Today s Webinar Brought to

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1 Today s Webinar Brought to you by

2 The Family Medical Leave Act FMLA Compliance Presented by: Michelle Perris - Human Resources Consultant Carol Emge Human Resources Consultant hrconsulting@jwterrill.com

3 Today s Agenda Family Medical Leave Act (FMLA) What is the Risk? Understanding FMLA Administration Top 5 Common Pitfalls Coordination with Overlapping Laws Recordkeeping

4 What is the Risk? DOL Warns Employers of Investigations Recent Conference November American Bar Association Regional Council for DOL Civil Rights (Andrea Appel) Expanding the scope of investigations from individual complaints to systemic FMLA issues To yield results for as many workers as possible

5 What is the Risk? DOL Warns Employers of Investigations Systemic approach looks at three types of information: Statistical leave trends, leave requests, leave approvals and responses to leave requests by supervisor, job group, type of request or any other grouping; Anecdotal based on interviews with employees, supervisors, administrators and managers; and Documents records of leave requests, notices provided, leave determinations, employer s FMLA policy and handbook, and medical certifications and re-certifications

6 What is the Risk? Recent Court Case DOL vs. Staples Corporation On May 27, 2015 a federal judge ordered Staples to pay $275,000 to an employee for FMLA violations. FMLA Violations: 1. Failed to notify the employee of his rights 2. Job Performance expectations were not modified 3. He was subsequently terminated

7 What is the Risk? FMLA is a key focus of the DOL

8 What is the Risk? EEOC Charges by Complaint

9 Understanding FMLA

10 Understanding FMLA Congress Passed the Family Medical Leave Act (FMLA) into law To provide unpaid time off to an employee for certain qualifying reasons, with job security and no loss in health benefits.

11 Understanding FMLA An Overview of the Benefits Eligible employees are entitled to 12 weeks of unpaid leave during a 12 month period Pay buckets run concurrently During FMLA leave an employer must continue health insurance benefits Employees returning from approved FMLA leave must be restored to the same or equivalent position

12 Understanding FMLA Covered Employers: 50 or more employees Within a 75 mile radius During 20 or more calendar workweeks in current or preceding calendar year Part-time, seasonal, temporary and joint employees are counted

13 Understanding FMLA Covered Employees: Employed for 12 months Worked at least 1250 hours during 12 months preceding the leave Employed at a worksite with 50 or more employees within a 75 mile radius

14 Qualifying Conditions for Leave 1. The birth of a son/daughter or the placement of a child with the employee for adoption or foster care

15 Qualifying Conditions for Leave 2. To care for a spouse, son, daughter, or parent who has a serious health condition 3. An employees own serious health condition Serious Health Condition Defined as an illness, injury, impairment or physical or mental condition that involves in-patient care and/or continuing treatment by a health care provider

16 Qualifying Conditions for Leave 4. For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status. 26 workweeks of leave during a "single 12-month period" to care for a covered servicemember with a serious injury or illness, when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember.

17 FMLA Intermittent Leave: Employees may take leave in separate blocks of time when medically necessary Employees are eligible to take time in the smallest increment allowable Employers CANNOT require an employee to take more leave than is necessary or required by the physician.

18 FMLA Reduced Schedule Leave: An employee may be entitled to a reduction in work hours/part-time schedule Employer can temporarily transfer employee CAUTION can appear retaliatory Transfer cannot be a hardship on the employee

19 Special FMLA Provisions for Teachers All private and public elementary and secondary schools are subject to FMLA regardless of employee count

20 Special FMLA Provisions for Teachers Intermittent Leave or Leave on a Reduced Schedule for Instructional Employees If it is determined that an employee will be on leave for greater than 20% of their working days (during an intermittent leave), the employer can require them to: Take a block of time for the duration of the planned treatment not to exceed the necessary duration Transfer temporarily to an available alternative position As long as the employee is qualified The position has equivalent pay and benefits The position better accommodates recurring periods of leave than the regular position of the employee

21 Special FMLA Provisions for Teachers Rules Applicable to Periods Near the Conclusion of an Academic Term Leave more than 5 weeks prior to the end of term: School may require the employee to continue taking leave until the end of the term if: The leave is at least 3 weeks in duration The return to employment would occur during the 3-week period before the end of the term Leave less than 5 weeks prior to the end of term: School may require the employee to continue taking leave until the end of the term, if: The leave is greater than 2 weeks in duration The return to employment would occur during the 2-week period before the end of the term Leave less than 3 weeks prior to the end of term and the duration of the leave is greater than 5 working days School may require the employee to continue to take leave until the end of the term

22 FMLA Administration Four (4) Methods for Establishing the 12 Month Period: The calendar year Any fixed 12-months The 12-month period measured forward A rolling 12-month period measured backward

