The Family and Medical Leave Act / William Bush, Legal Aid Society of Middle Tennessee, and the Comberlands, Cookeville, TN ; James M. Paul, Ogletree, Deakins, Nach, Smoak & Stewart, P.C., St. Louis, MO.
2017
KF3531.A319 F36 2017 (Map It)
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Title
The Family and Medical Leave Act / William Bush, Legal Aid Society of Middle Tennessee, and the Comberlands, Cookeville, TN ; James M. Paul, Ogletree, Deakins, Nach, Smoak & Stewart, P.C., St. Louis, MO.
Published
Arlington, VA : Bloomberg BNA, [2017]
Call Number
KF3531.A319 F36 2017
Edition
Second edition.
ISBN
9781682673140 (print)
1682673146
1682673146
Description
1 volume (various pagings) ; 24 cm
System Control No.
(OCoLC)1012635383
Bibliography, etc. Note
Includes bibliographical references and index.
Other Editions
Revision of: Family and Medical Leave Act. Washington, DC : Bureau of National Affairs, ©2006 9781570182907 (DLC) 2006042567
Record Appears in
Gift
Purchased from the income of the Silver Fund
Added Corporate Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Silver Fund
Table of Contents
Contributors
v
Foreword
xv
Preface
xvii
ch. 1
History, Structure, And Administration Of The FMLA
1-1
I.
Overview
1-3
II.
History of the Act
1-3
A.
Early Initiatives
1-4
1.
Parental and Disability Leave Act of 1985
1-4
2.
Parental and Medical Leave Act of 1986
1-5
3.
Family and Medical Leave Act of 1987
1-6
4.
Parental and Medical Leave Act of 1988
1-7
5.
Family and Medical Leave Act of 1989
1-8
6.
Family and Medical Leave Act of 1991
1-9
B.
Enactment of the Family and Medical Leave Act of 1993
1-9
1.
103rd Congress
1-9
2.
Congressional Findings
1-10
C.
2008 Military Family Leave Amendments (National Defense Authorization Act for Fiscal Year 2008)
1-11
D.
2009 Military Family Leave Amendments (National Defense Authorization Act for Fiscal Year 2010)
1-14
E.
2009 Airline Flight Crew Technical Corrections Act
1-16
III.
Provisions of the FMLA
1-16
A.
General Structure
1-16
B.
Provisions of Title I
1-17
IV.
Regulatory Structure of the FMLA
1-19
A.
DOL's Regulatory Authority
1-19
1.
1995 Regulations
1-19
2.
2009 Regulations
1-21
3.
2013 Regulations
1-23
4.
2015 Regulations
1-25
5.
2017 Regulations
1-27
B.
Judicial Deference to the DOL's Regulations
1-27
V.
Role of the DOL in Administering and Enforcing the FMLA
1-32
A.
Administrative Action
1-32
1.
Initiation of Administrative Complaints
1-33
2.
DOL Investigation
1-34
a.
Investigation Authority
1-34
b.
Subpoena Power
1-36
3.
Resolution of Complaints
1-37
4.
Posting Violations
1-39
a.
Appealing a Penalty Assessment for a Posting Violation
1-41
b.
Consequences of Not Paying the Penalty Assessed
1-42
B.
Enforcement Action
1-42
1.
Actions by Secretary of Labor
1-42
2.
Actions for Injunctive Relief
1-42
C.
Wage and Hour Division Opinion Letters
1-43
ch. 2
Coverage Of Employers
2-1
I.
Overview
2-2
II.
Private Sector Employers
2-3
A.
Basic Coverage Standard
2-3
B.
Who Is Counted as an Employee
2-7
1.
Location of Employment
2-7
2.
Payroll Status
2-8
3.
Independent Contractors
2-11
III.
Public Employers
2-13
A.
Federal Government Subdivisions and Agencies
2-15
1.
Coverage Under Title I
2-15
2.
Civil Service Employees
2-15
3.
Congressional and Judicial Employees
2-17
B.
State and Local Governments and Agencies
2-18
IV.
Integrated Employers
2-21
V.
Joint Employers
2-25
A.
Test
2-25
B.
Consequences
2-32
C.
Allocation of Responsibilities
2-34
VI.
Successors in Interest
2-36
A.
