The Family and Medical Leave Act:

Transcription

1 LEGAL BRIEFS Employment Law Training Series The Family and Medical Leave Act: What Every Manager Should Know Facilitator s Guide

2 2001 VisionPoint Productions All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of VisionPoint Productions. Those pages that may be legally reproduced will have the appropriate legal disclaimer referenced at the bottom of the page. This publication is designed to provide accurate and authoritative information in regard to the subject matter. It is sold with the understanding that VisionPoint Productions is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Content input and review provided by: T. Hensley "Ted" Williams, J.D., Co-Principal, The Williams Group, Des Moines, IA Sherisse E. Fiorvento, Senior Employment and Compliance Counsel, Visteon Legal Department, Visteon Corporation, Dearborn, MI Michael Moran, Consultant, Current Federal Employee with experience at the Department of Defense, Department of Justice, and banking regulatory agencies, Washington, D.C.

3 TABLE OF CONTENTS Introduction Uses Key Learning Points Training Materials Agenda Facilitator's Checklist Step-by-Step Facilitation Instructions Pre-Assessment - Facilitator's Copy Post-Assessment - Facilitator's Copy Session Evaluation Supplemental Reference - Facilitator's Copy

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5 Introduction THE FAMILY AND MEDICAL LEAVE ACT This program is designed to help your managers understand the importance of the FMLA to your organization and to recognize four key issues that managers struggle with regarding the FMLA. The program also discusses three action steps managers can take to help stay in compliance with the FMLA. The Family and Medical Leave Act: What Every Manager Should Know provides answers to several of the most common questions managers struggle with regarding the FMLA. What are my primary responsibilities under the FMLA? How do I determine what qualifies as a serious health condition? Can I demand that an employee on FMLA leave return to work? What is the relationship between the FMLA, the ADA, and Worker s Compensation? In addition, the program provides managers with three actions that they can take to keep themselves and their organizations out of court. This program is designed to cut through the legal jargon to provide clear and concise information in terms that everyone can understand. Uses This program may be used in many ways: 60 minute training session Staff meetings Conferences New manager orientation Self-study/self-directed learning 1

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7 Key Learning Points During the program, participants will learn: THE FAMILY AND MEDICAL LEAVE ACT The importance of the FMLA to an organization The purpose and benefits of the FMLA law The four most difficult issues managers face regarding FMLA Three specific actions managers can take to keep themselves and their organizations out of court Training Materials Video The video, The Family and Medical Leave Act: What Every Manager Should Know is divided into two segments. The first segment provides information on four of the most difficult challenges managers have regarding the FMLA. The second segment provides managers with three action steps to help them and their organizations stay out of court. Facilitator s Guide The facilitation guide contains complete step-by-step directions for conducting this course. With the exception of the session evaluation, the facilitation guide is not reproducible. If additional guides are needed, please contact your vendor. Participant s Reference Guide The participant s reference guide contains a complete review of the key information covered in this course, along with supplemental information regarding the FMLA. In addition, it includes a preassessment and post-assessment. The post-assessment is removable and designed to be included in the employee s personnel file, if desired. The participant s reference guide is not reproducible. If additional copies are needed, please contact your vendor. Agenda This program is designed to be presented in a one-hour training session. 60-Minute Agenda Program Introduction minutes Show and Review Video minutes Optional Review of Supplemental Info minutes Program Debrief minutes 3

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9 Facilitator's Checklist Before Training THE FAMILY AND MEDICAL LEAVE ACT Read through the entire facilitation manual Watch the video several times Determine the length of your session Send out a memo inviting participants to the training Locate audio/visual equipment and make sure it works Make copies of any exercises needed for the training Identify any personal stories that may make the session more meaningful to participants Day of the Training Review your notes Check the TV/VCR Prepare Flipcharts Check the lighting of the room Set up the room arrangement. Participants will need to get into small groups during the session After the training Review the post-assessment and session evaluation Document the recommended changes to your presentation or materials Follow-up with participants on next steps, comments, or action plans, as agreed 5

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11 Step-by-Step Facilitation Instructions Step 1 Introduce the program. Communicate the following to participants: THE FAMILY AND MEDICAL LEAVE ACT The Family and Medical Leave Act provides employees with health problems and family challenges the opportunity to deal with those issues without having to worry about the impact on their careers. As a manager of our organization you need to be aware of the purpose and benefits of the FMLA and make sure you are correctly communicating and interpreting the law to your employees. By the end of this program, you should know: The importance of the FMLA to an organization The purpose and benefits of the FMLA law The four most difficult issues managers face regarding FMLA Three specific actions managers can take to keep themselves and their organizations out of court. Before we go any further, let s take a few moments to introduce ourselves. Step 2 Introduce yourself and then have participants introduce themselves. This would be a good time to share a story or personal experience regarding any experience you have had regarding the FMLA. By opening yourself up and sharing something personal, you will give participants permission to do the same. 7

