FMLA Training

1
FMLA Training Part II presented by The Office of
the State Employer Employee Health
Management Toni McFarland Contract
Negotiations/Administration Cheryl Schmittdiel
2
Review
3

• The State of Michigan must observe employee (EE)
  rights under the FMLA
• The State of Michigan must observe EE rights
  under Collective Bargaining Agreements (CBA) and
  Civil Service Rules Regulations (CSRR) and
• The State of Michigan cannot interpret CBA or CSR
  R to diminish rights guaranteed by FMLA.

4
Employee Eligibility

• Work for covered employer (ER) -- Public Agencies
  are covered ERs and
• Work 12 months, which need not be consecutive
  and
• Work at least 1,250 hours within the 12 months
  prior to the leave and
• Military leave counts as time worked.

5
Qualifying Events

• The State of Michigan (SOM) as a covered ER must
  grant an eligible EE up to a total of 12
  workweeks of paid/unpaid FMLA leave in a 12 month
  period for any of the following reasons
• for the birth of a son or daughter and to care
  for the newborn
• for the placement of a child for adoption or
  foster care, and to care for the newly placed
  child
• to care for a spouse, son, daughter, or parent
  with a Serious Health Condition (SHC) and
• for the EE's own SHC that makes the EE unable to
  perform the essential functions of their
  position.

6
Employee Notification to Employer

• Notice to ER may be given
• In writing
• Verbally
• In person
• By telephone
• By fax machine
• After the employee returns, but within two (2)
  business days
• By EEs spokesperson

7
Foreseeable Leave

• When need for leave is foreseeable EE notifies ER
  30 days or more before leave begins
• Or, as soon as practicable, but within two (2)
  business days of learning leave is necessary
• Verbal or written notification is acceptable

8
Unforeseeable Leave

• When need for leave is unforeseeable EE notifies
  ER as soon as practicable
• Within two (2) business days of going on leave
  or
• Within two (2) business days of returning from
  leave

9
Employer Rules

• Any ER or department rules or requirements
  regarding call in or notification when an EE
  cannot work are still in effect and are not
  relieved under the FMLA.
• However, a transgression cannot serve as a basis
  for denial if timely notice is given.
• No call, no show and subsequent FMLA request

10
Employer Knows the Reason for FMLA Leave

• The ERs designation decision must be based only
  on information received from the EE or the EE's
  spokesperson (e.g., if the EE is incapacitated,
  the employee's spouse, adult child, parent,
  doctor, etc., may provide notice to the ER of the
  need to take FMLA leave).

11
Employer Hears It Through the Grapevine

• If the EE tells their supervisor they are taking
  annual leave and that annual leave will be for an
  FMLA qualifying reason, then the EE has told the
  ER.
• If the EE has told a co-worker and the co-worker
  tells the supervisor then the ER has not been
  told. However, the ER may request that the
  CS-1789 be filled out and returned. If the EE
  does not confirm the absence or fill out the
  paperwork the ER may not designate the leave as
  FMLA, and the EE has no FMLA protection.

12
FMLA, LTD and Workers Compensation

• If an EE qualifies for an FMLA leave and the
  absence also qualifies for LTD or Workers
  Compensation, then all of the pertinent forms,
  documents, letters and notification need to be
  sent to the EE simultaneously.

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Family Medical Leave ActEmployee Request
Employer ResponseForm CS-1790
14
Family Medical Leave ActEmployee Request
Employer Response Form CS-1790
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Employee Request
16
Employee Request
17
Employee Request

• The EE is not required to use the CS-1790 to
  notify the ER.
• If notification is made in any other manner, the
  ER/Supervisor/Human Resources office will
  complete Section I of the CS-1790 as well as
  Section II.

18
Employee Request

• The EE need not specifically mention FMLA.
• The EE must make clear the reason for the leave.
• If the ER asks, the EE must provide details about
  the reason for leave, either for their condition
  or that of the EEs family member, or the leave
  may not be approved.

