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FMLA Forms – Best Practices

FMLA Forms – Best Practices

May 8, 2015

Authored by: Christy Phanthavong and Chris Rylands

FormsIf you are responsible for administering your company’s Family and Medical Leave Act (“FMLA”) policy, you know that the associated FMLA forms can be both your best friend and your worst nightmare.

On the one hand, proper use of the forms – such as the various Certifications, the Rights & Responsibilities Notice, and the Designation Notice – can provide valuable information to help you evaluate and manage employees’ leave requests. On the other hand, attempting to comply requirements surrounding the forms, not to mention trying to understand the meaning of information received from medical providers – can be an exercise in frustration.

Below are some “best practices” relating to FMLA forms that may aid in the administration of your FMLA policy:

  • FMLA Employee Request Form: Although the Department of Labor (“DOL”) has not provided a template FMLA request form, employers are permitted to develop and use their own. While implementing such a form (including adding a reference to it in your policy) would not permit ignoring an oral request, requiring employees to submit requests in writing provides a clear method of requesting leave, establishes a record of what leave was requested and when, and creates an opportunity to reiterate expectations surrounding FMLA leave requests.
  • Deadlines: Become familiar with the deadlines for providing various notices to employees (e.g., Notice of Eligibility due within five days of being placed on notice that

FMLA Final Rule Defining Spouse Will Not Be Enforced in Four States – For Now

On the eve of the March 27, 2015 effective date for the DOL’s final rule amending the definition of “spouse” under the federal Family and Medical Leave Act (“FMLA”), a Texas district court preliminarily enjoined the rule’s application to the states of Texas, Arkansas, Louisiana and Nebraska. The case is Texas v. U.S., No. 7:15-cv-0056 (N.D. Texas 2015) and the full opinion may be found here.

Under the final rule, employers must look to the state where the marriage was entered into (instead of the state in which the employee resides) to determine the employee’s spouse. The revised definition of spouse includes same-sex marriages, common law marriages, and same-sex marriages entered into abroad that could have been entered into legally in at least one state. The rule was enacted in response to the Supreme Court’s Windsor decision, which held that the definition of marriage (between one man and one woman as husband and wife) in Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. However, Section 2 of DOMA, the Full Faith and Credit Statute, which allows states to refuse to recognize same-sex marriages from other jurisdictions, was unaffected by the ruling.

In their pleading, the states argued that the final rule should be enjoined because it contradicted the Full Faith and Credit Statute, the statutory definition of marriage in the FMLA, and their individual state laws – which do not recognize same-sex marriages. The district court found that in issuing the

FMLA Rules for Couples: Can My Employee Take FMLA Leave Even Though She/He Has A Stay-At-Home Spouse?

BabyPreviously in this series of blog posts relating to the federal Family and Medical Leave Act (“FMLA”), we discussed which couples do not have FMLA rights under the definition of “spouse,” as well as the limitations that can be placed on couples’ leave rights when both spouses work for the same employer.

To wrap up this series, we ask a “couples” question that you may have been thinking but were afraid to ask: Do I have to let my employee take leave to care for a covered family member (such as a child or parent), when the employee has a stay-at-home spouse who may be available to provide the necessary care?

The bottom line: Yes.

The FMLA provides a right to eligible employees to take leave for qualifying reasons. In other words, if the employee is eligible for leave, the leave is needed for a reason covered by the FMLA, and the employee has leave time available, then the employee is entitled to take the leave.

There are no qualifiers on this right relating to whether the employee is the only person who can provide the necessary care. In fact, the DOL thought of this because the regulations expressly state that, “[t]he employee need not be the only individual or family member available to care for the family member or covered servicemember.”

Of course, if someone else is available

FMLA Rules for Couples: Leave Limitations when Spouses Work for the Same Employer

CoupleIn a prior post, we discussed which couples do not have federal FMLA rights under the new regulatory definition of “spouse.” Now that we know who can and can’t take FMLA leave as a husband or wife, the next question is: What limitations May an employer can put on FMLA leave when both spouses work for that employer?

  • Eligible spouses are entitled to a combined total of 12 weeks of leave (i.e., not 12 weeks each) during the applicable 12-month period for leave taken:
    • For the birth or placement of a child;
    • To care for the child after birth; and/or
    • To care for an employee’s parent with a serious health condition.

