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book image Constangy’s Field Guide to The Family Medical Leave Act 2014
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Author Name Michael D. Malfitano
476 Pages  
Published date 2014
ISBN no. 978-1-57625-586-5
eBook ISBN no. 978-1-57625-590-2
Condition New
 
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Title
Acknowledgement
About the Author
Preface
Chapter 1: Coverage
1-1 29 CFR § 825.100 THE FAMILY AND MEDICAL LEAVE ACT
1-1:1 General Parameters
1-2 29 CFR § 825.101 PURPOSE OF THE ACT
1-2:1 Employers and Employees Benefit
1-2:2 DOL Interpretations of FMLA
1-3 29 CFR § 825.102 DEFINITIONS
1-4 29 CFR § 825.104 COVERED EMPLOYER
1-4:1 Establishing an Integrated Employer
1-4:2 Practice Points: Asserting Integrated Employer Doctrine
1-4:3 FMLA Applicability to Religious Institutions
1-4:4 Corporation With Multiple Divisions
1-4:5 Liability of Individual Managers
1-4:5.1 Introduction
1-4:5.2 Managers at Public Employers
1-4:5.3 Managers at Private Employers
1-4:6 Liability of Shareholder, Member or Officer
1-4:7 Practice Pointer: Rule 12(b)(6) Motions
1-4:8 Supervisory Status Not Conclusive Evidence of Employer Status
1-4:9 Improper Defendants
1-5 29 CFR § 825.105 COUNTING EMPLOYEES FOR DETERMINING COVERAGE
1-5:1 Extra-Territorial Application of FMLA
1-5:2 Number of Employees During Calendar Weeks
1-5:3 Individual or Independent Contractor
1-5:4 Counting Day Laborers and Temporary Employees
1-6 29 CFR § 825.106 JOINT EMPLOYER COVERAGE
1-6:1 Professional Employer Organization
1-6:2 Effect of Joint Employment Status
1-6:3 Joint Control Over Employee
1-6:4 Public Agencies as Joint Employers
1-6:5 Primary and Secondary Employers
1-6:6 Liability of Entities Advising Employers on FMLA
1-6:7 Practice Points: Have Employees Acknowledge Temporary Service as Employer
1-6:8 DOL Interpretation of Joint Employer Relationship
1-7 29 CFR § 825.107 SUCCESSOR IN INTEREST COVERAGE
1-7:1 Successor Honors Employee FMLA Rights at Time of Acquisition
1-7:2 Time Worked for Predecessor
1-7:3 Weight Afforded DOL Legal Determinations
1-7:4 Practice Points: Partial Summary Judgment Motions/Rule 12(b)(6) Motions
1-8 29 CFR § 825.108 PUBLIC AGENCY COVERAGE
1-8:1 11th Amendment Immunity
1-8:2 Public Agency Status
1-8:3 Supreme Court Ruling on State Sovereign Immunity
1-9 29 CFR § 825.109 FEDERAL AGENCY COVERAGE
1-10 29 CFR § 825.110 ELIGIBLE EMPLOYEE
1-10:1 Establishing Requisite Hours Worked
1-10:2 Pre-Eligibility Request
1-10:3 Practice Points: Numerosity Requirement
1-10:4 Determining Eligibility of Returning Former Employees
1-10:5 Dates for Measuring Eligibility Requirements
1-10:6 Effect of Vacation Time on Eligibility
1-10:7 Practice Points: Pleading Sufficient Predicate Facts
1-10:8 Hours of Service Requirement
1-10:9 Estoppel Issues
1-10:10 Interplay Between FMLA and Other Statutes
1-11 29 CFR § 825.111 DETERMINING WHETHER 50 EMPLOYEES ARE EMPLOYED WITHIN 75 MILES