Test
2-36
B.
Consequences
2-39
VII.
Individuals
2-40
ch. 3
Eligibility Of Employees For Leave
3-1
I.
Overview
3-1
II.
Basic Eligibility Criteria
3-3
III.
Measuring 12 Months of Employment
3-5
IV.
Measuring 1,250 Hours of Service During the Previous 12 Months
3-14
V.
Determining Whether the Employer Employs 50 Employees Within 75 Miles of the Employee's Worksite
3-24
A.
Determining the Number of Employees
3-26
B.
Measuring the Number of Miles
3-28
C.
Determining the Employee's Worksite
3-28
VI.
Individuals Who Are Deemed to Be Eligible Employees Under the FMLA
3-32
VII.
Exception for Certain Airline Employees
3-37
ch. 4
Entitlement Of Employees To Leave
4-1
I.
Overview
4-3
II.
Types of Leave
4-4
A.
Birth and Care of a Newborn Child
4-4
B.
Adoption or Foster Care Placement of a Child
4-7
C.
Care for a Covered Family Member With a Serious Health Condition
4-10
1.
Eligible Family Relationships '
4-12
a.
Spouse
4-12
b.
Son or Daughter
4-13
c.
Parent
4-24
d.
Certification of Family Relationship
4-24
2.
"Needed to Care for"
4-25
D.
Inability to Work Because of an Employee's Own Serious Health Condition
4-34
E.
Qualifying Exigency Due to a Call to Military Service
4-43
1.
Covered Military Members
4-44
2.
Qualifying Exigency
4-46
a.
Short-Notice Deployment
4-47
b.
Military Events and Related Activities
4-47
c.
Child Care and School Activities
4-48
i.
Leave to Arrange for Alternative Child Care
4-48
ii.
Leave to Provide Child Care on an Urgent Basis
4-48
iii.
Leave to Enroll in or Transfer to a New School or Day Care Facility
4-49
iv.
Leave to Attend Meetings With School or Day Care Staff
4-49
d.
Financial and Legal Arrangements
4-49
e.
Counseling
4-50
f.
Rest and Recuperation
4-50
g.
Post-deployment Activities
4-51
h.
Parental Care
4-51
i.
Additional Activities
4-52
3.
Eligible Family Relationships
4-53
F.
Care for a Covered Servicemember With a Serious Injury or Illness
4-53
1.
Covered Servicemembers
4-55
2.
Serious Injury or Illness
4-57
3.
Eligible Family Relationships
4-59
4.
Interaction With Leave to Care for a Family Member With a Serious Health Condition
4-61
III.
Serious Health Condition
4-62
A.
Overview
4-62
B.
Inpatient Care
4-66
C.
Continuing Treatment
4-67
1.
Incapacity for More Than Three Consecutive, Full Calendar Days and Continuing Treatment
4-69
a.
Incapacity
4-79
b.
Continuing Treatment
4-80
c.
Health Care Provider
4-86
2.
Pregnancy or Prenatal Care
4-88
3.
Chronic Serious Health Condition
4-91
4.
Permanent or Long-Term Incapacity
4-97
5.
Multiple Treatments
4-98
D.
Particular Types of Treatment and Conditions
4-100
1.
Cosmetic Treatments
4-100
2.
Treatment for Substance Abuse
4-100
3.
Mental Illness
4-105
4.
"Minor" Illnesses
4-107
ch. 5
Length And Scheduling Of Leave
5-1
I.
Overview
5-2
II.
Length of Leave
5-4
A.
General
5-4
B.
Measuring the 12-Month Period
5-10
C.
Special Circumstances Limiting the Leave Period
5-16
1.
Birth, Adoption, and Foster Care
5-16
2.
Spouses Employed by the Same Employer
5-17
D.
Effect of Offer of Alternative Position
5-19
E.
Required Use of Leave
5-21
F.
Measuring Military Caregiver Leave
5-24
III.
Intermittent Leaves and Reduced Leave Schedules
5-27
A.
Entitlement to Take Intermittent Leaves or Leaves on a Reduced Schedule
5-27
B.
Eligibility for and Scheduling of Intermittent Leaves and Leaves on a Reduced Schedule
5-37
C.
