Appendix I - Leaves Under Law, Negotiated Agreement or Agency - January 2009
TO: Manual Recipients
Table of Contents
The revised federal Family and Medical Leave Act (FMLA) regulations become effective January 16, 2009. The revised regulations issued by the United States Department of Labor (U.S. DOL) clarify and modify current FMLA provisions, and establish two new FMLA entitlements – military caregiver leave and qualifying exigency leave which are described in greater detail below. In addition, revised FMLA forms have been promulgated; copies are attached.
This memo provides an overview of the changes in the FMLA regulations. Agencies are cautioned that provisions of the FMLA must be applied in the context of State leave policy, consistent with the Attendance Rules and negotiated agreements.
The information contained in this document summarizes our current understanding of the significant revisions to the FMLA regulations. Further guidance will be provided as issues are clarified.
In the interim, agencies should contact the Attendance and Leave Unit of this Department at 518-457-2295 if they require information when applying the revised regulations.
Qualifying Exigency Leave
This new leave entitlement allows eligible employees to take up to 12 weeks of FMLA leave per calendar year for a qualifying exigency because the employee’s spouse, son, daughter or parent meeting the definition of a covered military member is on active duty or has been notified of an impending call or order to federal active duty.
...period of seven days beginning on the date when the covered military member is notified of the impending deployment;
A covered military member is an employee’s spouse, son, daughter or parent in the National Guard or Reserves (or certain retired members of the Regular Armed Forces and retired Reserves) who is on active duty or has been notified of an impending call or order to active duty in the armed forces in support of a contingency operation.
Qualifying exigency leave is not available to family members of soldiers in the Regular Armed Forces, or where the call to active duty comes from a State rather than the federal government.
Amount of Leave to be Granted
Leave is available for a continuous period of time or on an intermittent or reduced schedule basis as necessary.
If the qualifying exigency involves meeting with a third party, the form requires that the employee provide contact information for that third party and explain the nature of the meeting. The employer may contact the third party to verify the appointment schedule and nature of the meeting but no additional information can be requested.
The employer may also contact an appropriate unit of the Department of Defense to verify that a covered military member is on active duty or call to active duty status but no additional information can be requested.
Use of Leave Credits
Military Caregiver Leave (effective January 28, 2008)
For this purpose a covered servicemember is a current member of the Regular Armed Forces, including a member of the National Guard or Reserves, or a member of the Regular Armed Forces, the National Guard or Reserves who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy or is otherwise in outpatient status or on the temporary disability retired list.
Eligible employees may not take leave under this provision to care for former members of the Regular Armed Forces, former members of the National Guard or Reserves, and members on the permanent disability retired list.
A husband and wife employed by the same employer are limited to a combined 26 week military caregiver leave in a single 12-month period per servicemember per injury.
Amount of Leave to be Granted
... in subsequent 12-month periods to care for a different servicemember or to care for the same servicemember who has a subsequent serious illness or injury.
To determine the single 12-month period, the regulations require that the 12-month period must be measured forward from the date an employee’s first military caregiver leave to care for the covered servicemember begins.
During the designated 12-month period, employees are limited to a combined total of 26 weeks of FMLA leave for any qualifying reason. Employees continue to be limited to 12 weeks of FMLA leave per calendar year for reasons other than to care for a covered servicemember.
Leave that qualifies as both military caregiver leave and leave to care for a family member with a serious health condition should be designated as military caregiver leave in the first instance.
Leave is available in a continuous block of time or on an intermittent or reduced schedule basis as required.
Any one of the following health care providers may complete this certification:
Satisfactory medical documentation also includes “invitational travel orders” (ITOs) or “invitational travel authorizations” (ITAs) issued to any family member to join an injured or ill servicemember at his or her bedside.
The regulations prohibit recertification during the time period specified in the documentation, and prohibit second or third medical opinions in connection with leave requested for this purpose.
Use of Leave Credits
Eligibility for FMLA Leave
However, New York State as an employer will continue its current policy of counting all State service regardless of the duration of any breaks in such service toward meeting the 12 months of service requirement. Accordingly, an employee’s total State service must be counted when determining if the employee has completed the required 52 cumulative weeks of service, regardless of any breaks in service and regardless of the percentage of time paid during each of the 52 weeks if the employee was paid for any portion of that workweek. (For this purpose a workweek is the agency’s workweek for payment of salary which is normally Thursday through Wednesday).
There is no change in the regulations that an employee must have worked a minimum of 1250 hours during the 52 consecutive weeks immediately preceding the date FMLA leave in to begin in order to be eligible for FMLA leave.
Note: For purposes of meeting the 1250 hour requirement, time spent on approved Employee Organization Leave (but not on Union Leave) must be counted, as must time the employee would have worked but for the performance of ordered military duty.
