FAMILY AND MEDICAL LEAVE ACT Regulations Updates Effective 01/16/09
Employee Eligibility“12 months of employment requirement” – Prior Legal Framework Employee must work for employer for a total of 12 months.
Employee Eligibility12 months of employment “PRIOR” regulations stated thatthe 12 months need not be consecutive so there was an openissue with respect to counting periods of employment prior to abreak in service, e.g., Employee works for employer for 3 years,quits and does not work for employer for 5 years. When employeereturns to work, when does employee become eligible for FMLAleave?Periods of employment prior to a five year break inservice would count toward the 12 months ofemployment eligibility requirement.Left open issue of impact of longer break in service.
Employee EligibilityFINAL REGULATIONSIn determining whether an employee has been employedfor a total of 12 months:Employment periods prior to break in service of 7 years or more neednot be counted; however, an employer may consider prioremployment falling outside of cap, provided uniform application.Except that, periods of employment prior to a break in service of morethan 7 years must be counted where: • Break due to National Guard or Reserve military service duty; time served counts toward 12 months • Written agreement (e.g., Collective Bargaining Agreement) exists concerning intention to rehire after break in service
Employee EligibilityImpact of final regulations on “12 months ofemployment requirement” FMLA only requires 3 year retention of employment records Final regulations create proof issue because of need to review prior employment within 7 year period. It appears that the employee may have the burden of proof if employer doesn’t have documents after 3 years. However, if the employee establishes proof and the employer can’t disprove it, the employer have to recognize the prior service.
Employee EligibilityFinal RegulationsDetermining employee eligibility for FMLA leave whileemployee is on non-FMLA leave Determination of 12 months and 1,250 eligibility requirements must be made as of the “date FMLA leave commences” An employee may be on “non-FMLA leave” at the time he or she meets the eligibility requirements; the period of leave taken for an FMLA-qualifying reason after the employee meets the eligibility criteria will be FMLA leave Carefully consider whether to provide non-FMLA leave to new employees New employees will in some instances become eligible for more leave than employees with longer lengths of service (DOL views this as employer policy issue)
Employee EligibilityFinal regulations also coordinate with USERRAregulations to provide that an employee’s absencedue to National Guard or Reserve militaryobligations count toward employee eligibilityrequirements – 12 month requirement – 1,250 hour requirement
Joint Employer and PEO Issues Employee leasing arrangements’’—like those involving temporary services firms and other staffing companies— refer to arrangements in which the staffing firm places its own employees at a customer’s place of business to perform services for the recipient’s enterprise. The PEO, or "HR Outsourcing Vendor" in contrast, contracts with client employers merely to perform administrative functions for its clients such as payroll and benefits coverage and administration (including workers’ compensation insurance and health insurance). The PEO typically has no direct responsibility over the employees of its clients including ‘‘hiring, training, supervision, evaluation, discipline or discharge, among other critical employer functions.’’
Joint Employment and Work Site ProvisionIn joint employer relationship, primary employer must give FMLAnotice, provide FMLA leave, and continued health benefits. For employees of temporary help or leasing entities, placement agency is typically the primary employer. Job restoration is the primary responsibility of the primary employer. The secondary employer is responsible for accepting the employee returning from FMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the temporary or leasing agency, and the agency chooses to place the employee with the secondary employer. Secondary employer must comply with prohibited acts provisions since an employee on leave who is working for a secondary employer is considered employed by the secondary employer, and must be counted for coverage and eligibility purposes, as long as the employer has a reasonable expectation that that employee will return to employment with that employer. Employees jointly employed by two employers must be counted by both employers, whether or not maintained on one of the employers payroll, in determining employer coverage and employee eligibility.