Measuring Use of Intermittent Leaves and Leaves on a Reduced Schedule
5-44
D.
Transferring an Employee to an Alternative Position to Accommodate Intermittent Leave or Leave on a Reduced Schedule
5-50
1.
Standards for Transfer
5-50
2.
Equivalent Pay and Benefits
5-52
3.
Limitations on Transfer
5-54
E.
Making Pay Adjustments
5-55
1.
FLSA-Exempt Employees Paid on a Salary Basis
5-55
2.
FLSA-Nonexempt Employees Paid on a Fluctuating Workweek Basis
5-56
3.
Exception Limited to FMLA Leave
5-57
IV.
Special Provisions for Instructional Employees of Schools
5-57
A.
Coverage
5-57
B.
Duration of Leaves in Covered Schools
5-59
C.
Leaves Near the End of an Academic Term
5-60
ch. 6
Notice And Information Requirements
6-1
I.
Overview
6-3
II.
Employer's Posting and Other General Information Requirements
6-6
A.
Posting Requirements
6-7
B.
Other General Written Notice
6-8
C.
Consequences of Employer Failure to Comply With General Information Requirements
6-10
III.
Notice by Employee of Need for Leave
6-13
A.
Timing of the Notice and Leave
6-13
1.
Foreseeable Leave
6-13
a.
Need for Leave Foreseeable for 30 or More Days
6-14
b.
Need for Leave Foreseeable for Less Than 30 Days
6-15
2.
Unforeseeable Leave
6-16
3.
Military Family Leave
6-19
B.
Manner of Providing Notice
6-20
C.
Content of Notice
6-28
D.
Change of Circumstances
6-33
E.
Consequences of Employee Failure to Comply With Notice of Need for Leave Requirements
6-34
IV.
Employer Response to Employee Notice
6-37
A.
Notice of Eligibility for FMLA Leave
6-38
B.
Notice of Rights and Responsibilities
6-39
C.
Designation of Leave as FMLA Leave
6-42
D.
Consequences of Employer Failure to Comply With Individualized Notice Requirements
6-48
1.
Eligibility Notice
6-49
2.
Rights and Responsibilities Notice
6-50
3.
Designation Notice
6-53
V.
Medical Certification and Other Verification
6-57
A.
Initial Certification
6-58
B.
Content of Medical Certification
6-65
C.
Second and Third Opinions
6-73
D.
Recertification
6-78
E.
Fitness-for-Duty Certification
6-85
F.
Certification of Continuation of Serious Health Condition
6-96
G.
Certification Related to Military Family Leave
6-97
1.
Certification of Qualifying Exigency
6-99
2.
Certification for Military Caregiver Leave
6-102
H.
Other Verifications and Notices
6-106
1.
Documentation of Family Relationships
6-106
2.
Notice of Employee's Intent to Return to Work
6-107
I.
Consequences of Failure to Comply With or Utilize the Medical Certification or Fitness-for-Duty Procedures
6-110
1.
Employee
6-110
2.
Employer
6-114
VI.
Recordkeeping Requirements
6-121
A.
Basic Recordkeeping Requirements
6-121
B.
What Records Must Be Kept
6-126
C.
Department of Labor Review of FMLA Records
6-130
ch. 7
Pay And Benefits During Leave
7-1
I.
Overview
7-2
II.
Pay During Leave
7-4
A.
Generally
7-4
B.
When Substitution of Paid Leave Is Permitted
7-5
1.
Generally
7-5
2.
Types of Leave
7-8
a.
Paid Vacation and Personal Leave
7-9
b.
Paid Sick or Medical Leave
7-9
c.
Paid Family Leave
7-12
d.
Workers' Compensation or Temporary Disability Benefits
7-13
e.
Compensatory Time
7-15
C.
Limits on the Employer's Right to Require Substitution of Paid Leave
7-15
III.
Maintenance of Benefits During Leave
7-17
A.
Maintenance of Group Health Benefits
7-17
1.
Generally
7-17
2.
What Is a Group Health Plan
7-19
3.
What Benefits Must Be Provided
7-20
4.
Payment of Premiums
7-24
a.
Methods of Payment
7-26
i.
During Paid Leave
7-26
ii.
During Unpaid Leave
7-27
b.
