THE FAMILY AND MEDICAL LEAVE ACT FEH SUPERINTENDENT S MEETING APRIL, 2016

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1 THE FAMILY AND MEDICAL LEAVE ACT FEH SUPERINTENDENT S MEETING APRIL, 2016

2 What is FMLA? The Family and Medical Leave Act of 1993 (FMLA or Act) allows eligible employees of a covered employer to take job-protected, unpaid leave, or to substitute appropriate paid leave if the employee has earned or accrued it, for up to a total of 12 workweeks in any 12 months for qualifying reasons.

3 COVERED EMPLOYERS FMLA applies to all: Public agencies, including local, State and Federal government agencies, regardless of the number of employees it employs; Public and private elementary and secondary schools, regardless of the number of employees it employs; and Private sector employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

4 ELIGIBLE EMPLOYEE An eligible employee is an employee who: Works for a covered employer; and Has worked for the employer for at least 12 months; and Has at least 1,250 hours of service with such employer during the 12-month period immediately preceding the commencement of the leave. Only those hours actually worked count towards the required 1, 250 hours necessary to qualify for FLMA leave. Paid leave and unpaid leave, including FMLA leave, are not included; and Works at a location where the employer has at least 50 employees within 75 miles.

5 ELIGIBLE EMPLOYEE Special Rules for School Employees Educational institutions are covered by FMLA and the Act's 50 employee coverage test does not apply. However, the usual requirements for employees to be eligible do apply, including employment at a worksite where at least 50 employees are employed within 75 miles. For example, employees of a rural school would not be eligible for FMLA leave if the school has fewer than 50 employees and there are no other schools under the jurisdiction of the same employer (usually, a school board) within 75 miles.

6 ELIGIBLE EMPLOYEE What Constitutes 12 Months? The 12 months of employment need not be consecutive in order for the employee to qualify for FMLA leave. Any time previously worked for the same employer, including seasonal employment, could, in most cases, be used to meet the 12 month requirement.

7 ELIGIBLE EMPLOYEE What Constitutes 12 Months? (Cont.) If the employee has a break in service that lasted seven years or more, the time worked prior to the break will not count unless: a) the break is due to service covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA); or b) there is a written agreement, including collective bargaining agreements, outlining the employer s intention to rehire the employee after the break in service.

8 ELIGIBLE EMPLOYEE What Constitutes 12 Months? (Cont.) An employer is permitted to choose one of the following methods for determining the 12-month period'' in which the 12 weeks of leave entitlement occurs: The calendar year. Any fixed 12-month leave year, such as a fiscal year. The 12-month period measured forward from the date any employee's first FMLA leave begins. A rolling 12-month period measured backward from the date an employee uses any FMLA leave.

9 QUALIFYING REASONS FOR LEAVE Employers covered by FMLA are required to grant leave to eligible employees for the following qualifying reasons: (1) For birth of a son or daughter, and to care for the newborn child; (2) For placement with the employee of a son or daughter for adoption or foster care; ** The FMLA leave must conclude within 12 months after the birth or placement of the child. ** The right to take leave under FMLA applies equally to male and female employees. A father, as well as a mother, can take family leave for the birth, placement for adoption or foster care of achild.

10 QUALIFYING REASONS FOR LEAVE (3) To care for the employee s spouse, son, daughter, or parent with a serious health condition; (4) Because of a serious health condition that makes the employee unable to perform the essential functions of the employee s job; (5) For qualifying exigencies arising out of the fact that the employee s spouse, son, daughter, or parent is on covered active duty or called to covered active duty status as a member of the National Guard, Reserve, or regular Armed Forces; and

11 QUALIFYING REASONS FOR LEAVE 6) FMLA provides for up to 26 weeks of leave in a single 12-month period to care for a spouse, son, daughter, parent or next-of-kin covered service member with a serious illness or injury incurred in the line of duty on active duty. Next-of-kin is defined as the closest blood relative of the injured or recovering service member. ** This type of FMLA leave is also known as military caregiver leave or covered service member leave and is different from the 12- month period used for other FMLA leave reasons.

12 QUALIFYING REASONS FOR LEAVE Essential Functions An employee is unable to perform the essential functions of the position where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee s position within the meaning of the Americans with Disabilities Act (ADA). An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

13 QUALIFYING REASONS FOR LEAVE Serious Health Condition For purposes of FMLA, serious health condition means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity, or any subsequent treatment in connection with such inpatient care.

