FMLA AT AAMU Presenter Roslyn Crews, Esq. Associate General Counsel

Transcription

1 FAMILY AND MEDICAL LEAVE ACT FMLA AT AAMU Presenter Roslyn Crews, Esq. Associate General Counsel

2 What is FMLA? The Family and Medical Leave Act (FMLA) is a federal law passed in 1993 and revised in It requires employers to: Grant leave for specific family and medical circumstances; Reinstate an employee to the same or an equivalent position upon conclusion of the employee s FMLA leave; Continue health benefits at the same level as prior to the start of FMLA leave (other benefits are governed by employer policy); Refrain from interfering with an employee s right to leave as provided by the Act; and Refrain from retaliating against employees who exercise their FMLA rights.

3 Covered Employers The FMLA applies to any employer in the private sector who engages in commerce, and who has 50 or more employees each working day during at least 30 calendar weeks in the current or preceding calendar year. The law also covers all public agencies (State and local governments) and local education agencies (schools whether public or private). These employers do not need to meet the 50 employee test. For our purposes, AAMU is covered as a public agency.

4 Who is an eligible employee? An employee is eligible for FMLA leave at AAMU when he/she: Has been employed by the University for at least twelve (12) months and Has worked at least 1,250 hours during the twelve months preceding the start of the requested leave

5 However.. The twelve months of employment does not have to be consecutive months leading up to the request for leave. As long as an employee has at least twelve months of employment in the last seven years, they meet this requirement

6 For example.. For example, Andy Admin worked for AAMU as a temporary full time instructor from January 1, 2008 until May 31, 2008 (5 months). He was rehired by the University on February 1, 2011 in a full time staff position. On September 1, 2011, Andy applied for FMLA leave to begin October 1, Andy passes the first test for eligibility because he can combine the five months in 2008 with the eight months he accumulated from February thru the end of September to have 13 months of employment with the University.

7 What family and medical circumstances are covered? There are two levels of FMLA coverage provided under the law. Up to 12 weeks leave in a 12 month period for health care of yourself or an immediate family member, and for qualifying military exigencies Up to 26 weeks leave in a 12 month period for military caregiver leave

8 12 WEEKS Birth of a child and to care for the newborn child. Placement of a child with the employee for adoption or foster care. Care of a spouse, child, or parent with a serious health condition. A serious health condition of the employee that makes him/her unable to work. A qualifying exigency for family members of the National Guard or Reserve

9 However In the case of a new child in the home, both the mother and father are entitled to leave. Leave is not allowed to care for a parent-in-law. In the case of an employee who needs to be off to care for a son or daughter (non-military) who has a serious illness, the child must be under 18 years of age in order for the employee to qualify for FMLA. The injury or illness of a child 18 or older is not qualifying UNLESS the child has a physical or mental disability affecting at least three areas of self care. The test is very similar to the ADA test of substantial limitation in a major life activity.

10 For Example. Andy Admin wants the FMLA leave because his 18 year old daughter, Andrea - a high school senior, needs to have a pin put in her shoulder. It was dislocated during a cheerleading stunt and keeps popping out. Even if Andy has 1250 hours, chances are he still isn t entitled to FMLA. Though it would be difficult, his daughter can probably clean, dress, and feed herself after surgery. BUT if Andy s daughter will be bedridden in traction, then the injury to his daughter probably does qualify. HR would make a determination following medical certification of Andrea s condition.

11 What is a serious health condition? Illness, injury, impairment, or physical or mental condition that involves: Inpatient care (i.e., overnight hospital stay), or Continuing treatment including any one of the following 1. Incapacity of more than three (3) consecutive calendar days that also involves -treatment two or more times within 30 days of the incapacity -treatment at least once within seven (7) days of incapacity, with continuing treatment to follow 2. Pregnancy or pre-natal care 3. Multiple treatments (physical therapy, etc.)

12 Serious Health Condition cont d 4. Chronic conditions that - require periodic visits to a health care provider (at least two per year) -continue over an extended period (dialysis, chemotherapy) -may cause episodic incapacity (asthma, epilepsy, migraines) 5. Permanent or long term conditions for which treatment may not be effective (terminal stage of a disease)

13 What is a qualifying exigency? An employee who has a family member who is a member of the National Guard or Reserve on active duty or called to active duty in support of a contingent operation may be entitled to FMLA leave. A qualifying exigency is limited to the following 1. Short notice deployment. 2. Military events and activities. 3. Child care and school activities. 4. Financial and legal arrangements. 5. Counseling. 6. Rest and recuperation. 7. Post deployment activities. 8. Additional activities that arise out of active duty, provided that AAMU and the employee agree on the timing and the duration of the leave.

