EMPLOYER COVERAGE. Applies to all U.S. employers Private Sector/50 ees in 20 weeks Public Agencies
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2 EMPLOYER COVERAGE Applies to all U.S. employers Private Sector/50 ees in 20 weeks Public Agencies
3 EMPLOYEE ELIGIBILITY Work for covered ER - 50 ees or more Work 12 mos.; need not be consecutive Work at least 1250 hrs./12 mos. prior to leave Work at a location with at least 50 ees within 75 miles
4 LEAVE ENTITLEMENT
5 Entitlement To Leave 12 weeks unpaid leave per year Benefits protection Restoration to same terms/conditions of employment prior to leave EE need not mention FMLA specifically, must simply give FMLA qualifying reason for leave
6 Intermittent Leave Blocks of time - smallest increment ER s payroll will allow When medically necessary to care for seriously ill family member For birth or adoption, ER s approval needed
7 Intermittent Leave Intermittent leave scheduled so as not to interrupt ER s operations Reduction in daily/weekly schedule For EE s own SHC - may be temporarily transferred to an alternative job w/equivalent pay and benefits
8 Reduced Leave Schedule A leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an ee. EE may not be forced to take more leave than necessary
9 Alternative Position If an ee requests intermittent leave, or leave on a reduced leave schedule, that is foreseeable based on planned medical treatment, the employer may require such ee to transfer temporarily to an available alternative position offered by the ER for which the ee is qualified and that --
10 Alternative Position A) has equivalent pay and benefits B) better accommodates recurring periods of leave than the regular employment position of the ee. ER may not transfer ee to an alternative position to discourage the taking of FMLA leave
11 Alternative Position Factors to consider in making the transfer: Transfer may be required by the ER if: - leave is foreseeable, and - based on planned medical treatment, or - if ER allows intermittent leave to care for child after birth/adoption/foster care
12 Alternative Position EE must qualify Benefits cannot be eliminated based on part time status ER may proportionately reduce benefits, such as paid vacation, that are based on number of hours worked Position need not be equivalent in duties
13 FMLA Qualifying Events An eligible ee shall be entitled to a total of 12 workweeks of leave during any 12 month period for one or more of the following: A) Birth of son or daughter and to care for such son or daughter. B) Placement of son or daughter with the ee for adoption or foster care.
14 FMLA Qualifying Events C) To care for a spouse, son, daughter, or parent with a SHC. D) For the ees own SHC that makes the ee unable to perform the functions of the position of such ee. Must be a medical reason for leave
15 EE unable to perform the functions of the position -- Certified by a HCP; unable to work at all, or Unable to perform any one of the essential functions of the EE's job Includes inability due to absence to receive medical treatment for a SHC.
16 Medical Treatments -- Examinations to determine if a SHC exists Evaluations of the condition Regimen of continuing treatment -- prescription drugs Therapy requiring special equipment to resolve or alleviate the health condition
17 Serious Health Condition Illness/injury/impairment Physical or mental condition Inpatient care Incapacity of more than 3 days w/continuing treatment by a HCP Continuing treatment by a HCP for a chronic/long term condition Pregnancy/Prenatal care
18 Health Care Provider Licensed M.D. or osteopath Any HCP from whom the ER s group health plan will accept certification.
19 Other Health Care Providers Health Care Providers (HCP) also include -- Podiatrists, Dentists, Clinical Psychologists Optometrists, Chiropractors, Clinical Social Workers Nurse Practitioners, Nurse-midwives HCP authorized to practice in a country other than the U.S.
20 Parent Biological parent or a person who stands or stood in loco parentis to an ee when the ee was a son or daughter. The term does not include parents in law.
21 Son or Daughter biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 and older and incapable of self care because of a physical or mental disability.
22 Incapable of self-care Individual requires active assistance or supervision with daily self-care in three or more of the activities of daily living (ADL) or instrumental activities of daily living (IADL). ADL includes bathing, dressing, eating. IADL includes cooking, cleaning, shopping, transportation, etc.
23 Spouse Husband or wife, as defined or recognized under State law for purposes of marriage in the State where the EE resides. Common law marriage in states where it is recognized. Indiana does not recognize common law marriage.
24 Spouse Separate ER - 12 weeks each Same ER - Jointly entitled to a combined 12 weeks for birth or care of parent. However, each spouse would be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for care of spouse or child w/shc
25 EMPLOYEE NOTICE REQUIREMENTS
26 Employee Notice and Certification Requirements 30 day notice to ER if leave is foreseeable Med. cert. supporting SHC of EE or family member after written notice by ER 2nd or 3rd opinion at ER s expense Periodic status reports Fitness for duty cert. - if ER has uniform policy
27 EE Notice Requirements If an EE wants a qualifying absence to be treated as FMLA leave and the ER has not made a designation, the EE must notify the ER within 2 business days after the ee returns to work. The EE may not subsequently assert FMLA protection, if such notification is not made.
28 EMPLOYER RESPONSIBILITIES
29 Posting Requirements On ER s premises In conspicuous places where EEs can readily see In a language in which the significant portion of workers are literate.
30 Handbook Requirements Must contain information discussing FMLA rights and EE obligations Handbook must contain ER s policies regarding the FMLA Informal WH pubs describing the Act s provisions may be incorporated in ER s handbook to satisfy notice requirements
31 Determining Leave Year ER will choose one of the 12 mo periods Must be applied uniformly and consistently May change to another 12 mo period w/60 day notice to EEs Transition period retains 12 mo period most beneficial to EEs; new method may not be implemented to circumvent FMLA
32 Determining Leave Year ER must choose one of four methods to be applied to all EEs for determining the 12 month period in which EEs are entitled to use their 12 weeks of FMLA leave. If an ER operates in more than one state, an exception to the single method rule allows for compliance with state FMLA laws.