1-11:1 Worksite Requirement
1-11:2 Worksite of Traveling Employees
1-11:3 Personal Residence as Worksite
1-11:4 Worksite for Employees of Joint Employer
1-11:5 Construing Worksite Requirement Narrowly
1-12 29 CFR § 825.112 QUALIFYING REASONS FOR LEAVE, GENERAL RULE
1-13 29 CFR § 825.113 SERIOUS HEALTH CONDITION
1-13:1 Employee Must Prove Serious Health Condition Exists
1-13:2 Common Knowledge Inference
1-13:3 What Constitutes Continuing Treatment and Incapacity
1-13:4 Name of Ailment Not Dispositive
1-13:5 Practice Points: Mental Illness
1-14 29 CFR § 825.114 INPATIENT CARE
1-14:1 Generally
1-15 29 CFR § 825.115 CONTINUING TREATMENT
1-15:1 Continuing Treatment for Non-FMLA Condition
1-15:2 Chronic Conditions
1-15:3 Pointers for Employers
1-15:4 Regime of Continuing Treatment
1-15:5 Special Issues Concerning Serious Health Conditions
1-15:5.1 Chronic Condition Not Notice for Purposes of All Future Leaves
1-15:5.2 Multiple Conditions Not Necessarily Aggregable
1-15:5.3 Incapacity Due to Pregnancy
1-15:5.4 Restorative Surgery
1-15:5.5 Full or Fractional Calendar Day of Incapacity
1-15:6 Practice Checklist: Managing Leave
1-15:6.1 Medical Certification and Recertification
1-15:6.2 Minimizing Impact of Intermittent Leave
1-16 29 CFR § 825.119 LEAVE FOR TREATMENT OF SUBSTANCE ABUSE
1-16:1 Employer Substance Abuse Policy
1-16:2 Protected Absences for Substance Abuse
1-16:3 No Immunity From Discipline
1-16:4 Practice Points: Offering FMLA Leave
1-17 29 CFR § 825.120 LEAVE FOR PREGNANCY OR BIRTH
1-17:1 Introduction
1-17:2 Intermittent or Reduced-Schedule Leave
1-17:3 Only Husbands Entitled to Leave
1-17:4 Pregnancy as Serious Health Condition
1-17:5 FMLA and Other Regulations
1-18 29 CFR § 825.121 LEAVE FOR ADOPTION OR FOSTER CARE
1-18:1 Generally
1-19 29 CFR § 825.122 DEFINITIONS OF COVERED SERVICEMEMBER, SPOUSE, PARENT, SON OR DAUGHTER, NEXT OF KIN OF A COVERED SERVICEMEMBER, ADOPTION, FOSTER CARE, SON OR DAUGHTER ON COVERED ACTIVE DUTY OR CALL TO COVERED ACTIVE DUTY STATUS, SON OR DAUGHTER OF A COVERED SERVICEMEMBER, AND PARENT OF A COVERED SERVICEMEMBER
1-19:1 Adult Child’s Condition Determines Eligibility
1-19:2 In Loco Parentis
1-19:3 Commonly Arising Legal Issues
1-20 29 CFR § 825.123 UNABLE TO PERFORM THE FUNCTIONS OF THE POSITION
1-20:1 Medical Certification
1-20:2 Modified or Light-Duty Work
1-20:3 Indefinite Intermittent Leave
1-20:4 Definition of Treatment
1-20:5 Role of Job Descriptions
1-20:6 Practice Points: Determine Essential Job Functions
1-21 29 CFR § 825.124 NEEDED TO CARE FOR A FAMILY MEMBER OR COVERED SERVICEMEMBER
1-21:1 Meaning of “To Care For”
1-21:2 Proximity Required
1-21:3 Definition of “Care”
1-21:4 Practice Points
1-21:4.1 Absence Directly Related to Care
1-21:4.2 Testimony of Family Member Receiving Care
1-21:4.3 Medical Need and Proper Notification
1-22 29 CFR § 825.125 DEFINITION OF HEALTHCARE PROVIDER
1-22:1 Physician Assistants
1-22:2 Priests
1-22:3 Chiropractors