Joint Employment & Work Site ProvisionPRIOR RegulationsFor employees who are jointly employed, for purposes ofcalculating “50 employees within 75 miles,” employee’s worksite isprimary employer’s office from which the employee is assigned orreportsFinal Regulations Adds provision that where employee has physically worked for at least one year at a facility of a secondary employer (e.g. client employer), the employee’s worksite is the facility of the secondary employer
Joint Employer Issues and PEOFinal Regulations add reference to ProfessionalEmployer Organization (PEO) • PEO not joint employer where PEO performs only administrative functions • PEO may be joint employer where PEO retains right to hire, fire, directs or controls employees or benefits from work performed by the client employees • Impact of Final Regulations - Review agreements with PEO to determine to what extent PEO or client employer is directing employees and retaining responsibility
Serious Health ConditionRetains six (6) general categories of a“serious health condition” 1. Inpatient care (minimum of 1 night hospitalization) 2. A period of incapacity of more than 3 consecutive calendar days plus treatment by healthcare provider 3. Any incapacity due to pregnancy or prenatal care 4. Chronic conditions requiring treatment by a healthcare provider 5. Period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective 6. Multiple treatments for non-chronic conditions that if left untreated would become serious health condition
Serious Health ConditionFinal regulations provide clarification to2 categories of SHC: – Incapacity Plus Treatment – Chronic Conditions
Serious Health ConditionPrior regulations on Incapacity Plus TreatmentSHC defined to include period of incapacity in excess of 3 calendar days andsubsequent treatment or period of incapacity - plus - Treatment 2 or moretimes by a healthcare provide or Treatment 1 time by a healthcare providerwhich results in regimen of continuing treatment (e.g., course of antibiotics)under supervision of healthcare provider.Final regulations on Incapacity Plus TreatmentTreatment by a HCP must be an “in-person visit” and the first (or only,depending upon which definition) to the HCP must be within 7 days of firstday of incapacity With respect to requiring treatment by HCP “two or moretimes,” treatment must occur within 30 days of the first day of incapacity,absent extenuating circumstances. Determination of whether additional treatment visits or regimen of continuing treatment is necessary within the 30-day period shall be made by HCP (See New Certification prototype)
Medical Certification for“SERIOUS HEALTH CONDITION” With the exception of certifications to support a request for injured service member leave, annual medical certifications may be required in cases where a “Serious Health Condition” extends beyond a single leave year.
CHRONIC Health Condition Prior Regulations - SHC defined to include chronic conditions • Requiring periodic visits for treatment by a healthcare provider • Continuing over extended period of time • Causing episodic periods of incapacity Final Regulations • Specifies that “periodic visits” must occur at least twice per year • Preamble: Determination of whether periodic visits are required two times per year is made by the HCP
Re-certifications for Chronic MedicalConditions The Company may request medical re-certifications for Chronic, i.e., continuing, open-ended conditions, “every 6 months” Medical re-certifications may be requested on a more frequent basis if there are other change circumstances or reasons
Holidays OccurringDuring FMLA LeavePrior Regulations • Holiday occurring during a week taken as FMLA leave has no effect; full week counts as FMLA leave • Open issue in regulations on impact of Holiday on FMLA absences of less than a full weekFinal Regulations • Same rule with respect to holiday occurring within week of FMLA • Leave Specifies that if employee is using FMLA leave in increment of less that 1 week, Holiday does not count against FMLA leave unless employee was otherwise scheduled and expected to work during the Holiday
Intermittent/Reduced Schedule FMLA LeavePrior Regulations Employees needing intermittent leave or leave on a reduced leave schedule “must attempt to schedule their leave so as not to disrupt unduly the employer’s operations”Final Regulations Employee needing intermittent leave or leave on a reduced leave schedule must “make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations” Slightly stronger standard No definition of “reasonable effort” *No clear enforcement mechanism
Calculating FMLA Leave whereEmployee’s Schedule Varies Prior Regulations Where schedule varies from week to week, calculation of FMLA leave used based upon weekly average of hours worked over the 12 weeks prior to the beginning of the leave period Fina l Re g ula tions Where employee’s schedule varies from week to week such that employer cannot determine with certainty what hours would have been worked but for FMLA leave, calculation of FMLA leave used based upon a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any periods of non-FMLA leave)
FMLA QUALIFYING EVENTS1. Because of the birth of a son or daughter of the employee and in order to care for such son or daughter2. Because of the placement of a son or daughter with the employee for adoption or foster care3. In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition4. Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee
NEW Qualifying Event (Number 5)January 16, 2009 Qualifying Exigencies Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in support of a contingency operation may use their 12- week leave entitlement to address certain qualifying exigencies. The Final Regulations clarify that qualifying exigency leave generally applies only to families of service members on or called to active duty in the armed services.
