1. Suarez | Griffin PL
presents
FMLA, You’ve Got To
Be Kidding Me!
Orlando, August 30, 2010
HR Florida State Council
1

2. ROIs
1. Brief overview of FMLA
2. Discuss FMLA amendments
3. Review trends through recent
caselaw
4. Discuss ways to avoid problems
and pitfalls
2

3. Which Employers Must Provide Leave
and Which Employees May Take It?
• Private Sector: 50 or more employees w/in
75 mile radius who have worked 1,250 hours
within previous 12 months
• Public Sector: Federal, state and local
governments and schools.
3

4. Airline Flight Crews
• The employee meets the 1250 hours if:
- the employee has worked/been paid no
less than 60% “total monthly guarantee” for
previous 12 months
- the employee has worked/been paid for
not less than 504 hours during previous 12
months (doesn’t count commute or time on
leave)
4

5. Airline Flight Crews
• “Applicable Monthly Guarantee”:
Number of hours the employer agreed to schedule
the employee for any given month;
If on reserve status, the number of hours the
employer has agreed to pay the employee for any
given month
• Employer must maintain on file with the Secretary
information regarding the montly guarantee and
each category of employee to which it applies
5

6. When May an Employee
Take Leave?
• Qualifying exigency arising because spouse,
son, daughter, or parent is on active duty, or
has been notified of impending call to active
duty, in support of a contingency operation;
• To care for covered servicemember with
serious injury or illness if the employee is the
spouse, son, daughter, parent, next of kin
6

7. Qualifying Exigency
• Short-notice deployment (7 or less calendar days
before deployment)
• Military events and related activities
• Childcare and school activities
• Financial and legal arrangements
• Counseling
• Rest and recuperation
• Post-deployment activities
• Additional activities
7

8. Covered Servicemember Serious
Injury or Illness
• Illness or injury incurred in line of duty on active
duty that may render the servicemember medically
unfit to perform the duties of his/her office, grade,
rank, rating.
• “Per servicemember, per injury” basis (but 26
weeks in single 12 month period still applies)
8

9. How Much Leave May An Employee
Take?
• 12 Weeks (total for any qualifying reason):
- Birth, adoption or placement of a child
- Care for family member with serious health condition
- Employee’s serious health condition
- Because of a qualifying exigency
• 26 Weeks (total for any qualifying reason):
- Care for covered servicemember with serious injury or
illness during a “single 12 month period”
9

10. • Employee obligations
– Employee must provide medical certification
when required
– Employee must provide Active Duty Orders for
qualifying exigency if requested by employer
– Certification of qualifying exigency
– Verification of qualifying exigency
10

11. Employee’s Serious Health
Conditions
• Inpatient care
• Continuing Treatment (3 days of incapacitation):
• Pregnancy-related conditions
• Chronic health conditions
• Permanent or long term conditions
• Treatment to prevent incapacitation or restorative
surgery
• Pregnancy, chronic absences w/o 3 days of
incapacitation or health care provider visit
11

12. Types of Leave
• Single Block of Leave
• Intermittent Leave
- employer agreement not needed for serious health
condition or qualifying exigency; only for birth or
placement of child
• Reduced Leave Schedule
- employer agreement not needed for serious health
condition or qualifying exigency; only for birth or
placement of child
- can temporarily move employee to a different position,
but make sure equivalent pay and benefits – be careful!
12

13. Tips for Managing
Intermittent Leave
• Remember eligibility rule (once employee is
eligible, he remains so for 12 months!)
• Always require medical certification
– Form should state whether intermittent or
reduced leave is required
– Require frequent recertification
13

14. • Upon receipt of healthcare provider
certification form from an employee, the
employer should:
• - CAREFULLY examine the certification
form
• - CLARIFY any confusing or contradictory
information
• - CONSULT another qualified healthcare
provider as needed
14

15. • Require employees to provide
“recertification” forms when initial
certification form expires and each time it
expires thereafter.
• When duration of leave is unknown,
employer may request recertification every
30 days following date of initial form.
15

