FMLA: Legal Update and Best Practices in Administration American Association of School Personnel Administrators March 31, 2016 Presented by Scott D. Macdonald, Esq., SPHR Macdonald & Associates scott@macdonaldhr.com (860) 604-2468 Copyright 2009-2016 by Scott D. Macdonald. All rights reserved.
Some Statistics 285,237 entities covered by FMLA, operating 1.13 million establishments, employing 95.8 million workers In 2005, 77.1 million (80.5% of covered workers) met the eligibility requirements DOL estimated FMLA usage: 7.1 million employees took FMLA leave in 2005; 1.8 million of employees who took FMLA leave in 2005 took intermittent leave (24%) 2
Some Statistics: The 2013 DOL Survey 13 percent of all employees took leave for an FMLA-qualifying reason in 2012 55 percent of FMLA leaves were for the employee s own SHC 21 percent for pregnancy 18 percent for family member SHC Two-thirds receive pay while out on FMLA leave (48% full pay and 17% partial pay) The larger the employer, the more difficult it is to comply The cost of compliance is increasing 3
2013 Regulations Minimum Increment of Leave: 825.205 Clarifying language added that an employer may not require the employee to take more leave than necessary to address the circumstances that precipitated the need for leave, and that FMLA leave may only be counted against an employee s FMLA entitlement for leave taken and not for time that is worked for the employer 4
2013 Regulations Varying Minimum Increment of Leave: Clarifying language is added that employers must track FMLA leave using the smallest increment of time used for other forms of leave subject to a one hour maximum 825.205 5
2013 Regulations FMLA Forms: The FMLA forms and poster are removed from the regulations and no longer available in the appendices in the regulations They are now available on the DOL s Wage and Hour Division website Make sure to use the latest versions 6
2013 Administrator s Interpretation Definition of a son or daughter with a disability age 18 or older: Age of a son or daughter at the onset of a disability not relevant in determining a parent s entitlement to FMLA leave Employers should broadly define "disability" based on the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and that there is no minimum duration for an impairment to be considered a disability 7
2013 Administrator s Interpretation Definition of adult son or daughter with a disability must meet 4 criteria: 1. Have a mental or physical disability as defined under the Americans with Disabilities Act (ADA), as amended; 2. Be incapable of caring for themselves because of a disability requiring active assistance or supervision to provide daily selfcare in three or more of the activities of daily living or instrumental activities of daily living 3. Have a serious health condition which is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider 4. Be in need of care because of the serious health condition to either fulfill basic physical needs or provide psychological comfort or reassurance 8
2010 DOL Interpretation: In Loco Parentis The FMLA permits an eligible employeeparent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition Parent includes in loco parentis relationships: situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child 9
New DOL Interpretation: In Loco Parentis A person qualifies as a parent under the in loco parentis standard if the person either provides (1) day-to-day care of the child, or (2) financial support In June 2010, the U.S. DOL issued an administrative interpretation establishing that the definition of in loco parentis includes any relative, or non-relative, whether living in the household or not, as well as domestic partners of either sex 10
Supreme Court Strikes Down DOMA In light of the Supreme Court s decision in June 2015 that same sex marriage is legal nationwide, same sex married couples are eligible to take FMLA leave to care for their spouse Effective March 27, 2015, U.S. DOL changed the FMLA regulations so that eligible employees in legal same-sex marriages, as well as common law marriages, will be able to take FMLA leave to care for their spouse, regardless of where they live. The DOL has moved from a state of residence rule to a place of celebration rule for the definition of spouse under the FMLA regulations, including marriages entered into outside the United States 11
Caselaw: Teacher Eligibility-1,250 Hours Donnelly v. Greenburgh Central School District No. 7, 691 F.3d 134 (2nd Cir., 2012) SD claimed that full-time teacher only worked 1,247 hours under terms of CBA, which listed daily work hours. Court held that in cases where a plaintiff avers that a relevant compensation agreement (including a CBA) does not accurately reflect all of the hours the employee has worked, the employer has the burden of showing that the employee has not worked the requisite hours. To succeed, employer must show that either the hours alleged could not have occurred or the hours alleged are not compensable as a matter of law according to the principals established under the FLSA. See 825.110(c) 12
