The FMLA, and other employee leaves Presented by Greg Wiley, Esq. General Counsel –Civil Division
Step back . . . <ul><li>Before diving in to all the legal niceties, I find it helpful to step back and consider why these ...
Before we get started <ul><li>HR and previous legal has done an outstanding job preparing FMLA materials </li></ul><ul><li...
Goal <ul><li>For you to recognize leave issues and solve them yourself… </li></ul><ul><li>OK, real goal is for you to reco...
Policy Weave #1 <ul><li>7.4.5 Family and Medical Leave Policy  Pursuant to the Federal Family and Medical Leave Act, Publi...
General Rules <ul><li>When competing contracts, collective bargaining agreements, and employer policies and procedures are...
Scenario <ul><li>Can County consider whether providing an eligible employee FMLA leave is unduly disruptive to its operati...
Types of Leave <ul><li>FMLA </li></ul><ul><li>MN Parenting leave </li></ul><ul><li>MN sick and injured child leave </li></...
FMLA <ul><li>The FMLA </li></ul><ul><li>Most significant leave law </li></ul><ul><li>12 weeks unpaid leave </li></ul><ul><...
Eligibility <ul><li>In order to be covered by the FMLA, an employee must have been employed for a full calendar year AND w...
What triggers right to FMLA leave? <ul><li>It is NOT there just for the taking, but it is fairly easy to show entitlement ...
Scenario <ul><li>An employee says that he or she needs to take FMLA leave, without providing more information. </li></ul><...
Serious health condition <ul><li>Leave must be for a “serious health condition” that makes the employee unable to perform ...
NOT <ul><li>Common cold </li></ul><ul><li>Regular headaches (migraines might be if other conditions met) </li></ul><ul><li...
Serious Health Condition: illness, injury, impairment that involves: <ul><li>Inpatient care- overnight stay in medical car...
Cont. <ul><li>Treatment two of more times by a health care provider OR </li></ul><ul><li>Treatment by a health care provid...
Chronic Condition <ul><li>Incapacity due to a condition that requires </li></ul><ul><ul><li>Periodic visits for treatment ...
Permanent or long-term condition <ul><li>A condition that requires continuing supervision, but not necessarily continuing ...
Multiple Treatments <ul><li>Period of absence to receive multiple treatments by a health care provider for a condition tha...
Forms Weave <ul><li>Through the self help system, you have access to all of the FMLA forms (also DOL website) </li></ul><u...
Mechanics <ul><li>Employee requests FMLA leave </li></ul><ul><li>Employee requests time off for something that employer kn...
 
 
 
 
 
Birth and Adoption <ul><li>Leave due to birth or adoption or foster care must be taken within 12 month period beginning on...
Pregnancy or Childbirth <ul><li>Employees may take leave during pregnancy or for the birth of a child. </li></ul><ul><li>H...
Scenario <ul><li>The case of the unmarried same sex couple adopting a child </li></ul>
Leave to care for disabled adult child <ul><li>Child must be incapable of self-care because of a disability a the time lea...
Care for family member <ul><li>Employee needs leave to care for family member with serious health condition (825.124) </li...
New Military <ul><li>Qualifying Exigency Leave </li></ul><ul><li>Military Caregiver Leave </li></ul><ul><li>New provisions...
7.4.5.1  Leave Entitlement <ul><li>b)  Military Caregiver Leave.  An eligible employee shall be entitled to up to  26 work...
Cont.  <ul><li>Qualifying Exigency Leave.  An eligible employee shall be entitled to up to 12 work weeks of leave during t...
Leave Characteristics <ul><ul><li>The employer may be required to maintain health benefits as in FMLA leave </li></ul></ul...
Sherburne County uses rolling calculation method  7.4.5.2 <ul><li>The twelve month period during which an employee may tak...
Leave is Unpaid <ul><li>Under County policy, we may require employees to use PTO, vacation leave while out on FMLA leave <...
Health care maintenance <ul><li>Employers must maintain an employee’s coverage under a group health plan as if the employe...
Employees that use all leave <ul><li>Are not entitled to any more FMLA leave </li></ul><ul><li>If employee has already tak...
Employee Notice <ul><li>When need for leave is foreseeable, and employee must provide at least 30 days notice of need for ...
Notice continued <ul><li>If impractical, employee notice must be given as soon as practicable </li></ul><ul><ul><li>Define...
7.4.5.5  Requirement of Notice <ul><li>In the case of birth, adoption, or placement of a child within the employee's famil...
Employer designation and certification <ul><li>Employer must designate the leave as FMLA leave and provide notice to the e...
 
