Family and Medical Leave Act (FMLA) A Practical Guide

Transcription

1 Family and Medical Leave Act (FMLA) A Practical Guide Human Resources March, 2016

2 Family and Medical Leave Act (FMLA) A Practical Guide Table of Contents Introduction... 2 Eligibility for FMLA... 3 Qualifying Reasons for FMLA... 3 Birth, Adoption, or Care of a Newborn... 4 Needed to Care for a Family Member... 4 Definitions of a Family Member... 5 Definitions of a Serious Health Condition... 5 Leave: Continuous, Reduced and Intermittent... 6 Special Rules for Schools... 6 What Time Off Counts As Leave... 7 Quick Reference Guide Steps for FMLA... 9 Request, Notice of Eligibility, Medical Certification, Approval/Denial... 9 Fitness for Duty / Return to Work Form Tracking Leave Returning from FMLA Recertification Additional Information FMLA Guide-OKCPS Human Resources Page 2

3 Introduction The federal Family and Medical Leave Act (FMLA) took effect on August 5, The Act is intended to balance the demands of the workplace with the needs of families by allowing leave for certain qualifying reasons. The law provides up to 12 weeks of job-protected unpaid leave for eligible employees in any 12-month period, which Oklahoma City Public School defines as a rolling calendar year. Oklahoma City Public Schools does not want its employees to worry about loss of income while dealing with a serious health condition, so FMLA runs concurrently with paid time off and workers comp. Due to the complexity of this Family Medical Leave Act, this guide is intended to familiarize supervisors and employees with the basic provisions and requirements of the FMLA and to provide steps for FMLA process. For questions or additional information, contact Human Resources Leave Manager at lacoleman@okcps.org or Eligibility To be eligible for FMLA, an employee must have : 1) Worked at least 12 months for OKCPS (need not be consecutive) and 2) Worked at least 1,250 hours during the 12 months preceding the need for leave. Special Rules for Schools- Teachers can used work time before and after school to determine hours worked. As a benchmark, teachers physically working 9 months of the year would meet the 1250 benchmark if they worked 35 hours a week. Qualifying Reasons FMLA leave may be taken for more than one qualifying reason, but are limited to a total of 12 weeks in a 12 month period. The eligibility requirement must be verified with the first FMLA request and for each new qualifying reason during the rolling calendar year. Active duty service members qualifying exigency may use up to 26 weeks in a 12-month period. *Covered active duty means duty during deployment to a foreign country. (Contact Human Resources, Leave Department if you are uncertain whether the reason for FMLA is a qualifying one.) Birth of a child and to care for a newborn child of the employee or spouse Placement with the employee of a child for adoption or foster care Care for the employee s spouse, child, or parent with a serious health condition A serious health condition that makes an employee unable to perform the functions of the employee s job Military Caregiver Leave A qualifying exigency arising out of the employee s spouse, child, or parent s covered active duty* or call to active duty in support of a contingency operation Care for a covered service member with a serious injury or illness incurred in the line of active duty if the employee is the spouse, child, parent, or next of kin of the service member FMLA Guide-OKCPS Human Resources Page 3

4 Birth, Adoption or Care of Newborn Both mother and/or father are entitled to up to 12 weeks of FMLA leave for the birth of their child, if meeting individual FMLA eligibility. This also applies to adoption and foster care placement. However, if both parents are employed with Oklahoma City Public Schools, only a total of 12 weeks of FMLA can be used by both FMLA for incapacity due to pregnancy may begin before the birth of the child if necessary for prenatal care, doctor appointments due to the pregnancy, or severe morning sickness. FMLA for adoption or foster care may begin before placement if necessary for counseling, court appearances, attorney/physician consultation, or travel to another country. The spouse is entitled to FMLA leave if needed to care for his pregnant spouse who is incapacitated or has a serious health condition. Additional provisions to note: Medical certification is not required for adoption or foster care, but non-medical certification (such as adoption paperwork) is necessary to substantiate an employee s claim. Medical certification is required for FMLA leave for incapacity due to pregnancy (or to care for a pregnant spouse who is incapacitated), for the mother s serious health condition following the birth of the child, or for the newborn child s serious health condition. A copy of the Certificate of Live Birth (with the foot prints on it) will be needed to show the beginning date of FMLA for a normal birth. Time taken off prior to the birth of the baby, unless medically necessary, will be counted against vacation leave, if available, or counted as unpaid. Intermittent leave may be taken in lieu of continuous leave for the birth or adoption of a child only with the approval of the Chief Human Resource Officer. Needed to Care for Family Member FMLA leave can be used to care for a family member with a serious health condition. Documentation (birth certificate, court document) may be requested to confirm the family relationship and the age of a child. The federal FMLA defines family member as: Spouse husband or wife, including those in same-sex marriages. Own parent Child biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco partentis who is either under that age of 18, or 18 or older and incapable of self-care because of mental or physical disability Covered service member Family member not covered by the federal FMLA includes: siblings, in-laws, grandparents and other extended family members unless those individuals stood in loco partentis to an employee when he or she was a minor. Caring for a family member includes: Psychological care, such as comfort and support Physical care, such as feeding, dressing and transportation to doctor appointments Substituting for others who normally care for the family member; the employee need not be the only individual available to care for the family member Making arrangements for changes in care such as transfer to a nursing home FMLA Guide-OKCPS Human Resources Page 4

