Family & Medical Leave and the Law

Megan P. Norris, James B. Thelen

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The Family and Medical Leave Act is one of the most significant pieces of labor legislation in the past twenty years, and unpaid leaves of absence are increasingly popular, especially when it comes to the birth of a child or the care of a loved one. Written for employers, workers, labor unions and their respective attorneys, Family & Medical Leave and the Law covers the rights and obligations of all parties.

What are the legal consequences for an employee of a failed medical certification? When will an employee be paid during an “unpaid” leave? This guide answers these questions and more, with discussion of who is an “employer”; eligibility for leave; notice and medical certification requirements; the scope of the right to benefits and reinstatement; and more.

Throughout, there is detailed analysis of the impact of the FMLA, Department of Labor regulations, and recent cases as they apply to circumstances that commonly arise. For insightful, timesaving guidance on the requirements that both employers and employees must meet, the procedures they must follow, and the consequences when they do not, this is the ultimate resource.

Book #00716; looseleaf, one volume, approximately 400 pages; published in 2012, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-179-8.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
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  • ISBN: 978-1-58852-179-8
  • Pub#/SKU#: 716

Author Image
  • Megan P. Norris
Megan P. Norris is a senior principal and managing director with the law firm of Miller, Canfield, Paddock and Stone, P.L.C. in Detroit, Michigan and is chair of the firm's Labor and Employment Law Group. Ms. Norris has been recognized by Best Lawyers in America; Chambers USA: America's Leading Lawyers for Business, Labor & Employment; International Whos Who Legal; LawDragon 500, New Stars, New Worlds; and Michigan Super Lawyers (Labor & Employment and Top 50 Women Lawyers). She frequently speaks nationally on the Family and Medical Leave Act and the Americans With Disabilities Act for organizations such as the National Employment Law Institute and the National Association for College and University Attorneys. Ms. Norris is a past president of the Detroit Metropolitan Bar Association and the Council for the Labor and Employment Law Section of the State Bar of Michigan. She currently serves on the Labor Advisory Board for the Michigan Institute of Continuing Legal Education and the Advisory Board for the National Employment Law Institute.

Author Image
  • James B. Thelen
James B. Thelen practiced labor and employment and higher education law with the Detroit, Michigan-based law firm Miller, Canfield, Paddock and Stone, PLC, for 16 years. He was named to The Best Lawyers in America in 2011. That same year, he became Associate Dean for Legal Affairs and General Counsel at Thomas M. Cooley Law School, the largest ABA-accredited law school in the country. He is the author of numerous articles and presentations on the Family and Medical Leave Act, including articles in the Society for Human Resource Management's HR Magazine. While at Miller Canfield, he served as editor-in-chief for the Michigan Chamber of Commerce's Employment Law Handbook for seven years.

Development of FMLA and Related Regulations

§ 1.01Introduction
§ 1.02Legislative History
[1] Previous Attempts to Pass the FMLA
[2] Legislative History of the 1993 Act
[3] Amendments to the FMLA
§ 1.03Department of Labor Regulations
[1] Original Regulations
[2] Ragsdale Decision by the United States Supreme Court
[3] 2008 Revised Regulations
§ 1.04Related State Statutes

Covered Employers

§ 2.01Introduction
§ 2.02Private Employers
[1] Fifty Employees Employed for Twenty Weeks
[2] Definition of “Employer”
§ 2.03Public Employers
[1] Generally
[2] Eleventh Amendment Immunity
[3] Individual Liability

Covered Employees

§ 3.01Introduction
§ 3.02Twelve-Month Length of Employment
§ 3.031,250 Hours of Service in the Preceding Twelve Months
[1] Timing of Eligibility Determination
[2] Calculation of Hours of Service
§ 3.04Fifty or More Employees Employed Within Seventy-Five Miles of the Worksite
[1] Calculation of Number of Employees
[2] Definition of “Worksite”
[3] Determining the Seventy-Five Mile Radius

Covered Conditions

§ 4.01Introduction
§ 4.02Serious Health Condition of Employee
[1] Generally
[2] Incapacity or Treatment Related to Inpatient Care
[3] Continuing Treatment by a Health Care Provider
§ 4.03Serious Health Condition of a Parent, Spouse or Child
[1] Definition of “Parent”
[2] Definition of “Spouse”
[3] Definition of “Child”
[4] Requirements for Taking Leave
§ 4.04Birth or Adoption of a Child

The FMLA Leave Process

§ 5.01Introduction
§ 5.02Required Employer Postings and Policies
[1] Government Poster
[2] FMLA Policy
§ 5.03The Employee’s Request for Leave
[1] Triggering an Employer’s FMLA Duties
[2] Foreseeable Leave
[3] Unforeseeable Leave
[4] Effect of Failure to Give Proper and Timely Notice
§ 5.04The Employerís Response
[1] Notice of Eligibility and Rights & Responsibilities
[2] Designation Notice
§ 5.05Return to Work Issues
§ 5.06Estoppel Issues Raised by Employer’s Failure to Comply with Notice Requirements