 
Medical Certifications <ul><li>Form WH-380 </li></ul><ul><li>Employer does not have right to get medical records </li></ul...
Certifications Cont. <ul><li>All employer contacts to an employee health care provider must comply with HIPAA </li></ul><u...
More certification issues <ul><li>Employer may not require a release or waiver of medical records </li></ul><ul><li>It is ...
7.4.5.7  Certification <ul><li>. . . An employee requesting the leave because of a serious health condition must supply a ...
 
 
 
 
 
Recertification <ul><li>If expected duration unknown, employer may seek recertification every 30 days </li></ul><ul><li>If...
2d and 3d opinions <ul><li>Employer may seek second opinion by own health care provider at its own expense </li></ul><ul><...
Fitness for duty <ul><li>Employer may have uniformly applied policy that requires employee’s health care provider to certi...
Policy Weave-- 7.4.5.7  Certification <ul><li>The employee may be required to provide a fitness-for-duty certification pri...
If certification not provided <ul><li>FMLA leave may be delayed or denied </li></ul><ul><li>Similarly, if fitness for duty...
 
 
 
Intermittent Leave <ul><li>Employee may take leave in small increments or part-time leave if there is a medical necessity ...
Tricky intermittent issues <ul><li>Employee must make a reasonable effort to schedule intermittent treatment so as not to ...
7.4.5.4  Intermittent or Reduced Leave <ul><li>…  The need for intermittent leave or a reduced schedule must be documented...
Reinstatement <ul><li>Employee reinstated to equivalent position with equivalent benefits, pay and other terms or conditio...
Scenario <ul><li>Employee returns from FMLA leave and employer offers a position with same pay, prestige and benefits, but...
Scenario <ul><li>Does an employee earn seniority on FMLA leave? </li></ul><ul><li>Generally, no.  Look to CBA and USSERA. ...
7.4.5.8  Employment and Benefits Protection <ul><li>Except for employees who choose to take intermittent leave or a reduce...
Cont. <ul><li>However, an employee electing such leave and returning to work  shall not be entitled to the accrual of any ...
Cont. <ul><li>As a condition of restoration to work under this section, the County  shall be provided a certification  fro...
Exceptions to Reinstatement  <ul><li>If employer can show that employee would not be able to return regardless of leave (i...
Collecting health premiums <ul><li>If employee does not stay employed for at least 30 days after FMLA leave, the employer ...
7.4.5.9  Maintenance of Health Benefits <ul><li>The County shall provide health insurance coverage to the employee under a...
Enforcement and remedies <ul><li>Individuals may bring suit for FMLA violations, or the Department of Labor may get involv...
Retaliation prohibited <ul><li>Larger leave statutes prohibit employers from retaliating against employees for exercising ...
Even more leave under ADA? <ul><li>Yes, perhaps.  </li></ul><ul><li>If additional leave would be a reasonable accommodatio...
Minnesota Leaves <ul><li>Based on public policy considerations that our state legislature felt were sufficient to require ...
Parenting Leave Minn. Stat. 181.940-941 <ul><li>6 weeks unpaid leave </li></ul><ul><li>For the birth of adoption of a chil...
7.4.4 Parenting Leave <ul><li>An employee who is a natural or adoptive parent may request an unpaid leave of absence in co...
Cont.  <ul><li>The leave may begin not more than six weeks after the birth or adoption except in the case where the child ...
Voting Leave <ul><li>Minn. Stat. 204C.04 </li></ul><ul><li>Provides employees the right to be absent the morning of a stat...
Shorter leaves required -- School leave <ul><li>MN Kids’ school leave: Minn. Stat. 181.9412: Employers must provide leave ...
Organ Donation Leave <ul><li>Employees are entitled to up to 40 hours of  paid  leave for the purpose of donating an organ...
Bone Marrow <ul><li>20 hours of  paid  leave for employees to provide bone marrow </li></ul><ul><li>Leave does not exceed ...
7.4.2 Court Duty Leave <ul><li>Employees subpoenaed as witness in connection with County employment or called for jury dut...
MN Military Leave <ul><li>Public employees get  15 days of paid leave </li></ul><ul><li>Includes reservists and guard duti...
7.4.3 Military Duty Leave <ul><li>Employees who are members of any reserve component of the military forces of the United ...
Nursing mothers <ul><li>Must allow breaks for nursing mothers to breast-feed </li></ul><ul><li>Must provide private space ...
Leave to deal with Domestic Abuse <ul><li>Employee are provided reasonable time off to obtain TRO or protective order to g...
Crime Victim Leave <ul><li>Employee may take time off for criminal proceedings if the employee or certain members of the e...
7.4.1 Personal Leave <ul><li>Personal leave without compensation up to  six (6) months  may be granted to an employee for ...
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An fmla (and employee leave) primer