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13 Step 3 Distribute a copy of the Participant s Reference Guide to each participant. Communicate the following: THE FAMILY AND MEDICAL LEAVE ACT Before we view the video, I d like you to take a few minutes to complete the pre-assessment in your desk reference guide. This self-assessment is designed to give you a clearer picture of your present understanding of the FMLA law and legal pitfalls. Give participants a few minutes to complete the assessment. When participants are finished, collect assessments for comparison with the post-assessments that will be done at the end of the session. 9

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15 THE FAMILY AND MEDICAL LEAVE ACT Pre-Assessment - Facilitator's Copy Instructions: Read the statements and circle the appropriate response. 1. Generally, you cannot be held personally liable in a court of law for failing to inform your employees about their rights and responsibilities under the law; only your organization faces legal liability under the FMLA. True or False 2. Eligible employees are entitled to up to 12 weeks of job-protected unpaid leave during any 12-month period. True or False 3. Employees must specifically mention the FMLA in order for the leave to be designated as an FMLA leave. True or False 4. Assuming you have all the information you need about the reasons for the requested leave, you must let an employee know, before the leave begins, that you re going to designate time off as an FMLA leave. True or False 5. You should always make the final determination on what constitutes a serious health condition under the FMLA. True or False 6. Under the right circumstances, it is possible for a "common cold" to be considered a serious health condition under the FMLA. True or False 7. While an employee is on an FMLA leave, you can ask that they return to work if you re willing to make a reasonable accommodation such as assigning the employee to light duty work. True or False 8. Whenever possible, an employee that wants to take advantage of the FMLA leave must provide a 30-day notice in advance before the leave is taken. True or False 9. With few exceptions, the FMLA guarantees an employee s right to return to the same job, with the same benefits and compensation, following an FMLA leave. True or False 10. If an employee is covered under the ADA they cannot claim coverage under the FMLA. True or False 11

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17 THE FAMILY AND MEDICAL LEAVE ACT Step 4 Show the video. Communicate the following: Now we are going to watch a video that addresses some of the tough questions managers have asked regarding the Family and Medical Leave Act. Then we will take a few minutes to review the information the video covers and talk about how those ideas apply within our organization. Play the video from start to finish. Step 5 Review the key points. Communicate the following: The three actions you can take to make sure you are maintaining compliance with the FMLA are: 1. Acquire a Basic Knowledge of the FMLA. At a minimum, you want to make sure you understand who is eligible, the length of leave an employee qualifies for, acceptable reasons for a leave and the general obligations of the employer and the employee. Remember, you don t make the call on what constitutes a serious health condition, require medical certification. 2. Stay Informed about Changes in the Law. There could be changes in how the law is interpreted and administered. The provisions of the FMLA aren t cast in stone. So, find and use a good resource like the department of labor web site to help keep you up to date. And ask your human resources department to help you with questions you have. 13

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19 THE FAMILY AND MEDICAL LEAVE ACT 3. Make Sure Employees Understand Their Rights and Responsibilities under the FMLA and Your Organization s Policy. The better employees understand the law and your policy regarding FMLA, the easier it will be for you to keep yourself and your organization out of court. Step 6 Discuss the case study. Communicate the following: In order to gain some perspective on the information covered in the video, let s take a few minutes to discuss a hypothetical situation that you might face as a manager. This morning you have two employees tell you they are going to need to take some time off work. This is going to cause you some problems because you only have six employees in your department. The first employee, Diane, has just been diagnosed with a rare family genetic disorder and may need to take some time off when she is having a bad episode. The second employee, Mark, just informed you that he and his wife are adopting a baby from Russia and they want to take some family leave to spend time with the child when it arrives in the United States. Your organizational policy gives fathers three days of paternity leave. Mark only has two vacation days left. He used his other vacation days early this year when he and his wife were attempting to get pregnant via invetro fertilization. Mark doesn t know anything about the FMLA and that it could apply to him. Both of these employees have been in your department for at least two to three years. 15

