Family and Medical Leave Act

• Author: Steven E. Clark
• Pages: 225-398

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25-1

CHAPTER 25

THE FAMILY AND MEDICAL

LEAVE ACT

BY STEVEN E. CLARK

25:1. PURPOSE AND SCOPE

25:2. COVERAGE

A. Effective Date

B. Covered Employers

1. Private Sector Employers

a. Counting Employees

b. Single or “Integrated” Employer

c. Joint Employers

d. Successor Employers

2. Public Sector Employers

3. Immunity of State Employers

C. Eligible Employees

1. Employed for at Least 12 Months

2. Employed for at Least 1,250 Hours of Service

3. 50 Employees Within 75 Miles of Worksite

25:3. LEAVE ENTITLEMENT

A. Birth of and Care for Newborn

B. Placement for Adoption or Foster Care

C. To Care for a Family Member

D. Needed to Care for

E. Employee Unable to Perform

F. Serious Health Condition

1. Incapacity

2. Treatment

3. Chronic Serious Health Condition

4. Cosmetic/Restorative Treatments

5. Substance Abuse as a Serious Health Condition

G. To Care for a Service Member

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H. Same-Sex FMLA Benefits

25:4. TYPE OF AND MEASURING THE LEAVE

A. Intermittent and Reduced Leave Schedule

1. Medically Necessary

2. Duties of Employee/Transfer to Alternative Position

B. Paid vs. Unpaid Leave

C. Measuring the Leave

D. Light Duty

25:5. EMPLOYER POSTING AND NOTICE REQUIREMENTS

A. FMLA Poster

B. Penalties for Violation of Posting Requirement

C. Written Guidance to Employees

D. Eligibility Notice Requirement

E. Rights and Responsibilities Notice

25:6. MECHANICS OF LEAVE

A. Requesting Leave

1. Sufficiency of Employee’s Notice

2. Foreseeable Leave

3. Unforeseeable Leave

B. Employer’s Response

1. Confirmation of Eligibility

2. Designation of Leave

3. Contents of Designation

C. Medical Certification

1. Employer’s Option

2. Health Care Provider

3. Recertification

4. Impact of GINA (Genetic Information Nondiscrimination Act)

5. Impact of HIPAA (Health Insurance Portability and Accountability Act)

6. Impact of ADAAA Amendments

7. Updated FMLA Forms

D. Maintenance of Benefits

1. Health Benefits

2. Other Benefits

E. Key Employees

F. Returning From Leave

1. Notice

2. Certification

G. Job Restoration

1. Exceptions

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2. Equivalent Position

3. Joint Employment

25:7. PROHIBITED ACTS

A. Interference With Rights

B. Interference With Proceedings or Inquiries

C. Investigative Authority

25:8. ENFORCEMENT

A. Action by DOL

B. Civil Action by Employees

1. Individual Liability

2. Prospective or Former Employees

C. Limitations

D. Relief/Defenses/Jury Trial

1. Damages

2. Defense to Liquidated Damages

3. Equitable Relief

4. Jury Trial

E. Burdens of Proof

25:9. RECORDKEEPING

25:10. OVERLAP AMONG ADA, FMLA AND WORKERS’ COMPENSATION

A. Contrast Between Purposes of ADA, FMLA, and Workers’ Compensation

B. Are These Claims Mutually Exclusive?

C. Impact of State Agency Claims, CBAs and Releases

D. Other Differences

APPENDICES

Appendix 25-1 FMLA Opinion Letters

Appendix 25-2 FMLA Digest of Cases

Appendix 25-3 Certification of Health Provider for Employee’s Serious Health Condition

(DOL Form)

Appendix 25-4 Notice of Eligibility and Rights and Responsibilities (DOL Form)

Appendix 25-5 DOL Questions and Answers

Appendix 25-6 Selected FMLA Regulations

Appendix 25-7 2008 Proposed Changes to FMLA Regulations

Appendix 25-8 Summary of 2009 Changes to FMLA Regulations

Appendix 25-9 DOL Final Rule Change Summary

Appendix 25-10 FMLA Regulation Regarding in Loco Parentis

Appendix 25-11 DOL FMLA Q&A Booklet—Employee’s Guide to the FMLA

Appendix 25-12 WHD Side by Side Comparison/Final Regulations 2008-2013

Appendix 25-13 Revised DOL FMLA Forms (expire as of 5/31/2018)