19
Employee Request

• The EE does not need to provide the diagnosis for
  a SHC.
• ER may ask if this is a SHC.
• Staying home for personal problems, if too sick
  to work or because a child is ill, do not trigger
  FMLA protection.

20
Employee Information
21
Reason for Leave Request
22
Reason for Leave Request

• EE must have SHC and be unable to do the
  essential functions of the job.
• The ability to perform other jobs or light-duty
  work is not relevant.
• Consecutive days refers to calendar days, not
  work days, and weekends are included even if the
  EE is not scheduled to work.
• A full or partial day absence to receive medical
  treatment counts as a day of incapacity.
• If an EE is absent for substance abuse and is not
  receiving inpatient treatment or continuing
  treatment by a health care provider, they do not
  qualify for FMLA leave.

23
Reason for Leave Request

• Some CBAs permit EE to certify the need to use
  up to two weeks of sick leave, upon the birth of
  their child, prior to the beginning of any
  parental leave.
• The time counts against the 12 weeks of FMLA.
• An eligible EE is entitled to a total of 12 weeks
  of FMLA leave in a 12-month period. The two
  weeks of sick leave are deemed to be due to the
  serious health condition of the EEs spouse or
  newborn child and are attributable to family care
  leave under the FMLA.

24
Notice Requirements
25
Notice Requirements Section 301 Notice

• The CS-1790 meets the FMLA Section 301 notice
  requirements.
• This form replaces the US DOL WH 381 and the need
  to provide the EE with Fact Sheet 28.

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Designation Rights Responsibilities
27
Designation Rights Responsibilities

• The ER must make a preliminary designation of
  whether or not the leave qualifies as FMLA leave.
• The ER has a duty to inquire further if the ER
  needs additional information to determine whether
  a request for leave is for an FMLA qualifying
  reason.
• ER may only inquire further of EE or EEs
  spokesperson.
• ER may not have direct contact with EEs
  healthcare provider.

28

Eligibility/Ineligibility Notice
29
Eligibility/Ineligibility Notice

• If the ER fails to notify the EE that they do not
  meet the eligibility requirement prior to the
  start of leave, when the leave is foreseeable,
  then the EE could be deemed eligible even if
  they do not meet the eligibility criteria.
• See US DOL Opinion Letter, FMLA 2002-1.

30
Designation of FMLA Leave
31
Designation of FMLA Leave

• Provisional designation should be given pending
  receipt of CS-1789 Medical Certification form.
• If the ER fails to designate FMLA leave and the
  EE takes 12 weeks, then later the EE states they
  want to take more time, the EE must establish
  that they would have shortened their original
  leave if it had been designated FMLA.
• The designation of FMLA leave must be made within
  two (2) business days after the EE returns to
  work and can be made by either the EE or the ER.
  If not designated within two (2) business days
  cannot be designated FMLA.

32
Medical Certification
33
Medical Certification

• The ER must give specific notice of the need for
  medical certification and the consequences of
  failing to obtain medical certification.
• The EE must be given the CS-1789 Medical
  Certification form within two (2) days of the EE
  notice of need for FMLA.
• The ER may ask for only the information on the
  CS-1789, no greater amount of information is
  allowed.

34
Medical Certification contd

• The information on the CS-1789 must relate only
  to SHC for which the current need for leave
  exists.
• The EE has 15 calendar days to have the form
  completed and returned to the ER.
• If the form is incomplete the ER may ask the EE
  for clarification.
• Any charges associated with completing the form
  are the EEs responsibility.

35
Paid or Unpaid Leave
36
Paid or Unpaid Leave

• An employee may elect to use accrued sick, annual
  or personal leave, as appropriate, in place of an
  unpaid FMLA leave.
• If the EE fails to designate sick, annual or
  personal leave for an unpaid leave, the ER may
  require the use of appropriate accrued leave
  before allowing an unpaid leave.
• The EE must be informed within two (2) business
  days of giving FMLA notice that the paid leave
  will be imposed except where the ER does not have
  sufficient information to make an FMLA
  designation.

