With all of the regulations and forms, FMLA can be very confusing to understand and comply with. The overlapping State and Federal laws, eligibility qualifications, and process requirements make FMLA into a complicated regulation, but with the right information it doesn’t have to be a headache. Join KPA’s Human Resource Advocate, Kim Kavanagh, as she helps to take the mystery out of FMLA. Kim will delve into: • Employer responsibilities • Employee eligibility • What documents are required and when • Overlapping State and Federal Laws • The intricacies of FMLA

1. Navigating the FMLA Maze
Presented by
Kim Kavanagh, SPHR
Senior HR Consultant

2. Moderator
Rebecca Ward
Marketing Writer
(303) 219-7802
rward@kpaonline.com

3. Presenter
Kim Kavanagh, SPHR, SHRM-SCP
Senior HR Client Consultant
(303) 802-3095
kkavanagh@kpaonline.com

4. Questions
If you have questions during
the presentation, please submit
them using the “Questions”
feature
Questions will be answered at
the end of the webinar

5. What is FMLA
Who is eligible for FMLA
When do you offer FMLA
Employer Responsibilities under FMLA
Employee Responsibilities under FMLA
What to do if the Employee doesn’t return
Things to remember
Questions
FMLA

6. Federal Law that allows eligible employees of
covered employers to take up to 12 weeks off for
unpaid, job protected leave for specified family
and medical reasons within a 12-month period.
Twenty-six workweeks of leave during a single
12-month period to care for a covered service
member with a serious injury or illness if the
eligible employee is the service member’s spouse,
son, daughter, parent, or next of kin (military
caregiver leave).
The Family Medical Leave Act of 1993

7. Count backwards 12 months to determine if
the employee has taken any FMLA leave in
the past year.
Example - Employee requests FMLA to begin
on October 1, 2014. The employer needs to
look back to the time period of September
30, 2013 up to September 30, 2014 and if
the employee has taken any FMLA leave
during this time it would count into the 12
weeks allotted.
The 12 Weeks

8. An employee that works for a covered
employer, which is an employer that employs 50
or more employees within a 75 mile radius. The
50/75 Rule
And
An employee that has worked for the employer
for a minimum of 12 months before taking
FMLA leave, and worked at least 1,250 hours
during those 12 months. The 1250 hours is
approximately 24 hours a week
Who is Eligible for FMLA?

9.  The 12 months of employment don't have to
occur all at once, but the clock does reset if
there is a gap of seven years or more between
periods of employment.
 Service members fulfilling National Guard or
Reserve obligations are exempt from this rule.
As are employees subject to a written
agreement that expresses an employer's intent
to rehire the employee at the end of the gap in
employment.
Who is Eligible for FMLA?

10.  Only certain situations trigger the right to
take FMLA leave.
Any "qualifying exigency" arising out of the
active duty or imminent active duty in the
National Guard or Reserve in support of a
contingency operation of the employee's
spouse, child or parent. (The employee is
entitled to 26 weeks of leave in this
situation).
When to Offer FMLA?

11. The birth and care of the employee’s
newborn child- the leave must be taken
within one year of the birth
The adoption or foster care of the
employee’s newly placed child- the leave
must be taken within one year of placement
To care for the employee’s spouse, child or
parent who has a serious health condition
Situations That Trigger FMLA

12. A serious health condition that makes
the employee unable to perform the
essential functions of their job
Any qualifying exigency arising out of
the fact that the employee’s spouse,
child or parent is a covered military
member on “covered active duty”
Situations That Trigger FMLA

13. Employers covered by FMLA must post an
approved notice that explains FMLA rights and
responsibilities. This must also be included in an
employee handbook or other written resources
concerning benefits
When creating a policy or the approved notice
on FMLA, it must include information on:
• FMLA’s military family leave provisions
• Information on the right to take FMLA leave
on an intermittent or reduced schedule basis
Employer Responsibilities under FMLA

14. Upon receiving an employee’s request or
inquiry about FMLA leave, an employer must
provide the employee with:
1) An eligibility notice with rights and
responsibilities
2) A designation notice to comply with the
FMLA’s individualized notice
requirements- this information in your
handbook is not sufficient
Employer Responsibilities under FMLA

15. Notice of Eligibility and Rights and Responsibilities
is a 3 page form that you as the employer must
complete and provide to the employee.
The eligibility notice must indicate whether the
employee is eligible for leave. If the employee is
not eligible, the notice must state at least one of
the reasons why not (for example, that the
employee has not yet worked for the employer for
12 months). This notice must be provided within
five business days after the employee's request.
Notice of Eligibility

16. The Rights and responsibilities section
provides a variety of information about
FMLA leave, including whether the
employer will require a medical
certification and/or fitness for duty
certification, payment of healthcare
premiums and using paid leave.
Notice of Eligibility

17. Designation Notice is a 1 page form that you as the
employer must complete and provide to the employee.
This form designates time off as FMLA leave or notifies
the employee that time off will not be designated as
FMLA leave.
• For FMLA leave, the notice must indicate how much
leave will be counted against the employee's 12-week
entitlement, if the amount of leave is known.
• If the amount of leave is unknown, the employee can
request a written statement of how much leave has
been counted against his or her entitlement no more
often than every 30 days. This written statement can
be a notation on the employee's pay stub.
Designation Notice

18. Require medical certification for a request for
leave resulting from a serious health condition of
the employee or the employee's spouse, child or
parent;
An employee's direct supervisor cannot verify a
medical certification of a serious medical condition,
but employers may use a health care provider, a
human resource professional, a leave administrator or
a management official to do so.
Require second or third opinions (paid for by the
employer) of a serious medical condition, as well
as periodic recertification of the condition
Employers Can Require Certain Items

