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F AMILY AND MEDICAL LEAVE ACT AND O THER L EAVES OF A BSENCE May 16, 2012 Illinois ASBO Conference Peoria Civic Center Cheryl Jez & Shawn McLain.

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Presentation on theme: "F AMILY AND MEDICAL LEAVE ACT AND O THER L EAVES OF A BSENCE May 16, 2012 Illinois ASBO Conference Peoria Civic Center Cheryl Jez & Shawn McLain."— Presentation transcript:

1 F AMILY AND MEDICAL LEAVE ACT AND O THER L EAVES OF A BSENCE May 16, 2012 Illinois ASBO Conference Peoria Civic Center Cheryl Jez & Shawn McLain

2 T YPES OF L EAVE Family and Medical Leave Act (FMLA) American with Disabilities Act (ADA) Uniformed Services Employment and Reemployment Rights Act (USERRA) Illinois Family Military Leave Act Illinois Victims’ Economic Security and Safety Act (VESSA) Illinois School Code Leave (Sick Leave) Illinois School Visitation Rights Act Contractual Leave Workers’ Compensation

3 B ASIC FMLA R IGHTS Up to 12 workweeks of leave during a 12-month period because of: Birth of employee’s child, care for newborn Placement of child with employee due to adoption/foster care Care for employee’s child, parent, spouse with serious health condition Employee’s own serious health condition **New provisions related to leave to care for covered service members Right to reinstatement to same or equivalent position, subject to exceptions Right to group health plan benefits continuation

4 12 months; may not be consecutive (exclusion: 7 year gap) AND 1250 hours in the preceding 12 months (24 hrs/wk) 50+ employees/75 mile radius – surface miles by available transportation from worksite (usually waived/does not apply to Public Sector) “No fixed worksite” (i.e. sales): headcount of site they report to Determined at time of request; may re-request count during a leave ELIGIBILITY 4

5 H EALTH B ENEFITS Employers must maintain employee group health coverage Employees must pay their portion of premium. If unpaid, benefits could cease with appropriate employee notification Employers can recover unpaid premiums Employer is not obligated to maintain any other benefits unless benefits are continued for other leave types 5

6 J OB P ROTECTION Entitles employee to resume pre-leave or equivalent position with equivalent pay and benefits Layoffs OR a Reduction in Force No FMLA protection If employment would end as an active employee, the employee can be terminated while on leave No entitlement to accrue seniority while on leave (promotions and benefits) 6

7 “I NSTRUCTIONAL EMPLOYEES ” DEFINED Instructional employee/Teacher — Instructional employees are those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This term includes not only teachers, but also athletic coaches, driving instructors, and special education assistants, such as signers for the hearing impaired. It does not include teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel such as counselors, psychologists, or curriculum specialists. It also does not include cafeteria workers, maintenance workers, or bus drivers 7

8 S PECIAL RULES FOR “ INSTRUCTIONAL EMPLOYEES ” The 50 employee rule does not apply Eligibility requirements for employees apply with the exception that full- time teachers are deemed to have met the 1,250 hours of employment The FMLA has special rules for instructional employees to enable them to take family or medical leave without disrupting the classroom at a critical point in the school term 8

9 L EAVE FOR INTERMITTENT OR REDUCED SCHEDULE Planned medical treatment – < 20% absent work days Take leave for a period of a duration not great than the duration of the planned medical treatment Temporarily transfer to an available alternative position with equivalent pay and benefits Leave begins > 5 weeks before end of a term Employer may require the employee to continue taking leave until the end of the term if the leave will last for at least 3 weeks and the employee would return during the final 3 weeks of the term Any longer leave required cannot be counted against 12 weeks Example: Third grade teacher Mary begins FMLA leave to care for her seriously ill child on Oct. 1 and plans to return to work on Nov. 15. The school term ends on Dec. 1. Mary’s employer may require her to continue taking leave until the end of the term because her return would occur within three weeks of the end of the school semester 9

10 T RACKING M ETHODS 12 month period Calendar year Any 12 month period applied consistently Forward (looks back to a fixed date, the start date of the first leave) Rolling backward (12 month look back for each day taken) 26 month period for Military Caregiver Leave : Forward from first day of Caregiver leave, regardless of FMLA time already taken in the past 10

11 A BSENCE T YPES Continuous Four or more consecutive calendars days off of work Could be Friday, Saturday, Sunday and Monday) Intermittent Reduced number of days in a workweek Reduced number of hours in a day 11