5 Caring for a family member does not include: Visiting a sick parent or family member who is being cared for by another family member Child care when the child is not incapacitated due to a serious health condition Attending a funeral or bereavement leave; when the family member dies, FMLA needed to care for the family member ends Attending to the deceased s estate Definitions of Family Spouse - Legal spouse as defined by Oklahoma law Parent - Biological, adoptive, step or foster father or mother. Any other individual who stood in loco parentis to the employee when the employee was under age 18 Child - Biological, adopted or foster child, legal ward, stepchild, or child of a person standing in loco parentis For FMLA to care for a child with a serious health condition, the child must be: o under the age of 18 o age 18 or older if incapable of self-care because of a mental or physical disability Serious Health Condition is an Illness or Injury that Involves: Inpatient Care - requiring overnight hospitalization and subsequent treatment Continuing Treatment A period of incapacity of more than three full consecutive calendar days and An in-person visit to a health care provider within 7 days of the first day of incapacity and a second inperson visit within 30 days of the first day of incapacity or An in-person visit to a health care provider within 7 days of the first day of incapacity followed by a regimen of continuing treatment such as a course of prescription medication or physical therapy Chronic conditions continuing over an extended period of time include (e.g. asthma, diabetes, migraine headaches) Any period of incapacity May cause episodic rather than continuous incapacity Requires at least two visits annually to the health care provider Permanent or long-term conditions (e.g. Alzheimer s, stroke, terminal diseases) Requires continuing supervision by a health care provider Conditions requiring multiple treatments (e.g. chemotherapy, dialysis, physical therapy) Restorative surgery or conditions, if left untreated, would result in incapacity of more than three full consecutive calendar days Additional provisions to note: Incapacity is defined as the inability to perform essential duties of job or perform other regular daily activities. The common cold, flu, ear aches, upset stomach, ulcers, headaches (other than migraines), routine dental or orthodontia problems, periodontal disease, etc., are not serious health conditions unless they fall within one of the above conditions. FMLA Guide-OKCPS Human Resources Page 5

6 Leave Continuous, Reduced and Intermittent Special Rules for Schools - Congress recognized that there could be a substantial disruption to the educational process from instructional employees taking leave at certain times during the academic year or for certain intervals. As a result, there are special rules in the FMLA regulations regarding "instructional employees" of public and private elementary and secondary schools. "Instructional employees" are those whose principal function is to teach and instruct students in a class, small group or individual setting. Thus, "instructional employees" includes not only teachers in the school, but also athletic coaches, driving instructors, and special education assistants, such as signers for the hearing impaired. For "instructional employees," the following rules apply: With regard to intermittent or reduced schedule leave (for an employee's own serious health condition, if the medical leave is foreseeable based on planned medical treatment and the instructional employee is scheduled to be off work more than 20% of the working days during the period of medical leave (for an instructional employee working 5 days a week, 20% would be one day), the school may require the employee to choose: to take leave of a particular duration not to exceed the duration of the planned leave (the entire period of leave is counted as FMLA leave); or to temporarily transfer to another position, so long as such position has equivalent pay and benefits and is a position for which they are qualified. The position also has to better accommodate the employee's intermittent leave. If leave is requested near the end of the term, the following rules apply regarding job restoration: Leave within last three (3) weeks of the end of the Academic Term for Instructional Employees - for a purpose other than the instructional employee's own serious health condition School may require continuous leave until the end of the term if: Period of leave lasts more than five working days. Leave within last five (5) weeks of the Academic Term for Instructional Employees - for a purpose other than the instructional employee's own serious health condition School may require continuous leave until the end of the term if: Period of leave is longer than two weeks; and Return to work would occur within two weeks of the end of the Academic Term. Leave more than five (5) weeks PRIOR to the end of the Academic Term for Instructional Employees School may require continuous leave until the end of the term if: Period of leave is at least three weeks; Return to work would occur during the last three weeks of the Academic Term. In these cases, only the period of leave taken until the employee is ready to return to work may be charged against the instructional employee's twelve weeks (not the additional time the school requires the employee to not work). FMLA Guide-OKCPS Human Resources Page 6

