of the Armed Forces who is on the temporary disability retired list, in outpatient status. A covered servicemember does not include a former member of the Armed Forces, National Guard or Reserves or one who is on the permanent disability retired list. See § 825.127(a).
4. The leave year is based on a single 12-month period and begins with the first day the employee takes leave. This differs from how a leave year is computed for all other forms of FMLA-qualifying leave, including exigency leave. See §§ 825. 127(c)(1), 825.200(f).
5. Leave is applied on a per-covered-servicemember, per-injury basis. See § 825. 127(c)(2).
6. No more than 26 weeks of leave may be taken during any single 12-month period, regardless of the number of times (or individual servicemembers) leave is taken for. See § 825.127(c)(2).
7. Employers must designate leave as servicemember leave when leave qualifies both under this provision and the provision for leave to care for a family member with a serious health condition. See § 825.127(c)(4).
C. Certification Requirements (§ 825.310):
1. The DOL created a separate certification form, entitled \"Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave\" (Form WH-385) for employers to use if they wish. See Attachment
6. Additionally, this section identifies other documentation that may be submitted instead of the suggested DOL Form WH-385. See § 825.310(e) & App. H. These include an “invitation travel order” (ITO) or an “invitation travel authorization” (ITA) issued by the Department of Defense asking the family member to come to the bedside of an injured or ill servicemember. The ITO or ITA acts as automatic certification of FMLA leave if the employee is eligible.
2. Employers may request certification from the covered servicemember's authorized health care provider, and the regulations provide a list of authorized providers. See § 825.310(a). This certification may be completed by a Department of Defense health care provider, a Veterans’ Affairs health care provider, or other health care providers authorized by the Department of Defense to provide care, as listed in the regulations.
3. In connection with the certification process, an employer is permitted to obtain details about the servicemember's medical condition, such as whether the injury occurred in the line of duty, when it occurred, its probable duration, and the amount of time the servicemember will require care, as well as information from the employee (e.g., regarding the relationship between the employee and the servicemember). See §§ 825.310(c), (b).
4. The provisions relating to obtaining second/third opinions (§ 825.307) or recertifications (§ 825.308) do not apply to leaves to care for a covered ill or injured servicemember. See § 825.310(d).
5. An employee may be required to provide confirmation of his/her relationship to the injured or ill servicemember. Confirmation can take the form of a simple statement from the employee or a birth certificate or court document. See §§ 825.310(e)(3), 825.122(j).
VI. QUALIFYING EXIGENCY LEAVE
A. Coverage and Definitions (§ 825.126):
1. A qualifying exigency includes: 1) short-notice deployment, defined as a call/order to active duty seven days prior to date of deployment (limited to seven calendar days of leave beginning on the date the military member is notified of deployment); 2) military and activities related to call to active duty; 3) childcare and school activities (e.g., arrange for alternative childcare, provide childcare on urgent or immediate need basis, enroll child in new school or day care, attend meetings with school or day care staff); 4) make or update financial and legal arrangements; 5) counseling; 6) rest and recuperation (limited to five days per leave, up to 12 weeks in a 12-month period, to spend with military member on short-term leave); 7) post-deployment activities, defined as up to 90 days following termination of active duty status; and 8) additional activities (must be agreed to by both employer and employee). See § 825.l26(a)(1)-(8). Generally, and where applicable, there must be a relationship between the reason(s) for leave and the active duty or call to active duty.
2. Exigency leave applies to retired military members of the Regular Armed Forces, retired Reserve, Ready Reserve, Select Reserve, Individual Ready Reserve, or the National Guard. This provision does not apply to any retired member of a state Reserve or National Guard unit. See § 825. 1 26(b)(2). In other words, the servicemember must be acting under federal orders.
3. The leave year is based on a l2-month period and can be designated by the employer as the calendar year, a fixed l2-month period, a l2-month period measured forward or backward (\"rolling\" l2-month period) from the date of the employee's first absence. In other words, the employer's standard leave year applies to this type of leave (in contrast to the leave year required to care for an injured servicemember). See § 825.200(b)(1)-(4).
B. Certification Requirements (§ 825.309)
1. The DOL has created a separate certification form, entitled \"Certification for Qualifying Exigency for Military Family Leave\" (Form WH-384), for employers to use if they so choose. See § 825.309(c) & App. G.
2. In connection with the certification process, an employer is permitted to ask for copies of the military member's duty orders or other military documentation, facts regarding the exigency, dates of the military member's active duty service, and date of commencement of exigency.