37
Group Health Benefits
38
Group Health Benefits

• Group Health Benefits (health, dental and vision)
  must be maintained during FMLA leave.
• EEs make arrangements with their Human Resources
  Office to pay their bi-weekly premium share.
• If an EE is laid off or their limited term
  appointment expires during an FMLA leave, the ER
  can stop paying for the EEs health insurance.

39
Fitness for Duty Certification
40
Fitness for Duty Certification

• This certification must be required uniformly for
  all similarly-situated EEs.
• The certification can be as simple as a statement
  that the EE is able to return to work.
• There is no fitness-for-duty certification for
  intermittent leave.
• The ER cannot contest the fitness-for-duty
  certification through second and third opinions.
• The EE may be terminated if the fitness-for-duty
  certification is not provided and notice was
  given of the requirement.

41
Fitness for Duty Certification

• If a CBA permits ER to require an EE to have a
  medical examination, notice of this requirement
  must be given to an EE when leave is requested or
  shortly after leave is requested.
• The medical examination must be to determine
  whether
• The EEs ability to perform the essential job
  functions is impaired by a medical condition or
• The EE poses a direct threat to other EEs due to
  a medical condition.

42
Key Employee
43
Key Employee

• The Key EE exemption is very rare.
• It applies only to high-salaried (must be in the
  highest 10 of all EEs for the ER) EEs whose
  reinstatement after a leave would cause the ER
  substantial and grievous economic injury.
• A Key EE may not be denied the right to take
  FMLA leave if the EE is eligible and the FMLA
  leave is properly designated, but can be denied
  reinstatement if properly noticed of Key EE
  designation.

44
Periodic Report Intent to Return
45
Periodic Report Intent to Return

• An ER may require an EE on FMLA leave to report
  periodically on the EEs status and intent to
  return to work.
• If there is a change in the EEs circumstances
  that will allow them to return to work earlier,
  or will need to extend their leave, they are
  required to notify the ER within two (2) business
  days of the change in their circumstances.
• If an EE gives unequivocal notice of intent not
  to return to work, the ERs obligations under
  FMLA to maintain health benefits and to restore
  the EE cease unless the EE will not be returning
  due to a continuation of a SHC.

46
Periodic Report Intent to Return

• A returning EE is entitled to any unconditional
  pay increases that occurred during the leave,
  unless the pay increases are dependent on
  seniority, work performed or length of service.
• If an EE is no longer qualified for their
  position because they have not renewed a license,
  attended a necessary course, flown a minimum
  number of hours due to the FMLA leave, the EE
  must be given a reasonable opportunity to
  fulfill those conditions upon their return to
  work.

47
Periodic Report Intent to Return

• An equivalent position must have the same pay,
  benefits, working conditions and must also have
  substantially similar duties and
  responsibilities, authority, skill and effort.
• The returning EE is not entitled to any more
  preferential treatment,(e.g., if the EEs
  position is eliminated due to a reduction in
  force or a limited term appointment has expired)
  than they would have had if they had been at
  work.
• An EE may be terminated while on FMLA leave if
  the EE would have been terminated absent their
  leave.

48
Re-certification
49
Re-certification

• For pregnancy, chronic, or permanent/long term
  conditions under continuing supervision of a
  health care provider the ER may request
  re-certification no more often than every 30 days
  and only in connection with an absence unless
• Circumstances described in the previous
  certification have changed (change in severity of
  the condition or frequency of absences).
• The ER receives information that casts doubt on
  the reason for the EEs absence.

50
Re-certification

• If the minimum period of continuous incapacity on
  the previous certification is more than 30 days,
  the ER may not request re-certification (this
  also applies to intermittent leave and leave
  taken for treatment) during the designated period
  unless
• The EE requests an extension of leave.
• Circumstances described in the previous
  certification have changed (change in severity of
  the condition or frequency of absences).
• The ER receives information that casts doubt on
  the reason for the EEs absence.

