FMLA and QUALIFYING EVENT Sample Questions & Answers

Transcription

1 FMLA and QUALIFYING EVENT Sample Questions & Answers Your Qs re Concurrence and Qualifying Event An employee has injured his back recently which apparently exasperated a previous back problem I think, however he did get injured. WC papers were completed and called in. He went to a WC doctor and was off and has returned to work. The employee is requesting FMLA since he will likely have to be absent intermittently as a result of this injury and therefore he wants to be covered. Perspective: If his reason for absence meets any one of the 6 FMLA pathways, then the absence should be FMLA + WC. However it would be coded as only WC in BTS. For example, one of the six pathways would be having a chronic condition causing repeated incapacity in which a health care provider sees the employee on a continuing period over any time semi-regular time frame, such as even infrequently as every six months. I was previously informed that WC can run concurrently with FMLA but there isn't a specific Attendance Code in the payroll system that combines FMLA & WC like it does with IL, KC and PN etc. Perspective: Correct. Counting the FMLA would be done outside the records of BTS, or just consider that WC represents FMLA as well for this employee. Of course, you need to deliver to the employee FMLA form "FMLA - 1", even if it's WC. His supervisor has come to me stating that the Performance Evaluation states that they need to record absences including WC absences. Perspective: It's OK to record FMLA and/or WC absences. FMLA absences do not need to be invisible absences. However, FMLA absences, or absences that should have been recognized by mgmt as FMLA, must be noted in writing as not being used in any negative factor at all on the evaluation. If she needs to include the WC absences on the evaluation how does that affect the employee if the WC is protected with FMLA? Perspective: If protected by FMLA, then the absences can be identified, but cannot be used for any sort of negative comment, no matter how minor the comment or the absences may be. **************************************************************** Your Qs re Qualifying Event and Reasonable Accommodation: I have an employee who has exhausted all leave of absence quotas. Officially as of June she is on unpaid status and FMLA is also exhausted for the year. Most likely she will not qualify for FMLA benefits in July when she will be eligible to qualify again. My questions are: 1. Can she request a modified work schedule (half days) to help her adjust coming back to work instead of taking on full work days?

2 Answer: This question - about what management's response ought to be - should be answered in 3 different ways, although it could be the same answer 3 separate times. We should examine what does the law require; what do the union contracts and District policy allow; and what preferences does the employee's administrators possess in response to such a question. First, the law: Even if she is now ineligible for FMLA, there are other legal requirements to consider return-to-work half-time if the employee has a legally qualifying disability, and if the return half-time would not cause an undue hardship. I would need to know more details of the employee's situation for me to comment further. Our Reasonable Accommodation Program and Return-to-Work Program could assign one of the staff members to explore this issue further. Second, the contracts and policy: Again, I'd have to know more specifics to apply the contract. Generally speaking, the District has a policy to return employees; in that light, your questions should be viewed favorably toward returning the employee. Third, your administrative managers need to evaluate what their preferences, which I would need to know more details. 2. If she is on a modified work schedule is this considered loss of wages and will she qualify for EDD (self illness). Answer: The criterion to answer this Q is whether the employee's assignment changes. If the employee is now a 3-hour employee in the assignment, then there would be no opportunity for EDD. If the employee is still a 6-hour employee in the assignment, then 3 hours are a partial segment of the workday. In the latter scenario then there would be some opportunity for EDD to make partial payments for the absent 3 hours. ********************************************************************** Your Qs re Forms for FMLA/PDL: I am filling out the "Certificated Request for Leave of Absence Form". Should I turn this into my school before I leave for the summer? Perspective: I would suggest that you hand in the request early, just to document that you have given notice in plenty of time. Just to clarify, on this form, I check that I am requesting a leave of absence and when it asks to give dates?? Perspective: Give the dates as best you know them. You can always make alterations to the dates if events require changes. Do I wait till I have the baby to turn this in? Perspective: I'm not sure of the direction of this question - it seems that it's the opposite image of the first question - if yes, then the first question addresses this point.