12 I NTERMITTENT S PECIFICS Must meet a serious health condition definition Can be a single injury/illness day doctor appointment, prenatal exam physical therapy, chemotherapy morning sickness Must be measured in same increment of time as other leaves no longer than 1 hour Can be intermittent for care of newborn if agreed upon by employer Must be calculated according to employees scheduled time Required OT missed can be FMLA 12

13 F AMILY M EMBER D EFINITION Spouse Husband or wife as defined by state law including common law marriages. Federal FMLA does not include same sex domestic partners Parent Biological parent or individual who stands or stood in loco parentis to employee. Federal FMLA does not include parents-in- law or grandparents Child Biological, adopted, foster, stepchild, legal ward, or child of person standing in loco parentis. Must be under 18 unless incapable of self-care due to disability (documentation or merely a statement of loco parentis acceptable) Next of Kin for service member leave the nearest blood relative of the individual 13

14 M ILITARY L EAVE O VERVIEW Two Types Qualifying Exigency Military Caregiver Same Eligibility for Employers Special Eligibility for Employees New definitions of “children” New category, “next of kin.” 14

15 M ILITARY F AMILY L EAVES Qualifying Exigency – up to 12 weeks Covered employees may take up to 12 weeks of leave per year to deal with certain issues relating to a family member’s active duty or call to active duty including deployment to a foreign country – starts on the first day of leave Military Caregiver - up to 26 weeks Covered employees may take up to 26 weeks in a single year to care for a family member who is/was seriously ill or injured in active military duty (within 5 years of the military service) – starts on the first day of leave 15

16 M ILITARY P ROVISIONS (Q UALIFYING E XIGENCY ) FMLA allows families of National Guard and Reserve on active duty to take FMLA to manage their affairs, for "qualifying exigency" leave The new rule defines "qualifying exigencies" as: (1) short-notice deployment; (less than 7 days) (2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (5 days) (7) post-deployment activities; (up to 90 days, includes death) (8) additional activities the employer and employee agree to 16

17 M ILITARY C AREGIVER FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. The family member can be a “Next of Kin” Leave is up to 26 workweeks of leave in a single 12-month period measured forward from the first day of leave 17

18 FMLA Serious Health Condition definition is broad and is intended to cover many physical and medical conditions Employees Own Serious Health Condition Care for employees (well) child after birth, or placement for adoption / foster care Care for employees spouse, child, parent, (next of kin if service member) who has a serious health condition Deployment Activities for Military QUALIFYING EVENT 18

19 S IX S ERIOUS H EALTH C ONDITION D EFINITIONS Inpatient care plus incapacity and treatment More than 3 consecutive calendars days of incapacity plus treatment Colds, flu, common headaches, and other common ailments can qualify Pregnancy-prenatal care Chronic conditions Permanent & long-term conditions Multiple treatments 19

20 R EQUIRED V ISITS TO A H EALTH C ARE P ROVIDER If leave involves more than three consecutive calendar days of incapacity plus two visits to a health care provider two visits must occur within 30 days of incapacity first visit in person within 7 days of first date of incapacity If the leave is for a chronic serious health condition, there must be at least two visits/year to the health care provider 20

21 E MPLOYER N OTICE - 5 BUSINESS DAYS ( NOT 2) WHEN: employees request FMLA leave when employers acquire knowledge that an employee’s leave may be for an FMLA-qualifying reason ACTION: employers must notify employees of their eligibility to take FMLA leave within five business days, absent extenuating circumstances

22 E LIGIBILITY N OTICE Eligibility notice must include: “Rights and Responsibilities” that detail expectations/obligations and explain any consequences of the employee’s failure to comply – Notice of rights and responsibilities may be distributed electronically if it meets the requirements in the law Requirements to provide medical certification, the right to substitute paid leave, whether to and how to pay premiums for benefits, and job restoration rights upon expiration of FMLA leave May include the FMLA medical certification form 22

23 D ESIGNATION N OTICE Notifies the employee of exactly how much time is applied to FMLA If not possible for employer to determine how much time will be used, employer must provide the information every 30 days upon employee’s request if leave is taken within the 30-day period Must inform employees of Fit for Duty requirements and essential functions of job if doctor certification requires Job Description review Rights and Responsibilities notice is to be included if not already sent with eligibility notice 23

