What YWCA Managers Need to Know about FMLA. Presentation Created for Leadership Council Members January 15, 2013

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1 What YWCA Managers Need to Know about FMLA Presentation Created for Leadership Council Members January 15,

2 What We ll Cover Today So That You re FMLA Sharp 1. FMLA protects both the employer and the employee and FMLA protects the employee s position. 2. There are three types of leave: Continuous, Intermittent and Reduced Hours. 3. There are four scenarios that trigger FMLA Leave. 4. FMLA leave also includes Military Family Leave (and Illinois also has a separate Military Leave Act). 5. A serious health condition may include a variety of issues. 6. LISTENING to what an employee says about need for time off and what you ve seen in his/her absences or requests it may reveal a basis for FMLA Leave. 7. The YWCA makes the determination as to whether leave is actually FMLA Leave, not the employee. 8. You must refer the employee to the benefits section on the Intranet for the FMLA Source information. 9. The employee must use available paid-time off during leave. 10. Our absence call-in requirements also apply to employees who are on FMLA Leave. 11. The employee must be returned to an equivalent position.

3 What FMLA Source Does for the YWCA FMLA Source administers FMLA Leaves for us TPL is the agency contact department for reporting FMLA Source instructs the employee as to what s/he must complete (application), sends instructions, explains the medical certification process and sends various reports to the YWCA. TPL provides the number of hours worked by the employee in the year period that precedes the date span requested by the employee. It must be at least 1250 worked. FMLA Source determines if the employee has already expensed FMLA hours that preclude a new leave period.

4 What is FMLA Leave? The Family Medical Leave Act was signed into law in 1993 to: 1. Balance the needs of employers and employees in circumstances when employees must take extended medical leaves for serious medical conditions, including pregnancy, or to care for family members. 2. To protect employee jobs in these circumstances. Also, FMLA Leave is unpaid time and it does not mandate pay for the employee during this time, if the employee does not otherwise have paid time off (sick days, vacation, personal days).

5 Who is Eligible for Leave? The employee must have worked for the YWCA for a total of at least 12 months (not necessarily consecutively) in order to request leave; and The employee must have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave (TPL runs the report to provide this information to FMLA Source). The YWCA does meet the DOL s other requirements of an employer to be able to offer FMLA Leave opportunity.

6 Type of FMLA Leave Continuous: A continuous and uninterrupted period of time for the leave; Intermittent: Intermittent leave is leave that is taken in separate blocks of time due to a single qualifying reason; Reduced Hours: A reduced leave schedule is a schedule that reduces, for a period of time, the number of hours an employee is scheduled to work each week or each day.

7 What are the Employee Situations that Relate to FMLA Leave Designation? 1) The birth and care of the newborn child of an employee. 2) For placement with the employee of a child for adoption or foster care; 3) To care for an immediate family member (spouse, child, parent or domestic partner) with a serious health condition; or 4) To take medical leave when the employee is unable to work because of a serious health condition (FMLA Source evaluates the physician s statement for the employee); 5) NOTE : Time taken off work due to pregnancy complications can be counted against the twelve weeks of family and medical leave.

8 Specifics Birth/Placement of a Newborn Child 1. FMLA Leave may not start before the child s birth or placement may only be taken within the twelve months after the date of the birth or placement of the child; and 2. In the case of unpaid leave for the birth, care or placement of a child, intermittent leave or working a reduced number of hours is not permitted, unless both the employee and the YWCA agree.

9 What is a Serious Health Condition These are serious health conditions. Period of incapacity (or treatment): Connected with inpatient care in a hospital, hospice, or residential medical care facility Requiring absence of more than three calendar days that also involves continuing treatment by a health care provider Due to pregnancy, or for prenatal care Due to a chronic serious health condition (e.g., asthma, diabetes, epilepsy, etc.) requiring periodic visits to a provider That is permanent or long-term due to a condition for which treatment may not be effective (e.g., Alzheimer's, stroke, terminal diseases, etc.) and Any absences to receive multiple treatments by a health care provider for a condition that likely would result in incapacity of more than three consecutive days if left untreated (e.g., chemotherapy, physical therapy, dialysis, etc.)

10 There is Also Coordination between Federal FMLA Leave and Military Family Leave If you have an employee who is a military member, or who has a family member in the military, the FMLA added benefits for military members in January Questions? Call TPL. Qualifying exigency occurs when an employee s spouse, child, or parent is on active military duty or has been notified of call to active duty. An employee may take up to twelve workweeks of job-protected FMLA leave of continuous, intermittent or reduced-hours, for qualifying exigencies during the twelve-month period established by the employer for FMLA leave. To care for a covered service member with a serious injury or illness for a spouse, son, daughter, parent or next of kin of the employee

11 Why and by Whom is a Leave Designated as FMLA Leave? An employee who presents to the supervisor a request for leave for any of the described situations will receive instruction from the supervisor (you!) that this is designated for an FMLA leave. If you are unsure, contact TPL. Does an employee specifically have to use the letters F-M-L-A when requesting leave protected under the Act? No, s/he does NOT. Why? Because the U.S. Department of Labor says so. Rather, the employee need only provide sufficient information to make the employer aware of the possible need for FMLA leave. After the YWCA has identified the need as for FLMA leave, "the employee must then specifically reference either the qualifying reason for leave or the need for FMLA leave.

12 More About the Employee and Supervisor Exchange Employees do not have the right to choose when they take FMLA leave. As soon as the leave of absence qualifies as FMLA leave according to statute, regardless of whether the employee wants FMLA to apply, we must refer the employee to FMLA Source. You will direct the employee to the Intranet (Benefits Info section), where information is available about how to apply for FMLA leave through our administrator, FMLA Source. FMLA Source will manage the process and initiate the leave application, send the employee the necessary documents to complete and provide the medical certification form that the employee will give to the MD and which must be returned to FMLA Source in order for the leave to be approved. Any FMLA leave taken by an employee during the preceding twelve month period will be used to determine the amount of available leave for the new request, pursuant to the Family and Medical Leave Act.