7 What Time Off Counts as Leave? Schools, like other employers, can only count leave time as FMLA leave when the employee would be otherwise working. For example, teachers typically are not required to work during the spring, summer, and winter breaks. Thus, if the employee took FMLA leave before one of these breaks, the period of the break does not count as FMLA leave weeks for that employee. Example: Teacher takes FMLA commencing December 1. Winter break runs from December 19 to January 3. This period of December 19 through January 3 does not count as FMLA leave for the teacher. Since clerical, Operations, Central Office, and some administrative employees are required to work some or all of the periods of summer, winter, and spring breaks, these weeks would be counted as FMLA leave for those employees. Weeks in which the school is open for a portion of the week, such as Thanksgiving week and President's Day week, would be counted toward FMLA leave for all employees. Reduced schedule leave - reduces the employee s usual number of hours work per day or per week, i.e. reduce from 8 hours to 5 hours or only 3 days per week. Unless the reduced work schedule is specifically identified by the health care provider, the supervisor has the discretion to designate the reduced schedule of hours or days of the week to meet business needs, e.g., if the employee is limited to working six hours a day, the supervisor can designate the work schedule as 8 a.m. to 2 p.m. Intermittent leave - FMLA leave taken in separate blocks of time due to a single qualifying reason, i.e. diabetes, migraines, etc. When leave is needed for planned medical treatment, employees must make a reasonable effort to schedule treatment so as not to unduly disrupt the school day or operations. Employees must comply with the school or department s usual and customary requirements for requesting leave and provide enough information for supervisors to reasonably determine whether FMLA may apply to the employee s leave request. When the need for leave is unforeseeable, employees must provide notice to their supervisor as soon as possible and practicable under the circumstances. Leave may be taken and applied to FMLA in increments as little as 30 minutes. Supervisors, allow only as much FMLA as needed an entire day off usually is not necessary for a doctor s appointment. Adequate time off for the appointment and travel to the appointment must be provided, and employees should be required to return to work immediately after the appointment when appropriate. Additional provisions to note: Departments and schools may place employees who are on an intermittent leave or a reduced work schedule for planned medical treatment or appointments in another position with equivalent pay and benefits which better accommodates recurring absences than the employee s regular position. If this placement is considered to be a temporary or a permanent transfer, contact Human Resources, Employee Relations staff to discuss the details prior to the placement FMLA Guide-OKCPS Human Resources Page 7