3 The reason for the leave would be... Pregnancy-Related Disability Leave Perspective: Yes Or just the pregnancy leave? Perspective: This type of leave is typically unpaid because it is Not based on any doctorcertified disability. I understand I have to have my doctor fill out a note. Perspective: It's more than just a note - it's the FMLA Certification of Health Care Provider, or HR's Certification of Health Care Provider. Either one. They're basically the same. Do I have to get HR approvals? Perspective: Submit it to the Principal, and typically the SAA will forward the paperwork for you. If the SAA does not submit on your behalf, then just mail it to HR Placement and Assignments. For example...it says I need signatures from the Employee Health Services and Special Leaves Section Perspective: These requirements do not seem familiar to me...hr division, Perspective: Yes, you need HR's approval. ************************************************************************ Your Qs re Completing Forms and Pregnancy I am an Elementary School teacher with LAUSD. I work the traditional calendar year. I am now 35 weeks pregnant. Since this is my first child and my first time filling out LAUSD paperwork, I wanted to check with you on a couple of things to make sure I do things correctly. Although it may change, my delivery date is scheduled for July 11th. Perspective: Thus, your delivery and initial recovery will be during off-track time. I presume that your absences will start in late Aug or early Sept. If the baby comes on that day, when do I submit my paperwork and to whom? Is the correct form the leave of absence form? Perspective: You'll need to submit a leave form to your site for Principal's acknowledgement; an FMLA Certification of Health Care Provider FMLA or in its place, the Certification of Health Care Provider from HR Placement and Assignments; and an absence form to the site time reporter. It all goes to your site, with the first and second documents then going on to HR if your absence from early Sept goes into Oct, or otherwise more than 20 consecutive working days. Which box should I check? Perspective: Check the boxes that reflect that you are disabled by pregnancy, or boxes that have the same or equivalent words.

4 Am I correct to say that the district allows 6 weeks of paid time from the day that the baby is born? Perspective: No, this statement is not always correct. The District gives you protected time off for which you are entitled and for which your health provider certifies you as disabled. If your doctor only gives you 5 weeks, then you get 5 weeks. Additionally, if you are delivering during off-track time, then your time to recover as certified by the doctor begins before you start work again, but you're not paid your illness time during this offtrack time. As a teacher, you'll get paid your annualized pay, but it won't be based on any illness pay. After the 6 weeks, I plan to take FMLA. Am I correct to say FMLA is 12 weeks with no pay (unless I use sick days), but I would still keep my insurance? Perspective: Yes, you are partially correct. But it's not actually FMLA, it's CFRA which is the State equivalent. CFRA provides for the 12 additional weeks of unpaid bonding. For bonding you cannot use your illness days. I believe I fill out the same form again, but check a different box. Is this correct? What box would I check? Perspective: Yes, use the same forms (leave form and absence form), different boxes. It would be bonding with new child. I plan to make it through this week and next. In the event that I am not able to, would I then go on pregnancy disability? Perspective: Yes Does that mean that my 6 weeks would start from that disability date? Perspective: Yes, it would start, but you get whatever time your doctor certifies, as long as all of the time-off is legitimately disabling and you stay below the maximum cap of 18 weeks. If not, what would happen? Perspective: An early short leave ahead of delivery would not alter the facts and answers above. How many days prior to returning should I submit paperwork? Same form? Perspective: Well, there's no red-letter time frame for returning. The FMLA suggests as much time as reasonably available, but FMLA requires only two-day notice. Is there anything else I should know and/or am missing? Perspective: I've attached two Q&A Fact Sheets above. If they generate any more Qs, let me know. ********************************************************************************** Your Qs re Employees Obligations:

5 A couple of weeks ago, we discussed the situation with one of our employee s excessive absences, and I have a question about this case. If you recall, your FMLA Programs Section assisted me by composing Clarification questions, to be completed by his physician whose responses regarding the employee s condition seem to have been genuinely validated. So now that the employee is indeed protected by FMLA, I have the following question When he calls-in to inform his supervisor that he will not be in, he mentions that it s due to his elbow and wrist. Yet he makes no mention of reporting himself under FMLA. Perspective: The employee who does Not report the word FMLA is Not a problem for that employee, and Not a requirement for the employee. Because his elbow and wrist condition has been verified by his physician on the FMLA-23 form, does he need to actually use the term FMLA when he phones-in? Perspective: No, he does not. It would be in violation of the U.S. DOL Regulations to require him to use that term. Of course, if the employee chooses to use the term, or if the employer suggests that he use this term, then that s fine. or shall we presume that when he mentions his elbow and wrist, it is in fact, the condition under which he has filed for FMLA protection? Perspective: Yes. What the District can require is sufficient information from the employee for each day of absence that either reasonably identifies or reasonably allows the supervisor/designee to recognize the FMLA situation. *********************************************************************** Your Qs re Designation I have an employee who would like to have FMLA designated for intermittent absences beginning last month. She just informed me of this last week. How shall I respond to her? We have to see what are the facts here. If the employee gave enough information at the time of each absence for a well-trained-in-fmla manager/designee to be able to recognize the absence as FMLA, or should have recognized FMLA, then that's Scenario # 1. We can provide guidance once we know, which we would typically give retroactive protections. If the employee did Not give enough information at the time of each absence for a welltrained-in-fmla manager/designee, and therefore the manager was Not able to recognize the absence as FMLA, and should Not have recognized FMLA, then that's Scenario #