Consequences of Employee's Failure to Pay
7-29
5.
When the Obligation to Maintain Benefits Ceases
7-29
a.
Layoff or Termination of Employment
7-30
b.
Employee Notice of Intent Not to Return to Work
7-31
c.
Employee's Failure to Pay Premiums
7-32
d.
Key Employees
7-33
e.
Other Circumstances
7-34
6.
Rules Applicable to Multi-employer Health Plans
7-34
B.
Employer's Right to Recover Costs of Maintaining Group Health Benefits
7-37
1.
When an Employer May Do So
7-37
2.
How an Employer May Do So
7-40
C.
Continuation of Non-health Benefits During Leave
7-41
1.
Generally
7-41
2.
Non-health Benefits Continued at Employer's Expense
7-43
3.
Non-health Benefits Continued at Employee's Expense
7-44
4.
Specific Non-health Benefits
7-44
a.
Pension and Other Retirement Plans
7-44
b.
Lodging
7-45
c.
Holiday Pay
7-45
d.
Paid Leave
7-46
e.
Other
7-47
ch. 8
Restoration Rights
8-1
I.
Overview
8-2
II.
Restoration to the Same or an Equivalent Position
8-4
A.
General Principles
8-6
B.
Components of an Equivalent Position
8-11
1.
Equivalent Pay
8-11
2.
Equivalent Benefits
8-16
3.
Equivalent Terms and Conditions of Employment
8-20
III.
Circumstances Affecting Restoration Rights
8-27
A.
Events Unrelated to the Leave
8-27
1.
Burden of Proof
8-28
2.
Layoff
8-30
3.
Discharge Due to Performance Issues
8-33
4.
Other
8-36
B.
No-Fault Attendance Policies
8-39
C.
Employee Actions Related to the Leave
8-42
1.
Other Employment
8-42
2.
Other Activities During the Leave
8-43
3.
Reports by Employee 844
4.
Compliance With Employer Requests for Fitness-for-Duty Certifications
8-45
5.
Fraud
8-46
D.
Timing of Restoration
8-48
IV.
Inability to Return to Work Within 12 Weeks
8-49
V.
Special Categories of Employees
8-58
A.
Employees of Schools
8-58
B.
Key Employees
8-59
1.
Qualifications to Be Classified as a Key Employee
8-60
2.
Standard for Denying Restoration
8-61
3.
Required Notices to Key Employees
8-63
a.
Notice of Qualification
8-63
b.
Notice of Intent to Deny Restoration
8-65
c.
Employee Opportunity to Request Restoration
8-65
ch. 9
Interrelationship With Other Laws, Employer Practices, And Collective Bargaining Agreements
9-1
I.
Overview
9-3
II.
Interrelationship With Federal, State, and Local Laws
9-4
A.
General Principles
9-4
B.
Federal Laws
9-5
1.
Americans with Disabilities Act
9-5
a.
General Principles
9-5
b.
Covered Employers and Eligible Employees
9-8
c.
Qualifying Events
9-9
i.
Serious Health Conditions and Disabilities
9-9
ii.
Triggering Events for Leave of Absence Rights
9-15
d.
Nature of Leave and Restoration Rights
9-18
i.
Health Benefits
9-18
ii.
Restoration
9-19
iii.
Light Duty
9-22
e.
Medical Inquiries and Records
9-24
f.
Attendance Policies
9-29
2.
COBRA
9-30
3.
Fair Labor Standards Act
9-33
4.
42 U.S.C. [§]1983
9-35
5.
Title VII of the Civil Rights Act
9-38
6.
Uniformed Services Employment and Reemployment Rights Act
9-40
7.
Internal Revenue Service Rules on Cafeteria Plans
9-41
8.
Employee Retirement Income Security Act
9-42
9.
Government Contract Prevailing Wage Statutes
9-44
10.
Railway Labor Act
9-45
11.
National Labor Relations Act and Labor Management Relations Act
9-46
12.
Genetic Information Nondiscrimination Act of 2008
9-47
13.
Social Security Disability Insurance
9-49
C.
State Laws
9-51
1.
State Leave Laws
9-51
a.
General Principles
9-51
b.
Effect of Different Scope of Coverage
9-53
i.
Employer Coverage
9-53
ii.