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Legal analysis of the Family and Medical Leave Act (FMLA) and other employee leaves

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  • Great slideshow. Thanks for the info, it’s easy to understand. BTW, if anyone needs to fill out a Medical form,I found a blank form here: http://goo.gl/iA4xX6
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Transcript of "An fmla (and employee leave) primer"

  1. 1. The FMLA, and other employee leaves Presented by Greg Wiley, Esq. General Counsel –Civil Division
  2. 2. Step back . . . <ul><li>Before diving in to all the legal niceties, I find it helpful to step back and consider why these laws get passed in the first place </li></ul><ul><li>The FMLA was passed so try and balance employees’ need for time off to get healthy (or help a family member get healthy) against employers’ need to have an employee doing the work, without costing the employer too much. </li></ul><ul><li>At the time passed it passed in 1993, there were many more parents entering the workforce (now commonplace) </li></ul><ul><li>Other leave laws from here in Minnesota essentially try to find a similar balance based on other employee needs (voting, kids’ school time, etc.) </li></ul>
  3. 3. Before we get started <ul><li>HR and previous legal has done an outstanding job preparing FMLA materials </li></ul><ul><li>Policy is well drafted (provide separate copy for you) </li></ul><ul><li>FAQ sheet on I Drive is spot on – Rox put that together </li></ul><ul><li>Terri Thompson worksheet is very helpful </li></ul>
  4. 4. Goal <ul><li>For you to recognize leave issues and solve them yourself… </li></ul><ul><li>OK, real goal is for you to recognize them and consult resources, HR, me, County Attorney to help navigate you through the issues </li></ul><ul><li>HR– Contact Roxanne, Terri Thompson, or Diana Barr </li></ul>
  5. 5. Policy Weave #1 <ul><li>7.4.5 Family and Medical Leave Policy Pursuant to the Federal Family and Medical Leave Act, Public Law 103-3, February 4, 1993, it is the policy of Sherburne County to balance the demands of the work place with the needs of families, to promote the stability and economic security of families, to entitle employees to take reasonable leave for the birth, adoption or placement of a child; for the care of a child, spouse, or parent who has a serious health condition; for the employee to take leave for medical reasons due to serious health condition; for the employee to take leave to care for the serious injury or illness of a covered service member; or for military related qualifying exigencies. </li></ul>
  6. 6. General Rules <ul><li>When competing contracts, collective bargaining agreements, and employer policies and procedures are at play, the employee gets the benefit of the most favorable rule </li></ul><ul><li>Employees in the military get the greatest benefits </li></ul><ul><li>Leave is not discretionary if conditions met; County must provide it </li></ul>
  7. 7. Scenario <ul><li>Can County consider whether providing an eligible employee FMLA leave is unduly disruptive to its operations? </li></ul><ul><li>Can employer require fathers on FMLA leave to come in and cover shifts? </li></ul>
  8. 8. Types of Leave <ul><li>FMLA </li></ul><ul><li>MN Parenting leave </li></ul><ul><li>MN sick and injured child leave </li></ul><ul><li>School conference and activities leave </li></ul><ul><li>Bone Marrow leave; Organ donation leave </li></ul><ul><li>Leave to Deal with Domestic Abuse issues; Court leave </li></ul><ul><li>Voting leave </li></ul><ul><li>Military and Civil Air Patrol Service Leave </li></ul><ul><li>Leave under the workers’ compensation act </li></ul><ul><li>Leave as a reasonable accommodation under ADA or MHRA </li></ul>
  9. 9. FMLA <ul><li>The FMLA </li></ul><ul><li>Most significant leave law </li></ul><ul><li>12 weeks unpaid leave </li></ul><ul><li>Job restoration </li></ul><ul><li>Benefit continuation </li></ul>
  10. 10. Eligibility <ul><li>In order to be covered by the FMLA, an employee must have been employed for a full calendar year AND worked at least 1,250 hours -- 7.4.5.3 Leave Entitlement Requirements </li></ul>
  11. 11. What triggers right to FMLA leave? <ul><li>It is NOT there just for the taking, but it is fairly easy to show entitlement </li></ul><ul><li>Leave must be for an FMLA reason. Includes: </li></ul><ul><ul><ul><li>to take medical leave when the employee is unable to work because of a serious health condition; </li></ul></ul></ul><ul><ul><ul><li>for the birth and care of the newborn child of an employee; </li></ul></ul></ul><ul><ul><ul><li>for placement with the employee of a child for adoption or foster care; </li></ul></ul></ul><ul><ul><ul><li>to care for an immediate family member (spouse, child, or parent) (not in-laws) with a serious health condition; or </li></ul></ul></ul><ul><ul><ul><li>For certain types of military related leave (new as of 2009) </li></ul></ul></ul><ul><ul><ul><li>7.4.5.1 Leave Entitlement </li></ul></ul></ul>