Period of Eligibility Determination
Eligible Categories of Employees
Definition of Serious Health Condition Under FMLA
P-93. The term “periodic visits to a healthcare provider” for chronic serious health conditions means at least two visits to a healthcare provider per year.
Use of Leave Credits for FMLA Leave
The Medical Facts section of Medical Certification forms WH-380E and WH-380F provides that the healthcare provider may include a diagnosis along with other relevant facts such as symptoms, regimen of continuing treatment, etc. Agencies cannot have a blanket policy of requiring that a diagnosis be provided in order for the medical certification to be deemed sufficient. So long as the documentation contains medical facts sufficient to confirm the employee’s eligibility for FMLA leave, the agency cannot find the medical documentation deficient solely because it does not include a diagnosis. Questions about sufficiency of medical documentation should be discussed with the Attendance and Leave Unit.
While not a change, agencies are reminded of the following general provisions regarding an employee’s use of leave credits under the FMLA:
The FMLA does not require an employer to authorize the use of paid sick leave in any circumstance where it would not otherwise be authorized. As a matter of State policy, when use of leave credits would be allowed under the Attendance Rules, employees may elect to use appropriate leave credits during a period of FMLA leave or may choose not to use credits at their option. The term “appropriate leave credits” means credits that are available for absences for that specific reason. For example, no more than 15 days of accrued sick leave may be used in any calendar year for illness in the family.
The FMLA permits employees to use accrued vacation and personal leave credits and to go on leave without pay during FMLA absences even when accrued sick leave credits are available. Agencies cannot require that employees first exhaust sick leave credits before using other credits as sick leave or that all credits be exhausted before going on leave without pay. (This supercedes the normal State policy that sick leave credits must be used first.)
Agencies should use the FMLA Medical Certification for all absences subject to the FMLA, regardless of whether or not the employee elects to charge leave credits. Employers may not request additional medical information to support an employee’s choice to use accrued paid leave during a period of FMLA. The FMLA Medical Certification form contains sufficient...
... information on which to base approval of both the absence and the use of leave credits during that absence. Agencies should consult with the Attendance and Leave Unit regarding exceptional circumstances.
Amount of FMLA Leave to be Granted
Impact of Work Schedule
FMLA Leave and Overtime Worked
The recently enacted regulations give the following example: An employee is using intermittent leave. The employee is a 40 hour per week employee but during a particular week will be required to work one 8 hour overtime shift. That employee is actually being required to work 48 hours in that particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week. During that workweek, the employee would utilize eight hours of FMLA-protected leave out of the 48-hour workweek which equals 1/6 of a workweek.
Note: Agencies are advised to keep track of mandatory overtime assignments not worked due to an employee’s FMLA-qualifying leave and to contact the Attendance and Leave Unit for guidance regarding computation of FMLA usage.
Lastly, the regulations make clear that an agency may not discriminate in the assignment of mandatory overtime because an employee takes FMLA leave. For example, an agency cannot schedule only FMLA leave takers for required overtime in order to deplete their FMLA leave entitlement, while allowing other employees to volunteer for overtime.
Requests for FMLA Leave
Designation of FMLA Leave
Notification of Eligibility
If the absence has already begun, the effective date of the designation is the first day of absence, provided the designation is made within the time frames established by the regulations.
If the employee fails to submit the required medical certification or if the leave is determined not to qualify as FMLA leave, the employee’s absence will fall under normal State policy for such absence.
If the information an agency provides to an employee in the Designation Notice changes (such as the employee exhausts his/her FMLA leave entitlement), the agency must provide written notice of such change within 5 business days of receipt of an employee’s first notice of the need for leave subsequent to any change.
An agency must also notify an employee of the amount of leave counted against an employee’s leave entitlement. If known at the time of FMLA designation, this amount of FMLA leave must be included in the Designation Notice. If not known at time of designation, then the agency must provide notice of the amount of leave counted against the employee’s leave entitlement upon request by the employee but not more often than once every 30 days and only if leave was taken during that period. Such notice may be oral but must be confirmed in writing by the next payday unless that payday is less than one week after the oral notice. If it is less, then written notice must be sent by the following payday.
Employee Status Pending Designation
While the regulations are silent on the employee’s status during the five-day period between the employee’s notice of the need for leave and the employer’s required Notification of Eligibility, agencies should be guided by the fact that most requested leaves may ultimately be designated as FMLA leave. Therefore it is not generally advisable to take actions that would need to be reversed if this period of leave is subsequently designated as FMLA leave.
Employees continue to be eligible for leave pursuant to the Attendance Rules and negotiated agreements during any period while awaiting designation of leave as FMLA qualifying, and any period for which the employee is found ineligible for FMLA leave.
