Getting a Handle on FMLA Basics and Intermittent Leave

Transcription

1 Getting a Handle n FMLA Basics and Intermittent Leave Understanding Cmplex Issues under the Act April 19, 2018 Anne-Marie Vercruysse Welch Awelch@clarkhill.cm Nancy Mullett Nmullett@clarkhill.cm

2 2 FMLA REALITIES The FMLA was created t help emplyees, but sme take advantage f it The FMLA is a strict-liability law: hnest mistakes still result in liability Even wrse? The regulatins dn t take int accunt the real-wrld Managing intermittent leave can be an emplyer s biggest challenge

3 3 AGENDA FMLA Basics Managing Intermittent Leave Definitin/Requirements Scheduling Transfer t an Alternative Psitin Increments f Leave Return frm Leave Practical Guidance Special Rules fr Instructinal Staff Real Wrld Scenaris

4 4 FMLA BASICS 2018 Clark Hill PLC

5 5 FMLA REQUIREMENTS The FMLA requires up t 12 wrk-weeks f unpaid, jbprtected leave in any 12-mnth perid, with the cntinuatin f grup health insurance, fr any ne r mre f the fllwing reasns: Birth f a child and t care fr the newbrn child; Placement with the emplyee f a child fr adptin r fster care and t care fr the newly placed child; T care fr an immediate family member (spuse, child r parent but nt a parent in-law ) with a serius health cnditin; The emplyee s wn serius health cnditin; Qualifying exigency arising ut f fact that a family member (spuse, sn, daughter r parent f emplyee) is n cvered active duty, r has been ntified f an impending call r rder t active duty

6 6 FMLA REQUIREMENTS The FMLA allws up t 26 weeks f unpaid leave in ne 12 mnth perid fr military caregiver leave The FMLA prvides military caregiver leave t eligible emplyees seeking t supprt a cvered service member suffering frm a serius injury r illness Eligible emplyees include the spuse, sn, daughter, parent, r next f kin f the cvered service member The 26 weeks fr military caregiver leave include the 12 weeks already prvided under regular FMLA leave

7 7 FMLA / SERIOUS HEALTH CONDITION A serius health cnditin under the FMLA is an illness, injury, r cnditin that requires: Any perid f incapacity r treatment cnnected with inpatient care (i.e., an vernight stay) A perid f incapacity requiring absence f mre than three calendar days that als invlves cntinuing treatment (r supervisin f) by a health care prvider Any perid f incapacity due t pregnancy, including fr prenatal care Any perid f incapacity (r treatment) due t a chrnic health cnditin (e.g. asthma, diabetes, epilepsy, etc.) Any perid f incapacity that is permanent r lng-term due t a cnditin fr which treatment may nt be effective (e.g., Alzheimer's, strke, terminal disease, etc.) Any absences t receive multiple treatments (including a perid f recvery) by, r n referral by, a health care prvider fr a cnditin that likely wuld result in incapacity f mre than three cnsecutive days if left untreated (e.g. chemtherapy, physical therapy, etc.)

8 8 FMLA / EMPLOYEE ELIGIBILITY T be eligible, an emplyee must wrk fr a cvered emplyer and: Have been emplyed by the emplyer fr at least 12 mnths within the last 7 years; Have at least 1,250 hurs f service during the 12 mnths prir t the start f the FMLA leave; and, Wrk at a lcatin where at least 50 emplyees are emplyed at the lcatin r within 75 miles f the lcatin

9 9 FMLA / THE 12 MONTH LEAVE ENTITLEMENT AND EMPLOYER S OPTIONS Any 12-mnth perid is defined in the regulatins and allws an emplyer t elect: A calendar year; A fixed 12-mnth leave year; A 12-mnth perid measured frward frm the date f any emplyee s first FMLA leave begins; r A rlling 12 mnth perid, measured backward frm the date an emplyee uses any FMLA leave