See § 825.309(b).
3. A copy of covered military member's active duty orders need only be provided once. See § 825.309(a).
4. If the employee's request for exigency leave is for intermittent/reduced leave schedule, he/she may be asked to give beginning and ending dates, as well as an estimate of the frequency or duration of the qualifying exigency. See §§ 825.309(b)(3), (4).
5. If the employee is meeting with a third party (for example, to arrange for childcare or make financial arrangements), the employee must supply detailed information about the third party and nature of the meeting so the employer can verify the need for leave.
C. Reinstatement Rights
1. Right to Same or Equivalent Position
a. An employee generally has the right to return to the same or equivalent position with equal pay, benefits and working conditions as before the leave. 29 C.F.R. §825.100(c).
b. “If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under FMLA.” 29 C.F.R. §824.214(b).
(1) The employer must evaluate whether providing another position may be required under ADA.
VII. THE AMERICANS WITH DISABILITIES ACT
A. The Employer Must Be Covered: An employer is covered by Title I of the
ADA and Louisiana Employment Discrimination Law if:
1. The employer is a private employer, employment agency, labor organization, or labor-management committee and has 15 or more employees, or
2. The employer is a state or local government.
B. The Employee Must Be Covered: An employee who is a qualified individual with a disability is covered. A qualified individual with a disability is a person who:
1. has a physical or mental impairment that limits a major life activity (seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself and working); or has a record of such an impairment; or is regarded as having such an impairment AND
2. who can perform the essential functions of the job with or without reasonable accommodation.
C. Nondiscrimination: An employer may not discriminate against a qualified individual with a disability in all employment practices such as recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, lay off, and leave.
D. Reasonable accommodation: Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
1. Examples of possible accommodations include:
a. Leave
b. providing or modifying equipment or devices
c. job restructuring
d. part-time or modified work schedules
2. Limitations on the Obligation to Make a Reasonable Accommodation
a. The disabled individual requiring the accommodation must be otherwise qualified.
b. The disability must be known to the employer.
c. An employer is not required to make an accommodation if it would impose an \"undue hardship\" on the operation of the employer's business.
(1) Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.
(2) Factors to be considered in determining whether an accommodation is an undue hardship are:
(a) the cost of the accommodation,
(b) the employer's size, financial resources and the nature and structure of its operation.
(3) If a particular accommodation would be an undue hardship, an employer must try to identify another accommodation that will not pose such a hardship.
(a) If cost causes the undue hardship, the employer must also consider whether funding for an accommodation is available from an outside source, such as a vocational rehabilitation agency, and if the cost of providing the accommodation can be offset by state or federal tax credits or deductions. The employer must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.
3. Identifying a Reasonable Accommodation
a. The accommodation must be effective (enable the person with a disability to perform the essential functions of the job.)
b. The accommodation need not be the best accommodation or the accommodation the individual with a disability would prefer.
c. The employer has the final discretion to choose between effective accommodations and may select one that is less expensive or easier to provide.
d. Resources
(1) The applicant or employee with a disability frequently can suggest an appropriate accommodation.
(2) The EEOC, State or local vocational rehabilitation agencies, or State or local organizations representing or providing services to individuals with disabilities.
(3) The Job Accommodation Network (JAN). JAN is a free consultant service that helps employers make individualized accommodations. The telephone number is 1-800-526-7234.
4. When Reassignment to Another Job Should Be Considered as a Reasonable Accommodation.
a. According to the EEOC: \"When an employee with a disability is unable to perform her present job even with the provision of a reasonable accommodation, you must consider reassigning the employee to an existing position that she can perform with or without a reasonable accommodation. The requirement to consider reassignment applies only to employees and not to applicants. You are not required to create a position or to bump another employee in order to create a vacancy. Nor are you required to promote an employee with a disability to a higher level position.\" (1) Direct Threat: The ADA permits an employer to require that an individual not pose a direct threat to the health and safety of the individual or others in the work-place. A direct threat means a significant risk of substantial harm. An employer cannot refuse to hire and cannot fire an individual because of a slightly increased risk of harm to himself or others or based on a speculative or remote risk. The determination that an individual poses a direct threat must be based on objective, factual evidence regarding the individual's present ability to perform essential job functions. If an applicant or employee with a disability poses a direct threat to the health or safety of himself or others, the employer must consider whether the risk can be
eliminated or reduced to an acceptable level with a reasonable accommodation.