FMLA Requests Does an employee have to specifically ask for FMLA leave in order for us to begin the FMLA process?

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1 FMLA Frequently Asked Questions The questions and answers below are meant to offer guidelines in accordance with Human Resources best practices, and do not constitute legal advice of any kind. All answers are based on the federal Family and Medical Leave Act (FMLA) and the Vermont Parental and Family Leave (VPFL). Please keep in mind that you as an employer may have leave policies and contract obligations above and beyond FMLA and VPFL that may need to be taken into consideration once FMLA and VPFL requirements are met. Question FMLA Requests Does an employee have to specifically ask for FMLA leave in order for us to begin the FMLA process? What forms should I use when an employee is going out on FMLA leave? Answer The employee does not have to specifically ask for FMLA leave. All an employee needs to do is provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request. The rationale behind this is that not all employees will fully understand the different components of whether or not a leave falls under FMLA, so the burden is put on the employer to bring it to their attention, and gather the appropriate information so that a determination can be made. The employee does not make the determination of whether or not a leave falls under FMLA. Once a particular situation has been approved as FMLA, the employee then needs to specifically mention FMLA or that particular qualifying event when scheduling appropriate FMLA time off; in other words, it is up to the employee to notify the employer that time off is related to the qualifying event rather than a personal or vacation day, for example. Please look in HR Made Simple s VSBIT library for the following: FMLA, Step by Step Instructions FMLA Forms Determination of Eligibility Do we have to offer FMLA, even if we know the employee isn t interested in taking it? How do I determine the number of hours worked for teachers for FMLA and VPFL? Yes, you are required to notify employees of their eligibility for FMLA if you believe an employee s situation might qualify. You can also designate a leave as FMLA if it meets the criteria. Designating the leave as FMLA protects the employee s job and benefits, and also protects the employer from having to provide MORE than 12 weeks of job protected leave should that same employee experience another FMLA-eligible event. The employee should be informed in writing that the leave is being designated as FMLA. In the federal FMLA, full time teachers are assumed to work the required 1250 hours as long as they have been working as required for the previous 12 month, as it s assumed that teachers work additional hours grading papers, making lesson plans, etc., over and above their weekly classroom

2 time. Similarly, you should assume for the purposes of the state law that all your full time teachers who have worked for you for 12 months have worked at least 30 hours per week. How do I determine the number of hours worked for part time employees? The state law is more generous than the federal law in determining hours worked in that it requires you to include sick and vacation time as time worked, and divide by 52. Therefore, I suggest that you determine actual hours worked, plus sick and vacation time, in making your hours determination. In the unlikely event that an employee would qualify for VPFL but not FMLA, the provisions are so similar that you might want to approve the leave as FMLA regardless, since you are always permitted to be more generous than FMLA calls for. You have to keep these calculations with the FMLA request for 3 years. FMLA and Paid Time Off FMLA and Workers Comp We have an employee who doesn t want to use his accrued sick time while out on FMLA leave. Can we require him to use it? We have an employee who is eligible for FMLA but doesn t want to take it because he has enough accrued sick time for his anticipated three week leave, and wants to save his FMLA time. Can we require him to take FMLA? If an employee is out of work due to a worker s comp injury should he also be placed on FMLA? What if my employee who is on Workers Comp has been released Not in Vermont. Although FMLA allows the employer to require employees to utilize accrued but unused time during their leave, the VT Parental and Family Leave law does give the employee the choice to either use accrued paid time off, or take the time without pay. Since the employer is required to follow the leave law that provides the maximum benefit to the employee, you cannot require the employee to use the accrued time while on leave. Yes, under both the federal and VT laws. Paid time off runs concurrent with FMLA, and the employer has the right to designate the leave as FMLA if the leave qualifies as FMLA. Designating the leave as FMLA protects you from having to provide the employee with more than 12 weeks of leave. The employee should be notified in writing that the time off will be designated as FMLA. Yes, the employee should be placed on FMLA. FMLA runs concurrent with time out of work due to workers comp, since it is a serious health condition and FMLA does not differentiate between work related and non-work related injuries. You need to inform the employee in writing that the WC leave will count against, and run concurrent with, FMLA. Since you will already have medical certification from workers comp, you do not need to have a doctor complete an additional FMLA medical certification. This should be considered as reduced or intermittent leave under FMLA, which is required if there is a medical necessity. (See Intermittent or

