THE FAMILY AND MEDICAL LEAVE ACT SPECIAL GUIDELINES AND CONSIDERATIONS FOR SCHOOLS

Transcription

1 THE FAMILY AND MEDICAL LEAVE ACT SPECIAL GUIDELINES AND CONSIDERATIONS FOR SCHOOLS FEBRUARY 16, 2018 Susie Pinckney, Director of Compliance, BCP

2 2 Benefit Compliance Program Disclaimer and Copyright This program is operated and conducted by Mark J. Becker & Associates (MJBA). The material in this presentation is for informational purposes and should not be construed as legal or accounting advice. This material is proprietary and any use without the written consent of the Benefit Compliance Program is prohibited. Sharing this presentation without permission is both an ethical and copyright violation.

3 FMLA Compliance Source Materials 3 Title I of the FMLA, as amended 29 U.S.C FMLA Regulations 29 C.F.R Field Operations Handbook Chapter 39 Opinion Letters WHD/DOL

4 Topics 4 Covered Employers and Eligible Employees Intermittent or Reduced Leave Schedule Leave Near End of Academic Term Restoration to Equivalent Position Communication and Consistency Note: This recording explains FMLA guidelines and considerations unique to schools but is not comprehensive FMLA training.

5 5 Covered Employers and Eligible Employees

6 Covered Employers 6 Public and private elementary and secondary schools are covered employers under the FMLA, regardless of the number of employees Such schools are not subject to the FMLA 50 employee coverage requirement Other schools are subject to the 50 employee criteria the same as private employers Public and private colleges and universities Preschools, day care providers, trade schools

7 Eligible Employees 7 Even though public and private elementary and secondary schools are FMLA-covered employers regardless of how many employees they employ, each independent employee must still meet the eligibility requirements Employed by covered employer Employed at least 12 months for the employer Have worked at least 1,250 hours of service during the 12 months immediately before leave begins Must be employed at a work site with at least 50 employees within 75 mile radius Schools and non-school employees have same requirements

8 Eligible Employees 8 Employed at least 12 months for the employer 12 months need not be consecutive Any combination of 52 weeks equals 12 months If maintained on payroll for any part of a week count that week Do count spring, winter or summer breaks if employee is on payroll Do count hours of service that would have been worked but for the period of military service, for an employee returning from a USERRA covered military service obligation Periods of employment prior to a break in service of more than seven years may be counted, but are not required to be counted Exception: Do count employment prior to break if leave is due to USERRA, or if a written agreement exists including a collective bargaining agreement concerning the employer s intention to rehire after the break in service

9 Eligible Employees 9 Have at least 1,250 hours of service during the 12 months immediately before leave begins Must be hours actually worked Do not count spring, winter or summer breaks unless employee worked Do not count leave, paid or unpaid, other than USERRA Do not count vacation, personal, sick leave, holidays, PTO Do not count leave of absence, including FMLA leave Exception: Do count hours of service that would have been worked but for the period of military service, for an employee returning from a USERRA covered military service obligation Do include overtime hours worked Employer bears burden of proof

10 Eligible Employees 10 If there is a dispute on the number of hours worked employer bears burden of proof Use principals established under the FLSA to determine compensable hours of work when determining if 1,250 hours have been worked Employees, such as full-time teachers, who are exempt from the FLSA requirement that records be kept of their hours worked should not be denied FMLA leave on the basis of the 1,250 requirement not being met, unless the employer has records to prove 1,250 hours were not worked Consider hours worked outside of the classroom including at the employee s home, or before and/or after school

11 Eligible Employees 11 Must be employed at a work site with at least 50 employees within 75 mile radius Even if all other eligibility qualifications are met the employee is not eligible for FMLA leave if this requirement is not met For this requirement school employees permanently employed or employed under contract are counted to determine the number of employees within a 75 mile radius during any portion of the year when school is not in session, i.e., during spring, winter, and summer breaks

12 Eligible Employees 12 Spring, Winter, and Summer Breaks Do count these breaks when determining if employee has worked for 12 months (if employee is on the payroll) Do count these breaks when determining number of employees within 75 mile radius (for those permanently employed or employed under contract) Do not count these breaks when determining if employee has worked 1,250 hours (unless employee actually worked during the breaks)

13 13 Intermittent or Reduced Leave Schedule (Applies to ALL Covered Employers schools and non-schools)

14 Intermittent or Reduced Leave Schedule 14 ALL covered employers (including schools) Definitions Intermittent Leave taken in separate blocks of time due to a single qualifying reason Reduced Leave Schedule Leave schedule that reduces employee s usual number of working hours per workweek, or hours per workday; this is a change in employee s schedule for a period of time, normally from full-time to part-time Intermittent or reduced leave schedule for schools 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 summer break when the employee would not have been required to report for duty is not counted against the employee s FMLA leave

15 Intermittent or Reduced Leave Schedule 15 ALL covered employers (including schools) Intermittent or reduced leave schedule - Reason for Leave Must be for medically necessary condition of eligible employee, family member, or covered servicemember Not for birth or placement for adoption or foster care for a healthy child, or bonding unless employer agrees May also be for qualifying exigency leave Leave may be planned, or may be unanticipated If planned, employee must make reasonable efforts to schedule treatment so employer s operations are not disrupted