8 Quick Reference Guide/Steps for Family Medical Leave Act (FMLA) Step 1. Employee - Complete and Submit the Request for Family Medical Leave Employee should requests FMLA leave 30 days prior to the start date leave is needed for surgery, birth, or other serious health condition. If employee does not give proper notice of a clearly foreseeable leave, the department can delay the leave up to 30 days after receiving notice of the need for FMLA leave. If leave is an emergency or unplanned, the notice should be given as soon as practical and the employee should complete the Employee Request form and make an appointment with the Leave Manager, Laurie Coleman, to discuss the requirements and provisions of FMLA. Step 2. Human Resources - will complete Notice of Eligibility and Rights & Responsibilities Notice of Eligibility and Rights & Responsibility will let the employee know: If they are eligible for the FMLA leave or not eligible and the reason why, Indicates the requirement if paid leave is to be used and conditions, If premium payments for employee paid health insurance will be needed, and Measurement period, OKCPS uses the rolling 12-month The eligibility notice is ed to the employee at the address provided on the request form within five (5) business days of the initial request. A Notice of Eligibility will be provided if leave is requested for a different qualifying reason in the same leave year. Step 3. Employee - Complete Medical Certification Form Employee has 15 business days to have the proper certification form completed by their treating Health Care Provide. The healthcare provider needs to submit the medical certification to the HR Leave Department by FAX to (405) The cost of acquiring medical certification (if any) is paid by the employee, and the employee is not entitled to be paid for time or travel to obtain the certification. There are several types of certifications based on need: Certification of Health Care Provider for Employee s Serious Health Condition (including pregnancy) Certification of Health Care Provider for Family Member s Serious Health Condition Certification of Qualifying Exigency for Military Family Leave Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave Step 4. Human Resources - FMLA Designation Notice (approval or denial) along with Fit for Duty Certification) Once the certification comes into the Leave Department, the employee and the supervisor will be notified by within 5 business days if the FMLA leave is either approved or denied. If the certification is incomplete or insufficient, the certification will be returned to the employee identifying (in writing) the additional information necessary to make the certification complete and sufficient. The employee is given 7 additional calendar days to obtain the necessary information. If the certification is in another language because the certification is for a family member in another country, additional time will be required for interpretation. FMLA Guide-OKCPS Human Resources Page 8

9 If the doctor s notes are unclear or unreadable, the HR Department will call the doctor to get clarification on what is written. If approved, the employee and the supervisor will receive an and Designation Notice from Leave department along with a Return to Work Certification form. If denied, the employee and supervisor will receive an with other options that may be available, a Designation Notice from Leave Department, and a Return to Work Certification form. Step 5. Fitness for Duty / Return to Work Certification The Fitness for Duty/ Return to Work Form will be given to the employee at the time the FMLA leave is approved or denied (step 4). This form will have the job description with physical requirements attached to it and will be required to be filled out by the attending physician prior to the employee coming back to work. The form will indicate if there are any restrictions that will need to be reviewed to see if they can be accommodated. The Fitness for Duty Statement must be returned to the HR office at least 3 business days prior to the employee s estimated return date. For maternity leave, the Fitness for Duty Form can be completed at the 6 week check-up for normal delivery and at the 8 week check-up for C-section. The doctor s office can fax this form to the HR Department at this point in time even though the employee may continue to be off for the entire 12 weeks to bond with the newborn. Sick leave will only be available to the employee for the time of documented disability (the first 6 or 8 weeks). Any additional bonding time the employee wishes to take with the newborn must be counted as vacation (if available) then leave without pay. Step 6. Employee and Supervisor - Track Leave Timekeepers will need to track the time an employee is out on FMLA by putting in absences as sick leave into SAP. Supervisor is responsible for verifying the leave is entered into SAP approved the leave for each pay period. Employee is responsible for completing a leave request form for amount of time the employee is out on FMLA leave, This is easy when the leave is continuous, but when intermittent leave is used for FMLA reason, tracking is harder. When the employee checks on the leave form that the time off was for FMLA reason, the timekeeper will need to a copy of the leave request form to Laurie Coleman, Leave Manager since SAP doesn t have the option for the timekeeper to code the leave as Paid FMLA. Employees are required to submit their leave in the same way they would for any other leave request for their department. Teacher s need to submit their leave through AESOP, requesting a substitute as well as through any other method requested by their principal. It is the school s or department s responsibility to designate any absence that meets the requirement of the FMLA as family medical leave. An employee when requesting leave, should provide enough information to make the supervisor aware that the absence is FMLA related. Supervisors should contact HR any time they are uncertain if the leave is potentially FMLA qualifying. Support employee s need to submit their leave request through the pre-established required channels to their supervisor, i.e. , text, phone call or leave form. Employees should keep in contact with their immediate supervisor periodically during the FMLA leave just in case the school or department is looking for something specific that the FMLA Guide-OKCPS Human Resources Page 9