14 QUALIFYING REASONS FOR LEAVE Serious Health Condition (Cont.) Continuing Treatment by a Health Care Provider include: Incapacity Plus Treatment; Pregnancy; Chronic Conditions; Permanent/Long-term Conditions; and Absence to Receive Multiple Treatments.

15 INTERMITTENT LEAVE An Employee is entitled to take intermittent or reduced schedule leave for: Employee s or qualifying family member s serious health condition when the leave is medically necessary; Covered service member s serious injury or illness when the leave is medically necessary; and A qualifying exigency arising out of a military member s covered active duty status. Leave to bond with a child after the birth or placement must be taken as a continuous block of leave unless the employer agrees to allow intermittent or reduced schedule leave

16 INTERMITTENT LEAVE Intermittent leave need only be requested and approved one time during any given FMLA 12 Month period. In calculating the amount of leave, the employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour. Shortest increment may vary during different times of day or shift. Required overtime not worked may count against an employee s FMLA entitlement.

17 INTERMITTENT LEAVE Employee s pay may be docked for any day or part of a day taken pursuant to FMLA leave without affecting employee s status as exempt under the FLSA. Pay may be docked only for the time actually taken for leave. Employees seeking intermittent leave must attempt to schedule their leave so as not to disrupt the employer s operations... subject to the approval of the health care provider. Section (e) effectively puts the burden on the employer to initiate discussions with the employee and require the employee to attempt to make such arrangements, subject to the approval of the health care provider.

18 INTERMITTENT LEAVE An employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee s intermittent or reduced leave schedule. The employer may not, however, retaliate against the employee s taking intermittent leave by requiring the employee to complete all of the tasks of her full-time position while she was working part-time under FMLA.

19 INTERMITTENT LEAVE Special Rules for School Employees The special rules affect the taking of intermittent leave or leave on a reduced leave schedule, or leave near the end of an academic term (semester), by instructional employees. Instructional employees are those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This term includes not only teachers, but also athletic coaches, driving instructors, and special education assistants such as signers for the hearing impaired. It does not include, and the special rules do not apply to, teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel such as counselors, psychologists, or curriculum specialists. It also does not include cafeteria workers, maintenance workers, or bus driver.

20 INTERMITTENT LEAVE Special rules for School Employees - Limitations on Intermittent Leave Leave taken for a period that ends with the school year and begins the next semester is leave taken consecutively rather than intermittently. The period during the summer vacation when the employee would not have been required to report for duty is not counted against the employee's FMLA leave entitlement. An instructional employee who is on FMLA leave at the end of the school year must be provided with any benefits over the summer vacation that employees would normally receive if they had been working at the end of the school year.

21 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) If an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule to care for a family member with a serious health condition, to care for a covered service member, or for the employee's own serious health condition, which is foreseeable based on planned medical treatment, and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, the employer may require the employee to choose either to: (i) Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or (ii) Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee's regular position.

22 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) These rules apply only to a leave involving more than 20 percent of the working days during the period over which the leave extends. For example, if an instructional employee who normally works five days each week needs to take two days of FMLA leave per week over a period of several weeks, the special rules would apply. Employees taking leave which constitutes 20 percent or less of the working days during the leave period would not be subject to transfer to an alternative position.

23 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) If an instructional employee does not give required notice of foreseeable FMLA leave to be taken intermittently or on a reduced leave schedule, the employer may require the employee to take leave of a particular duration, or to transfer temporarily to an alternative position. Alternatively, the employer may require the employee to delay the taking of leave until the notice provision is met.

24 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) There are also different rules for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term, and less than three weeks before the end of a term.

25 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) (1) If an instructional employee begins leave more than five weeks before the end of a term, the employer may require the employee to continue taking leave until the end of the term if: (i) The leave will last at least three weeks, and (ii) The employee would return to work during the three-week period before the end of the term.

26 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) (2) If the instructional employee begins leave during the fiveweek period before the end of a term because of the birth of a son or daughter; the placement of a son or daughter for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition; or to care for a covered service member, the employer may require the employee to continue taking leave until the end of the term if: (i) The leave will last more than two weeks, and (ii) The employee would return to work during the two-week period before the end of the term.

27 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) (3) If an instructional employee begins leave during the threeweek period before the end of a term because of the birth of a son or daughter; the placement of a son or daughter for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition; or to care for a covered service member, the employer may require the employee to continue taking leave until the end of the term if the leave will last more than five working days.