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21 Q. What should the manager do about Diane? A. The manager should let Diane know about the options she has under the FMLA. The manager needs to have Diane bring in certification from her doctor that she has a serious heath condition that qualifies her for FMLA leave. The manager should also let Diane know that she may be asked to provide periodic reports during the leave regarding her status and intent to return to work. The manager should also let her know that she may be covered under the ADA. Q. What should the manager do regarding Mark s situation? A. The manager should let Mark know about the FMLA and how the act may apply to his situation. Depending on the organization s policy, if Mark only has a few vacation days left, Mark may choose to use those or he may choose to save those days. Mark and his manager will need to work out the details of Mark s leave. Q. What should the manager do about the lack of staff support from having both of these employees gone? A. The manager may be able to work out a reduced work schedule with Diane if her condition warrants it or the manager may have to bring in temporary help until the other employees are able to return to their full-time schedule. Q. What if Diane doesn t get the certification from her physician? A. Then her manager needs to let her know that FMLA leave cannot be granted unless she provides a certification from her health care professional. Step 7 Complete the post-assessment. THE FAMILY AND MEDICAL LEAVE ACT Ask participants to complete the post-assessment in their Participant Reference Guide. Then take a few minutes to review the correct answers with the participants. Ask the participants to sign and date the Certification of Training, and then remove it from the back of the reference guide. The certification should be turned in at the end of the session. 17

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23 Post-Assessment - Facilitator's Copy Instructions: Read the statements and circle the appropriate response. 1. Generally, you cannot be held personally liable in a court of law for failing to inform your employees about their rights and responsibilities under the law; only your organization faces legal liability under the FMLA. True or False (False A manager is considered a special agent of the organization and may be held personally liable.) 2. Eligible employees are entitled to up to 12 weeks of job-protected unpaid leave during any 12-month period. True or False (True) 3. Employees must specifically mention the FMLA in order for the leave to be designated as an FMLA leave. True or False (False The employee does not have to mention the FMLA at all. However, they do have to provide you with enough information to enable you to determine whether or not the time off can be designated as FMLA leave.) 4. Assuming you have all the information you need about the reasons for the requested leave, you must let an employee know, before the leave begins, that you re going to designate time off as an FMLA leave. True or False (True) 5. You should always make the final determination on what constitutes a serious health condition under the FMLA. True or False (False A qualified health care provider should always make the final determination.) 6. Under the right circumstances, it is possible for a "common cold" to be considered a serious health condition under the FMLA. True or False (True) 7. While an employee is on an FMLA leave, you can ask that they return to work if you re willing to make a reasonable accommodation such as assigning the employee to light duty work. True or False (False You may not ask the employee to return to work. You may ask for periodic status reports.) 8. Whenever possible, an employee that wants to take advantage of the FMLA leave must provide a 30- day notice in advance before the leave is taken. True or False (True) 9. With few exceptions, the FMLA guarantees an employee s right to return to the same job, with the same benefits and compensation, following an FMLA leave. True or False (True) THE FAMILY AND MEDICAL LEAVE ACT 10. If an employee is covered under the ADA they cannot claim coverage under the FMLA. True or False (False It is possible for an employee s disability to also qualify as a serious health condition under the FMLA.) 19

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25 THE FAMILY AND MEDICAL LEAVE ACT Step 8 Wrap up the session. Distribute the session evaluation and give the participants a few minutes to complete it. Communicate the following: When it comes to the Family and Medical Leave Act it is in your best interest that you understand the intent of the law and how it could affect you, your organization, and your employees. Your desk reference guide contains answers to more frequently asked questions regarding the FMLA, and a list of additional resources available to you. I encourage you to take the time to review the information, and keep the booklet in a handy place for future reference. Thanks for your time. 21

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27 Session Evaluation Instructions: Please answer the following questions. Your answers will help assess the effectiveness of this training and identify areas for improvement. As a result of this training, are you better able to: 1. Explain the intent of the FMLA? Yes No Not Sure 2. Identify your primary responsibilities under the FMLA? Yes No Not Sure 3. Explain why it is important to get an expert involved in FMLA issues? Yes No Not Sure 4. Explain why it is important to ask for medical certification of a serious health condition? Yes No Not Sure 5. Identify three specific actions to take to help remain in compliance with the FMLA? Yes No Not Sure 6. My overall rating of this presentation is: a. Excellent b. Good c. Satisfactory d. Needs Improvement e. Unsatisfactory Comments for Presenter: THE FAMILY AND MEDICAL LEAVE ACT Permission granted for unlimited reproduction of this page for training purposes. 23

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29 Supplemental Reference - Facilitator's Copy The following supplemental reference information is contained in the Participant s Reference Guide. Q. How much leave am I entitled to under FMLA? A. If you are an "eligible" employee, you are entitled to 12 weeks of leave for certain family and medical reasons during a 12-month period. Q. How is the 12-month period calculated under FMLA? A. Employers may select one of four options for determining the 12-month period: the calendar year; any fixed 12-month "leave year" such as a fiscal year, a year required by state law, or a year starting on the employee s "anniversary" date; the 12-month period measured forward from the date any employee s first FMLA leave begins; or a "rolling" 12-month period measured backward from the date an employee uses FMLA leave. Q. Does the law guarantee paid time off? THE FAMILY AND MEDICAL LEAVE ACT A. No. The FMLA only guarantees unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins. Q. Does worker s compensation leave count against an employee s FMLA leave entitlement? A. It can. FMLA leave and worker s compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave. Q. Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child? A. Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12- month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement. 25