1-23 29 CFR § 825.126 LEAVE BECAUSE OF QUALIFYING EXIGENCY
1-23:1 Purpose and Recent Revisions
1-23:2 Definition of Contingency Operation
1-23:3 Issues and Recommendations for Employers
1-24 29 CFR § 825.127 LEAVE TO CARE FOR A COVERED SERVICEMEMBER WITH A SERIOUS INJURY OR ILLNESS
1-24:1 Scope of Coverage, Recent Revision
1-24:2 Employee’s Certification Obligation
1-24:3 Issues for Employers
1-24:4 Intermittent Leave
1-24:5 Military Caregiver Leave Compared to Regular FMLA Leave
Chapter 2: Employee Leave Entitlements
2-1 29 CFR § 825.200 AMOUNT OF LEAVE
2-1:1 Determining 12-Month Period
2-1:2 Holidays During FMLA Workweek
2-1:3 Checklist: Avoid Interference With FMLA Rights
2-2 29 CFR § 825.201 LEAVE TO CARE FOR A PARENT
2-3 29 CFR § 825.202 INTERMITTENT LEAVE OR REDUCED LEAVE SCHEDULE
2-3:1 Eligibility for Intermittent Leave
2-3:2 Intermittent Leave While at Work
2-3:3 Intermittent Leave and ADA
2-3:4 Recourse for Abuse
2-3:5 Intermittent Leave From Overtime
2-3:6 Intermittent Leave for Ongoing Treatment of Medical Conditions
2-3:7 Leave Must Be “Medically Necessary”
2-3:8 Reasonable Effort Not to Disrupt Operations
2-3:9 Employer Not Required to Modify Job Duties
2-4 29 CFR § 825.203 SCHEDULING OF INTERMITTENT OR REDUCED-SCHEDULE LEAVE
2-4:1 Certification Determines Entitlement to Intermittent Leave
2-4:2 Abuse of Intermittent Leave
2-5 29 CFR § 825.204 TRANSFER OF AN EMPLOYEE TO AN ALTERNATIVE POSITION DURING INTERMITTENT LEAVE OR REDUCED-SCHEDULE LEAVE
2-5:1 Temporary Transfers to Accommodate Leave
2-6 29 CFR § 825.205 INCREMENTS OF FMLA LEAVE FOR INTERMITTENT OR REDUCED SCHEDULE LEAVE
2-6:1 Taking Intermittent Leave in Increments
2-6:2 Intermittent Leave Conflicting With Job Functions
2-6:3 Leave and Overtime
2-6:4 Employer Cannot Require More Leave Than Necessary
2-7 29 CFR § 825.206 INTERACTION WITH THE FLSA
2-8 29 CFR § 825.207 SUBSTITUTION OF PAID LEAVE
2-8:1 Substituting Paid Leave
2-9 29 CFR § 825.209 MAINTENANCE OF EMPLOYEE BENEFITS
2-10 29 CFR § 825.210 EMPLOYEE PAYMENT OF GROUP HEALTH BENEFIT PREMIUMS
2-10:1 Employer Obligation to Maintain Benefits
2-11 29 CFR § 825.211 MAINTENANCE OF BENEFITS UNDER MULTI-EMPLOYER HEALTH PLANS
2-12 29 CFR § 825.212 EMPLOYEE FAILURE TO PAY HEALTH PLANS PREMIUM PAYMENTS
2-12:1 Employer’s Obligations
2-12:2 Practice Points: Employer Should Pay Employee’s Share of Premiums
2-13 29 CFR § 825.213 EMPLOYER RECOVERY OF BENEFIT COSTS
2-13:1 Employee Does Not Return to Work
2-13:2 Practice Points: Recovering Employee Benefit Premiums
2-14 29 CFR § 825.214 EMPLOYEE RIGHT TO REINSTATEMENT
2-14:1 Employee Claims for FMLA Violation
2-14:2 Burden of Proof Regarding Right to Reinstatement
2-14:3 Reinstatement Right Not Absolute
2-14:4 Practice Points: Notice to Replacement Employee
2-15 29 CFR § 825.215 EQUIVALENT POSITION
2-15:1 Location of Return to Work
2-15:2 Bonuses
2-15:3 Attendance Policies
2-15:4 Equivalent Shifts
2-15:5 Equivalent Sales Account Assignments