Note that this limitation applies only to the identified reasons for leave. This limitation does not apply, for example, with respect to leave to care for an employee’s child with a serious health condition. In that situation, both parents would be permitted to take up to 12 weeks of leave each to care for the child.

  • Eligible spouses are entitled to a combined 26 weeks of leave during the applicable 12-month period for leave taken for a combination of military caregiver leave and one of the foregoing reasons.
  • Where spouses use a portion of their entitlements for the foregoing reasons, they are each entitled to the difference between the amount of leave they have taken individually for such

FMLA Rules for Couples: So, Who’s Not Covered?

FMLA Rules for Couples: So, Who’s Not Covered?

March 27, 2015

Authored by: Christy Phanthavong and Chris Rylands

Couple with DogThe U.S. Department of Labor’s issuance of a final rule amending the definition of “spouse” in the federal Family and Medical Leave Act (“FMLA”) regulations has inspired us to prepare a new series of FMLA-related blog posts on the subject of “FMLA Rules for Couples.”

We start our discussion by asking what may not seem like the obvious question in light of the new rule: Which couples do not have FMLA rights under the new definition of spouse?

The answer is relatively straight-forward: Couples who are not legally married under U.S. laws, or whose lawful marriage outside the U.S. could not have been entered into in at least one U.S. state, are not considered “spouses” for purposes of the FMLA.

Thus, while opposite-sex couples in lawful marriages, same-sex couples in lawful marriages, and even couples married under common law all have FMLA rights as spouses, the FMLA does not provide the rights of a husband or wife to:

  • Individuals in a civil union;
  • Individuals who are domestic partners;
  • Individuals who are dating, living together, friends with benefits, etc. (i.e., not married).

Keep in mind, of course, that we are talking about the FMLA rights of spouses. The above rules do not mean, for example, that an unmarried parent (mother or father) would not be entitled to FMLA leave to bond with his or her newborn, or newly

It’s Open Enrollment: Have You Notified Employees on FMLA Leave?

It’s Open Enrollment: Have You Notified Employees on FMLA Leave?

November 10, 2014

Authored by: Christy Phanthavong and Chris Rylands

Enroll NowOpen enrollment has likely begun at your company, often bringing it with changes to employee health plans. When communicating benefits-related information, it is important to ensure that all employees – including those currently away from the workplace on FMLA leave – receive the same communications and opportunity to select the new or changed coverage.

The FMLA regulations provide that:

If an employer provides a new health plan or benefits or changes health benefits or plans while an employee is on FMLA leave, the employee is entitled to the new or changed plan/benefits to the same extent as if the employee were not on leave. . . . Notice of any opportunity to change plans or benefits must also be given to an employee on FMLA leave.”

Reiterating this requirement, the IRS regulations provide the following guidance concerning the effects of the FMLA on the operation of cafeteria plans:

FMLA requires that an employee on FMLA leave have the right to revoke or change elections (because of events described in § 1.125-4) under the same terms and conditions that apply to employees participating in the cafeteria plan who are not on FMLA leave. Thus, for example, if a group health plan offers an annual open enrollment period to active employees, then, under FMLA, an employee on FMLA leave when the open enrollment is offered must be offered

Ebola and the FMLA

Ebola and the FMLA

October 22, 2014

Authored by: Christy Phanthavong and Chris Rylands

519410079By now, many U.S. employers are heavily involved in preparing for workplace issues implicated by Ebola.  From a benefits perspective, make sure your planning gives appropriate consideration to the Family and Medical Leave Act (FMLA).

Undoubtedly, an employee who is eligible for FMLA leave will be entitled to such leave if the employee contracts Ebola, based on having a serious health condition that requires leave from work.  Similarly, an eligible employee whose covered family member contracts Ebola is likely to be entitled to leave to care for such family member (even if such “care” involves only psychological care and not physical care).

But what about the employee who is exposed or potentially exposed to Ebola, and, as a result, is requested or required – or even just volunteers, based on potential exposure – to be in quarantine?  And what about employees who have not been exposed but who are fearful of contracting Ebola in the workplace and refuse to come to work?