24 E MPLOYEE R EQUIREMENTS Employees must comply with usual and customary notice and procedural requirements for requesting leave (absent unusual circumstances) Requirements may include providing written notice of the reasons and anticipated start and duration of the leave or requirement that employees contact a specific individual to request leave Examples of “unusual circumstances” include: a) no one answered telephone number the employee called b) company voice mail box is full c) employees are unable to use telephone because they are seeking emergency treatment 24

25 E MPLOYEE R EQUIREMENTS Employee to explain : reasons for leave to allow a determination as to whether the leave qualifies calling in sick is not considered sufficient notice to trigger an employer’s FMLA obligations If employee fails to explain the reasons, leave may be denied Note, if self reported for 2 days and not at work on 3 rd, employer should consider this may qualify and provide FMLA notice Employee to give information : must specifically reference the qualifying reason for leave or the need for FMLA leave 25

26 C ERTIFICATION OF S ERIOUS H EALTH C ONDITION Certification from health care provider must be submitted by the employee within 15 days of the request Certification must state that the employee is unable to perform job functions is needed to care for a child, spouse, parent or next of kin (service member leave) and the estimated amount of time needed to care for the family member 26

27 I NCOMPLETE C ERTIFICATIONS New rule’s for incomplete/insufficient certifications : Notify employees in writing of the additional information that is needed within 5 business days Allow 7 calendar days to provide the additional information If employees fails to submit a complete/sufficient certification, the FMLA leave may be denied No obligation to notify employee that the document has not been received 27

28 A MERICANS WITH D ISABILITIES A CT Covered Employers: 15 or more employees Within 20 or more calendar weeks in current or preceding year 28

29 W HAT IS A D ISABILITY ? Physical or mental impairment, or History of impairment, or Perceived as having an impairment… … Which substantially limits one or more major life activities. 29

30 M AJOR L IFE A CTIVITIES Caring for oneself Performing manual tasks Walking Seeing Breathing Learning and/or working 30

31 “ S UBSTANTIALLY L IMITS ” Unable to perform a major life activity, or Significantly restricts the condition, manner, or duration under which an individual can perform a major life activity as compared to average person. 31

32 Q UALIFIED I NDIVIDUAL WITH A D ISABILITY With or without reasonable accommodation, can perform “essential functions” of the job. 32

33 R EQUIREMENTS AND L EAVE UNDER THE ADA District required to provide reasonable accommodations to perform essential functions of job unless undue hardship Reasonable accommodation may include flexible leave time and modified work schedules. Leave is reasonable accommodation only if it may help an employee eventually perform the essential function of the job. 33

34 2009 ADA A MENDMENTS Went into effect January 1, Undo a decade of employer-friendly ADA court decisions. Require courts to interpret the term “disability” in a much broader fashion. Require courts to disregard ameliorative effects that mediation or other assistive devices may have on an individual’s physical or mental impairment for purposes of determining whether or not they have a “disability.” Broaden the definition of “major life activity”. 34

35 USERRA USERRA is the acronym for the Uniformed Services Employment and Reemployment Rights Act of Establishes the cumulative length of time that an individual may be absent from work for military duty and retain certain employment rights. 5 years, with some exceptions: initial enlistments lasting more than five years, periodic National Guard and Reserve training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. 35

36 USERRA USERRA provides that returning service- members are reemployed in the job that they would have attained had they not been absent from military service with Same seniority Same status Same pay All other rights and benefits determined by seniority. Requires reasonable efforts be made to refresh/upgrade returning service members’ skills to help them re-qualify for employment. 36

37 USERRA Other requirements and issues: Notice requirements Health coverage Pension continuation Department of Labor, Veteran's Employment and Training Services provides enforcement assistance to persons having USERRA claims. Growing area of litigation—just be aware of the issue and the law. 37

38 I LLINOIS F AMILY M ILITARY L EAVE A CT Family military leave is leave requested by an employee who is the spouse, parent, child, or grandparent of a person called to military service lasting longer than 30 days with the State or US pursuant to the orders of the Governor or President. Leave occurs during the time federal or state deployment orders are in effect 38

39 I LLINOIS F AMILY M ILITARY L EAVE A CT Employers Employees: Employees receive up to 15 days of unpaid family military leave. Employers 50+ Employees: Employees receive up to 30 days of unpaid family military leave. Number of days may be reduced by number of days provided to the employee under Section 102(a)(1)(E) of FMLA. Leave may consist of unpaid leave. 39

