Family Medical Leave Act

Transcription

1 Family Medical Leave Act

2 Sponsored by: Presented by: Jill Brooking Vice President, Benefits Compliance, NFP National Financial Partners Corp. and its subsidiaries do not provide legal or tax advice. Compliance, regulatory and related content is for general informational purposes and is not guaranteed to be accurate or complete. You should consult an attorney or tax professional regarding the application or potential implications of laws, regulations or policies to your specific circumstances

3 Which employers have to comply? Public employers of all sizes Includes federal government, state government, political subdivision of a state Local educational employers Public school boards Public and private elementary and secondary schools Private employers 50 or more employees For each working day in 20 or more weeks In the current or preceding calendar year

4 Who is the employer? Related employers Employees are counted separately unless the entities meet the integrated employer or joint employer test Integrated employer test Common management Interrelation between operations Centralized control of labor relations Degree of common ownership/financial control Joint employer test 2 or more businesses exercise some control over the work or working conditions of the employee

5 Who is the employer? Arrangement to share employee's services or to interchange employees One employer acts directly or indirectly in the interest of the other employer in relation to the employee Employee is counted by both. But primary employer is responsible for providing leave.

6 Successor employers A successor employer is determined by reviewing the following factors: Substantial continuity of same business operations Use of the same plant Continuity of work force Similarity of jobs and working conditions Similarity of supervisory personnel Similarity in equipment and production methods Similarity of products and services FMLA provided by successor as if employee had been continuously employed by single employer Brown v. Nutrition Management Services Co.

7 Which employees are eligible to take leave? Worked for the employer for a total of 12 months (52 weeks) Weeks including paid time (sick, vacation) included 12 months/52 weeks do not have to be consecutive, but within 7 years Worked 1,250 hours within the last 12 months Only time worked counted. Not sick, vacation, etc. Work within 75 miles of 50 employees Employees that do not have a fixed worksite, worksite is the site that is their home base from which their work is assigned or to which they report Have a qualifying reason

8 Qualifying Reasons 1) Birth of child 2) To care for newborn Bonding time up to the baby s 1 st birthday Applies to mothers and fathers 3) Placement for adoption or foster care Within 1 year of placement 4) To care for spouse, child, parent with serious health condition Spouse- husband or wife Child- step child, foster, adopted, biological, legal ward, or a child of a person standing in loco parentis Parent- Includes those in loco parentis, those with day-to-day responsibilities to care for and financially support a child. Biological or legal relationship not necessary

9 Qualifying Reasons- continued 5) The employee s own serious health condition Inpatient care or continuing treatment by a health care provider More than 3 consecutive full days incapacity 6) Exigency of child, spouse, parent who is an active duty service member Short notice deployment (7 days) Military events and activities (ceremony, program, informational briefings) Childcare and school activities Financial and legal arrangements Counseling Rest and recuperation Post-deployment activities 7) To care for a covered service member with a serious injury/illness (spouse, child, parent, next of kin)

10 Employer Obligations Provide 12 weeks of unpaid leave within a 12 month period Can be taken intermittently for serious health condition of employee or family member. Maintain coverage under group health plan Does not apply to life or disability Same contribution rate as active EE (pre-paid, pay post tax directly to ER, or pay upon return) COBRA offered at the end of 12 weeks, if EE doesn t return Restore to same or equivalent position Equivalent benefits, pay, working conditions, privileges, status, and other terms of employment. Similar duties, responsibilities, skill, effort, and authority

11 12 month period Example- Employee is on FMLA from 10/01/12 to 12/21/12 Calendar year EE would be eligible for 12 more weeks starting 01/01/13 Fixed 12 month period Fiscal year. If ER s fiscal year was 09/01 to 08/31, EE would be eligible again starting 09/01/13 EE s anniversary date. If EE was hired 04/01/10, EE would be eligible again starting 04/01/13 12 month period measured forward from the date of EE s first FMLA. If this is the EE s first request, EE would be eligible again starting 10/01/13

12 12 month period Rolling 12 month period measured backward from the date of an EE s current FMLA. Example- Depends on future request date. If EE requests leave starting 06/01/13, 0 days FMLA remaining. If EE requests leave starting 11/01/13, she would be eligible for 4 weeks, 3 days of FMLA. (Looking back at days used from 11/01/12 through 10/31/13)

13 Employer Notice Obligations Required of employers that are subject to FMLA: Display poster General Notice In Employee Handbook Distribute to new employees upon hire

14 Employer Notice Obligations- continued Obligations once an FMLA request arises Eligibility Notice Distribute to EE within 5 business days of employer acquiring knowledge of an employee s need for leave for a FMLA qualifying reason Describes whether EE is eligible for FMLA Rights and Responsibilities Notice Model Notice combined with Eligibility Notice Employee s premium payment obligations Whether a medical certification is required by the employer Identification of key employee

15 Employer Notice Obligations- continued Designation Notice Within 5 business days of receiving certification Whether leave is designated as FMLA Whether the employer will require a fitness for duty certification upon return

16 Interaction with ADA What if the employee does not return within 12 weeks? The regulations state: FMLA entitles eligible employees to 12 weeks of leave in any 12 month period due to their own serious health condition, whereas the ADA allows an indeterminate amount of leave, barring undue hardship, as a reasonable accommodation. (Labor Code ) An employer s obligation under FMLA ceases at the end of the 12 weeks. However, this does not mean that an employer should automatically terminate employment if an employee does not return at the end of 12 weeks (or any fixed period of time).

17 Interaction with ADA- continued The EEOC states the following on their website: Question: May an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs additional leave? Answer: If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must provide the employee with the additional leave even if it has a no-fault policy. An employer, however, does not need to provide leave if: (1) it can provide an effective accommodation that allows the person to keep working, or (2) it can show that granting additional leave would cause an undue hardship.

18 Interaction with ADA- continued EEOC took legal action against UPS, who had a 12 month leave policy. Maharaj v. California Bank & Trust

19 Penalties for noncompliance DOL investigates complaints If complaint cannot be resolved, DOL may bring legal action against employer Employee may also bring private civil action against employer Awards Back pay Damages Reinstatement of employment Attorney s fees Expert witness fees

20 DC Law FMLA DC Family & Medical Leave Applies to ER s With 50 or more EE s With 20 or more EE s Leave period 12 weeks within 12 months 16 weeks within 24 months for family leave; AND 16 weeks within 24 months for medical leave Reasons for leave Own serious health condition; birth/adoption; serious health condition of family member; servicemember exigency of family member; serious illness/injury of family member or next of kin servicemember Family Leave Birth or adoption Medical Leave Own serious health condition Eligible EE 1 year of service; 1,250 hrs 1 year of service; 1,000 hrs Job restoration Yes Yes Continuation of group health plan coverage Yes Yes

21 Review of FMLA Checklist

22 Questions?