10 employee might have been working on and to let them know if the employee is on track for returning on the date listed on the certification form. The school or department also has the ability to call the employee and ask questions about the status of a project or to locate files on a computer, however it s important not to abuse this privilege If the employee is unavailable to enter their time due to the severity of their illness, the supervisor /timekeepers must enter the time on the employee s behalf. Supervisors/timekeepers shall ensure that all FMLA leave is entered as sick leave into the time and attendance system each week. Step 7. Returning from FMLA The employee should contact HR at least 3 days in advance to provide the Fitness to Duty / Return to Work Form. HR will send a copy of the form to the employee s supervisor and let the supervisor know the date the employee will return. If there are work restrictions on the form, the supervisor will need to contact Employee Engagement for assistance. The employee is expected to be at work on the date indicated on the certification form. If the employee does not come back to work that day, the employee will have an unexcused absence. If the employee needs additional leave time and has FMLA time available, the employee will need to recertify by having their health care provide complete another certification form. Recertification HR may request employees to recertify the need for FMLA. Minimum Duration of Serious Health Condition When Recertification May Be Requested Frequency of Request 30 days or less every 30 days 30 days to 6 months expiration of minimum duration period 6 months or more every 6 months Recertification may be requested in less than 30 days if: The employee requests an extension of the leave Circumstances in the previous certification have changed significantly Information is received that casts doubt on the reason for the absence or validity of the previous certification If recertification is requested due to the number and/or nature of the absences, the employee s FMLA attendance record may be included, and the health care provider may be asked if the serious health condition and need for leave is consistent with the employee s absences. It is the employee s responsibility to provide the completed recertification within 15 calendar days of the request or prior to the end of the first FMLA certification. FMLA Guide-OKCPS Human Resources Page 10

11 Additional Information All time missed in a work day due to FMLA leave is charged to leave accruals, including charges for partial day absences for professional exempt staff, in 30 minute increments. When paid-time-off accruals are exhausted, the remainder of the FMLA leave is without pay. Employee will be placed in this unpaid FMLA status and will continue to have the employer paid health benefits while on FMLA. However, the employee will be responsible for any employee paid (optional) benefit deductions (i.e. dental insurance) if on unpaid leave for two weeks or more. If these deductions are not paid by the employee to the HR benefit s department by the time the payments are sent to the vendor on the 5 th of each month, the employee paid benefit(s) will be terminated. If FMLA runs out and an employee is not able to return to work, an employee who has worked for the district for a minimum of 2 years, may submit for approval by the Chief Human Resources Officer, a written request for an unpaid leave of absence for the remainder of the semester. (see Unpaid Leave of Absence request form). Don ts for supervisors: Interfere with, restrain, or deny the exercise of any rights provided by FMLA Discourage an employee from using FMLA leave or manipulate the circumstances related to eligibility Consider the use of FMLA as a negative factor in employment actions such as hiring, promotion or disciplinary actions Encourage or induce employees to waive their prospective rights under FMLA Ask employee to do work related activities while out on FMLA, such as lesson plans or grades Ask for doctor s notes each time intermittent FMLA is used if certification is already approved Do s for supervisors Ask appropriate questions about the reasons for the employee s time off (when an employee seeks leave for the first time for an FMLA-qualifying reason, the employee need not expressly state they need FMLA or even mention the FMLA). As a manager, you need to tell the employee they may qualify for FMLA and direct them to Human Resource. Recognize that requested time off can be counted as FMLA absences and promptly inform the employee. Enforce the call in procedure consistently whether it is FMLA or non-fmla absences Supervisor, Department, and Schools need to establish and communicate the call in procedures when on intermitted FMLA and should include o o o When the employee must call in; how soon before the workday begins and the method of communication (AESOP, , text, phone call, etc.) Who must call in; the employee or another family member Information that must be provided when calling in ( don t accept simply FMLA ; it is the supervisor s responsibility not the employee s- to determine if the absence qualifies for FMLA) An employee who is returning from an approved FMLA absence will be returned to the same position held at the time the leave began or to an equivalent position. An equivalent position is one with FMLA Guide-OKCPS Human Resources Page 11

12 equivalent benefits, pay, and other terms and conditions of employment, including the same shift or work schedule and a geographically proximate work site. Consult with Human Resources, Employee Engagement if considering an equivalent position. Additional provisions to note: Employees on FMLA leave whose positions are affected by a reduction in force or reassignment, may not be reinstated if it can be demonstrated the reduction in force or reassignment would have occurred had the employee been working and not on FMLA leave. Key employees (employees who are among the highest 10% compensated at OKCPS) may be an exception to the reinstatement rule if reinstatement would result in substantial and grievous economic injury to the institution. Once approved by Human Resources before the FMLA leave begins that reinstatement might not be available when he or she is ready to return to work FMLA Guide-OKCPS Human Resources Page 12