10 10 FMLA / THE CERTIFICATION PROCESS An emplyer may require emplyees seeking leave fr their wn serius health cnditin r t care fr a cvered family member t supprt the request with a health care certificatin Certificatin may nt be requested fr leave t care fr a healthy newbrn child, r placement with the emplyee f a child fr adptin r fster care, althugh dcumentatin f family relatinship may be requested In mst cases, the emplyer shuld request that the emplyee furnish certificatin at the time the emplyee gives ntice f the need fr leave, r within 5 business days An emplyer must give ntice t the emplyee each time a certificatin is required At the time the emplyer requests certificatin, the emplyer must advise an emplyee f cnsequences f an emplyee s failure t prvide adequate certificatin

11 11 FMLA / THE CERTIFICATION PROCESS DATES AND DEADLINES A cmplete and sufficient certificatin must be returned within 15 calendar days 15 calendar days (absent extenuating circumstances) fr return begins when emplyee receives written ntice he/she has 15 days t return the certificatin 15 calendar day perid may be extended if the emplyee is unable t return the frm if nt practicable, despite emplyee s diligent and gd faith effrts Require emplyees wh need an extensin f time t submit the certificatin t cntact emplyer prir t the expiratin f the 15-day perid and btain a written extensin

12 12 INTERMITTENT LEAVE 2018 Clark Hill PLC

13 13 INTERMITTENT LEAVE / REQUIREMENTS The FMLA permits emplyees t take leave n an intermittent basis r t wrk a reduced schedule: When medically necessary t care fr a seriusly ill family member, r because f the emplyee s wn serius health cnditin T care fr a newbrn r newly placed adpted r fster care child, but nly with emplyer s vluntary apprval Intermittent leave is leave taken in separate blcks f time due t a single qualifying reasn Emplyees n intermittent FMLA leave must fllw the emplyer s usual and custmary call-in prcedures fr reprting an absence A reduced leave schedule is a leave schedule that reduces an emplyee s usual number f wrking hurs per wrkweek, r wrking hurs per wrk day Reduced leave includes a change frm full t part-time.

14 14 MANAGING INTERMITTENT LEAVE / SCHEDULING If fr planned medical treatment, the emplyee must make a reasnable effrt t schedule the treatment s as nt t unduly disrupt the emplyer s peratins A reasnable effrt cnstitutes greater effrt than a mere attempt Emplyees must give 30 days ntice fr intermittent FMLA leave that s freseeable If 30 days ntice is nt pssible, emplyees must give as much ntice as practicable Emplyees must give ntice as sn as pssible and practical fr FMLA leave that is unfreseeable The emplyee shuld fllw the emplyer s usual and custmary ntice requirements fr leave

15 15 MANAGING INTERMITTENT LEAVE / TRANSFER TO ALTERNATIVE POSITION An emplyer may require an emplyee t transfer temprarily t an available alternative psitin fr which the emplyee is qualified and which better accmmdates recurring perids f leave than des the emplyee s regular psitin The FMLA limits an emplyer s ability t transfer an emplyee t an alternative psitin t situatins invlving freseeable leave fr planned medical treatment This is the nly situatin where an emplyer may require a transfer The transfer is temprary; when the intermittent schedule ends, the emplyee must be returned t the same r equivalent jb as the jb the emplyee held when the leave cmmenced

16 MANAGING INTERMITTENT LEAVE / TRANSFER TO ALTERNATIVE POSITION If an emplyer transfers an emplyee t an alternative psitin due t intermittent leave, the emplyer must adhere t the fllwing requirements: Equivalent pay and benefits must be prvided; N requirement fr equivalent duties Pay and benefits f alternative psitin may be increased t make it equivalent t the emplyee s regular jb If the emplyer s nrmal practice bases benefits n the number f hurs wrked, the emplyer may prprtinately reduce benefits such as vacatin leave fr an emplyee s reduced hurs wrked The emplyer may transfer the emplyee t a part-time jb with the same hurly rate f pay and benefits, prvided the emplyee is nt required t take mre leave than is medically necessary Pursuant t the FMLA, grup health benefits must be cntinued regardless f whether ther part-time emplyees are eligible fr such benefits 16