“Qualifying Exigency” The need for leave by the eligible employee must arise out of the fact that the spouse, son, daughter, or parent of the employee is a covered military member in support of a contingency operation. With one exception, QE leave is family leave: it is not leave available to an employee who is also a covered military member.
Qualifying *Exigency under FMLA includes thefollowing eight (8) categories:1. Short-notice deployment,2. Military events and related activities,3. Childcare and school activities,4. Financial and legal arrangements,5. Counseling,6. Rest and recuperation,7. Post-deployment activities, and8. Additional activities to address other events which arise out of the covered military member’s active duty or call to active duty status, provided the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave. * Dictionary Definition of Exigency is a pressing or urgent situation requiring much effort or immediate action.
“Qualifying Exigency” (1) Short-notice deployment Where the covered military family member is notified of a deployment of 7 or less days, an eligible employee may take up to 7 days of leave for any reason related to that deployment. The 7 days begins to run when the covered family member is provided the short-notice deployment.
“Qualifying Exigency” (2) Military events Allows leave to attend any official ceremony, program or event sponsored by the military, and to attend family support and assistance programs and information briefings sponsored by the military, military service organizations, or the American Red Cross.
“Qualifying Exigency”(3) Child care and school activitiesEligible employee may take leave to arrange for childcare or attend certain school functions of the son ordaughter of a covered military family member, includingleave to (i) arrange for alternative school or childcare; (ii) providechildcare on an urgent, immediate need (not regular) basis; (iii)enrollment or transfer of a child in a new school or day care facility; and(iv) attend meetings with school or day care staff regarding discipline,parent-teacher conferences, and school counselors.DOL indicates that QE leave is not intended to be used to meet with staff at aschool or daycare facility for "routine" academic concerns. Obviously, in manycircumstances it will be very difficult to determine whether the need to meet withschool staff is casually related to the active duty of a covered military familymember or merely for routine academic concerns.
“Qualifying Exigency” (4) Financial and Legal arrangements Eligible employees are allowed leave to make or update financial or legal arrangements to address the covered military family members absence while on active duty/call to active duty, such as preparing or executing a will, powers of attorney, transferring bank account signature authority, obtaining military identification cards, and securing military service benefits. DOL specifically mentions coverage to enroll in the Defense Enrollment Eligibility Reporting System (DEERS). Leave is not available for routine matters, such as paying bills.
“Qualifying Exigency” (5) Counseling QE leave is available for the employee to attend counseling by a non-health care provider. Leave is available where the counseling is needed by the employee, the covered military member, or the son or daughter of the covered military member needs counseling, PROVIDED that the counseling arises from active duty service or call to active duty. As examples, DOL cites counseling by a military chaplain, pastor, or minister, or counseling offered by the military or a military service organization that is not a health care provider.
“Qualifying Exigency” (6) R&R The Rest and Recuperation category provides leave to spend time with a covered military member who is on short-term, temporary rest and recuperation leave during the period of deployment. Eligible employees may take up to five days of leave for each instance of rest and recuperation.
“Qualifying Exigency” (7) Post-Deployment Activities QE leave is available for the eligible employee to attend ceremonies incident to the return of the covered military family member, including arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military members active duty status. It is also available for the employee to take leave to address issues arising from the death of a covered military family member, such as meeting and recovering the body and making funeral arrangements. The DOL specifically noted coverage for participation in the DOD- sponsored Yellow Ribbon Reintegration Program. Such participation, moreover, is covered even if it exceeds the general 90-day limitations period (be a few days) for post-deployment activities.
“Qualifying Exigency” (8) Additional Activities This category allows leave to address other events which arise out of the covered military member’s active duty or call to active duty status provided that the employer and employee agree that such leave shall qualify as an exigency, and agree to both the timing and duration of such leave.