Employee Eligibility
9-54
c.
Measuring the Leave Period
9-55
d.
Medical Certifications
9-57
e.
Notice Requirements
9-58
f.
Fitness-for-Duty Certification
9-60
g.
Enforcement
9-61
h.
Paid Family and Medical Leave Laws
9-62
2.
Workers' Compensation Laws
9-63
a.
General Principles
9-63
b.
Job Restructuring and Light Duty
9-65
c.
Requesting Medical Information
9-66
d.
Recovery of Group Health Benefit Costs
9-66
3.
Fair Employment Practices Laws
9-67
4.
Disability Benefit Laws
9-68
5.
Other State Law Claims
9-69
D.
City Ordinances
9-72
III.
Interrelationship With Employer Practices
9-73
A.
Providing Greater Benefits Than Required by the FMLA
9-73
B.
Employer Policy Choices
9-75
1.
Employee Notice of Need for Leave
9-75
2.
Substitution of Paid Leave
9-76
3.
Reporting Requirements
9-81
4.
Fitness-for-Duty Certification
9-83
5.
Substance Abuse
9-85
6.
Collecting Employee Share of Group Health Premiums
9-87
7.
Other Benefits
9-87
8.
Other Employment During FMLA Leave
9-88
9.
Restoration to an Equivalent Position for Employees of Schools
9-88
IV.
Interrelationship With Collective Bargaining Agreements
9-89
A.
General Principles
9-89
B.
Fitness-for-Duty Certification
9-93
ch. 10
Interference, Discrimination, And Retaliation Claims
10-1
I.
Overview
10-2
II.
Types of Claims
10-3
A.
Interference With Exercise of Rights
10-7
1.
Prima Facie Case
10-9
2.
Examples of Interference Claims
10-11
B.
Other Claims
10-27
1.
Discrimination Based on Opposition
10-27
2.
Discrimination Based on Participation
10-34
III.
Analytical Frameworks
10-37
A.
Substantive Rights Cases
10-44
1.
General
10-44
2.
No Greater Rights Cases
10-48
B.
Proscriptive Rights Cases
10-52
IV.
Application of Traditional Discrimination Framework
10-55
A.
Direct Evidence
10-56
B.
Application of McDonnell Douglas to FMLA Claims
10-63
1.
Prima Facie Case
10-65
a.
Exercise of Protected Right
10-70
b.
Adverse Employment Action
10-76
c.
Causal Connection
10-83
i.
Temporal Proximity
10-86
ii.
Statements
10-94
2.
Articulation of a Legitimate, Nondiscriminatory Reason
10-98
3.
Pretext
10-107
a.
Timing
10-117
b.
Statements and Stray Remarks
10-119
4.
Comparative Treatment
10-121
C.
Mixed Motive
10-125
D.
Pattern or Practice
10-135
ch. 11
Enforcement, Remedies, And Other Litigation Issues
11-1
I.
Overview
11-2
II.
Enforcement Alternatives
11-4
A.
Civil Actions
11-6
1.
Who Can Bring a Civil Action
11-6
a.
Secretary of Labor
11-6
b.
Employees
11-7
c.
Class Actions
11-9
2.
Possible Defendants
11-12
3.
Jurisdiction
11-22
B.
Arbitration
11-26
1.
Introduction
11-26
2.
Individual or Employer-Promulgated Arbitration Agreements and Plans
11-29
3.
Arbitration Under a Collective Bargaining Agreement
11-38
III.
Remedies
11-45
A.
Damages
11-46
1.
Denied or Lost Compensation
11-46
2.
Actual Monetary Losses
11-57
3.
Interest
11-58
4.
Liquidated Damages
11-60
a.
Award
11-60
b.
Calculation
11-67
5.
Other Damages
11-67
B.
Equitable Relief
11-71
1.
Equitable Relief Available in Actions by the Secretary
11-71
2.
Equitable Relief Available in All Actions
11-71
a.
Reinstatement
11-72
b.
Front Pay
11-74
c.
Other Equitable Relief
11-79
C.
Attorneys' Fees
11-82
D.
Tax Consequences
11-90
IV.
Other Litigation Issues
11-92
A.
Pleadings
11-92
B.
Right to Jury Trial
11-98
C.
Protections Afforded
11-101
D.