2-15:6 De Minimis Test
2-15:7 Basing Claim on Equivalence Violation
2-15:8 Claims for Interference v. Claims for Retaliation
2-15:9 Reinstatement to Light Duty
2-15:10 Equivalent Pay
2-15:11 Delayed Return to Work
2-15:12 Practice Points: Avoid Disparate Treatment
2-16 29 CFR § 825.216 LIMITATIONS ON AN EMPLOYEE’S RIGHT TO REINSTATEMENT
2-16:1 Reinstatement Right Not Unlimited
2-16:2 Document Performance Issues
2-16:3 Practice Points: Consider Timing and Basis of Adverse Employment Action
2-16:4 Inability to Perform Essential Job Functions
2-16:5 Employee’s Job Eliminated While on Leave
2-16:6 Practice Pointer: Avoid Jumping to Conclusions
2-16:7 Employee Excused From Timely Return to Work After Leave
2-17 29 CFR § 825.217 KEY EMPLOYEE, GENERAL RULE
2-18 29 CFR § 825.218 SUBSTANTIAL AND GRIEVOUS ECONOMIC INJURY
2-19 29 CFR § 825.219 RIGHTS OF A KEY EMPLOYEE
2-19:1 Standard for Denying Reinstatement
2-19:2 Designation as Key Employee Doesn’t Warrant Special Treatment
2-20 29 CFR § 825.220 PROTECTION FOR EMPLOYEES WHO REQUEST LEAVE OR OTHERWISE ASSERT FMLA RIGHTS
2-20:1 Light Duty Protection
2-20:2 Release of FMLA Claims
2-20:3 Distinction Between Interference and Retaliation Claims
2-20:4 Monetary Loss Requirement
2-20:5 Discouragement Claim
2-20:6 Requiring Work Function While on Leave
2-20:7 Requiring Certification as Interference
2-20:8 Ensuring Leave Is for Intended Purpose
2-20:9 Involuntary FMLA Leave
2-20:10 Practice Points: Raise Affirmative Defenses to Interference Claim
2-20:10.1 Legitimate, Unrelated Reason for Employment Action
2-20:10.2 Honest Belief Defense
2-20:10.2a Asserting the Defense for Employer
2-20:10.2b Employee Arguments Defeating Honest Belief
2-20:10.2c Applicability to Interference and Retaliation Claims
2-20:11 Pleading FMLA Claims
2-20:12 Coverage of Former Employees
2-20:13 Employee Need Not Use FMLA Leave
2-20:14 Remember Duality of Claims in Pleading and Defending Claims
2-20:15 Remember Employer Burden in Mixed Motive Cases
2-20:16 What Constitutes Adverse Employment Action
2-20:17 Consider 12(b)(6) Motion
2-20:18 No Derivative Retaliation Claims
2-20:19 Discipline for Mere Absence Not FMLA Violation
2-20:20 Scope of Protected Activity
2-20:21 Timing of Leave and Adverse Action
2-20:22 Negative Treatment After Return From Leave
2-20:23 Summary Judgment Motions
2-20:24 Tips for Employers/Employees
Chapter 3: Employee and Employer Rights and Obligations Under the Act
3-1 29 CFR § 825.300 EMPLOYER NOTICE REQUIREMENTS
3-1:1 Required Notices
3-1:1.1 Introduction
3-1:1.2 General Notice
3-1:1.3 Eligibility Notice
3-1:1.4 Rights and Responsibilities Notice
3-1:1.5 Designation Notice
3-1:2 Question of Law or Fact
3-2 29 CFR § 825.301 DESIGNATION OF FMLA LEAVE
3-2:1 Involuntary Leave
3-3 29 CFR § 825.302 EMPLOYEE NOTICE REQUIREMENTS FOR FORESEEABLE FMLA LEAVE
3-3:1 Employee Notice Required
3-3:2 FMLA-Qualifying Condition Needed
3-3:3 Employee Duty to Answer Questions