40 I LLINOIS V ICTIMS ’ E CONOMIC S ECURITY AND S AFETY A CT (VESSA) Employee who is a victim of domestic or sexual violence, or who has a family or household member that is the victim of domestic or sexual violence whose interest are not adverse to those of the employee, may take unpaid leave from work to address the issue in a manner provided for in 820 ILCS 180/20(a). The employer may require the employee to certify that the victim has been the subject of domestic or sexual violence and that the leave is being taken to address the violence. 40

41 I LLINOIS V ICTIMS ’ E CONOMIC S ECURITY AND S AFETY A CT (VESSA) Employees: 8 weeks during any 12-month period. 50+ Employees: 12 weeks during any 12-month period. Intermittent or on reduced leave schedule. Confidentiality provisions requiring the strictest of confidence. Unpaid leave 41

42 I LLINOIS V ICTIMS ’ E CONOMIC S ECURITY AND S AFETY A CT (VESSA) Employee who takes leave entitled to: Same or equivalent position as when leave started No loss of benefits accrued prior to taking leave Maintained group health coverage Employee not entitled to: Accrual of seniority or employee benefits Position employee would have been entitled to if they had not taken the leave IL Department of Labor enforces violations. 42

43 I LLINOIS S CHOOL C ODE L EAVE Several Types in School Code: Sick Leave Jury Duty Leave Sabbatical Leave Association President Leave Retirement Trustee Leave Teaching Overseas Sick Leave is most common type of leave used from the school code. Teacher may not be discharged for using sick leave when it is used for an appropriate purpose. 43

44 I LLINOIS S CHOOL C ODE L EAVE : S ICK L EAVE School districts must give their full-time teachers no fewer than 10 sick leave days per school year. (105 ILCS 5/24-6). All 10 days become available on the first day of school (unless different in CBA). Unused sick leave may be accumulated to at least 180 days. Leave may be used for personal illness, home quarantine, or serious illness or death in the immediate family or household. 44

45 I LLINOIS S CHOOL C ODE L EAVE : S ICK L EAVE Employee may also use sick leave to stay at home with sick spouse or child without losing pay. School Board may require employee to submit a physician’s certificate to support a claim for sick leave pay for personal illness more than 3 days or 30 days for the birth or as a the school board may deem necessary in other cases. If the leave was fewer than 3 days, then the District must pay the expense of obtaining the certificate. For paid leave for adoption or placement for adoption, the school board may require that the teacher or other employee provide evidence that the formal adoption process is underway, and such leave is limited to 30 days unless a longer leave has been negotiated with the exclusive bargaining representative. 45

46 I LLINOIS S CHOOL C ODE L EAVE : J URY D UTY L EAVE An employee who is summoned for jury duty must be given time off and may not be discharged if the employee gives reasonable notice to the employer. A teacher does not lose salary as a result of jury duty, although the board may deduct the amount received for jury duty from the teacher’s pay. 105 ILCS 5/

47 I LLINOIS S CHOOL V ISITATION R IGHTS A CT Employer must grant an employee leave up to 8 hours during any school year; no more than 4 hours may be taken on any given day Employee must be employed at least 6 months and employed at least part ‐ time Part-time is specific to employer’s polices and procedures or collective bargaining agreement 47

48 I LLINOIS S CHOOL V ISITATION R IGHTS A CT Cannot be taken unless all accrued time ‐ off, with the exception of sick and disability leaves, has been exhausted. This includes accrued vacation and personal leave. Leave is generally unpaid or employee can request to utilize a make-up shift if there is a reasonable opportunity to do so. If it would require overtime, it is not reasonable. Employee benefits will continue during the leave 48

49 I LLINOIS S CHOOL V ISITATION R IGHTS A CT Upon completion of school visitation rights, the school administrator shall provide documentation of the school visitation. The employee will be required to submit such verification to the manager within two working days of the school visitation. Failure to complete any of the necessary notification may result in disciplinary procedures. Employer penalty for violation of act is a fine of not more than $

50 C ONTRACTUAL L EAVE Bereavement Leave Personal Leave Extended Leave w/o Pay 50

51 I LLINOIS W ORKERS ’ C OMPENSATION Compensating injured employees. 820 ILCS 305/1 et. seq. May run simultaneously with FMLA and counted against FMLA Paid leave cannot overlap Work Comp pay v. sick leave WC is paid leave and employer can’t require employee to take other forms of paid leave at same time (unpaid FMLA leave may run at the same time) 51


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