16. • Employees may also be required to provide
recertification forms for the following:
– Nature or pattern of absences changes suddenly
– Employer received information which brings reason for
leave into question
– Nature of prognosis or circumstances surrounding
absences changes
– Employee requests an extension of leave of absence
period
• Employees may not be required to provide
recertification forms in connection with chronic or
ongoing conditions (including pregnancy) for
periods during which they have not requested any
leave 16

17. • Require foreseeable leave to be scheduled
in least disruptive way to workplace
• Discuss possibility of reduced work week,
even if not requested (but you can’t force!)
• Consider temporary transfer to position
where intermittent absences won’t have
such an impact
17

18. • Carefully track all time
– Can be deducted in as small increments as your
system allows
– Will not impact exempt status under FLSA
• Remember only time actually used for
certified purposes is covered
• Careful enforcing attendance policies
18

19. Interference with FMLA Rights
• It is unlawful for any employer to interfere with,
restrain or deny the exercise of or the attempt to
exercise, any right provided under the FMLA. (See
§ 29 U.S.C. § 2615(a)(1).)
• You cannot retaliate against an employee for
– exercising her rights under FMLA
– opposing any practice made unlawful by FMLA
• Careful of terminating anyone recently on FMLA
leave or whose requests were denied
19

20. Case Study #1
• Katherine was an employee of the company who experienced
respiratory problems because of her asthma. Her doctor suggested
that she take a leave of absence from her job to determine if a change
of environment would improve her condition.
• When she requested her leave, she was one week shy of her one year
with the Company. Knowing she could not take FMLA leave until after
she was employed one year, she specifically requested she be allowed
to begin the leave after her one-year anniversary.
• The Company fired her for substandard performance the day after she
requested the FMLA leave.
• Can the Company do this? Does she have recourse? If so, what
grounds? How would you handle this?
20

21. Case Study #2
• Annette has been employed by the Company for 7 years.
During her employ, she has earned one promotion and
consistently received satisfactory evaluations.
• Earlier this month, Annette’s same sex partner gave birth to
a baby boy.
• Annette took her last available week of vacation to be with
her partner and baby immediately upon the birth.
• Upon her return, Annette requests from you paperwork to
apply for FMLA. What do you do?
21

22. Case Study #3
• Marsha and Mark are a married couple who both work for
the Company. When they have a baby, Marsha takes four
weeks of FMLA for her own serious medical condition –
recovery from child birth and four weeks for the care of the
newborn.
• Mark takes four weeks also for the care of the newborn.
• Later in the year, the baby develops a serious medical
condition. Mark requests leave under the FMLA.
• Can he take the time? If so, how much?
22

23. Frequently Asked Questions
• Can you get fired during FMLA leave?
Yes – if terminable performance problem is first realized when the individual is on
leave.
• Yes – if part of a legitimate layoff
• UPDATE: Leave for employees with
covered servicemembers are limited to 26
weeks per year, regardless of the qualifying
reason. 23

24. FMLA Litigation: What You
Need to Know
• Employee claiming she was terminated because
she requested or took FMLA leave must prove:
– She was eligible for the leave
– There was qualifying condition
– She gave proper notice to employer and complied with
all aspects of FMLA
– She was terminated
– Her request for leave was a motivating factor in
employer’s decision
24

25. ALL FMLA REGULATIONS
• TO ACCESS ALL FMLA REGULATIONS,
PLEASE SEE THE DEPARTMENT OF
LABOR WEBSITE:
www.dol.gov/allcfr/ESA/Title_29/Part_825/

26. Additional Information
• As we were unable to get through the entire presentation, I
would be happy to answer any questions concerning the
remainder of the presentation, the FMLA in general and the
interrelationship of the FMLA with other laws. Please feel
free to contact me:
Donna Griffin
Suarez | Griffin PL
14115 Stilton Street
Tampa, FL 33626
donna@suarezgriffin.com
813.433.9003 (work) ~ 727.410.3877 (cell)