23 Top 5 Mistakes Employers Make Handle Pay & Benefits Incorrectly FMLA does NOT require paid leave Pay benefits run concurrently with FMLA Workers Compensation Disability Vacation/Sick/PTO FMLA should not be counted against employees Bonus Eligibility Attendance Health Insurance Benefits Must be Continued

24 Top 5 Mistakes Employers Make Do Not Recognize all Eligible Categories Birth of a Child/Care for Newborn Adoption or Foster Care Serious Health Condition Surgery Heart attack Psychological comfort Qualifying Exigency

25 Top 5 Mistakes Employers Make Wait for an Employee to Ask for FMLA According to the regulations FMLA is recognized as soon as the employer becomes aware of the need for leave Recognizing the need for FMLA Absences and/or missing 3+ consecutive days Train your supervisors to recognize potential FMLA situations

26 Top 5 Mistakes Employers Make Forget to Provide Required Notices Employers must notify employees of their rights and responsibilities Best practice is to use the DOL forms: Notice of Eligibility and Rights & Responsibilities (WH-381) Certification of Healthcare Provider Employee Serious Health Condition (WH-380-E) Certification of Healthcare Provider Family Member Serious Health Condition (WH-380-F) Certification for Military Leave (WH-384,385,385V) Designation Notice (WH-382) GINA Genetic Information Nondiscrimination Act

27 Top 5 Mistakes Employers Make Are Unclear on What Constitutes 50 Employees Fifty (50) or more employees for 20 workweeks Temporary Employees Joint Employer Part Time

28 Coordination of Overlapping Leave Laws

29 Coordination with Overlapping Leave Laws Employers must provide leave under whichever statutory provision (e.g., ADA, FMLA, state laws) provides the greater rights to employees) The Family Medical Leave Act (FMLA) is for Serious Health Conditions The Americans with Disabilities Act (ADA) is for Disabilities The Workers Compensation laws are for On-the-Job Injuries

30 Basic Differences Family and Medical Leave of Absence: No undue hardship exception Intermittent leave must be provided Americans with Disabilities Act: Employees covered when hired No limit on leave time Workers Compensation: Benefits may be terminated if an employee refuses an available light duty job

31 FMLA and ADA Interaction Definition of covered private employers: FMLA 50 or more employees (75 miles radius) ADA 15 or more employees State and Local government employers are covered by the ADA and FMLA regardless of the number of employees

32 FMLA and ADA Interaction Definition of eligible employees: FMLA 12 months of service and worked at least 1250 hours in the past 12 month ADA based on qualified disability

33 FMLA and ADA Interaction Definition of covered illness/injury: FMLA serious health condition, birth or adoption of child, military ADA disability

34 FMLA and ADA Interaction Leave of absence time limit required: FMLA 12 weeks per year/26 weeks due to serious injury or illness of covered servicemember ADA May be longer than 12 weeks depending on the disability and if the reasonable accommodation would cause an undue hardship

35 FMLA and ADA Interaction Requirement to continue health insurance: FMLA Employee s health insurance must be continued as though actively working for the length of FMLA leave. ADA Employee s health insurance must be continued while on leave or working part-time only if the employer normally provides coverage in similar situations

36 FMLA and ADA Interaction Employee rights of reinstatement rights: FMLA Entitled to be returned to same or equivalent position. If unable to perform essential functions, no right to reinstatement. ADA Entitled to be returned to same or equivalent position unless undue hardship. If not equivalent position, employer must look for an available position at a lower level. If unavailable, continued accommodation not required.

37 ADA Return to Work Requirements: Upon return to work from a leave due to disability, an employee: May be returned to their same or equivalent position May be placed in a vacant job at lower level Is not required to be promoted or bumped May not be returned to work if unable to perform essential job functions Employer is not required to make an accommodation if it would impose an undue hardship Caution! Definition of undue hardship

38 EEOC vs Interstate Distributor Company Common practice has been for employers to terminate employment at the end of FMLA leave (12 weeks) Interstate Distributor Company to Pay Nearly $5 Million to Settle EEOC Disability Suit The EEOC's suit said the trucking firm unlawfully denied reasonable accommodations to hundreds of employees and fired them pursuant to Interstate's maximum leave policy

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40 Record Keeping Covered employers must make, keep, and preserve records related to their obligations under the Act No particular form of records is required, but there needs to be a record of the leave Keep records for no less than three years after the date the record is made Files must be available for inspection, copying, and transcription by the Department of Labor upon request

41 Record Keeping Records and documents relating to medical certifications, recertifications, or medical histories of employees or their family members must be maintained in files or records separate from their personnel files

42 Thank you! Michelle Perris Human Resources Consultant Carol Emge Human Resources Consultant Phone Number: (314) Address: The recommendations and opinions provided herein are based on general Human Resources management fundamentals, practices and principles and are not legal opinions or guaranteed outcomes. We strongly recommend as part of a team approach to management, that clients consult with legal counsel of their choice to address legal concerns related to human resource issues. 42