  12. 12. Scenario <ul><li>An employee says that he or she needs to take FMLA leave, without providing more information. </li></ul><ul><li>Must employer provide it? </li></ul>
  13. 13. Serious health condition <ul><li>Leave must be for a “serious health condition” that makes the employee unable to perform one or more of the essential functions of the employee’s job </li></ul>
  14. 14. NOT <ul><li>Common cold </li></ul><ul><li>Regular headaches (migraines might be if other conditions met) </li></ul><ul><li>Common flu is not (but swine flu, if other conditions met) </li></ul><ul><li>Chiropractic treatment (but if an X-ray show a subluxation– will be covered) </li></ul><ul><li>Routine doctor visits – dental visits </li></ul><ul><li>These are all meant to be covered under employer’s PTO or sick leave policy, not FMLA </li></ul>
  15. 15. Serious Health Condition: illness, injury, impairment that involves: <ul><li>Inpatient care- overnight stay in medical care facility and any period of subsequent treatment in connection with stay </li></ul><ul><ul><li>(so the non-covered conditions become covered if this is met– migraines, swine flu) </li></ul></ul><ul><li>Continuing treatment of health care provider: incapacity of three consecutive calendar days and subsequent treatment related to the same condition (sick leave policy no longer effective) </li></ul><ul><li>provided that--- </li></ul>
  16. 16. Cont. <ul><li>Treatment two of more times by a health care provider OR </li></ul><ul><li>Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under medical supervision </li></ul>
  17. 17. Chronic Condition <ul><li>Incapacity due to a condition that requires </li></ul><ul><ul><li>Periodic visits for treatment by a health care provider (at least 2x a year) </li></ul></ul><ul><ul><li>Continues over an extended period of time, AND </li></ul></ul><ul><ul><li>May cause episodic rather than continuing periods of incapacity </li></ul></ul><ul><ul><li>Like asthma, diabetes, epilepsy, etc. </li></ul></ul>
  18. 18. Permanent or long-term condition <ul><li>A condition that requires continuing supervision, but not necessarily continuing treatment, by a health care provider </li></ul><ul><li>Like Alzheimer’s, severe stroke, terminal stages of a disease </li></ul>
  19. 19. Multiple Treatments <ul><li>Period of absence to receive multiple treatments by a health care provider for a condition that would likely result in a period of incapacity of more that three consecutive calendar days </li></ul>
  20. 20. Forms Weave <ul><li>Through the self help system, you have access to all of the FMLA forms (also DOL website) </li></ul><ul><li>If you need help with any of this, contact Roxanne, HR, me or county attorney </li></ul><ul><li>The FMLA forms are a great example of thoughtful government </li></ul><ul><ul><li>Easy to read </li></ul></ul><ul><ul><li>Refer back to the law </li></ul></ul><ul><ul><li>Safe harbors– if you follow the directions, you will comply! </li></ul></ul>
  21. 21. Mechanics <ul><li>Employee requests FMLA leave </li></ul><ul><li>Employee requests time off for something that employer knows or suspects is FMLA qualifying </li></ul><ul><li>Designation </li></ul><ul><li>Certification </li></ul><ul><li>Recertification </li></ul><ul><li>Fitness for Duties and return to work </li></ul>
  22. 27. Birth and Adoption <ul><li>Leave due to birth or adoption or foster care must be taken within 12 month period beginning on the date of birth or adoption </li></ul><ul><li>Employer is not required to grant intermittent leave or a part time schedule under this provision </li></ul>
  23. 28. Pregnancy or Childbirth <ul><li>Employees may take leave during pregnancy or for the birth of a child. </li></ul><ul><li>Husband may take time off to care for incapacitated spouse (not available for unmarried significant other) </li></ul><ul><li>If both husband and wife are County employees, they may take only a combined total of 12 weeks of FMLA qualifying leave under the following situations: </li></ul><ul><li>a) For the birth of a son or daughter and to care for the newborn child; </li></ul><ul><li>b) For placement of a child with the employee for adoption or foster care; or </li></ul><ul><li>c) To care for the employee’s parent (not parent-in-law) who has a serious health condition. </li></ul><ul><li>If parents unmarried, not limited by 12 combined weeks provision </li></ul>
  24. 29. Scenario <ul><li>The case of the unmarried same sex couple adopting a child </li></ul>