51
Re-certification

• The EE must provide the requested
  re-certification to the ER within the timeframe
  requested by the ER but not less than 15 days
  from the date of the request.
• Any expenses associated with the re-certification
  are the EEs responsibility.
• No second or third opinion on re-certification
  may be required.

52
Return to Employee
53
Return to Employee

• The ER must provide a verbal or written approval
  or denial to the EE within two business days. If
  approval is given verbally the ER must
  subsequently provide the EE with a copy of this
  completed form by the next payday which is at
  least one (1) week after the verbal notice.
• Documentation should be made on the form as to
  the date, sender and how this form was provided
  to the EE.
• This form meets the US DOL Section 301 notice
  requirements.

54
Certification of Health Care ProviderForm CS-1789
55
Certification of Health Care ProviderForm
CS-1789 contd.
56
Serious Health Condition
57
Serious Health Condition

• Considered a SHC are examinations to determine if
  a SHC condition exists and evaluations of the
  condition.
• Treatment does not include routine physical
  examinations, eye examinations, or dental
  examinations.
• A regimen of continuing treatment that includes
  the taking of over-the-counter medications such
  as aspirin, antihistamines, or salves or
  bed-rest, drinking fluids, exercise, and other
  similar activities that can be initiated without
  a visit to a health care provider, is not, by
  itself, sufficient to constitute a regimen of
  continuing treatment for purposes of FMLA leave.

58
Serious Health Condition contd

• Conditions for which cosmetic treatments are
  administered (such as most treatments for acne or
  plastic surgery) are not ''SHCs'' unless
  inpatient hospital care is required or unless
  complications develop.
• Ordinarily, even if the absence is three (3) days
  or more, unless complications arise, the common
  cold, the flu, ear aches, upset stomach, minor
  ulcers, headaches other than migraine, routine
  dental or orthodontia problems, periodontal
  disease, etc., are examples of conditions that do
  not meet the definition of a serious health
  condition and do not qualify for FMLA leave.  

59
Medical Facts
60
Medical Facts

• Medical facts do not include a diagnosis.
• An EE who must be absent from work to receive
  medical treatment for a SHC is considered to be
  unable to perform the essential functions of
  the position during the absence for treatment. 
• An ER has the option of providing a statement, or
  a copy of the EEs PD, showing the essential
  functions of the EEs position for the health
  care provider to review. 
• If the ER does not provide the essential
  functions, the health care provider will ask the
  EE.

61
Medical Facts contd

• An EE is ''needed to care for'' a family member
  encompasses both physical and psychological care.
  It includes situations where a family member is
  unable to care for their own basic medical,
  hygienic, or nutritional needs or safety, or is
  unable to transport themself to the doctor. This
  also includes providing psychological comfort and
  reassurance which would be beneficial to a child,
  spouse or parent with a SHC who is receiving
  inpatient or home care.

62
Duration of Incapacity
63
Duration of Incapacity

• A period of incapacity of more than three (3)
  consecutive days (including any subsequent
  treatment or period of incapacity related to the
  same condition), that also involves
• Treatment two (2) or more times by a health care
  provider or under the direction of a health care
  provider or
• Treatment by a health care provider on at least
  one occasion which results in a regimen of
  continuing treatment that is under the
  supervision of the health care provider.

64
Treatment Frequency
65
Treatment Frequency

• Any period of absences to receive multiple
  treatments (including any period of recovery
  therefrom) by a health care provider or services
  under the supervision of a health care provider
  (chemotherapy, radiation treatment, physical
  therapy, dialysis).
• Any illness or injury that if left untreated
  would result in an incapacity of three (3) or
  more days (e.g., cancer, arthritis, and kidney
  disease, etc).
• The EE or their family member must be under the
  supervision of a health care provider even if
  they are not in active treatment, e.g.,
  Alzheimers, severe stroke or terminal stages of
  a disease.