33 Determining leave entitlement and 12 month period workweeks of leave in any 12 mo. period Methods for determining 12 mo. period 1) calendar year 2) Any fixed 12 mo.. leave year such as: a) fiscal year
34 Determining leave year cont d b) year required by state law c) year starting w/the EEs anniversary date 3) 12 mo. period measured forward from the date ee FMLA leave began 4) Rolling 12 mo period measured backward from the date EE used FMLA leave
35 Designating the leave year If ER fails to designate 12 month entitlement period, the EE is to be provided with the 12 month period most beneficial.
36 Determining amount of leave used by EE Holidays (paid or unpaid) are counted against FMLA leave entitlement Business activity cessation for a week or longer, such as a plant shutdown during the summer or school closing during winter breaks would not count against the FMLA entitlement
37 Employer Responsibilities ER must designate in writing No designation after leave has ended ER must notify EE of rights & responsibilities in writing - reinstatement, medical cert. and fitness for duty requirements ER must be responsive to EE questions Handbooks must include FMLA info
38 Designation of Leave Employer s responsibility If ER knows or should know the reason for leave is a FMLA reason at the time leave commences, the leave must be designated by the ER at that time in writing.
39 ER Designation Process Always ER s responsibility Determine if reason is FMLA qualifying Determine if EE is eligible for leave Give notice to EE of designation - may be given orally or in writing - oral notice must be followed up in writing Provided no later than the following payday
40 Designation ER may designate after the ee returns to work in two circumstances: 1) the leave is short term and the ER is awaiting medical certification 2) when the ER did not know the reason for the leave, but learns upon the EEs return to work - Designation must be made in 2 business days of the EEs return to work.
41 ER Designation Process Form WH-381 satisfies all requirements of ER must provide general and specific notice.
42 Paid Leave If ER requires accrued paid leave to be substituted for unpaid FMLA leave: - ER must provide notice within 2 business days following EE s request for leave, or - When sufficient information is obtained to determine that leave of absence qualifies as FMLA leave
43 Substitution of Paid Leave EE may choose to substitute ER may require accrued paid vacation or sick leave to be substituted and run concurrently with 12 week entitlement
44 MAINTENANCE OF BENEFITS
45 Health Care Benefits Group health care coverage throughout leave period EE to pay his/her share ER may recover costs if ee fails to return
46 Pension - Retirement Plans No break in service for purposes of vesting and eligibility to participate EE considered employed for plans requiring specific date to credit for purposes of a year of service for vesting, contributions or participation EE on FMLA leave to treated as if he/she continued to work for changes to benefit plans
47 Bonus Entitlement Bonuses that the EE had not been disqualified for and met the requirements for prior to leave - Perfect attendance -Safety (absence of injuries or accidents) Production - EE entitled to same consideration as other EEs on paid/unpaid leave
48 JOB RESTORATION
49 Job Restoration Equivalent job Pay Benefits Other employment terms/conditions Other benefits accrued prior to the start of the leave
50 Reinstatement EE has no greater right to reinstatement or other benefits and conditions of employment than if the EE had been continuously employed during the FMLA leave period. ER must demonstrate that EE would not have been entitled to employment or benefits to deny restoration.
51 Equivalent Position EE must be restored to same or equivalent position when able to return to work fulltime EE cannot be forced to take more leave than necessary EE may accept a light duty position, but may also refuse it and choose to remain on FMLA leave. Restoration may be affected.
52 Equivalent Position Must be virtually identical to EE s former position in terms of: Pay Benefits Working conditions, including privileges, perquisites, status
53 Equivalent Position Same or substantially similar duties & responsibilities Equivalent skill Equivalent effort Equivalent responsibility and authority Equivalent promotion potential
54 Reinstatement ER restoration obligation under FMLA cease completely at time of termination for: layoff term of employment or project expires unequivocal notice from EE of intent not to return to work may have continuing obligation under CBA or may extend to successor ER
55 Reinstatement Not required to reinstate to same shift or overtime hours if shift has been eliminated or overtime hours have decreased. Must restore EE to same shift or overtime hours if EE s job has been filled by another EE.
56 Reinstatement ER may delay reinstatement if EE fails to provide a fitness duty certificate. Reinstatement rights expire after EE exhausts 12 week FMLA entitlement, unless: Other statutes apply (worker s comp, ADA)
57 ENFORCEMENT Complaints - Wage and Hour - ER Policy Review Litigation - DOL or private attorney Remedies - wages/employment lost Private right to action Sec yr. statute - monetary loss for providing care - reasonable legal and witness fees
58 UNLAWFUL ACTS Interference Restraint Discharge Discrimination EEs may not waive rights
59 Tips to Remember 1) COMMUNICATE 2) EDUCATE 3) LOOK BEFORE YOU LEAP
60 TIP #1 - COMMUNICATE Though the notification requirements are cumbersome, they force communication -- and that limits the potential for problems. Remember, ER notification obligations are: Poster Handbook Designation as FMLA Specific written notice of EE obligations
61 Tip #2 - EDUCATE Train front line supervisors to recognize the situations and health conditions that qualify under FMLA. Remember: There is no list of qualifying conditions. Need is based on M.D. findings If you question a condition, a second medical opinion is required to refute
62 Tip #3 - LOOK BEFORE YOU LEAP Disciplinary policies No fault attendance policies Refrain from punishing past problems during FMLA leave.
63 Special Rules Local education agencies - 50 EE test N/A, but 50 EE/75 miles applies ( complicated; call Wage and Hour) Salaried EE (541 exempt) - ER may make hourly deductions for intermittent leave w/o affecting exempt status Fed./State discrimination laws More generous benefits under law or CBA; ER must go w/most generous
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