Leave Me Alone! Coordinating Leaves of Absence Under Federal, State, and Local Leave Laws March 12, 2013 Bellevue, WA Presented by: Jim Zissler Littler Mendelson, P.C. Seattle Office JZissler@littler.com 206.381.4909 Deidra A. Nguyen Littler Mendelson, P.C. Seattle Office DANguyen@littler.com 206.381.4931 March 12, 2013 Sources of Leave FMLA Pregnancy Disability Military Leave Military Family Leave Domestic Violence Washington Family Care Act* Jury Leave Voting Leave Firefighter Leave Seattle Sick and Safe Time Worker s Compensation ADA/WLAD Handbook Policies 1
Company Specific Leave Policies Handbook Policies First place to look. Follow your (current and lawful) policies! State and federal laws impact these benefits Application and implementation must be consistent Seattle Sick and Safe Time 2
Seattle Mandatory Paid Sick and Safe Time Effective Sept. 1, 2012 Job protected leave of absence Plus an accrued paid time off bank But no cash out (unless your policy says so) Who is Covered Covers private sector employers Covers employees who perform their work in Seattle Includes part time, temporary, intermittent and seasonal employees Includes employees telecommuting in Seattle Nature of Benefit Sick time: Employee s own illness Illness or medical care of a family member Illness need not be serious Safe time: Business closure or child s school closure due to public hazard Domestic violence No safe time for weather closures 3
Minimum Benefit Tier 1 More than 4 FTEs, less than 50: Accrue 1 hr./40 hours worked ( 7 days/year) Allowed annual caps: 40 hours (5 days) Tier 2 50 or more FTEs, less than 250: Accrue 1 hr./40 hours worked ( 7 days/year) Allowed annual caps: 56 hours (7 days) Minimum Benefit Tier 3 250 or more FTEs: Accrue 1 hr./30 hours worked ( 9 days/year) Allowed annual caps for sick and safe leave alone: 72 hours (9 days) Allowed annual caps for PTO: 108 hours (13.5 days) Pregnancy Disability Leave 4
Washington State Pregnancy Disability Leave Must provide leave to women who are incapacitated as a result of pregnancy or childbirth May ask for a medical certification, but only if employer treats other disabilities in the same way Length of leave is as long as necessary If employer has eight or more employees, employee is entitled to return to work Military Leave (USERRA) Military Leave Applies to all employers, regardless of size. Applies to any service in the uniformed services Active duty, training, national guard/reserve, fitness for duty examinations. Reasonable notice May be verbal 5
Military Leave Reinstatement rights Employee left to perform service Employee gave prior notice Five years accumulated length of service Honorable discharge Timely application for reemployment Service Less Than 31 Days Report for work no later than the beginning of first full regularly scheduled work period on first full calendar day following: Completion of service; plus Eight hours after safe travel home. If return to work is impossible/unreasonable, time period is extended as is necessary. Also applies to Fitness for Duty Examinations Service More 31 179 Days Employee must request reemployment no later than 14 days after completion of service unless impossible or unreasonable through no fault of employee. Untimely request is not an automatic forfeiture of USERRA rights. 6
Service More than 180 Days Employee must request reemployment no later than 90 days after completion of service. What Documents Must Returning Employee Provide? Service 30 days or less: None. Service more than 30 days: Employer may request documentation of release from service, but cannot delay or deny leave if documentation not readily available. Practice Point: Return employee to work and request documentation. Other Protections Continuation of benefits while on leave. But no accrual of paid leave. Return to position service member would have attained with reasonable certainty if continuously employed (escalator principle). Protection from discrimination/retaliation. Protection from termination except for cause. 7
Post Reinstatement Termination Certain returning employees are protected from termination, except for cause : Service 31 180 Days: Six months of protection. Service 181 or more days: One year of protection. Cause reasonable, non discriminatory reason for action, but employee must have notice that the action could lead to termination. Military Family Leave Military Family Leave Applies to all employers, regardless of size. Available to employee whose spouse is a member of the armed forces of the United States, national guard, or reserves, and employee works 20 or more hours per week. 8