17 17 MANAGING INTERMITTENT LEAVE / INCREMENTS OF LEAVE Intermittent r reduced leave shuld be accunted fr by n greater than the shrtest perid f time used t accunt fr ther frms f leave, prvided: - It is nt greater than ne hur; and, - Des nt reduce the emplyee s FMLA leave entitlement by mre than the amunt f leave actually taken - Even if ther frms f leave are accunted fr in increments greater than ne hur, the emplyer must accunt fr FMLA in increments n greater than ne hur Example: if annual leave is cunted in increments f ne hur and sick leave in increments f ne-half hur, then intermittent FMLA leave must be cunted in increments f ne-half hur Taking intermittent FMLA leave des nt affect the ttal amunt f leave available t an emplyee, which is 12 weeks in a 12- mnth perid

18 18 MANAGING INTERMITTENT LEAVE / RETURN FROM LEAVE Once an emplyee is ready t return t wrk, the emplyer must return him r her t the riginal jb r an equivalent psitin immediately An equivalent psitin must prvide equivalent pay, benefits, and wrking cnditins and must invlve the same r substantially similar duties and respnsibilities Emplyer may require the emplyee prvide sme ntice befre returning t wrk Hwever, the emplyer may nt require an emplyee take mre FMLA leave than necessary simply because it needs mre time t find a jb placement fr the emplyee

19 19 MANAGING INTERMITTENT LEAVE / PRACTICAL GUIDANCE Use and require medical certificatin and recertificatin Generally, an emplyer may request recertificatin n mre ften than every 30 days and nly in cnnectin with an absence by the emplyee, unless: circumstances described by the previus certificatin have changed significantly; the emplyer receives infrmatin casting dubt n the reasn fr the absence r the cntinuing validity f the certificatin; r the emplyee requests an extensin f leave Examples f suspicius circumstances: A pattern f absences (Mndays and Fridays) r emplyee engages in surprising activities (sftball game, yard wrk, bserved at bar) If abuse suspected, investigate! Send emplyee s attendance recrd t the health care prvider Seek secnd and third pinin, at the emplyer s expense, if necessary at the utset

20 20 SPECIAL RULES FOR INSTRUCTIONAL STAFF 2018 Clark Hill PLC

21 SPECIAL RULES FOR INSTRUCTIONAL EMPLOYEES Wh Is An Instructinal Emplyee? Principal functin is t teach and instruct students in a class, a small grup, r individual setting. Includes teachers, athletic caches, driving instructrs, and special educatin assistants such as signers Des nt include teacher assistants r aides wh d nt have as their principal jb actual teaching r instructing, cunselrs, psychlgists, curriculum specialists, cafeteria wrkers, maintenance wrkers, r bus drivers

22 SPECIAL RULES FOR INSTRUCTIONAL EMPLOYEES Leave taken fr a perid that ends with the schl year and begins the next semester is deemed t be taken cnsecutively rather than intermittently The perid during the summer vacatin, when the emplyee wuld nt have been required t reprt fr duty, is nt cunted against the emplyee s FMLA leave entitlement An instructinal emplyee wh is n FMLA leave at the end f the schl year must be prvided with any benefits ver the summer vacatin that emplyees wuld nrmally receive if they had been wrking at the end f the schl year

23 INSTRUCTIONAL EMPLOYEES AND END OF TERM MORE THAN 5 WEEKS UNTIL SUMMER If an eligible instructinal emplyee takes FMLA leave mre than 5 weeks befre the end f the term, a district may require cntinuus leave if: Leave will last at least 3 weeks; and Return t wrk wuld ccur during the 3 week perid befre the end f the term

24 INSTRUCTIONAL EMPLOYEES AND END OF TERM THREE TO FIVE WEEKS UNTIL SUMMER If the eligible instructinal emplyee needs leave during the five week perid befre the end f the term fr: Birth r adptin f a child, r fster care placement Care fr a spuse, child, r parent with a serius health cnditin Care fr a cvered service member District may require emplyee t cntinue leave if: Leave will last at least 3 weeks; and Return t wrk wuld ccur during the tw week perid befre the end f the term

25 INSTRUCTIONAL EMPLOYEES AND END OF TERM THREE WEEKS UNTIL SUMMER If FMLA leave is required during the last 3 weeks f the end f the term fr the fllwing reasns: Birth r adptin f a child, r fster care placement Care fr a spuse, child, r parent with a serius health cnditin Care fr a cvered service member District may require cntinuus leave until end f term if leave lasts mre than 5 wrking days

26 INSTRUCTIONAL EMPLOYEES AND END OF TERM Any additinal leave required by the district t the end f the schl term is nt cunted as FMLA leave; hwever, the district is required t maintain the emplyee s grup health insurance cverage and restre the emplyee t the same r equivalent jb upn cnclusin f the FMLA leave.