28 INTERMITTENT LEAVE Special rules for school employees - Limitations on Intermittent Leave (Cont.) In the case of an employee who is required to take leave until the end of an academic term, only the period of leave until the employee is ready and able to return to work shall be charged against the employee's FMLA leave entitlement. The employer has the option not to require the employee to stay on leave until the end of the school term. Therefore, any additional leave required by the employer to the end of the school term is not counted as FMLA leave. The employer shall maintain the employee's group health insurance and restore the employee to the same or equivalent job including other benefits at the conclusion of the leave.

29 SUBSTITUTION OF PAID LEAVE Substitution means paid leave provided by the employer runs concurrently with unpaid FMLA leave and normal terms and conditions of paid leave policy apply. Employees may choose, or employers may require, employees to substitute (run concurrently) accrued paid leave, such as sick or vacation leave, to cover some or all of the FMLA leave period. An employee s ability to substitute accrued paid leave is determined by the terms and conditions of the employer s normal leave policy. Employee remains entitled to unpaid FMLA if procedural requirements for employer s paid leave are not met

30 EMPLOYER RESPONSIBILITES- PROVIDE NOTICE Employers must inform employees of FMLA by: Posting a General Notice, and Providing General Notice in employee handbook or, if no handbook, distribute to new employees upon hire. Employers must provide Notice of Eligibility: Within five business days of leave request (or knowledge that leave may be FMLA-qualifying); Upon eligibility determined on first instance of leave for qualifying reason in applicable 12-month leave year; A new notice for subsequent qualifying reason if eligibility status changes; Provide a reason if employee is not eligible; and Notice may be oral or in writing

31 EMPLOYER RESPONSIBILITES PROVIDE NOTICE Employers must Provide Notice of Rights and Responsibilities: When eligibility notice is required; Must be in writing; and Notice must include: Statement that leave may be counted as FMLA; Applicable 12-month period for entitlement; Certification requirements; Substitution requirements; Arrangements for premium payments (and potential employee liability); Status as employee; and Job restoration and maintenance of benefits rights.

32 EMPLOYER RESPONSIBILITES-NOTICE Employers must provide Notice of Designation: Within five business days of having enough information to determine leave is FMLA-qualifying; Once for each FMLA-qualifying reason per applicable 12- month period (additional notice if any changes in notice information); Include designation determination, substitution of paid leave, and fitness for duty requirements; and Must be in writing.

33 EMPLOYER RESPONSIBILITES PROVIDE NOTICE Notice of Designation (Cont.) If leave is determined not to be FMLA-qualifying, notice may be a simple written statement. Employer must notify employee of the amount of leave counted against entitlement, if known. It may be payroll notation. If amount of leave is unknown (e.g., unforeseeable leave), employer must inform employee of amount of leave designated upon request (no more often than 30 days). Retroactive designation permitted provided that failure to timely designate does not cause harm to employee.

34 EMPLOYER RESPONSIBILITES-HEALTH BENEFITS Group health plan benefits must be maintained throughout the leave period. Same terms and conditions as if employee were continuously employed. Employee must pay his/her share of the premium. Even if employee chooses not to retain coverage during leave, employer obligated to restore same coverage upon reinstatement. In some circumstances, employee may be required to repay the employer s share of the premium if the employee does not return to work after leave.

35 EMPLOYER RESPONSIBILITES-JOB RESTORATION The Employer must provide employee returning from FMLA leave with the same or equivalent job equivalent pay equivalent benefits equivalent terms and conditions Employee has no greater right to reinstatement than had the employee continued to work. Bonuses predicated on specified goal may be denied if goal not met.

36 EMPLOYER RESPONSIBILITY JOB RESTORATION Special rules for school employees, restoration to an equivalent position The determination of how an employee is to be restored to an equivalent position upon return from FMLA leave will be made on the basis of established school board policies and practices, private school policies and practices, and collective bargaining agreements. The established policies and collective bargaining agreements used as a basis for restoration must be in writing, must be made known to the employee prior to the taking of FMLA leave, and must clearly explain the employee's restoration rights upon return from leave. The policy or collective bargaining agreement must provide for restoration to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. For example, an employee may not be restored to a position requiring additional licensure or certification.