6 2. We can provide guidance once we know, which we would typically Not give retroactive protections. We need to answer these sub-qs above first, before we can proceed. Let me know. 2. I can't locate the intermittent form in the FMLA FORMS. Please send one via . A few very basic FMLA forms are attached above but there s no special form for designating intermittent FMLA. Therefore, you should consider FMLA -18, along with the standard FMLA forms, FMLA 1 and FMLA 3.2. ******************************************************************* Your Qs re Leave of Absence We just met to discuss this situation and have some questions for you. In the first paragraph below, you indicated that this employee was on leave for an extended period of time. Did you mean to say that she had submitted and been approved for taking a leave of absence? Perspective : The fact that the employee was approved for leave gives the employee authorization to take the leave, but approval is no direct indicator that the employee's absence/leave has any protection, such as under FMLA, CFRA, or PDL.... or were you using the term leave to mean absent from work? Perspective : I don't see "this either/or choice" as mutually exclusive, but I would choose, if required, this second interpretation as more reflective of my meaning (the word leave was used to mean absence from work ). Some individuals at the table seem to think that a person cannot be counted absent if they are on leave Perspective : Let's identify exactly what these "some individuals" are probably asserting. To do this, let's rephrase your statement. Some individuals at the table seem to think that a person cannot be counted absent, and therefore receive protected status, if they are on leave Perspective : Leave does Not automatically equate with protection. From a legal perspective, unprotected leave is unprotected absence. From the District's perspective, there is absolutely no LAUSD rule that is any different. All of the union contracts and bargaining agreements spell out leaves as simply more than 20 consecutive working days

7 requiring centralized District approval, but there is absolutely no reference to protection in the mere fact of receiving approval for leave. Let me repeat, the contracts make no reference to protections being associated with a leave. Instead, the contracts all make reference to protections being associated with FMLA. As we all know, to qualify for FMLA protection, there are several key factors. There is nothing in FMLA criteria that identifies "approved leave" as any criterion. Thus, if there is no FMLA/CFRA/PDL protection, then management can count leave as an absence. There was an old workers comp claim (from 1999) that she accessed, does that have any bearing on codes for absence recording? Perspective : Without knowing more about this WC claim, I'm not able to answer this question. But we wouldn't know for sure without contacting our WC section. These employees are e-basis and do not begin work until the end of July each year. I assume then that most of the month of July is just blacked out as opposed to recording as absences correct? Perspective : Yes, correct. ************************************************************************ Your Qs re FMLA Care of Family:... to be clear on this, someone at our office has his child ill, and he will be going to be on/off from work, intermittent or consecutive absences, he is not sure yet, I gave him the FMLA packet FMLA 1 and 3.2 to give to the doctor. This law is very confusing. It is good but confusing. Perspective: Yes, you're right, the rules are "good yet confusing". For absences, any absence, an employer and designee (as well as the employee) should analyze "pay" and then separately analyze "protection". After separate analyses, then the two answers are combined together, such as FMLA protection with pay; or FMLA protection without pay; or no protection, but pay. You could also have unpaid and not protected. Does the law provide 12 weeks total in a year? Perspective: Yes, for purposes of protection. For purposes of pay, KC is 6 days, PN could also be a path of pay for another 6 days, and then there's probably VA too. However, it's not IL, nor FCIL, because the employee is not ill. Also am I going to report him KC all the time? Perspective: Probably No. After 6 days (or 6 equivalent days since KC can be taken in increments of less than a day), the employee and the time reporter need to move onto PN, VA, or UP. Or if there's FMLA protection, then it's 6 days of FCKC, and then the employee