Military Family Leave Leave of 15 days during period of military conflict if spouse is deployed or notified of an impending call or order to active duty. Reinstatement to same position. Continuation of benefits. Retaliation is prohibited. Military Family Leave Employee must give notice within 5 business days of receiving official notice of the impending call or order to active duty, or of spouse s leave from deployment. Employee may use accrued paid leave or take the leave as unpaid time off. Domestic Violence Leave 9
Domestic Violence Leave Applies to all employers and employees Provides reasonable leave to employees who are the victims (or family members are victims) of domestic violence, sexual assault, or stalking to: Seek legal or law enforcement remedies to ensure employee s health and safety Seek medical treatment or to recover from injuries Obtain counseling Obtain services from a victim services provider Relocate or secure existing home Washington Family Care Act Washington Family Care Act Applies to all employers with paid leave policies, regardless of size Employees may use paid sick leave or other PTO to care for A child of the employee with a health condition that requires treatment or supervision; or A spouse, parent, parent in law, or grandparent of the employee who has a serious health condition or an emergency condition. Does not govern whether employees may take advanced leave. Employees must comply with employer s policy. Retaliation prohibited 10
Health Condition That Requires Treatment or Supervision Medical condition requiring treatment or medication that the child cannot self administer; Medical / mental health condition which would endanger the child s safety or recovery without the presence of a parent or guardian; or Condition warranting treatment or preventive health care when a parent must be present to authorize and when sick leave would be available for employee s preventative care Serious Health Condition Illness, injury, impairment, or physical or mental condition that involves any period of incapacity or treatment connected with inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, and any period of incapacity or subsequent treatment or recovery in connection with such inpatient care; or that involves continuing treatment by or under the supervision of a health care provider or a provider of health care services and which includes any period of incapacity (i.e., inability to work, attend school or perform other regular daily activities). Emergency Condition Health condition that is a sudden, generally unexpected occurrence or set of circumstances related to one s health demanding immediate action, and is typically very short term in nature. 11
Washington Family Care Act Does not apply to healthy newborns. No restriction on verification. May be counted as FMLA leave. Jury Duty Leave Jury Duty Leave Applies to all employers, regardless of size. If the employee is summoned for jury duty, the employer must provide a sufficient leave of absence to serve as a juror. Unpaid Retaliation is prohibited. 12
Jury Duty Leave Intentional violation of the statute constitutes a misdemeanor. Retaliation also gives rise to civil action for damages and reinstatement. Voting Leave Voting Leave Applies to all employers, regardless of size. Must provide reasonable time (up to two hours ) for employees to vote in election during time that polls are open. 13
Voting Leave If the employee's work schedule does not give the employee 2 free hours while the polls are open (not including breaks), the employer shall permit the employee up to two hours to vote. In such a case, the employer shall add this time to the time for which the employee is paid. Applies only if there was insufficient time for the employee to secure an absentee ballot between the time the employee learned of her schedule and election day. Vote by mail has arguably made this irrelevant. Leave for Emergency Services Personnel Leave for Emergency Services Personnel Applies to employers with 20 or more FTEs in the prior calendar year. Statutory complaint procedure; civil action for reinstatement (with back pay) or withdrawal of disciplinary action. 14
Leave for Emergency Services Personnel Employers are prohibited from discharging or disciplining A volunteer firefighter or reserve officer because of leave taken related to an alarm of fire or an emergency call; or A civil air patrol member because of leave taken related to an emergency service operation. FMLA / Washington Family Leave Act FMLA/Washington FLA Family and Medical Leave Act Applies to: Employers with 50 or more employees within 75 miles for 20 or more weeks in current or previous calendar year Employees of those employers who have (a) worked at least 12 months (may have breaks in service), and (b) 1,250 hours within the last 12 months 15