Reasonable & Practicable Notice Employees seeking qualifying exigency leave must give reasonable and practicable notice if the exigency is foreseeable. The notice must inform the employer that a family member is on active duty or called to active duty status, cite a listed reason for leave, and give the anticipated length of absence. Family members generally are defined broadly. – A son or daughter on active duty, for example, includes an employee’s biological, adopted, or foster child, stepchild, legal ward, or – one for whom the employee stood in loco parentis, regardless of age.
NEW Qualifying Event (Number 6)January 16, 2009 (MILITARY CAREGIVER) Eligible employees may take up to 26 weeks of leave to care for a covered service member during a single 12-month period. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform his or her duties for which the service member is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.
# 6 MILITARY CAREGIVEREligible employees may take more than oneperiod leave if the leave is to care for differenteligible covered service members or to care forthe same service member with a subsequentserious injury or illness, except that no morethan 26 work-weeks of leave may be takenwithin any “single 12-month period
# 6 MILITARY CAREGIVER Eligible covered service member may be a “*Next of Kin” and can be in the regular armed forces, Reserves, Guard, or anyone in those categories on a temporary disability retired list (TDRL). “*Next of Kin” excludes the covered service member’s spouse, parent, son, or daughter, as they already are entitled to leave for this purpose. The eligible covered service member must have a serious illness or injury incurred in the line of duty on active duty, as determined by the Department of Defense (DOD), that may render him medically unfit to perform the duties of his office, grade, rank, or rating and for which he is undergoing medical treatment, recuperation, therapy, or outpatient treatment or is on TDRL.
# 6 MILITARY CAREGIVER “Single 12-Month Period” The method for establishing the “single 12-month period” for purposes of military caregiver leave is a period that commences on the date an employee first takes leave to care for a covered service member with a serious injury or illness. Employers do not have the option of using the calendar-year method as they do for other types of FMLA leave.
FMLA MAY EXTEND BEYOND 26WEEKS IN UNIQUE CIRCUMSTANCESThe 12-month period for military caregiver leave beginson the first day of such leave, regardless of theemployers method of calculating the 12-month leaveperiod for other types of FMLA leave.As a result, an employee who has taken other FMLAleave before beginning military caregiver leave may beentitled to more than 26 weeks of leave in the 12-month period beginning with the earlier FMLA leave.
# 6 MILITARY CAREGIVERAs in the case of defining a son or daughter, “parent” is defined broadlybut does not include in-laws. “Next of kin” also is defined as categoriesof blood relatives, in order of priority, but the “covered service member”may make a written designation of a specific blood relative as next ofkin, and that will control under the FMLA.When no such designation is made, and there are multiple familymembers with the same level of relationship to the covered servicemember, all such family members shall be considered the coveredservice member’s next of kin and may take FMLA leave to provide careto the covered service member; either consecutively or simultaneously.The Company can ask employees for reasonable documentation offamily relationships; a simple statement will suffice.
# 6 MILITARY CAREGIVER Employer may require a certification from the covered military member’s healthcare provider. In addition, Employer may request: Military member’s name, branch, rank, and assignment Relationship of Employee to military member Name of the facility where military member is receiving care A description of the care to be provided and estimate of the time needed
No Overlap of Service Member andFamily/Medical Leaves Leave that qualifies both as leave to care for a covered service member and leave taken to care for a family member with a serious health condition during the “single 12-month period” cannot be designated and counted as both leave to care for a covered service member and leave to care for a family member with a serious health condition.
MARRIED EMPLOYEESIn cases where the married couple is employed by thesame Company the two spouses together may take acombined total of :1. 12 weeks leave during any 12-month period for reasons 1 and 2, or to care for the same individual pursuant to reason 3.2. The aggregate number of workweeks of leave to which both that husband and wife can take for reason 5 is 12 weeks.3. When both husband and wife work for The Company, the aggregate amount of leave that can be taken by the husband and wife is 26 weeks in a single 12 month period for reason 5, or a combination of reasons 5 and 6.