Caselaw: Reinstatement/Failure to Train Administrators Wanamaker v. Westport Bd. of Ed., et al., (D. Conn. 2012) Computer teacher went on maternity leave. Complications and health of baby required extended leave. HR told her that her position would be held. A few weeks later, however, the school s principal informed plaintiff that she was being replaced permanently and that when she was ready to return, she could work as a substitute teacher. Teacher offered to return to work if she could work from a chair. Principal rejected accommodation, and teacher remained on leave. Teacher repeated request at end of school year. SD offered her a job as a classroom teacher. Court denied SD s motion to dismiss because classroom teacher may not be virtually identical equivalent position. 13
FMLA Administration: Posting Requirements Notice must be posted in every location displayed in conspicuous places and prominently where employees and applicants can view it (including online applicants) Text must be large enough to be easily read and contain fully legible text Must also be distributed to all employees Electronic posting and distribution is permitted New poster had to be up by March 8, 2013! 825.300 14
Establishing a 12-month Entitlement Period Four alternatives are available under 825.200(b): (1) The calendar year (2) Any fixed 12-month leave year (3) The 12-month period measured forward from the date any employee s first FMLA leave (4) A rolling 12-month period measured backward from the date an employee uses any FMLA leave Employers must select one, apply it consistently and uniformly to all employees, and notify employees in advance which one will be utilized (60 day notice to change) Failure to select one of the options and notify employees results in the employees being able to use the one that provides the most beneficial outcome for them (i.e., the most amount of FMLA leave) 15
Supervisors Role/Training 1. Know all FMLA-qualifying reasons and definitions of serious health condition 2. Know that FMLA applies to any employee, or his/her spouse, parent or child 3. Know obligation to inquire further if necessary: What to ask and when to ask it 4. Know your organization s Leave policies and Return to Work policies 5. Know role while employee out on FMLA leave 16
Supervisors Role/Training 6. Have supervisor inform FMLA administrator: That employee needs, is taking, or took leave that may qualify under FMLA For what potential FMLA reason the employee needs leave Date(s) of actual or anticipated leave 7. Have standard procedure (form) for supervisors to notify FMLA administrator 8. Emphasize Non-retaliation 17
Employee Notice Requirements Method - Need only be verbal notice unless employer has a usual and customary policy on leave notification procedures (e.g., advance written notice, notifying a specific person) Policy cannot require more advance notice than FMLA permits Policy cannot require written notice in case of unforeseeable leave If employee fails to follow policy, the leave is excluded from FMLA-protected leave until the employee complies and the applicable period runs, absent unusual circumstances, or employer can waive requirements 825.302, 303 18
Employee Notice Requirements Content of Employee Notification When requesting leave for the first time for a possible FMLA-qualifying reason, employee must provide sufficient information to make the employer aware that the employee needs FMLA-qualifying leave and the anticipated timing and duration of the leave. Employer still has obligation to inquire if additional information needed Employee has obligation to respond if employee refuses, FMLA-protected leave may be denied 825.301(b), 302, 303 19
Employee Notice Requirements When subsequently requesting leave for the same FMLA-qualifying reason for which the employer has previously designated leave as FMLA leave, the employee must specifically reference the qualifying reason or state need for FMLA leave NOTE: There is no prototype Empl oyee Request Form; employer may require if it normally does so for other types of leave requests 825.302(c) 20
Scheduling Planned Medical Treatment Employee must consult with the employer and make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer s operations, subject to the approval of the health care provider 800.302(e) 21
First Step: Eligibility Notice Cover Letter with Forms? If employee is not eligible, notice must indicate at least one reason why not New notice is required (within five days) if the employee s eligibility status changes (even if a subsequent request is for a different qualifying reason) Eligibility of Instructional Employees: Full-time instructional classroom teachers (not including Guidance, Soci al Workers, Paras) 825.300(b) 22
Rights And Responsibilities Notice Written specific rights and obligations of the employee and consequences of failure to meet obligations Must be provided with Eligibility Notice and include any certification requirement(s), if employee is eligible Include and certification forms required Mail to employee if leave already begun; electronic notice permissible Combined Prototype notice available (WH 381) but inadequate for most employers 825.300(c) 23