14 Details A family member for this purpose is a son or daughter (biological, adopted, step, foster, subject of legal guardianship when still a minor, or in loco parentis when still a minor), spouse, or parent. Short notice deployment is seven days or less notice Military events and activities include ceremonies, events held by military support groups, and informational briefings by the military and support groups like the Red Cross. FMLA for child care and school activities does not include regular day-to-day child care and school events. Covered is leave to change or enroll children in school as necessitated by deployment or arrange for alternative child care because of deployment, counseling for behavior arising out of a parent s deployment, emergency child care needs resulting from deployment. Post deployment activities are covered for up to 90 days after deployment ends and include debriefing, counseling, arrival ceremonies, and arrangements for deceased members killed while on active duty.

15 26 WEEKS LEAVE FMLA provides up to 26 weeks leave in a single twelve month period for the following circumstance: To care to a spouse, son, daughter, parent or next of kin covered servicemember with a serious illness or injury incurred in the line of duty on active duty. This type of FMLA leave is also known as military caregiver leave or covered servicemember leave.

16 A Caveat (or two) The 26 weeks allowed to military caregivers is not in addition to the 12 weeks otherwise allotted. If an employee has used their 26 weeks caring for a spouse injured in Afghanistan, and then needs time off for some other FMLA qualifying reason in that same 12 month period, they are not eligible for FMLA leave. Normally, after an employee has been on inactive work status for 12 consecutive weeks, AAMU is required terminate health insurance benefits and refer the employee to COBRA. However, FMLA requires employers to continue health benefits for employees on FMLA leave.

17 How is the 12 month period determined? An employer is permitted to choose one of the following methods for determining the 12 month period in which the leave entitlement occurs: 1. The calendar year; 2. Any fixed 12 month leave year, such as a fiscal year; 3.The 12 month period measured forward from the date the employee s first FMLA leave begins; or 4. A rolling 12 month period measured backward from the date the employee uses any FMLA leave.

18 AAMU s 12 month period For 12 week leave circumstances, AAMU uses the rolling twelve month period counted back from the date leave is expected to begin. HOWEVER, for 26 week servicemember caregiver leave, the law requires all employers to use twelve months going forward starting at the date the caregiver leave begins.

19 More Examples.. As of October 1, 2011, Sally Staff has been employed at AAMU for 5 years. Sally and her husband are adopting a new baby who was placed in their home on October 15. Sally requested 6 weeks (30 days) FMLA for placement of this child. When HR pulled her records, it determined that since October 15, 2010, Sally took 1 week (5 days) of FMLA in January of 2011 when her husband had surgery. Sally also took ½ a day (4 hours) three separate times (1.5 days) between June and August 2011 for home studies related to the adoption. Human Resources subtracts 6.5 days from the 12 week (60 day) FMLA allowance and determines that Sally has 53.5 days of FMLA remaining. Sally s request is approved.

20 Let s go back to Andy Admin Has Andy worked 1250 hours since September 30, 2010? 40 hr x 4 weeks = 160 hrs/month x 8 months = 1280 hours. Andy has probably also worked enough hours to qualify. HOWEVER, Andy must have actually worked the 1250 hours. So paid holidays -Memorial Day, Independence Day, Labor Day, Spring Break - don t count. If Andy took sick leave or personal leave, those days don t count either. Taking five days away from Andy s total for holidays and spring break only, he would be down to 1220 hours, and not eligible for FMLA until he has worked thru the first week in October. If he has used any sick leave or personal leave, he will have to work even longer to get in the required hours.

21 And another thing Andy Admin s brother Arthur also works for AAMU. Arthur Admin s wife, who is in the Army, was seriously injured in Iraq early this year. When she returned stateside, Arthur had to use all 26 weeks of his caregiver leave. Remember, even if Arthur took FMLA military exigency leave before his wife was deployed, he still has all 26 weeks of military caregiver leave because exigency leave is counted going back, but military caregiver leave is counted going forward from the date of leave. Three weeks after Arthur returned to work, his mother had a stroke. Arthur is not eligible for FMLA leave to care for her because counting back, his 12 weeks were subsumed in his military caregiver leave.

