FMLA - Florida Public Human Resources Association

FMLA Richard (Rick) V. Blystone, Esq. Garganese, Weiss & DAgresta, P.A. (407) 425-9566 [email protected] 1 5 QUESTIONS EMPLOYER COVERAGE? EMPLOYEE COVERAGE?

WHAT DO YOU GET? UNDER WHAT CIRCUMSTANCES DO YOU GET IT? WHAT HAPPENS WHEN YOU SCREW UP? 2 WHO IS COVERED? EMPLOYER COVERAGE PUBLIC AGENCIES/SCHOOL BOARDS COVERED

REGARDLESS OF NUMBER OF EMPLOYEES 3 EMPLOYEE COVERAGE 2) EMPLOYEE COVERAGE THREE CRITERIA: a) 12 MONTHS OF SERVICE Does this have to be continuous? How do you know? Practical advice: Ask them

b) 1250 hours These are FLSA hours what does FLSA stand for? What if they are exempt? Rules of thumb if they work a 40-hour week? If they are part-timers working 25- hour weeks? 4 EMPLOYEE COVERAGE CONT. BAF SHC

Birth-No serious health condition. This is bonding with baby. Adoption Foster care-state sponsored care - not your sons best friend 5 SERIOUS HEALTH CONDITION This is the harder part Who are covered relations? Parent, minors and spouses Parents in loco parentis day to day care and financial support

Children/Minors what if over the age of majority ? (Remember the Step Brothers movie with Will Farrell?) under the age of majority? Spouses Domestic partners? Same-sex spouses? Military kid gloves! How many weeks? Most of FMLA, though, comes down to what is on the next slide!!! 6 SERIOUS HEALTH CONDITION

WHATS SERIOUS? 3 days off and continuous treatment by health care provider. Whats continuing treatment? 2 visits. 1 visit plus meds. Who is a health care provider? Everyone you think except _____ unless __________ or ____________. Can they get away with no visit to healthcare provider. Sure. Chronic condition. 3 hats as HR/Risk Manager: FMLA, ADA, W. Comp. (even STD) Takeaway: serious health condition considerably lower standard than ada/disability, although this gap has been bridged to some degree! 7

What do you get? 4 things: 1) Time off - 12 weeks in a 12 month period (military exception) (See also Section 110.221, Fla. Stat.)-Rolling backward, forward, calendar. Policy? Otherwise, employee picks. Intermittent leave (SHC but not BAF) unless BAF is allowed by employer How do you determine how many days intermittent leave they get? 12X5, 12X3 (every Friday off! What do you do if taking advantage?) Reduced leave? How low can you go? Generally comes up in PT scenarios 8

What do you get (cont.)? Employee gets to continue the medical insurance coverage they had before they were out. But, its unpaid leave, so what do you do? No paycheck to deduct. 9 What do you get (cont.)?

Reinstatement What does that mean? Same boss? Same location? Same job responsibilities? 10 What do you get (cont.)? No retaliation. Interference v. Retaliation. 11

Notice You have to tell them about it 3 ways: Poster Policy You must tell them/DOL forms What if you dont tell em? 12 Medical Form

15 days to get it back. Then what? Exigent circumstances Doctor from Costa Rica? Can you call M.D.? 2nd and 3rd opinions? Recertification 13 Employee Notice 30 days Hit by a bus?

What about this scenario? Pregnancy is complicated. Wants to save it for the back end. But then, once FMLA falls off and just had baby, what do you do? Fla. Stat., ADA, PDA Can employer require note to return to work? Absolutely 2nd opinion regarding return to work? Nope! Recertification. Every 6 months as a matter of right. 14 What do they get when we screw up?

FMLA follows ADEA/FLSA. SOL 2-3. Willful? Because were in the ADEA/FLSA camp, who enforces? EEOC? DOL? Any condition precedent or exhaustion of administrative remedies? Damages Reinstatement Back pay Front pay Benefits or the value thereof Liquidated? Affirmative Defense of Good Faith re liquidated (see also FLSA) Damages are readily calculable!

15 Special problems? Are they taking FMLA or not? What should we do? Can you force them???!!! Can you fire them? They havent provided medical certification? They havent provided return to work certification? What if theyve violated a workplace rule/policy, or you just dont like them? Spouses who both work for school board?

Concurrent leave? 16 Questions? 17