Next Step: Review Any Certification Received Five Forms (no longer in Regulations) Employee Certification Form (WH-380-E) Employee s Own Serious Health Condition Employee s Family Member (WH-380-F) Family Member s Serious Health Condition Note: HCP no longer chooses one or more of the six serious health conditions; employer makes determination of whether leave is FMLA-qualifying Certification of Qualifying Exigency Leave (WH-384) Certification for Serious Illness or Injury of Covered Servicemember (WH-385) Certification for Serious Illness or Injury of Covered Veteran (WH-385V) 24
Medical Certification Employee has an obligation to provide a Complete and Sufficient certification (15 day rule still applies) or to provide authorization for HCP to release complete and sufficient certification Employer must inform employee whenever it finds a certification incomplete or insufficient and state in writing what additional information is needed (on Designation Notice) Employee must have seven additional calendar days to cure any deficiencies (unless not practicable) 825.305 25
Medical Certification Authentication/Clarification If certification is complete and sufficient, employer s HR professional, leave administrator, a management official, or HCP (but not the employee s immediate supervisor) may contact employee s HCP directly to authenticate and/or clarify the certification or recertification 825.307 26
Medical Certification Employee Failure to Provide Clarification If employee never provides the requested certification, absent extenuating circumstances, employer may deny FMLA-protected leave, BUT If employee is simply late (absent extenuating circumstances), employer can only deny (delay) FMLA-protected leave for the period of time after the 15-day period has elapsed How late = never? 825.313 27
Next Step: Second & Third Opinions? If employer has reason to doubt validity of certification, employer may obtain second opinion, and if necessary, third opinion; Second and third opinion providers may request HIPAA consent from employee to obtain relevant medical information/records from employee s or his/her family member s HCP. If employee/family member fails or refuses to give consent, FMLA-protected leave may be denied employer may not require a HIPAA consent at any time 28
Recertification Recertification permissible once every six months in connection with an FMLA-related absence Recertification is no longer permitted every 30 days in connection with an absences, unless: Change in severity of condition or complication Change in pattern of absences Absence/incapacity longer than what is specified on certification form last two occurrences Employer receives information casting doubt on employee s stated reasons for absence Employer may provide employee s HCP with a record of employee s absence pattern and ask HCP if the condition and need for leave are consistent with such a pattern 29
Next Step: Designation Notice Must be provided within five (5) days of employer having enough information to determine if leave is FMLAqualifying (absent extenuating circumstances) Only one designation required for each qualifying reason in 12-month period May be provided with Eligibility Notice Must be in writing, but can be simple written statement Combined Prototype notice available (WH 382) but inadequate for most employers because it cannot be modified 825.300(d) 30
Designation Notice Contents If employer will require substitution of paid leave, notice must be provided to employee Employer must notify employee of amount of leave counted against FMLA leave (hours, days, weeks) If not known at time of designation notice, then only upon request from employee, and no more than once each 30 days, and only if paid FMLA leave taken during the 30-day period Notice may be verbally or in writing, but must be confirmed in writing not later than next payday Best practice is to provide written notice 825.300(d) 31
Designation Notice: RTW/FFD If employer will require fitness for duty certification, requirement must be indicated on notice and list of essential functions must be included (can be attached job description) If standard employer policy or handbook requires RTW fitness for duty certification in specific situations, then employer can simply provide verbal notice Best practice is to provide written notice of RTW certification as soon as possible (e.g., at time of Eligibility Notice) 825.300(d) 32
More Designation Rules Disputes as to whether leave qualifies as FMLA should be resolved through discussions, which must be documented Best Practice: Document all discussions Leave may be designated retroactively so long as the employer s failure to timely designate does not interfere with employee s FMLA rights Employer may be liable for failure to designate leave as FMLA if it causes harm to employee 825.301 33
Increments of FMLA Leave For intermittent or reduced schedule FMLA leave, employer must permit leave in increments no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided that: it is no greater than one hour; and the employee s FMLA leave entitlement is not reduced by more than the amount of leave actually taken 825.205 34