FMLA/WFLA Employees may take up to 12* weeks of annual unpaid leave for: Birth of employee s child and to care for a newborn child Placement of and care for newly adopted or newly placed foster child Care of a child s, parent s, or spouse s serous health condition Care for the employee s own serious health condition A family member s qualified military absence A qualifying exigency *26 Weeks for Military Care leave FMLA/Qualified Exigency Leave Qualified Exigency Leave: Up to 12 weeks if a family member is on active duty or call to active duty or is deployed to a foreign country Broad permitted uses of leave E.g., military events and related activities, childcare and related activities, financial and legal activities, counseling, rest and recuperation, and post deployment activities FMLA/Military Caregiver Leave Military Caregiver Leave: 26 weeks to care for a covered service member with a serious illness or injury incurred in the line of duty while on active duty Entitled to leave during a single 12 month period beginning on the first day the eligible employee takes military caregiver leave and ends 12 months after that date 16
FMLA Intermittent Leave Intermittent leave: FMLA leave taken in separate blocks of time due to a single qualifying reason Reduced schedule leave: aleave schedule that reduces an employee s usual number of working hours per workweek, or hours per workday FMLA/Certification Process Scrutinize the Certification Must be complete and sufficient (i.e., clear) First step: Designation notice explaining specific portions that are incomplete or unclear 7 day time limit, unless not practicable despite employee s diligent good faith efforts. Second step: Option to seek authorization to speak to medical provider re: clarification FMLA Post Certification Leave Administration Second/Third Opinions: Use sparingly assess basis for doubt and nature of the employee s condition Not available for Exigency or Caregiver Leave Consider suggesting to second medical provider that he/she obtain all relevant medical information pertaining to the serious health condition from the employee s doctor before completing the certification. If employee refuses to authorize, FMLA may be denied. 17
FMLA and GINA FMLA forms implicated by GINA Eligibility/Rights and Responsibilities Notice (Cautionary) Certification of Health Care Provider for Employee s Serious Health Condition Certification of Health Care Provider for Family Member s Serious Health condition Designation Notice GINA Safe Harbor The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. Genetic information, as defined by GINA, includes an individual s family medical history, the results of an individual s or family member s genetic tests, the fact that an individual or an individual s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Washington Marriage Equality Act and FMLA The difference in the definition of spouse between state and federal law creates traps for the unwary employer: Employee in registered domestic partnership/same sex marriage may have ability to take 12 weeks of WFLA and still have 12 weeks of FMLA leave available. Employers who wrongfully deduct exempt employees salary for use of WFLA related to registered domestic partner/same sex spouse may destroy the salary basis, exposing employer to potential liability for minimum wage and overtime. 18
FMLA Reminders Help us help you!!! Ensure you have a process in place to properly designate and track all absences attributable to a FMLA qualifying condition. Ensure your FMLA policy is up to date you need it to designate FMLA leave year (FMLA poster/your policy in handbook/and FMLA notice at end of handbook). The DOL forms are your friends. Worker s Compensation Worker s Compensation Provides paid time loss for on the job injury Job protection arises from WLAD/ADA Consider other laws impact on issues of return to work and leave Retaliation is prohibited 19
ADA / Washington Law Against Discrimination Definition of Disability ADA: Physical or mental impairment that substantially limits one or more major life activities. WLAD: Sensory, mental, physical condition that is medically cognizable or diagnosable. May be temporary Need not be substantially limiting or impact major life activity. Disability Leaves Duty to engage in interactive process. No formal notice required. No magic words. Need not request leave. No prescribed length of leave. Request medical certification. Follow up to determine whether leave is working as accommodation. 20
Additional Resources Littler ASAPs Littler Breakfast Briefing Series March 28 Dealing with Workplace Threats and Workplace Violence April 25 Wage and Hour Issues Questions? Jim Zissler Littler Mendelson, P.C. Seattle Office JZissler@littler.com 206.381.4909 Deidra A. Nguyen Littler Mendelson, P.C. Seattle Office DANguyen@littler.com 206.381.4931 21