22 How is leave time allocated? FMLA leave can be taken in three ways 1. Continuous leave. This is leave taken in successive full calendar days. For example when an employee needs six weeks off to recover from surgery. 2.Intermittant leave. This is leave taken as needed. For example when an employee need to be out every one Thursday and Friday a month for six months for chemotherapy, or when the employee will be two hours late three days a week for physical therapy for three months.

23 Allocation cont d 3. Modified work schedule. For example, an employee needs to work 9am-4pm because treatment for their condition requires more rest than normal.

24 How does FMLA work with sick and annual leave? FMLA requires employers to provide up to 12/26 weeks unpaid leave. The law allows employers to make the leave paid if employees have paid sick or personal leave available. AAMU requires employees to use all sick and annual leave available for as much of the FMLA leave as possible If the employee does not have enough paid leave accrued to cover the requested FMLA leave, the balance of the FMLA leave will be unpaid.

25 Back to Sally When she requests time off for the new baby, Sally has a sick leave balance of 47 days and a annual leave balance of 10 days. All 30 days of her approved FMLA leave will be paid leave and will also be charged against her sick leave balance of 47 days. When she returns to work, Sally will have 17 sick days, 10 annual leave days and 23.5 FMLA days. She will not accrue sick or annual leave while she is out on FMLA per AAMU policy.

26 Husband & Wife Employees When a husband and wife both work for the University they are entitled to only a combined 12 weeks of FMLA leave for the arrival of a new child or to care for a child or parent. The time reduces each individual s FMLA leave time available for personal illness. When a husband and wife both work for the University and each wishes to take leave to care for an injured or recovering servicemember they are entitled to only a combined 26 weeks of leave. Military caregiver leave is does not increase total leave time to 38 weeks.

27 Sally again.. Sally Staff is married to Steve Staff and when their new baby comes home, Steve wants to take 6 weeks off, too. Steve has been employed with the University for three years. He took 4 weeks of FMLA leave in January after his surgery, and has 32 paid days off available (12 sick days and 20 annual leave days). Sally and Steve can both take FMLA leave for the newly adopted child. Both will be paid the whole time. However, even though Sally and Steve each have more than 6 weeks FMLA available, they can not take more than twelve weeks total for the new baby.

28 Faculty and Nine Month Employees Faculty and nine month employees are entitled to FMLA. Full time faculty are presumed to work 40 hours per week Generally, this means that faculty and nine month employees have 1250 hours and are eligible for FMLA unless 1. The need for leave arises near the end of the spring semester, and 2. The employee did not work the preceding summer. FMLA leave for faculty and nine month employees will run concurrently with accumulated sick leave.

29 Faculty con t Full time faculty who carry less than a full course load are also presumed to work 40 hours per week. However it is good practice for them to keep a journal documenting time spent on research, administrative duties, writing grant proposals, etc. University scheduled time away from duties may or may not count against FMLA allotment -If faculty requests FMLA for the week containing the King Holiday, the faculty is charged with a full week of FMLA leave -If faculty takes the week before Spring Break and the week after Spring Break as FMLA (three weeks total) Spring Break is not charged as FMLA or against sick leave

30 How do I request FMLA leave? Employees requesting FMLA leave must give 30 days written notice when the leave is foreseeable. If 30 days notice is not possible, the notice/request must be given as soon as practical, ideally no later than a day or two within the start of leave. The request forms are available on the HR website. HR may require certification of the need for leave. The forms are first submitted to HR. After HR makes its determination that the employee is eligible for FMLA leave, HR will submit the forms to the appropriate supervisor for approval. The approved forms are returned to HR and the employee is notified.

31 A Final Note to Supervisors Supervisors must submit written notification to HR regarding any employee who requests time off or is absent from work for more than 3 consecutive business days for illness or to care for an ill family member. Supervisors may not grant FMLA leave, however. Only HR may make that determination. The University has a duty to inform employees rights under FMLA when it appears (from a three day absence or request) that their leave may qualify as FMLA leave. The University also has the option of designating leave as FMLA leave whenever the leave is for a qualifying reason, even if the employee does not request FMLA. The University must inform an employee with in 5 days that leave has been designated as FMLA leave.

32 Office of General Counsel Angela Redmond Debro General Counsel Alabama A&M University Office of General Counsel 4900 Meridian Street P.O. Box 315 Normal, Alabama (Telephone) (Facsimile) (Website)

33 Office of Human Resources Cheryl Johnson Interim Director of Human Resources Alabama A&M University Office of Human Resources 4101 Meridian Street P.O. Box 305 Normal, Alabama (Telephone) (Facsimile) (Website)