 An argument could be made that an eligible employee who is in quarantine based on exposure or a reasonable belief of potential exposure to Ebola is entitled to leave under the FMLA.  This is because the definitions of “serious health condition,” “incapacity,” and “unable to perform the functions of the [employee’s] position” include situations in which an employee must be absent from work to receive “treatment.”  “Treatment” in turn

Quirky FMLA Counting Rules: Leave Prior to Eligibility

Quirky FMLA Counting Rules: Leave Prior to Eligibility

October 15, 2014

Authored by: Christy Phanthavong and Chris Rylands

488281517Continuing our discussion of “quirky” counting rules under the Family and Medical Leave Act (“FMLA”), today we address these questions: May leave granted to an employee who is not eligible for FMLA leave be designated as FMLA leave? And may that leave be counted against the 12-week FMLA leave entitlement.

The short answer (to both) is:  No.

This question typically arises because an employer is trying to be generous.  For example, the employee is a newer employee and needs leave, but has not yet worked for the employer for 12 months or 1,250 hours.  Or perhaps the employer has various office locations and wants to allow employees in smaller offices (which do not meet the 50 employees in 75 miles eligibility rule) to take FMLA leave just like employees in larger offices are able to do.

But while an employer is certainly permitted to provide an employee with leave when not otherwise required by the FMLA, the regulations are clear that such leave is not FMLA leave and may not be counted against an employee’s 12-week FMLA entitlement.

So, for example, if an employee is permitted to begin a leave prior to reaching the 12 months of employment threshold, such leave cannot be designated as FMLA leave at any time.  Instead, if and when the employee reaches the 12 months of employment threshold, only leave that occurs after the eligibility requirement

Quirky FMLA Counting Rules: Light Duty

Quirky FMLA Counting Rules: Light Duty

October 8, 2014

Authored by: Christy Phanthavong

Recently, we began a discussion of “quirky” counting rules under the Family and Medical Leave Act (“FMLA”), starting with issues relating to overtime hours.  Today, we continue the discussion by addressing the “quirky” counting aspects involved in the intersection of the FMLA and “light duty” work.

The FMLA regulations are clear that, if an eligible employee submits the required paperwork certifying the employee’s need for leave due to a serious health condition, the employer cannot force or otherwise “coerce” the employee to instead accept a light duty position.

Of course, the FMLA doesn’t preclude an employer from offering a light duty position, and if the employee’s provider approves, there can certainly be benefits to both the employer and the employee of the employee returning to work as soon as possible.

Not surprisingly, when an employer offers, and an employee voluntarily accepts, a light duty assignment, the time spent working in the light duty assignment is not counted against the employee’s 12-week FMLA entitlement.  After all, the employee is working, not on leave.

Worker OKNonetheless – and here’s the catch – during the period that the employee is working in the light duty position, the employee remains protected by the reemployment rights under FMLA.  That is, the employee has an FMLA-protected right to be restored to his or her same position (or to an equivalent one), assuming the

Quirky FMLA Counting Rules: Overtime

Quirky FMLA Counting Rules: Overtime

October 1, 2014

Authored by: Christy Phanthavong

Of all the administrative challenges posed by the Family and Medical Leave Act (“FMLA”), the most difficult may be ensuring that you are correctly determining FMLA hours available and taken for each employee.  Figuring out how to apply the general FMLA counting rules is hard enough, but add in the some of the “quirky” FMLA counting rules, and the situation can be downright maddening.

492303039One such quirk relates to overtime hours.  You are probably aware that overtime hours are considered “hours worked” for purposes of the eligibility requirement relating to 1,250 hours worked.  That is, overtime hours are counted on an hour-for-hour basis when determining whether the employee has worked at least 1,250 hours during the 12 month period immediately preceding the commencement of the leave.

And you may also be aware that, for qualifying situations, FMLA can be used to protect leave during what would otherwise be overtime hours (potentially including a general “no overtime” request).

But do you know whether and how to count such missed overtime hours against an employee’s 12-week FMLA leave entitlement?  And whether overtime hours must be factored into the amount of FMLA leave entitlement in the first place?

The FMLA regulations speak to these issues.  Specifically:

  • If the overtime that the employee missed was voluntary overtime, then the missed time may not be counted against the employee’s FMLA leave entitlement.
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