Medical Certifications Final regulations represent significant changes with new forms for all types of leave – Employer must request certification within 5 business days after receiving employee notice – Employee must still provide certification within 15 days
NEW FORMS AVAILABLEThe DOL has updated the optional forms provided to assist employers inadministering FMLA. It also has developed forms to implement the newMilitary Family Leave Amendments.The new list of optional FMLA forms include: 1) WH-380E: New Certification of Health Care Provider for Employee’s Serious Health Condition 2) WH-380F: New Certification of Health Care Provider for Family Member’s Serious Health Condition 3) WH Publication 1420: Notice to Employee of Rights Under FMLA 4) WH-381: Notice of Eligibility and Rights and Responsibilities 5) WH-382: Designation Notice 6) WH-384: Certification of Qualifying Exigency for Military Family Leave 7) WH-385: Certification of Serious Injury or Illness of Covered Service member for Military Family Leave
Different Medical Certifications forEmployee and Family Members Recognizing that employers could benefit from having greater insight into the reasons why employees could not perform essential job functions, the DOL has created a new medical certification form for use in evaluating the medical need for leave prompted by an employee’s own serious health condition. (WH-380E) The DOL also created a separate medical certification form for use when employees request leave to care for a family member with a serious health condition. This form seeks information on the type of care being provided by employees. (WH-380F)
New “Rights & Responsibilities” Form(WH-Publication 1420) At the time of their eligibility notice employees also must receive a written notice of “Rights & Responsibilities” from the Company detailing the specific expectations and obligations of employees and explaining any consequences of their failure to meet these obligations. Among other things, the Company must inform FMLA-eligible employees of 1. Any requirement to provide medical certification, 2. The right to substitute paid leave, 3. Whether and how to pay premiums for continuing benefits, and 4. Job restoration rights upon expiration of FMLA leave.
New “Eligibility Notice” ClarifiesEmployee Rights to Leave: A new mandatory WH-381 form replaces the existing optional Form WH-381, and combines the written notice of “Rights and Responsibilities” required by the regulations. • When an employee requests leave or employer acquires knowledge that an employee’s leave may be for FMLA qualifying reason, employer must notify employee of employee’s eligibility for FMLA leave within 5 business days, absent extenuating circumstances • Must state whether employee is eligible • If employee is not eligible, employer must state at least one reason why employee is not eligible • Employer’s notice must include how much time is designated, if known For unspecified leave, employer must send notice every 30 days as to how much leave was designated in the prior month Retroactive designation is permitted if no harm to employee
“Designation Notice” (WH-382) Once an employer has obtained sufficient information to determine whether an employee’s leave will be protected by the FMLA, the employer must notify the employee within five business days (a change from the current requirement of two business days) that the leave is designated as FMLA leave, absent extenuating circumstances. Of course, employers may provide the “Eligibility” and “Designation” notices at the same time, if they have sufficient information to do so.
Certifying Qualified Exigency Leave Employers may require certification for qualified exigency leave For example, requiring the employee to provide a copy of the service member’s active duty orders There’s an optional form, WH-384, for qualifying exigency certification. – The regulations also allows employers to verify with a third party that an employee met with the third party (a teacher, for example) during the leave. – If the employee submits a complete, sufficient certification supporting a request for the leave, the employer may not request additional information from the employee. – Recertification isn’t permitted.
Certification of Needfor Caregiver Leave The DOL offers an optional form, WH-385, for certifying military caregiver leave. An employer must accept “invitational travel orders” (ITO) or “invitational travel authorizations” (ITA) issued by the DOD to family members for medical purposes as sufficient certification of the need for military caregiver leave, at least until the expiration date of the order or authorization. The government issues an ITO and ITA so that one to three family members can immediately travel, at government expense, to the bedside of an injured service member, and they’re not issued routinely, so the DOL believes they’re sufficient certification. Employers may seek authentication and clarification of military caregiver certifications but may not seek second or third opinions or recertification.
Employers Must Notify Employees of Certification DeficienciesThe Company can contact health care providers directly, but only toauthenticate certification – Direct supervisors may not be the Company’s representative – Comply with HIPAA privacy requirements with respect to clarificationThe Company must notify the employee in writing of the additionalinformation that is necessary to complete the medical certification andallow the employee seven calendar days to provide the additionalinformation.If the employee fails to submit a complete and sufficient certificationdespite the opportunity to cure the deficiency or give permission forthe clarification discussion, the Company may deny FMLA leave.