3 to work part time? Reduced Leave below for additional information on special rules for schools) Intermittent or Reduced Leave Our employee had a baby. She still has FMLA time left, and would now like to return to work part time until her leave runs out. The baby is healthy and she has been released by her doctor to return to work. Do we have to allow her to work a part time schedule until her time is used up? We have an employee who needs to work part time due to medical treatment. However, such a schedule will be disruptive to the learning environment. Do we need to accommodate the request? No, you do not have to approve intermittent or reduced leave if there is no medical necessity for such a schedule. It depends on how many days per week the employee can work. FMLA has special provisions for schools concerning intermittent or reduced leave so as not to disrupt the learning environment, as follows: 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 service member, 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. Periods of a particular duration means a block, or blocks, of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed, and may include one uninterrupted period of leave. 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. These rules apply only to a leave involving more than 20 percent of the working days during the period over which the leave extends. For example, if an instructional employee who normally works five days each week needs

4 to take two days of FMLA leave per week over a period of several weeks, the special rules would apply. Employees taking leave which constitutes 20 percent or less of the working days during the leave period would not be subject to transfer to an alternative position. FMLA and Military Caregiver/Qualifying Exigency FMLA and the ADA FMLA and Confidentiality What if I have an employee who needs time off to care for a family member who was injured in the line of duty? I have an employee whose spouse is being deployed. As a result, she now needs to arrange for additional care for the spouse s mother, who suffers from dementia and was often cared for by her son. Is she eligible for time under FMLA? What do I do if I have an employee with an ongoing medical condition whose doctor has said he can no longer work full time? Our employees do not want to provide us with medical certifications, because they feel it is none of our business what their medical condition is, especially since they have sick time accrued that they are entitled to. How do I get them to complete the forms I need for FMLA? Family members are eligible for up to 26 weeks of FMLA leave to care for an injured or seriously ill military member. Revisions that took effect in February of 2013 also include caring for certain eligible veterans. Please refer to the document in the VSBIT Library, under FMLA, entitled Military Service and Family and Medical Leave Act for complete details, including the definition of Covered Veteran and Serious injury or illness. Yes. The modifications that went into effect in February of 2013 add parental care as a qualifying exigency for which leave may be taken. The leave covers time off to care for the parent on an urgent, immediate-need basis, or to make arrangements for longer term care, but not for ongoing routine, regular care. Please refer to the document in the VSBIT Library, under FMLA, entitled Military Service and Family and Medical Leave Act for complete details. FMLA will come into play until leave time has been exhausted (see Intermittent or Reduced Leave above), but if there are indications that this is a long term situation, you should also be considering the Americans with Disabilities Act (ADA) with this request. Proceed as you would with any employee requesting a reasonable accommodation, which in this case is to work part time. First, it s good practice to have a policy requiring employees who will be absent more than a few days for illness to provide a doctor s note. Even if an employee s absence does not turn into FMLA leave, you are ensuring that your employees are taking sick time due to illness, and you are planting the seed that absence from work IS your business because the employee was unable to perform the work he or she was hired to do. Second, I would suggest communicating to your employees that these laws are for their benefit and job protection, and that you as the employer are required to be in compliance with FMLA regardless of your district s individual sick leave policy. As part of that compliance, you need to certify their need for leave, which means obtaining certified medical information. It should also be emphasized that all information you receive concerning their medical issues

5 Job Elimination Question Answer will absolutely be kept confidential by whoever is in charge of receiving the forms and approving the leave. Finally, if an employee still does not provide you with the necessary forms, then you can deny the leave and address it as an unexcused absence. We have an employee whose job is being eliminated. However, that employee is currently out on FMLA, and the job is being eliminated before he is due to return. What do we do? Employment will end when the job is eliminated, regardless of when the leave was due to end. The employer s responsibilities to continue FMLA leave, maintain group health plan benefits and restore the employee to the position held when the leave began cease at the time the employee is laid off. Just make sure you are well documented that the job would have been eliminated even if the employee wasn t on leave. School Vacations and Holidays During Leave We have an employee whose contract we were not planning to renew. However, that employee will now be on FMLA at the time the contract is due to expire. Are we now obligated to extend the contract or guarantee the employee a comparable job elsewhere? Does summer vacation count towards FMLA leave time? If an employee is on FMLA leave for a normally-paid holiday, do they get holiday pay? Do school breaks during the regular school year, such as Christmas break, count towards FMLA leave time? No, you do not have to extend the contract or guarantee the employee a job, since the job is terminating of its own accord at the end of the contract. Employment will end at the end of the contract, as will the benefits and job protection. However, make sure you are well documented as to why the contract is not being renewed, so that the non-renewal does not appear to be related to the leave. No, if the employee would not have been required to report for duty during that time. The employee should also receive any benefits over the summer vacation that employees would normally receive if they had been working at the end of the school year. If the leave continues into the next semester, leave is considered consecutive rather than intermittent. No the employee does not get holiday pay while on leave. Yes, breaks other than summer vacation count towards FMLA time.