66
Absence from Work
67
Absence from Work

• A chronic condition requires
• Periodic visits for treatment by a health care
  provider or treatment under the direction of a
  health care provider and
• Continues over an extended period of time
  (including recurring episodes of a single
  underlying condition) and
• May cause episodic rather than a continuing
  period of incapacity (e.g., asthma, diabetes,
  epilepsy, etc.).

68
Care for Family Member
69
Care for Family Member

• The ER may request a medical certification
  verifying that the family member has a SHC and
  needs care. If the ER has reason to doubt the
  medical certification it may schedule the family
  member for a second-opinion at the ERs expense.
• Care is needed if the family member is unable to
  provide his or her medical, hygienic,
  nutritional, safety, or transportation needs.
• Care includes preparing meals, driving to medical
  appointments, changing dressings and supplying
  psychological comfort and reassurance.

70
Healthcare Provider
71
Healthcare Provider

• A SHC must be treated or supervised by a health
  care provider qualified to practice in the area
  of the SHC.
• Health care providers include
• Physicians, Optometrists, Osteopaths,
  Chiropractors (when manipulating the spine to
  correct subluxation), Podiatrists, Dentists,
  Clinical Psychologist, Christian Science
  practitioners, Nurse practitioners, Nurse
  Midwives, and Clinical Social Workers ( if
  authorized under state law to diagnose and treat
  SHC without supervision), other providers
  recognized by the ER or the group health plan as
  qualified to substantiate a claim for health
  benefits (e.g., Acupuncturist).

72
Employees Statement
73
Employees Statement

• The EE must state what care they will provide to
  a family member.
• The EE must state the duration and frequency of
  the stated care they will be providing.
• The care, frequency and duration must match the
  care, frequency and duration outlined by the
  health care provider.

74
Definitions
75
Clarification

• If the ER determines the medical certification is
  incomplete, the ER must notify the EE and give
  the EE a reasonable opportunity to cure any
  deficiency.
• The ER cannot request information not asked for
  on the CS-1789, the ER can only seek
  authentication or clarification of the medical
  certification.
• The ER cannot have their health care professional
  make any contact with the EEs health care
  provider unless the EEs permission is obtained.

76
Second Third Opinion

• The ER may require a second opinion when there is
  reason to doubt the accuracy of the Medical
  Certification.
• If the second providers report conflicts with
  the first report, then a third opinion must be
  obtained.The two providers must agree on a third
  provider and the third providers opinion is
  binding.
• Second and third opinions are at the ERs
  expense.

77
QUESTIONS ANSWERS
78
ENFORCEMENT

• Complaints - Wage and Hour - ER Policy Review.
• Litigation - DOL or private attorney.
• Remedies - wages/employment lost
• monetary loss for providing care
• reasonable legal and witness fees
• Private right of action.
• 2 year statute of limitation.

79
CONTACT INFORMATION

• Toni McFarland, DMB/OSE/EHM
• (517) 33-54274,
• McFarlandT_at_michigan.gov
• Cheryl Schmittdiel, DMB/OSE/CNA
• (517) 37-37400
• SchmittdielC_at_michigan.gov

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RESOURCES

• The FMLA Handbook A Union Guide to the Family
  and Medical Leave Act, Second Edition, Robert M.
  Schwartz
• A Medical/FMLA Leave Checklist Emerging Issues
  and How to Comply with the FMLA and the ADA,
  David B. Calzone, Vercruysse Murray Calzone
• The Family Medical Leave Act of 1993 Federal
  Regulations, Part 825 Title 29, Part 825 of the
  Code of Federal Regulations
• FMLA Resource Manual, Complete Text of FMLA and
  Applicable Federal Regulations, Council on
  Education in Management

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Thank You!