16 Intermittent or Reduced Leave Schedule 16 ALL covered employers (including schools, but see special guidelines for instructional employees) Intermittent or reduced leave schedule Requirement to transfer to alternate position Employer may require a transfer to alternate position that better accommodates intermittent or reduced schedule leave ONLY for a foreseeable leave for planned medical treatment Employee must be qualified for alternate position Provide equivalent pay and benefits Not required to have equivalent duties Employer may increase pay and benefits for new position for this purpose Cannot transfer to discourage taking leave or to create hardship When leave no longer required must place employee in same or equivalent job as prior to leave

17 17 Intermittent or Reduced Leave Schedule Special Guidelines for Schools Applies only to instructional employees

18 Intermittent or Reduced Leave Schedule 18 Special guidelines for schools for intermittent or reduced leave schedule Applies ONLY to instructional employees Those whose principal function is to teach and instruct students in a class, a small group, or an individual setting Includes teachers, athletic coaches, driving instructors, special education assistants (such as signers for hearing impaired) Does not include teacher assistants or aides who do not have as their principal job actual teaching or instructing Does not include auxiliary personnel such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, or bus drivers

19 Intermittent or Reduced Leave Schedule 19 Special guidelines for schools for intermittent or reduced leave schedule for instructional employees If leave is foreseeable and for planned medical treatment, and If employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, Employer may require employee to choose to either: Take a block of leave for a particular duration not greater than the duration of time needed for planned treatment (count entire block as FMLA leave) Temporarily transfer to alternate position for which employee is qualified, which has equivalent pay and benefits, and which better accommodates the leave See next slide for examples of 20% calculations

20 Intermittent or Reduced Leave Schedule 20 Special guidelines for schools for intermittent or reduced leave schedule for instructional employees Example of 20% rule: Leave requested for 2 days/week for three weeks; employee normally works 5 days/week; 6 total days out of 15 days equals more than 20% so this special rule could apply 15 days x 20% = 3 days (6 days = more than 20%) Example of 20% rule: Leave requested for 1 day/week for three weeks; employee normally works 5 days/week; 3 total days out of 15 days equals 20% so this special rule could not apply 15 days x 20% = 3 days (3 days is 20% or less)

21 Intermittent or Reduced Leave Schedule 21 Special guidelines for schools for intermittent or reduced schedule leave for instructional employees Required notice of leave not provided If employee does not provide required notice of foreseeable intermittent or reduced schedule FMLA leave employer may: Require leave to be taken of a particular duration or may require employee to transfer temporarily to an alternate position Or leave may be delayed until notice provision is met Definition of particular duration A block, or blocks, of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed, and may include one uninterrupted period of leave

22 22 Leave Near End of Academic Term Special Guidelines for Schools Applies only to instructional employees

23 Intermittent or Reduced Leave Schedule 23 Special guidelines for schools for leave near end of academic term Applies ONLY to instructional employees Those whose principal function is to teach and instruct students in a class, a small group, or an individual setting Includes teachers, athletic coaches, driving instructors, special education assistants (such as signers for hearing impaired) Does not include teacher assistants or aides who do not have as their principal job actual teaching or instructing Does not include auxiliary personnel such as counselors, psychologists, curriculum specialists, cafeteria workers, maintenance workers, or bus drivers

24 Leave Near End of Academic Term 24 Special guidelines for schools leave near end of academic term for instructional employees Employee may be required to take leave to the end of term in certain situations involving: 1. Leave beginning more than 5 weeks before end of term 2. Leave beginning during the 5 week period before end of term 3. Leave beginning during the 3 week period before end of term See next three slides for further details of the three situations Requiring leave to be taken to the end of term is an option (employer s option) and not a requirement If employee is required to take leave to the end of term, only period of leave until employee is ready and able to return to work can be charged against FMLA leave entitlement

25 Leave Near End of Academic Term 25 Special guidelines for schools leave near end of academic term for instructional employees 1. Leave beginning more than 5 weeks before end of term May require employee to continue leave until end of the term if leave will last at least 3 weeks, and employee would return to work during the 3 week period before the end of term

26 Leave Near End of Academic Term 26 Special guidelines for schools leave near end of academic term for instructional employees 2. Leave beginning during the 5 week period before end of term and leave is for birth of child, placement of child for adoption or foster care, to care for family member with serious health condition or covered servicemember with serious injury or illness (not for employee s own serious health condition) May require employee to continue leave until end of the term if leave will last more than 2 weeks, and employee would return to work during the 2 week period before end of term

27 Leave Near End of Academic Term 27 Special guidelines for schools leave near end of academic term for instructional employees 3. Leave beginning during the 3 week period before end of term and leave is for birth of child, placement of child for adoption or foster care, to care for family member with serious health condition or covered servicemember with serious injury or illness (not for employee s own serious health condition) May require employee to continue leave until end of the term if leave will last more than 5 working days

28 28 Restoration to an Equivalent Position Special Guidelines for Schools Applies to All School Employees

29 Restoration to an Equivalent Position 29 Special guidelines for schools for restoration to an equivalent position Applies to all school employees 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. Such policies or agreements 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. Any established policy which is used as the basis for restoration of an employee to an equivalent position must provide substantially the same protections as provided in the FMLA for reinstated employees. In other words, the policy or 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, or if a probationary teacher takes FMLA he/she cannot be required to begin the probationary period again upon return to work.

30 30 Communication and Consistency

31 Communication and Consistency 31 Employee/Employer communication is key to administering FMLA If a particular guideline is optional, it is important for the employer to consistently use, or not use, the guideline

32 Questions? 32 Leah Belknap Carter Susie Pinckney