8 and the time reporter need to move onto FCPN, or FCVA, or FCUP. Or these codes could go in several different orders if the employee so requested. *************************************************************** Your Qs re FMLA and Z-time: We were just informed that one of our teacher s is undergoing chemotherapy and radiation treatment. Perspective: Sounds like an FMLA-qualifying event... He s a C Basis employee which means he is off for the summer. In his case, he signed a contract and accepted a summer assignment (Z Time) which began July 1 st. Perspective: As for FMLA, if he is/was scheduled to work, and if he is FMLA eligible with 130 workdays in the last 12 months, then he receives the protections. His yearly basis is mostly immaterial, as long as he was scheduled to work. I write "mostly", because if both sides were to want to cancel the summer contract, and therefore save his FMLA, then this latter alternative would be acceptable too. He was recently diagnosed with cancer and due to the chemo and radiation treatments he is undergoing on a daily basis; he was unable to report to work the first day, July 1 st and will not be able to work for the rest of the summer. Perspective: Either you have to give him the protections and the illness pay, or both sides have to agree to cancel the contract, and save his protections (without the use of the illness pay). What could we do for him at this time? We are hoping there s a clause through FMLA/CFRA protecting him and/or paying him for the time off! Perspective: As you can see above, your hopes can probably be achieved, but I'll let the employee and the site/personnel determine what's best in terms of these two scenarios (save his FMLA versus Pay him illness time for the summer). *********************************************************************** Your Qs, re Qualifying Event and WC I have an employee that I time report for and she is currently on Workers Comp. She was initially hurt approximately 2 years ago at a previous LAUSD department. She has been with the current LAUSD department since February, Her injury is still intermittent and I am currently reporting her as WC. My questions are: 1. Does she qualify for FMLA?

9 Perspective: Yes, most probably, based on a review of BTS timesheets. FMLA breaks this question into two separate categories: 1) is the employee eligible? and 2) is the reason for absence a qualifying event? As to eligibility, the BTS time sheets clearly show that the employee is very likely eligible with 130 workdays in the 12 months before each absence. It appears that she started a WC absence on May 5, 08. For FMLA-eligibility, she needs have worked 130 workdays from 5/5/07 to 5/4/08. The time sheet strongly suggests that her worktime far surpasses this threshold. As to qualifying event, I do not know any facts as to why she is off. But the reason for her being off has to fit one of the following 6 categories. My guess is that the reason does fit an FMLA qualifying event, such as category # 4 or # 6 further below at the end of this answer: 2. Does Workers Comp and FMLA work consecutively? Perspective: Yes, if she is FMLA eligible, which she is, and if it s a qualifying event, which is discussed above. If eligible, you need to send her FMLA 1 to confirm this designation. It s a little late to send the FMLA 3.2, and it may be less needed since the employee is apparently on WC anyway. You should probably skip FMLA 3.2 this time only. 3. Do I report her using FMLA pay codes after workers comp is exhausted? Perspective: Yes, if When WC is over and if exhausted, FMLA may continue on if the 12 weeks (60 days if intermittent) of FMLA have Not been consumed. Usually, FMLA runs out first before WC. SERIOUS HEALTH CONDITION under FMLA/CFRA: A Serious Health Condition means an illness, injury, impairment, or physical or medical condition which involves one of the following six definitions below. However, unless complications arise with more severe conditions, these definitions would not include cosmetic treatments (such as most treatments for acne or plastic surgery), the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease. Mental illness resulting from stress, or allergies, may be serious health conditions, but only if all the conditions within one of these six definitions are met. [Note: Treatment includes examinations to determine if a serious health condition exists and includes evaluations of the condition. Treatment does not include physical examinations, eye examinations, or dental examinations.] 1. HOSPITAL CARE Inpatient care (i.e., an overnight stay) in a hospital, hospice or residential medical care facility, including a period of incapacity (i.e., an inability to work or perform other regular daily activities) or subsequent treatment in connection with such inpatient care. 2. ABSENCE PLUS TREATMENT (GENERAL ABSENCE) A period of incapacity of more than three consecutive calendar days (including any subsequent treatment or period of incapacity relating to the same condition), that also involves: (1) Treatment two or more times by a health care provider, by a nurse or physician s assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