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31 Q. Can the employer count time on maternity leave or pregnancy disability as FMLA leave? A. Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation. Q. If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave? A. In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee s return to work. Q. Who is considered an immediate "family member" for purposes of taking FMLA leave? A. An employee s spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "inlaw." The terms "son or daughter" do not include individuals age 18 or over unless they are "incapable of self-care" because of mental or physical disability that limits one or more of the "major life activities" as those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (ADA). Q. May I take FMLA leave for visits to a physical therapist, if my doctor prescribes the therapy? A. Yes. FMLA permits you to take leave to receive "continuing treatment by a health care provider," which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay or for treatment of severe arthritis. Q. Which employees are eligible to take FMLA leave? THE FAMILY AND MEDICAL LEAVE ACT A. Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles. 27

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33 THE FAMILY AND MEDICAL LEAVE ACT Q. Do the 12 months of service with the employer have to be continuous or consecutive? A. No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted. Q. Do the 1,250 hours include paid leave time or other absences from work? A. No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included. Q. How do I determine if I have worked 1,250 hours in a 12-month period? A. Your individual record of hours worked would be used to determine whether 1,250 hours have been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met; 24 hours worked in each of the 52 weeks of the year; or over 104 hours worked in each of the 12 months of the year; or 40 hours worked per week for more than 31 weeks (over seven months) of the year. Q. Do I have to give my employer my medical records for leave due to a serious health condition? A. No. You do not have to provide medical records. The employer may, however, request that for any leave taken due to a serious health condition you provide a medical certification confirming that a serious health condition exists. Q. Can my employer require me to return to work before I exhaust my leave? A. Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment. Q. Are there any restrictions on how I spend my time while on leave? A. Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave. 29

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35 Q. Can my employer make inquiries about my leave during my absence? A. Yes, but only to you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer s expense, or rectification during a period of FMLA leave. The employer may have a health care provider representing the employer contact your health care provider, with your permission, to clarify information in the medical certification or to confirm that the health care provider provided it. The inquiry may not seek additional information regarding your health condition or that of a family member. Q. Can my employer refuse to grant me FMLA leave? A. If you are an "eligible" employee who has met FMLA s notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you may not be denied FMLA leave. Q. Will I lose my job if I take FMLA leave? THE FAMILY AND MEDICAL LEAVE ACT A. Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies. Under limited circumstances, an employer may deny reinstatement to work - but not the use of FMLA leave - to certain highly-paid, salaried ("key") employees. Q. Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job? A. In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff. Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated "12 month period" no longer have FMLA protections of leave or job restoration. Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty 31

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37 to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted. Q. Can my employer fire me for complaining about a violation of FMLA? A. No. Nor can the employer take any other adverse employment action on this basis. It is unlawful for any employer to discharge or otherwise discriminate against an employee for opposing a practice made unlawful under FMLA. Q. Does an employer have to pay bonuses to employees who have been on FMLA leave? A. The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus, and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave. On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated. Q. Under what circumstances is leave designated as FMLA leave and counted against the employee's total entitlement? A. In all circumstances, it is the employer's responsibility to designate leave taken for an FMLA reason as FMLA leave. The designation must be based upon information furnished by the employee. Leave may not be designated as FMLA leave after the leave has been completed and the employee has returned to work, except: if the employer is awaiting receipt of the medical certification to confirm the existence of a serious health condition, the employer was unaware that leave was for an FMLA reason, and subsequently acquires information from the employee such as when the employee requests additional or extensions of leave, or the employer was unaware that the leave was for an FMLA reason and the employee notifies the employer within two days after return to work that the leave was FMLA leave. Q. Can my employer count FMLA leave I take against a no fault absentee policy? A. No. THE FAMILY AND MEDICAL LEAVE ACT 33

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39 For Further Information THE FAMILY AND MEDICAL LEAVE ACT Here are some sources for additional information on the FMLA: Web Sites The U.S. Equal Employment Opportunity Commission Home Page Findlaw.com labor and employment law links National Partnership The Department of Labor Home Page Telephone Numbers ADA Information Line U.S. Department of Justice For ADA documents and questions (TDD) U.S. Department of Labor (202) Equal Employment Opportunity Commission Equal Rights Advocates National Job Problem Hotline Addresses for FMLA Information U.S. Equal Employment Opportunity Commission 1801 L Street, NW Washington, DC U.S. Department of Labor Office of Public Affairs 200 Constitution Ave., NW Room S-1032 Washington, DC

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