Defenses
11-102
1.
Statute of Limitations
11-102
a.
General
11-102
b.
Willful Violation
11-109
2.
Sovereign Immunity
11-113
3.
Waiver
11-121
4.
Res Judicata and Collateral Estoppel
11-123
5.
Equitable Estoppel as a Bar to Certain Defenses
11-128
6.
Judicial Estoppel and Other Defenses in Bankruptcy Proceedings
11-139
Appendix 1. The Family and Medical Leave Act of 1993 (as Amended)
A-1
Appendix 1-A. Amendments to the Family and Medical Leave Act of 1993: The National Defense Authorization Act for Fiscal Year 2008, Public Law No. 110-181, [§]585 (a)
A-39
Appendix 1-B. Amendments to the Family and Medical Leave Act of 1993; The National Defense Authorization Act for Fiscal Year 2010, Public Law No. 111-84, [§]565 (a)
A-45
Appendix 1-C. Amendments to the Family and Medical Leave Act of 1993: The Airline Flight Crew Technical Corrections Act, Public Law No. 111-119, [§]2
A-49
Appendix 2. Department of Labor FMLA Regulations
A-51
Appendix 3. Department of Labor FMLA Forms and FMLA Poster (Revised in Conjunction With The 2013 FMLA Regulations)
A-177
Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act) (Form WH-380-E; revised May 2015)
A-179
Certification of Health Care Provider for Family Member's Serious Health Condition (Family and Medical Leave Act) (Form WH-380-F; revised May 2015)
A-184
Notice of Eligibility and Rights & Responsibilities (Family and Medical Leave Act) (Form WH-381; revised Feb. 2013)
A-189
Designation Notice (Family and Medical Leave Act) [to Employee of FMLA Leave] (Form WH-382; revised Jan. 2009)
A-192
Certification of Qualifying Exigency for Military Family Leave (Family and Medical Leave Act) (Form WH-384; revised Feb. 2013)
A-194
Certification for Serious Injury or Illness of a Current Servicemember-for Military Family Leave (Family and Medical Leave Act) (Form WH-385; revised May 2015)
A-198
Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (Family and Medical Leave Act) (Form WH-385-V; revised May 2015)
A-203
Employee Rights Under the Family and Medical Leave Act (FMLA Poster) (WIND Publication 1420; revised Apr. 2016)
A-209
Appendix 4. DOL Wage and Hour Division FMLA Opinion Letters: Finding Lists and Summaries
A-211
A.
Topical Finding List of FMLA Opinion Letters
A-211
B.
Finding List of FMLA Opinion Letters by U.S.C. or C.F.R. Section Referenced
A-233
1.
Finding List of FMLA Opinion Letters by U.S.C. Section Referenced
A-233
2.
Finding List of FMLA Opinion Letters by C.F.R. Section Referenced
A-239
C.
List of FMLA Opinion Letters With Summaries by Opinion Number and/or Date
A-251
Appendix 5. Other Agency Documents
A-345
26 C.F.R. [§]1.125-3-Effect of the Family and Medical Leave Act (FMLA) on the Operation of Cafeteria Plans (IRS)
A-347
26 C.F.R. [§]54.4980B-10-Interaction of FMLA and COBRA (IRS)
A-355
EEOC Fact Sheet-The Family and Medical Leave Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964
A-358
DOL Memorandum-Protection of Uniformed Service Members' Rights to Family and Medical Leave (July 22, 2002)
A-369
Advisory Op. 2005-13A (May 31, 2005) -ERISA-Related DOL Opinion Letter re Preemption of Washington State Family Leave Law
A-372
20 C.F.R. [§]1002.210-The Uniformed Services Employment and Reemployment Rights Act (USERRA) and the FMLA: Rights of Reemployed Servicemembers to FMLA Leave Under USERRA
A-377
29 C.F.R. 01635.8, 1635.9-Genetic Information Nondiscrimination Act of 2008 (GINA): Prohibition on Acquisition, Exceptions, and Confidentiality
A-378
Appendix 6. Summary Of State Family And Medical Leave Laws Applicable To Private Employers
A-391
FMLA Statutory And Regulatory Provisions: Finding List
FL-1
Table Of Cases
TC-1
Index
IN-1