Counting FMLA Leave One-Hour Increment Rule: Employer must permit FMLA leave to be taken in increments of one hour Employer may not charge for time spent working at the beginning or end of a work shift Example: If employee is 10 minutes late to work, employer may required employee to wait up to one hour to begin working and receiving pay as part of Employer Policy However, if the employee is permitted to work after arriving late, only time actually used may be charged against FMLA entitlement At the end of a shift, employee can only be charged amount of time actually missed (to the minute?) 35
Calculating FMLA Leave Actual work week is the basis of leave entitlement (e.g., 40 hours, 30 hours) Leave taken is fraction of that week; may be converted to hourly equivalents Example: Employee scheduled to work 35 hours per week, takes 6 hours of FMLA leave, so took 6/35 of a week or 6 hours out of 420 hours of total 12-week entitlement 36
Calculating FMLA Leave If schedule varies to such an extent that employer cannot determine how many hours the employee would otherwise have worked, a weekly average of the hours scheduled over the previous 12 months prior to the beginning of the leave (including periods of leave) must be used 37
Calculating FMLA Leave Holidays occurring during a full week of FMLA leave count as FMLA leave If an employee works any part of a work week during which a holiday falls, the holiday does not count as FMLA leave unless employee was scheduled to work on the holiday 825.201(h) 38
Calculating Leave: Overtime If employee is on intermittent or reduced schedule FMLA leave and would otherwise be required to work overtime hours, any overtime hours not worked due to the leave count as FMLA leave 39
Substitution of Paid Leave Employee s ability to use accrued paid leave during FMLA absence determined by terms and conditions of employer s normal leave policy Employer must inform employees on Rights & Responsibilities Form that they must satisfy the employer s normal procedural requirements for taking paid leave and that if employee does not comply with normal paid leave requirements (absent unusual circumstances), employee is still entitled to unpaid FMLA leave 40
Substitution of Paid Leave Employer s paid leave policy controls regarding use of paid leave: may have different increments for different paid leave purposes (e.g., Vacation, Paid Sick Leave, Paid Personal Leave) may have rules apply as to usage, e.g.: Sick leave used for own illness/injury Sick leave for illness/injury of family member Personal leave for certain purposes but not others Vacation limited to certain times of year 41
Substitution of Paid Leave Exampl e: If employer policy requires that paid sick leave must be used in one-hour or two-hour or half day increments, employer may still require employee to take that amount of time off for FMLA leave if the employee wishes to be paid, but if not, must let employee take off one hour for FMLA leave If sick leave policy permits usage of sick leave to care for a sick child, but not a sick parent, then employer can prevent use of paid sick leave to care for a parent with a SHC under FMLA 42
Substitution of Paid Leave If employee absence does not comply with Paid Leave Usage Policy, employee can still take FMLA leave but without using paid time off benefits while on leave Example: Policy requires vacation to be used in minimum 4-hour increments, but employee has a 2- hour FMLA absence; employee can choose to take 4 hours of FMLA leave and receive vacation pay for it or take 2 hours of unpaid FMLA leave Alternatively, if employer requires the substitution of paid time off while on FMLA leave, employer may waive its 4-hour minimum increment rule and permit the employee to use 2 hours of vacation for the 2-hour FMLA absence 43
Compensatory Time If state or local government employee is absent for an FMLA reason, it counts as FMLA leave even if compensatory time is used for the absence 825.207(f) 44
FMLA & Disability Plans If employer has a disability policy provisions regarding substitution of paid leave policy not applicable Employers and employees may agree, if state law permits, to have paid leave supplement the disability plan benefits Best practice? 825.207(d) 45
FMLA & Workers Compensation If employee has a workers compensation claim in addition to FMLA-designated leave, provisions regarding substitution of paid leave policy not applicable Employers and employees may agree, if state law permits, to have paid leave supplement the workers compensation benefits Best practice: Do not permit use of paid supplement? 825.207(e) 46
FMLA & Workers Compensation If employee is able to return to a light duty job but unable to return to the same or an equivalent job, then employee may decline light duty job and stay on FMLA leave Employee may lose workers compensation benefits but becomes eligible for substitution of available paid leave 47
FMLA & Workers Compensation Revision/New If the employee accepts light duty, right to restoration to the same or equivalent position ceases at the end of the applicable 12-month FMLA leave year Time spent on light duty does not count as part of the 12 weeks of FLMA Leave 825.220(d) 48
Return To Work/Fitness For Duty Employer may have a uniformly-applied policy or practice requiring all similarly-situated employees who take leave for certain conditions provide a fitness-for-duty certification in order to return to work (RTW) Employee must cooperate in providing complete and sufficient certification or authorize release of information by HCP 49