19.  Require certification that an employee
returning from FMLA leave for a serious health
condition can safely resume work.
 Require the employee to provide the requested
certification within 15 calendar days after the
employer’s request “unless it is not practicable
under the particular circumstances to do so
despite the employee’s diligent, good faith
efforts…” Many employers view the 15 days as
a hard-and-fast rule without considering the
“impracticable” exception.
Employers Can Require Certain Items

20. When you request certification, you, as
the employer must also advise the
employee of the anticipated
consequences of an employee’s failure
to provide adequate certification-the
leave being denied.
Employers Can Require Certain Items

21. If possible, the employee must provide 30
days notice to the employer concerning their
intention to take FMLA leave.
When 30 days notice is not possible, the
employee must provide notice whenever
practicable.
Employees must also give their employer
enough information for the employer to
determine whether the type of leave
requested would fall under FMLA.
Employee Responsibilities

22. If the employee is requesting FMLA leave for
the first time, they do not have to declare
their intention to take FMLA leave.
The second request for FMLA leave for the
same reason, however, requires the
employee to refer to the qualifying reason
for the leave or the need for FMLA leave
specifically.
Employee Responsibilities

23. After an employee requests FMLA leave or the
employer determines that leave might fall under
the FMLA, the employer must inform the employee
of their eligibility to take the leave and their rights
and obligations under the FMLA .
Once the employer has enough information to
conclusively determine that the leave falls under
the FMLA, the employer must inform the employee
of the determination and notify them that the
leave will count towards their FMLA allowance.
Employee Responsibilities under FMLA

24. Confirm the 12 weeks have elapsed
Confirm that HR has spoken to the Employee about their intentions to
return or if they may need additional leave
Consider any extenuating circumstances that may prevent an employee
from returning and decide leave extension requests on a case by case
basis and if the extension will create an undue hardship for the
employer
A reasonable accommodation on the part of the employer for an
employee to return to work may be necessary and legal under the ADA
Always take into consideration why the employee is not able to return,
treat all employees in similar situations the same and determine if
assistance from the employer is needed for the employee to return
sooner
What if the Employee Doesn’t Return

25. A leave under the FMLA does not insulate an
employee from the consequences of
misconduct if the employer would have taken
the action anyway, regardless of the leave
Proceeding with an investigation into the
misconduct while the employee is on leave is
often the better option than waiting the
employee’s return and then beginning the
investigation
The employer needs to have enforced the policy
violation consistently- key element, otherwise it
could be viewed as retaliation
Terminating an Employee on Leave

26. If covered employers provided group health
insurance to an employee before the
employee went on FMLA leave, FMLA
requires that the employer continue
providing that coverage on the same terms
while the employee is on leave.
Employees who paid a portion of the health
insurance prior to FMLA leave must make
arrangements to continue paying this
portion while on leave.
Maintaining Benefits

27. An employer’s obligation to maintain health
insurance coverage ceases under FMLA if an
employee’s premium payment is more than
30 days late, unless the employer has a
policy providing for a longer grace period.
Employees Failure to Pay Premiums

28. In order to cancel coverage for an employee
whose premium payment is late, you must
send written notice to the employee that the
payment has not been received.
The notice must be mailed to the employee
at least 15 days before coverage is to cease.
The notice must advise that coverage will be
dropped on a specific date at least 15 days
after the date of the letter unless payment is
received.
Employees Failure to Pay Premiums

29. If coverage lapses due to unpaid premiums,
once the employee returns from FMLA the
employer must restore the employee’s
coverage/benefits equivalent to those the
employee would have had if the leave had
not been taken and the premium payment(s)
had not been missed.
Employees Failure to Pay Premiums

30. Don’t Make an Employee Perform Substantive
Work while on FMLA Leave. Not ever. Never
Don’t Abandon Your Obligation to Return the
Employee to the Same or Equivalent Position
Be exceedingly careful when returning an
employee to a different position upon their
return from FMLA leave. Confirm it is a position
requiring identical skills, effort, responsibility,
authority and pay.
Remember…

31. If the leave qualifies as FMLA, the employer
can require the employee to use FMLA
time. The employee can't choose to "save"
their FMLA for later.
The employer can also require the employee
to use available vacation, sick or PTO time.
However this requirement must be defined
in the FMLA policy.
Remember…

32.  An employee is not automatically
disqualified from receiving FMLA protections
for failing to provide a return-to-work date.
Providing "care" under FMLA may
include activities that are not directly related
to the employee's spouse, child, or parents.
The employee could provide "psychological"
or "physical assistance" to a family member,
this would be considered “care” under FMLA.
Remember…

33. Do you have 50
or more
employees?
IF No- STOP
IF Yes – Go to
Next Step
Has the employee
requesting FMLA
been working for
you for at least 12
months?
IF No- STOP
IF Yes – Go to
Next Step
Has the employee
requesting FMLA
been worked at
least 1250 hours in
the last months?
IF No- STOP
IF Yes – Go to
Next Step
Has the employee
requesting FMLA
taken any time
under FMLA in the
last 12 months?
If Yes- Calculate
Amount of LOA
remaining IF NO –
Go to Next Step
The employee
is entitled to 12
weeks off
Confirm initial
reason for leave
falls under FMLA
guidelines
Provide paperwork
to employee to
complete and
return
Confirm
documents are
completed and
leave does qualify
for FMLA
Maintain position
and health
coverage for
employee on leave
Maintain regular
contact with
employee and
intent to return to
work
Before the 12
weeks expire,
notify employee
when protected
leave will expire
Welcome
employee back
FMLA Flowchart

34. Questions

35. Forms can be found at
http://www.dol.gov/whd/fmla/
To Locate Required Forms