3-4 29 CFR § 825.303 EMPLOYEE NOTICE REQUIREMENTS FOR UNFORESEEABLE FMLA LEAVE
3-4:1 Level of Specificity Required
3-4:2 Employee Cooperation Required
3-4:3 Employer’s Duty to Determine Eligibility
3-4:4 Conduct Versus Verbal Notice
3-4:5 Motion for Summary Judgment or Dismissal Based on Notice
3-4:6 Sufficiency of Certifications
3-4:7 Practice Points: Notice and Viability of Interference/Retaliation Claims
3-5 29 CFR § 825.304 EMPLOYEE FAILURE TO PROVIDE NOTICE
3-5:1 Power to Penalize for Insufficient Employee Notice
3-6 29 CFR § 825.305 CERTIFICATION, GENERAL RULE
3-6:1 Certification Requirements
3-6:2 Deadlines for Certification
3-6:3 Warnings Given Employees Regarding Certification Requirements
3-6:4 Notice Provided After Adverse Employment Action
3-6:5 Employee Must Be Given Time to Correct Deficiency
3-6:6 Practice Points: Using the Certification Process to Avoid Liability
3-6:6.1 Introduction
3-6:6.2 Provide Job Description to Health Care Provider
3-6:6.3 Avoid GINA Issues
3-6:6.4 List Employee Certification Dates Big Bold Language
3-6:6.5 Be Specific
3-6:6.6 Read It and Seek Clarification If Needed
3-7 29 CFR § 825.306 CONTENT OF MEDICAL CERTIFICATION FOR LEAVE TAKEN BECAUSE OF EMPLOYEE’S OWN SERIOUS HEALTH CONDITION OR THE SERIOUS HEALTH CONDITION OF A FAMILY MEMBER
3-7:1 Disclosure of Medical Diagnosis
3-7:2 Inability to Perform Job Functions
3-7:3 Medical Necessity of Leave
3-7:4 Requesting More Information From Employee
3-8 29 CFR § 825.307 AUTHENTICATION AND CLARIFICATION OF MEDICAL CERTIFICATION FOR LEAVE TAKEN BECAUSE OF AN EMPLOYEE’S OWN SERIOUS HEALTH CONDITION OR THE SERIOUS HEALTH CONDITION OF A FAMILY MEMBER; SECOND AND THIRD OPINIONS
3-8:1 Determining Authenticity of Certification
3-9 29 CFR § 825.308 RECERTIFICATIONS FOR LEAVE TAKEN BECAUSE OF AN EMPLOYEE’S OWN SERIOUS HEALTH CONDITION OR THE SERIOUS HEALTH CONDITION OF A FAMILY MEMBER
3-9:1 Recertifications Generally
3-9:2 Recertification for Intermittent Leave
3-9:3 Failure to Recertify
3-10 29 CFR § 825.309 CERTIFICATION FOR LEAVE TAKEN BECAUSE OF A QUALIFYING EXIGENCY
3-10:1 Copy of Military Orders Required Once
3-10:2 Certification For Each Activity Under Same Exigency
3-10:3 Employer May Contact Third Party
3-11 29 CFR § 825.310 CERTIFICATION FOR LEAVE TAKEN TO CARE FOR A COVERED SERVICEMEMBER (MILITARY CAREGIVER LEAVE)
3-11:1 Form WH-385 Certification
3-11:2 Entities Who Can Certify Need for Leave
3-12 29 CFR § 825.311 INTENT TO RETURN TO WORK
3-12:1 Expressing Intent to Return to Work
3-12:2 Requiring Employee Take Leave
3-13 29 CFR § 825.312 FITNESS-FOR-DUTY CERTIFICATION
3-13:1 More than Simple Statement of Fitness-for-Duty Required
3-13:2 Employer Obligations
3-13:3 Intermittent Leave
3-13:4 Employer May Question Fitness
3-13:5 Intermittent Leave and Reasonable Safety Concerns
3-13:6 Interaction Between ADA and FMLA
3-13:7 Interpreting Physician Language Prohibited
3-13:8 Employers Must Notify Employees of Need for Fitness Certification