Return To Work/Fitness For Duty Fitness-for-Duty Certifications (Notice) Employer must provide notice no later than Designation Notice that it will require a fitnessfor-duty certification for RTW, and of any requirement to provide one at fixed intervals not exceeding every 30 days if reasonable safety concerns exist and employee is on intermittent or reduced schedule leave. of the consequences for not providing it Note: If employer fails to notify employee of this requirement, no fitness-for-duty certification can be required and employer cannot deny or delay employee s return to work 50
Return To Work/Fitness For Duty Employer is permitted to require either a simple statement that employee is released to work without restrictions or able to perform all essential duties or a written assessment by employee s HCP that employee is able to perform all essential functions Employer must provide list of functions (or job description) with the Designation Notice Budhun v. Reading Hospital and Medical Center, (3 rd Cir. 8/27/2014): If employer fails to provide list of functions, employee gets to tell HCP what the functions are 825.123, 312 51
Return To Work/Fitness For Duty If employee does not submit fitness for duty certification, employer may delay or deny reinstatement and employee may be terminated unless the employer failed to notify the employee of the requirement in the Designation Notice Employer may contact HCP for authentication and/or clarification of the fitness-for-duty certification, but may not delay reinstatement while contact with the HCP is being made 825.312, 313 52
Return To Work/Fitness For Duty Cannot be required for each absence on an intermittent or reduced work schedule unless reasonable safety concerns exit regarding the employee s ability to perform the functions of the position due to the serious condition for which employee took FMLA leave Certification can be no more frequent than once every 30 days Employer must inform employee of this requirement in the Designation Notice 825.123, 312 53
Return To Work/Fitness For Duty Reasonable Safety Concerns A reasonable belief of significant risk of harm to the employee or others at work A high standard to be based on objective factual evidence, not subjective perceptions, Must take into account the medical condition in question and essential job functions; Employer should consider nature and severity of potential harm and likelihood that potential harm will occur (similar to ADA analysis) 825.312(f) 54
Instructional Employee & Intermittent Leave If an eligible instructional employee needs intermittent leave or leave on a reduced leave schedule to care for a family member with a serious health condition, to care for a covered servicemember, or for the employee s own serious health condition, which is foreseeable based on planned medical treatment, and the employee would be on leave for more than 20 percent of the total number of working days over the period the leave would extend, the employer may require the employee to choose either to: (1) Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or (2) Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee s regular position. 825.601 55
Leave at End of Academic Term Limitations on leave near the end of an academic term: SD can require instructional classroom teacher to remain out: If 5 weeks before, last at least 3 weeks, and return would be within last 3 weeks If 5 weeks before (not for own SHC or QE), last at least 2 weeks, and return would be within last 2 weeks If 3 weeks before (not for own SHC or QE), last at least 5 days 825.602 56
Return To Work Instructional Employees Only the period of leave until the employee is ready and able to return to work is charged against the employee s FMLA leave entitlement Employer has the option not to require the employee to stay on leave until the end of the school term Any additional leave required by the employer to the end of the school term is not counted as FMLA leave Health nsurance Benefits must remain in effect over the break (end of calendar year and summer 825.601, 602, 603 57
Restoration to Equivalent Position Applies to all employees of LEA Established school policies and practices and collective bargaining agreements govern restoration rights of employees returning from FMLA leave Must be in writing; Must be made known to the employee prior to the taking of FMLA leave Must clearly explain the employee s restoration rights upon return from leave restoration of an employee to an equivalent position must provide substantially the same protections as provided in the Act for reinstated employees 825.604 58
Necessary Steps Post NEW General Notice, Including Where Applicants Can View It Develop new FMLA Policy Distribute New Notice/Policy Download Regulations to enable search Save a Copy of Form Templates Develop revised Eligibility/Rights & Responsibilities Notice and Designation Notice Train all Supervisory Staff Develop Leave of Absence Policy (including RTW), Outside Employment Policy Develop Tracking/Monitoring system FMLA software is available 59
Questions? To ensure compliance and address all of your FMLA administration needs, please don t hesitate to ask... 60