10 [Note: A regimen of continuing treatment includes, for example, a course of prescription medications (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition. A regimen of treatment does not include the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider.] 3. PREGNANCY Any period of incapacity due to pregnancy, or for prenatal care. [Note: An employee s own pregnancy-related disabilities are covered by the FMLA and California Pregnancy Disability Leave Act, but are excluded from the California Family Rights Act. However, an employee caring for a qualifying family member s disability due to pregnancy would potentially be covered by FMLA and CFRA, but not the California Pregnancy Disability Leave Act.] 4. CHRONIC CONDITIONS REQUIRING TREATMENTS A chronic condition which: (1) Requires periodic visits for treatment by a health care provider, or by a nurse or physician s assistant under direct supervision of a health care provider. (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). 5. PERMANENT/LONG-TERM CONDITIONS REQUIRING SUPERVISION A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of a health care provider, but need not be receiving active treatment. Examples include Alzheimer s, a severe stroke, or the final stages of a terminal disease. 6. MULTIPLE TREATMENTS (not necessarily requiring incapacity at present time) Any period of absence based on multiple treatments, including any period of recovery, by a health care provider or by a provider of healthcare services under orders of, or on referral by a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis). **************************************************************** Your questions, with my initial and brief comments, which we can follow-up by phone and/or further I have a few concerns as to why my time off was not time reported as FMLA. Initially I was going to this to my supervisor but first I gave a copy of the below text to my time reporter to read first. My time reporter gave me a brochure dated 5/08 Risk Management & Insurance Services Dependent Eligibility Audit. She also showed me how to access Inside LAUSD and to query for FMLA documents. I am holding off on submitting this request to my supervisor until I receive help from Risk Management & Insurance Services.

11 The time reporter did not provide me with any written documentation for her decision not to time report my time off as FMLA that is what I had asked for. Perspective: The FMLA expects that management and management's designee be responsive and answer any questions or disputes about FMLA. I want someone to pinpoint exactly where it states my time off did not qualify for FMLA. Perspective: We can provide more info after hearing from both sides. Some background information is below: This week the time reporter brought to my attention that the 2 weeks I took unpaid when my daughter was born, May 26, was not time reported as FMLA. Perspective: First, let's establish that you were eligible for FMLA with one year with the District, and 130 workdays in the last 52 weeks, and assuming that you gave then it would appear to be an FMLA absence. I previously notified my supervisors and other office staff of my expectation to be out of the office for the birth of my child. In fact the office pulled together and gave us a gift card for the newborn. My wife went into the doctor for a doctor scheduled C-Section on May 25. The baby was born on May 26. Perspective: This event would appear to be FMLA. I also was out on May 24 and requested this FMLA newborn time off. When my immediate supervisor, asked me for documentation for May 24 I stated the absence form states Not Required (new child). That portion of the form is displayed below: IMPORTANT LAUSD INFORMATION Physician Statement is required if absence is over 5 consecutive days or if required by Administrator under LAUSD Rules. FMLA Certification of Health Care Provider is required if FMLA/CFRA protections are being requested. 7. Is appropriate medical certification submitted with this request? Yes No Not Required (new child) (NOTE: If the answer is No, the correct medical certification must be submitted separately & promptly.) 8. Is the request being made for unpaid leave/absence? Yes No It says no certification required so I did not provide any. I responded that I could bring in the birth certificate and I would look for the letter that my health care doctor provided us certifying that my daughter was born at the nearby hospital facility. Perspective: Yes, this interpretation would be correct. I did not provide any medical certification as I understand this in only needed for leaves to care for a child, spouse or parent who has a serious health condition for a newborn this is not required. Perspective: Yes, this interpretation is also correct. Yesterday, the time reporter informed that based on her research, the unpaid time cannot be changed to the FMLA for use with the newborn and bonding time as too much time has passed. I do not understand that as FMLA is okay to use within the first year with a newborn. Perspective: Well, let me hear from her side, but this issue is definitely worth your while to see if the matter can be fixed.

12 I did not receive any written communication from my office that my time off in May 2007 did not qualify as FMLA. Perspective: While written communication is not required at present, there are "proposed regs" that would make this kind of response more problematic. I request that my office report the time off as FMLA. If this is not allowed by the District, then provide me with the District s policy explaining why the time off may not be reported accurately as FMLA. Perspective: We can look into setting up a formal inquiry. I did not receive any written communication from my office that my time off in May 2007 did not qualify as FMLA. Perspective: While written communication is not required at present, there are "proposed regs" that would make this kind of response more problematic. I request that my office report the time off as FMLA. If this is not allowed by the District, then provide me with the District s policy explaining why the time off may not be reported accurately as FMLA. Perspective: We can look into settig up a formal inquiry.