27 INTERMITTENT LEAVE Fr intermittent r reduced schedule leave (fr an emplyee's wn serius health cnditin, t care fr a cvered service member, r t care fr a sick family member with a serius health cnditin), if the medical leave is freseeable based n planned medical treatment and the emplyee is scheduled t be ff wrk mre than 20% f the wrking days during the perid f medical leave (fr an instructinal emplyee wrking 5 days a week, 20% wuld be ne day), the schl may require the emplyee t chse: t take leave f a particular duratin nt t exceed the duratin f the planned leave (the entire perid f leave is cunted as FMLA leave); r t temprarily transfer t anther psitin, s lng as such psitin has equivalent pay and benefits and is a psitin fr which they are qualified. The psitin als has t better accmmdate the emplyee's intermittent leave.

28 28 REAL WORLD SCENARIOS 2018 Clark Hill PLC

29 29 SCENARIO 1 A teacher appraches yu at the beginning f the schl year and tells yu that she is pregnant and will be needing time ff in early April fr the birth f her baby. She plans t return fr the last tw weeks f the term. What are the schl s bligatins? A. Agree with her and allw her t return when she is ready B. Require the teacher t take leave thrugh the remainder f the schl year. C. Bth f the abve.

30 30 SCENARIO 2 Bb, yur teacher and ftball cach, btained medical certificatin fr intermittent FMLA leave due t his asthma. The certificatin said his expected absence frequency wuld ne day ff each week fr the next eight weeks t assist in his medical treatment during the schl day. What are the schls bligatins? A. Grant the leave but require that Bb chse between temprarily transferring t a psitin, f equal pay and benefits which better accmmdates the reduced schedule, r t take leave f a "particular duratin" (i.e., full time leave fr the full eight week perid). B. Grant the leave but request that Bb still attend the ftball practices n his scheduled days ff.

31 31 SCENARIO 3 Karen has been apprved fr FMLA leave intermittently due t hypertensin. The anticipated frequency and duratin f the leave is as needed. Karen calls in absent and says she is taking an FMLA day. When she returns t wrk, yu ask her the reasn she was absent, and Karen tells yu FMLA but refuses t prvide mre infrmatin, claiming privacy.

32 32 SCENARIO 3 A. Discipline Karen fr being insubrdinate. B. Cunt the absence as FMLA leave. Karen has prvided yu with sufficient infrmatin abut the need fr leave. C. Assess Karen a pint because she has nt prvided yu with sufficient ntice f her need fr FMLA leave. D. Nthing. Yu shuld nt have interrgated Karen abut her medical cnditin. E. Call a Clark Hill attrney t see if yu can fire Karen yet.

33 33 SCENARIO 4 Management has becme aware that tw emplyees, Jake and Jhn, may be abusing their intermittent leave. Specifically, Jake s leave is taken adjacent t a hliday nearly 89% f the time while, 94% f the time, Jhn takes leave when there is a hliday r a weekend cming up. In an attempt t independently cnfirm the legitimacy f each emplyee s reasn fr an absence under FMLA, yur Human Resurce Department sends a letter t all emplyees with FMLA apprval detailing a new cmpany plicy that requires the submissin f a dctr s nte fr each intermittent leave request. Des the new cmpany plicy regarding intermittent leave requests vilate the FMLA s recertificatin prcess? A. Yes. The cmpany is frcing emplyees t reestablish their eligibility each and every time they decide t take apprved FMLA leave. B. N. The emplyer has the right t require the submissin f a dctr s nte fr each absence in rder t cnfirm the legitimacy f the emplyee s reasn fr an absence.

34 34 QUESTIONS?

35 35 THANK YOU!

36 36 Anne-Marie Vercruysse Welch Attrney At Law Phne: (248) Nancy Mullett Attrney At Law Phne: (616)

37 37 Nte: This dcument is nt intended t give legal advice. It is cmprised f general infrmatin. Emplyers facing specific issues shuld seek the assistance f an attrney Clark Hill PLC