13 Supervisors Must be Alert to These Clues about Absences As supervisors and managers fielding the 1) call-offs from employees and 2) stated intentions for time off, you must be able to identify situations where the employee has, in fact, put you on notice of the need for FMLA leave. For example, an employee taking intermittent and extended time (i.e. what is really a leave ) away from work to care for a family member must be directed to FMLA Source to initiate an application for intermittent leave.

14 Who Handles FMLA Interactions with FMLA Source? Adrienne is the FMLA Source contact and receives the following from FMLA Source: Initial reports of an employee s request for FMLA leave approval and its status; The type of leave requested (continuous or intermittent); The dates (beginning and end) for the leave period; and The status of the request, i.e., pending, denied or approved. Other reports include Leave Usage, by employee and agency, which include dates expensed for the leave and the remaining hours available for the leave period by employee.

15 Is the YWCA Responsible for Facilitating Approval of a Leave Request? No.the YWCA does NOT intercede with this process, as FMLA Source communicates a leave application s status to our employee by and by mailed letter. If a leave request is denied by FMLA Source, for example for lack of medical certification, it is the employee s own responsibility to contact the physician to urge that the MD s certification Form is completed and submitted by the required date.

16 Can the YWCA Require Paid Leave to Run at the Same Time as FMLA Leave? Yes, we can and in practice, we require the use of accrued time off (sick time, etc.) to run concurrently with FMLA unpaid leave. Why? If we allow an employee to use sick or other accrued time off for purposes based on instances that are clearly identified by the DOL as requiring FMLA leave: We create conflicts with our service objectives by allowing the employee to take extended periods of time away from work that are not properly designated and We may potentially maintain future access to the twelve weeks allowed by FMLA leave for the employee.

17 YWCA CALL-IN POLICY The FMLA has specified requirements for regarding an employee s obligation to call-in absences. An approved Intermittent Leave requires the employee to provide the same work schedule to both the YWCA and to FMLA Source. When reviewing an employee s ADP timecard, compare the reported Intermittent schedule to the actual timecard. Reduced Hours also requires a stated schedule; compare the timecard to the hours scheduled. If an employee was approved for an Intermittent Leave, or for Reduced Hours, and the employee does not call-in unexpected absences, the employee may jeopardize the leave.

18 Calling in an Absence to the YWCA We require that an employee, who must be late for work or absent because of illness or for an unforeseen circumstance, to personally notify the immediate supervisor (or next level manager) as soon as possible by telephone. If the supervisor is not reached, a voice mail should be left, and an sent. Text messages are not accepted. If an employee is not at work during scheduled hours, s/he must be on a previously authorized leave. This means that the supervisor approved the absence. In accordance with the YWCA s policy, job abandonment occurs when an employee is absent from work without approval for three consecutive workdays or two consecutive workdays following the expiration of any authorized leave. Finally, if an employee has an approved Intermittent or Reduced Hours Leave, and is absent and does not contact the supervisor, the requirement for a call-in remains the same and the leave status may be jeopardized.

19 Abuse of Leave be Alert to the Signs An employee requests paid vacation off and it s not approved, due to program/dept. work needs. S/he calls in sick for the same days previously requested and says that it should be FMLA Leave because my chronic back pain flared up. Is it? NO.we require approved leave requests. Also, if FMLA Source continues to deny a request for leave because medical certification is not received, in the view of the YWCA leave is not approved. If the employee notes FMLA Leave on the time card, you must correct it. Call TPL to consult about this.

20 Return the Employee to the Same Position or to an Equivalent Position The Family and Medical Leave Act and its regulations tell us that an employer must return an employee to the same or an equivalent position upon return from FMLA leave. "What is an equivalent position? The regulations state that an "equivalent position" is: One that is virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

21 Working while on Leave As a general rule, an employee on FMLA leave should be fully relieved of his/her work and should not be asked to perform work while on leave. Generally, courts find that an employee s fielding of occasional calls and s that relate to the job while on leave is a "professional courtesy" that does not interfere with FMLA leave. Therefore, a few work-related communications likely will not constitute interference with an employee's FMLA rights. When an employee is passing on "institutional knowledge" or providing closure on open assignments, employers do not violate the FMLA. If your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e- mails and/or calls), the best course to reduce the risk of any FMLA (or FLSA) liability is to put an end to the work.

22 Lessons about Equivalent Position The YWCA may to have to temporarily replace an employee while s/he is on FMLA leave. Avoid the temptation of replacing an employee permanently which requires you to return him/her to an equivalent position, because.. Permanently replacing an employee also may create ADA issues, since we are obligated to hold open an employee's position while s/he is out on leave as a reasonable accommodation under the ADA and The employee may not see the replacement position as equivalent.

23 You Filled the Position and Want to Return the Employee to an Equivalent Position If you intend to return an employee to an equivalent position, do collaborate with TPL. Your employee may not agree with you about how the duties of the new position will be viewed by the employee in terms of prestige, authority, membership in internal groups, etc. We must be prepared to show that we gave the decision considerable thought and we must document how the YWCA determines the return position to be equivalent. That includes an analysis of how the new position requires the same level of duties, skill, responsibility, earning potential, authority and room for advancement within the company or organization. And, the employee does not make the choice of the position to which s/he returns, but we as managers -- simply need to be mindful of the impact of the decision and give it some thought beforehand.

24 Over and Out and Thanks for Your Attention! Questions? Call us at TPL! Call Adrienne at Ext Call Kaira at Ext. 2750

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