The Certification Process

§ 6.01Introduction
§ 6.02Certification Forms
[1] Certification for the Serious Health Condition of an Employee or Family Member
[2] Certification for Military Family Leave for Serious Injury or Illness of a Covered Service Member
[3] Certification for Military Family Member Leave for Qualifying Exigencies
§ 6.03The Initial Certification Process
§ 6.04Challenges to the Initial Certification
[1] Requests for Additional Information
[2] Authentication and Clarification
[3] Second and Third Opinions
[4] Verification of Qualifying Exigency Leave
§ 6.05Follow-Up Certifications
[1] Recertification
[2] New Certification
[3] Return to Work Certification
§ 6.06The Effect of the Failure to Provide Proper or Timely Certification
§ 6.07Additional Information Requested for Non-FMLA Purposes

FMLA Leaves Related to Military Service

§ 7.01Introduction and Legislative History
§ 7.02Qualifying Exigency Leave
[1] Relationship Issues
[2] “Covered Active Duty”: Military Duty That Triggers the Right to Leave
[3] Situations in Which Leave Is Available
§ 7.03Servicemember Family Leave
[1] “Covered Servicemember”: The Family Member for Whom Leave May Be Taken
[2] “Serious Injury or Illness”
[3] Twenty-Six Weeks of Leave in a Single Twelve-Month Period
§ 7.04Issues Unique to FMLA Leaves Related to Military Service
[1] General Certification Requirements
[2] Servicemember Family Leave Certification Issues

FMLA Leave Available

§ 8.01Introduction
§ 8.02Annual Leave Allotment
[1] Twelve Weeks or Twenty-Six Weeks of Unpaid Leave
[2] Employerís Definition of the FMLA Leave “Year”
[3] Special Rules Regarding Leave for Birth of a Newborn, Adoption or Foster Care and for Spouses with the Same Employer
§ 8.03Intermittent or Reduced Schedule Leave
[1] Generally
[2] Calculation of Leave
[3] Temporary Transfer
[4] Tardiness and Attendance Issues
§ 8.04Substitution of Paid Leave

Additional Leave Rights

§ 9.01Introduction
§ 9.02Coordination with Paid Leave
§ 9.03Maintenance of Benefits
§ 9.04Reinstatement
[1] Generally
[2] Circumstances in Which Reinstatement Is Not Required
[3] Special Rules Regarding “Key Employees”
§ 9.05No Interference, Discrimination or Retaliation
[1] Interference
[2] Discrimination or Retaliation
[3] Ramifications for Compensation and Attendance Policies

Special Issues for Federal and School Employees

§ 10.01Introduction
§ 10.02Federal Employees
[1] Generally
[2] Federal Employees Covered by Title I of the FMLA
[3] Legislative Branch Employees Not Covered by Title I
[4] Employees Covered by Title II of the FMLA
§ 10.03School Employees
[1] Generally
[2] Leave Extending Over Summer Vacation
[3] Special Rules for Instructional Employees
[4] Restoration Rights for School Employees

FMLA Recordkeeping

§ 11.01Introduction
§ 11.02Recordkeeping Requirements
[1] Incorporation of FLSA Recordkeeping Provisions
[2] FMLA Recordkeeping Regulations

Complaints, Remedies and Enforcement

§ 12.01Introduction
§ 12.02Limitations Period and “Willful” Violations
§ 12.03Administrative Complaints
§ 12.04Lawsuits
[1] By an Employee
[2] By the Secretary of Labor
§ 12.05Agreements to Waive or Arbitrate FMLA Rights and Claims
[1] Waiver Agreements
[2] Shortened Limitations Period Agreements
[3] Arbitration Agreements
§ 12.06Remedies Available
[1] Recovery of Actual Losses and Other Monetary Relief
[2] Equitable Relief
[3] Employer’s Good Faith Defense to Liquidated Damages
§ 12.07Miscellaneous Issues
[1] Violations of the Posting Requirement
[2] Consequences for Not Paying Penalty Assessments

Appendix A-I
Labor Department Poster: Employee Rights And Responsibilities Under the FMLA (English)

Appendix A-II
Labor Department Poster: Employee Rights And Responsibilities Under the FMLA (Spanish)

Appendix B-I
Form WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition (FMLA)

Appendix B-II
Form WH 380-F Certification of Health Care Provider for Family Member’s Serious Health Condition (FMLA)

Appendix C
Form WH 381 Notice of Eligibility and Rights & Responsibilities (FMLA)

Appendix D
Form WH-382 Designation Notice (FMLA)

Appendix E
Form WH-384 Certification of Qualifying Exigency for Military Family Leave (FMLA)

Appendix F
Form WH-385: Certification for Serious Injury or Illness of Covered Servicemember(for Military Family Leave (FMLA)