Fitness For Duty Certifications If reasonable safety concerns exist, the Company may now require more than a “simple statement” of the ability to return to work and may require a “fitness for duty” certification
Intermittent LeaveMinimum IncrementFinal regulation clarifies“minimum increment of FMLA leave” – Must account for leave using increment no greater than the shortest period of time that employer uses to account for other forms of leave, provided not greater than one hour and provided that employee’s FMLA leave entitlement is not reduced by more than FMLA leave actually taken – Preamble – Do not have to account for FMLA leave in 6 minute increments, just because time system is capable of doing so
Inability to work overtimeprotected by FMLAThe DOL has clarified that missed overtime must becounted against the employee’s FMLA leaveentitlement if the employee would otherwise have beenrequired to report for duty but for the taking of FMLAleave. Inability to work normally required overtime counts against FMLA entitlement Inability to work voluntary overtime does not count against FMLA entitlement
Full Explanation Required Calling in sick is not considered a sufficient notice to trigger an FMLA absence. Employees must explain sufficiently reasons for leave to allow the Company to determine whether the leave qualifies under the Act. If employee fails to explain the reasons, leave may be denied. When an employee seek leave due to an FMLA- qualifying reason for which the Company has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave or the need for FMLA leave
Employees must comply with usualand customary call-in procedures All employees must comply with *usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Examples of “unusual circumstances” may include: no one answered telephone number employee called company voice mail box is full employees are unable to use telephone because they are seeking emergency medical treatment *You may have requirements providing written notice of the reasons and anticipated start and duration of the leave or requirement that employees contact a specific individual to request leave.
Impact of FMLA Leaveon Bonus Payments/Pay IncreasesFinal Regulations on Equivalent Pay 1. Pay increases conditioned upon seniority, length of service or work performed must be granted in accordance with the employer’s policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave (no special treatment for FMLA leave) 2. Recognizes that attendance and safety awards are predicated on the achievement of a performance based goal 3. If bonus or other payment is based upon achievement of a specific goal, such as hours worked, products sold or perfect attendance, and employee does not meet the goal due to FMLA leave, then payment may be denied (so long as consistent with other employees on equivalent non-FMLA leave) Note – take into account vacation
Time spent performing light duty doesnot count toward FMLA entitlement An employee’s right to FMLA leave and job restoration are not affected by light duty assignments. Thus, the employee’s right to job restoration is essentially on hold during the period of time an employee performs a light duty assignment. At the conclusion of the voluntary light duty assignment, the employee has the right to be restored to the position the employee held at the time the employee’s FMLA leave commenced or the employee may use the remainder of his or her FMLA leave entitlement.
Employer Notice Requirements Final regulations Consolidates all employer notice requirements into 4 parts: • General Notice • Eligibility Notice • Rights and Responsibilities Notice • Designation Notice
General NoticePoster (new prototype form) • Post in conspicuous place - Where employer has eligible employees, contents of the general notice (the contents of the poster) must be included in handbook or guidance (if such exist) or by distributing to new employees upon hire (not annual) • May be distributed electronically so long as available to all employees • May be posted electronically so long as available to all employees • Must be posted even if no eligible employees • Increase in daily penalty for failure to post - $110
Rights and Responsibilities NoticeContents of Notice: • That the leave may be designated FMLA leave if qualifying and 12 month period • Certification requirements • Employee right or employer requirement to substitute paid leave • Health premium payment requirements • Key employee rights • Employee’s right to benefits and job restoration • Employee’s potential liability for failure to pay health insurance premiums paid by employer if employee fails to return to work • Other information (such as requirement for periodic reports) may be included, but not required
Designation Notice • Employer responsible for designating leave • Prototype notice- must be in writing • When employer has enough information to determine whether leave is taken for an FMLA qualifying reason, employer must notify employee within 5 business days (or earlier, if have enough information) • Notice must address concurrent use of PTO benefits • Notice must address fitness for duty (exception if covered in handbook policy); include list of essential functions • Notice must identify amount of leave being counted against FMLA entitlement; if amount unknown, must provide (upon employee request) update on amount of leave used (but no more often than every 30 days and only if leave taken in that period)