3-14 29 CFR § 825.313 FAILURE TO PROVIDE CERTIFICATION
3-14:1 No FMLA Protection for Failure to Provide Certification
Chapter 4: Enforcement Mechanisms
4-1 29 CFR § 825.400 ENFORCEMENT, GENERAL RULES
4-1:1 Administrative Remedy
4-1:2 Damages
4-2 29 CFR § 825.401 FILING A COMPLAINT WITH THE FEDERAL GOVERNMENT
4-2:1 DOL Complaint Not Prerequisite to Private Suit
4-3 29 CFR § 825.402 VIOLATIONS OF THE POSTING REQUIREMENT
4-3:1 No Claim for Failure to Post Notices
4-4 29 CFR § 825.403 APPEALING THE ASSESSMENT OF A PENALTY FOR WILLFUL VIOLATION OF THE POSTING REQUIREMENT
4-5 29 CFR § 825.404 CONSEQUENCES FOR AN EMPLOYER WHEN NOT PAYING THE PENALTY ASSESSMENT AFTER A FINAL ORDER IS ISSUED
Chapter 5: Recordkeeping Requirements
5-1 29 CFR § 825.500 RECORDKEEPING REQUIREMENTS
5-1:1 Viability of Private Claim for Violation of Recordkeeping
5-1:1.1 Decisions Finding No Claim
5-1:2 Decisions Implying Claim May Exist
Chapter 6: Special Rules Applicable to Employees of Schools
6-1 29 CFR § 825.600 SPECIAL RULES FOR SCHOOL EMPLOYEES, DEFINITIONS
6-2 29 CFR § 825.601 SPECIAL RULES FOR SCHOOL EMPLOYEES, LIMITATIONS ON INTERMITTENT LEAVE
6-3 29 CFR §825.602 SPECIAL RULES FOR SCHOOL EMPLOYEES, LIMITATIONS ON LEAVE NEAR THE END OF AN ACADEMIC TERM
6-4 29 CFR § 825.603 SPECIAL RULES FOR SCHOOL EMPLOYEES, DURATION OF FMLA
6-5 29 CFR § 825.604 SPECIAL RULES FOR SCHOOL EMPLOYEES, RESTORATION TO AN EQUIVALENT POSITION
Chapter 7: Effect of Other Laws, Employer Practices, and Collective Bargaining Agreements on Employee Rights Under FMLA
7-1 29 CFR § 825.700 INTERACTION WITH EMPLOYER’S POLICIES
7-2 29 CFR § 825.701 INTERACTION WITH STATE LAWS
7-3 29 CFR § 825.702 INTERACTION WITH FEDERAL AND STATE ANTIDISCRIMINATION LAWS
7-3:1 FMLA and ADA Interaction
7-3:1.1 Addressing Intermittent Leave
7-3:1.2 FMLA Leave Does Not Indicate Disability
7-3:1.3 FMLA Compliance as Defense to Discrimination Claim
7-3:2 FMLA and GINA
7-3:3 FMLA Leave Request as Protected Activity Under ADA
7-3:4 Medical Inquiries for ADA Do Not Violate FMLA
7-3:5 State Common Law Claims Arising From FMLA Claim
Chapter 8: Special Rules Applicable to Airline Flight Crew Employees
8-1 29 CFR § 825.800 SPECIAL RULES FOR AIRLINE FLIGHT CREW EMPLOYEES, GENERAL
8-2 29 CFR § 825.801 SPECIAL RULES FOR AIRLINE FLIGHT CREW EMPLOYEES, HOURS OF SERVICE REQUIREMENT
8-3 29 CFR § 825.802 SPECIAL RULES FOR AIRLINE FLIGHT CREW EMPLOYEES, CALCULATION OF LEAVE
8-4 29 CFR § 825.803 SPECIAL RULES FOR AIRLINE FLIGHT CREW EMPLOYEES, RECORDKEEPING REQUIREMENTS
Chapter 9: Damages
9-1 DAMAGES: 29 U.S.C. § 2617
9-1:1 Liquidated Damages
9-1:2 The Exacerbation Theory
9-1:3 Back Pay
9-1:5 Reinstatement of Attorney
9-1:6 Causation as to Damages
9-1:7 Emotional Distress/Physical Injury Damages
9-1:8 Prejudgment Interest
9-1:9 Attorneys’ Fees
9-1:10 Statute of Limitations
Table of Cases
Index
Back Page
 
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