37 EMPLOYER RESPONSIBILITY MAINTAIN RECORDS Employers must maintain the following Records: Basic payroll information; Dates FMLA leave is taken; Hours of leave if leave is taken in less than one full day; Copies of leave notices; Documents describing benefits/policies; Premium payments; and Records of disputes.

38 EMPLOYER RESPONSIBILITY PROHIBITED EMPLOYMENT ACTIONS Employers cannot: Interfere with, restrain or deny employees FMLA rights; Discriminate or retaliate against an employee for having exercised FMLA rights; Discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA; or Use the taking of FMLA leave as a negative factor in employment actions.

39 EMPLOYER RESPONSIBILITY PROHIBITED EMPLOYMENT ACTIONS (Cont.) Employers cannot: Make pre-hire inquiries regarding need for FMLA leave; Include periods of FMLA to disqualify employees for good attendance awards or non-performance bonuses unless the bonus or award payment is based on a specified goal such as hours worked, products sold or perfect attendance and the employee has not met that goal because of the FMLA absences, as long as other employees on an equivalent leave status are treated the same; or Ask employees for a doctor s note for each use of intermittent FMLA leave.

40 EMPLOYEE RESPONSIBILITES NOTICE REQUIREMNTS Eligible Employees must: Provide sufficient information to make employer aware of need for FMLA-qualifying leave; Specifically reference the qualifying reason or the need for FMLA leave for subsequent requests for same reason; Consult with employer regarding scheduling of planned medical treatment; and Comply with employer s usual and customary procedural requirements for requesting leave absent unusual circumstances.

41 EMPLOYEE RESPONSIBILITES NOTICE REQUIREMNTS Timing of Employee notice of need for leave: Foreseeable Leave The employee must provide 30 days notice, or as soon as practicable. Unforeseeable Leave The employee must provide Notice as soon as practicable.

42 EMPLOYEE RESPONSIBILITES PROVIDE CERTIFICATION The employee is required to provide medical certification for serious health condition: Must be submitted within fifteen calendar days; Employer must identify any deficiency in writing and provide seven days to cure; Annual certification may be required; and Employee responsible for any cost The Employer (not employee s direct supervisor) may contact health care provider to: Authenticate: Verify that the information was completed and/or authorized by the health care provider; no additional information may be requested, and Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form

43 EMPLOYEE RESPONSIBILITES PROVIDE CERTIFICATION Second and third opinions (at employer s cost) If employer questions the validity of the complete certification, the employer may require a second opinion If the first and second opinions differ, employer may require a third opinion that is final and binding Recertification No more often than every 30 days and with an absence If the minimum duration on the certification is greater than 30 days, the employer must wait until the minimum duration expires In all cases, may request every six months with an absence More frequently than every 30 days if: the employee requests an extension of leave, or circumstances of the certification change significantly, or employer receives information that casts doubt on the reason for leave Consequences of failing to provide certification Employer may deny FMLA until certification is received

44 EMPLOYEE RESPONSIBILITES PERIODIC STATUS REPORTS The Employee must respond to employer s request for information about status and intent to return to work.

45 EMPLOYEE RESPONSIBILITES FITNESS- FOR- DUTY FITNESS-FOR-DUTY CERTIFICATIONS For an employee s own serious health condition, employers may require certification that the employee is able to resume work. Employer must have a uniformly-applied policy or practice of requiring fitness-for-duty certification for all similarly-situated employees. If state or local law or collective bargaining agreement is in place, it governs the return to work. Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns exist. Authentication and clarification. Employee responsible for any cost.

46 UNIQUE PROVISIONS- HUSBAND AND WIFE When a husband and wife both work for the company and each wishes to take leave for the birth of a child, adoption or placement of a child for foster care, or to care for a parent (but not parent-in-law) with a serious health condition, the husband and wife may only take a combined total of 12 weeks of leave. When a husband and wife both work for the company and each wishes to take leave to care for a covered ill or injured servicemember, the husband and wife may only take a combined total of 26 weeks of leave. FMLA leave may be taken intermittently or on a reduced leave schedule with the following exception: When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees.

47 UNIQUE PROVISIONS- SALARIED EMPLOYEES Salaried executive, administrative, and professional employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under the FSLA regulations, do not lose their FSLA-exempt status by using unpaid FMLA leave. This special exemption to the salary basis requirements for FLSA s exemption extends only to an eligible employee s use of FMLA leave.

48 Family Medical Leave Act THANK YOU! ANY QUESTIONS?