Questions concerning employee status pending designation of FMLA leave should be referred to the Attendance and Leave Unit.
...within the required time period does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated.
The effective date of a timely designation made within the required time period is the first day of absence, even where the absence has already begun. Accordingly, a designation made within the established designation period is not considered to be a retroactive designation, even though the effective date is the first day of an absence that has already begun.
Second and third medical opinion provisions continue to apply. Where an agency requests a second or third opinion to determine if a request for leave is FMLA-qualifying, an employee remains tentatively entitled to the benefits of the FMLA. If the request for leave is ultimately found not to qualify under the FMLA, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under established leave policies.
Medical Certification of FMLA Leave
Employers should request medical certification within 5 business days of notice of or commencement of leave. The employee continues to have 15 calendar days to provide medical certification following such request.
If an employer considers the medical certification to be deficient, the employer must provide the employee with written notice of the deficiencies and give the employee 7 calendar days, unless not practical under the circumstances, to correct the deficiencies in the certification. That notice must also advise the employee that FMLA leave may be denied if the employee fails to provide adequate certification.
A certification is incomplete if one or more of the applicable entries have not been completed. A certification is insufficient if the information provided is vague, ambiguous, or non-responsive.
The new regulations permit certain employer representatives, including human resources professionals, leave administrators and management officials (but not the direct supervisor) to contact the employee’s health care provider to clarify and authenticate the medical certification provided by the employee. Prior to making any contact with the health care provider, the employer must first provide the employee an opportunity to cure any deficiencies in the certification. The employee is not required to permit his or her health care provider to communicate with the employer for purposes of clarification, but if such contact is not permitted and the employee does not otherwise clarify an unclear certification, the employer may deny the designation of FMLA leave. For purposes of authentication, an employee may be required to execute a HIPAA waiver.
However, the revised regulations clarify an agency’s ability to require certification for FMLA leave within a calendar leave year in other circumstances.
With respect to all leaves, regardless of whether they are continuous or intermittent, generally, an agency may not request a recertification more often than every 30 days and only in connection with an absence when no minimum duration for the condition is specified.
However, if the medical certification states that there is a minimum duration for the condition, the agency must wait until that minimum duration passes before requiring a recertification, unless the minimum duration specified in the documentation is more than six months in the calendar leave year. If the minimum duration is more than six months in the calendar leave year, the agency may request a recertification in connection with an absence after the six-month point, even for lifetime or chronic conditions.
These changes do not alter an agency’s ability to require a new medical certification at the beginning of each calendar leave year for individuals who have conditions which will require leave in the next calendar year. Such annual certifications may be requested separate and apart from an absence.
Agencies are reminded that FMLA eligibility expires at the end of each calendar year and must be re-determined at the start of each new calendar year. Agencies must notify employees of eligibility and designate leave as appropriate at the start of each new calendar year.
Agency Responsibilities in Connection with FMLA Leave
Where the employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer must provide the general FMLA notice in the language in which the employees are literate.
The general notice must also be included in employee handbooks or other materials about employee benefits. Employers who do not have an employee handbook must provide employees with a copy of the general notice at time of hire in either paper or electronic form.
Reinstatement Rights Under FMLA
Whenever the employer intends to require the employee to provide a fitness for duty certification to return to work, the employee must be so notified in the Designation Notice. Where the employer requires that the certification notice specifically address the employee’s ability to perform the essential functions of the employee’s job, the Designation Notice must so specify and the employer must provide the employee with a list of these essential functions along with the Designation Notice.
The employer may contact the employee’s healthcare provider to clarify and authenticate the fitness for duty certification but may not delay the employee’s return to work while contact with the health care provider is being made. No second or third opinions may be required.
Intermittent Absence and Fitness for Duty Certification
...to require such certification, the employer must inform the employee at the time it issues the Designation Notice that for each instance of intermittent or reduced schedule leave, the employee will be required to submit a fitness for duty certification unless one has already been submitted within the past 30 days.
The employer can set a different interval for requiring a fitness for duty certification but not more frequently than once every 30 days, as long as the employee is so notified in advance of the employee taking the intermittent leave.
Reasonable safety concerns means a reasonable belief of significant risk of harm to the individual employee or others and should take into account the likelihood, nature and severity of the potential harm.
Questions concerning the employee’s status in cases where a fitness for duty certification is not provided should be directed to the Attendance and Leave Unit.
Protections Provided by the FMLA and Enforcement Mechanisms
The new regulations confirm that failure to provide the employee with the required written notice can be considered “interference” with the employee’s FMLA rights.
The regulations also confirm that the remedy for interfering with an employee’s FMLA rights may include liability “for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.”
NEW FORMS TO BE USED