  25. 30. Leave to care for disabled adult child <ul><li>Child must be incapable of self-care because of a disability a the time leave is to comments (825.122(c)) </li></ul><ul><li>Must be an actual disability, rather than just a broken leg… </li></ul>
  26. 31. Care for family member <ul><li>Employee needs leave to care for family member with serious health condition (825.124) </li></ul><ul><li>Need not be the only family member available </li></ul>
  27. 32. New Military <ul><li>Qualifying Exigency Leave </li></ul><ul><li>Military Caregiver Leave </li></ul><ul><li>New provisions in 2009 </li></ul><ul><li>Under certain circumstances, 26 weeks leave </li></ul><ul><li>I will leave some of this detail out…address case by case </li></ul>
  28. 33. 7.4.5.1 Leave Entitlement <ul><li>b) Military Caregiver Leave. An eligible employee shall be entitled to up to 26 work weeks of leave during the applicable twelve month period as defined by the County in order to care for an eligible service member with a serious injury or illness; </li></ul><ul><li>1) The employee must be the spouse, son or daughter, parent, or next of kin of the eligible service member. </li></ul><ul><li>2) The eligible service member must have an injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform the duties of his/her office. </li></ul>
  29. 34. Cont. <ul><li>Qualifying Exigency Leave. An eligible employee shall be entitled to up to 12 work weeks of leave during the applicable twelve month period as defined by the County while the employee’s son, daughter, or parent is on active duty or call to active duty status for a qualifying exigency. </li></ul><ul><li>1) To qualify for this leave, the service member must be a member of the National Guard, Reserve , or a retired member of the regular armed forces or reserve. There is no leave entitlement for employees with family members in the regular Armed Forces. </li></ul><ul><li>2) Qualifying exigencies include : short notice deployment, military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and related exigencies. </li></ul>
  30. 35. Leave Characteristics <ul><ul><li>The employer may be required to maintain health benefits as in FMLA leave </li></ul></ul><ul><ul><li>Employer may require that employee use PTO during FMLA leave (we do) </li></ul></ul><ul><ul><ul><li>Employee may reserve up to 40 hours of PTO </li></ul></ul></ul><ul><ul><li>Employee is entitled to be reinstated to same or equivalent position (some limited exceptions). </li></ul></ul><ul><ul><li>Holidays do not count toward leave if leave in one week or less; they do count against leave allotment if leave is longer than one week </li></ul></ul>
  31. 36. Sherburne County uses rolling calculation method 7.4.5.2 <ul><li>The twelve month period during which an employee may take FMLA leave is calculated as a “rolling” twelve-month period measured backward from the date an employee uses any FMLA leave. Each time an employee takes FMLA leave, the remaining leave entitlement period will consist of any of the balance of the 12 weeks which has not been used during the immediately preceding twelve months. </li></ul>
  32. 37. Leave is Unpaid <ul><li>Under County policy, we may require employees to use PTO, vacation leave while out on FMLA leave </li></ul><ul><li>7.4.5.6 Paid/Unpaid Leave The leave provided under this policy shall be unpaid leave except employees are required to use accrued vacation or PTO as part of the leave, except, if the employee chooses, he/she may retain up to forty (40) hours of PTO. Employees are required to use any accrued ESLB time before unpaid leave will be granted, if the qualifying event for the FMLA leave is also an event eligible for the use of ESLB . An employee may request and receive accrued paid compensatory time as part of the twelve week FMLA leave. </li></ul>
  33. 38. Health care maintenance <ul><li>Employers must maintain an employee’s coverage under a group health plan as if the employee was continuously employed for the entire time </li></ul><ul><li>BUT employee required to pay their own portion </li></ul>
  34. 39. Employees that use all leave <ul><li>Are not entitled to any more FMLA leave </li></ul><ul><li>If employee has already taken 12 work weeks of FMLA leave in a 12-month period, the employee is not entitled to any more FMLA leave </li></ul><ul><li>Protections of this statute fall out </li></ul><ul><li>Protections for other statutes may apply </li></ul>
  35. 40. Employee Notice <ul><li>When need for leave is foreseeable, and employee must provide at least 30 days notice of need for leave (825.303) </li></ul><ul><li>Employee need not specify that the leave is FMLA leave, but must provide the employer sufficient information so it can determine the leave is FMLA qualifying </li></ul><ul><ul><li>In all cases employer should inquire further if it may be FMLA qualifying. </li></ul></ul>
  36. 41. Notice continued <ul><li>If impractical, employee notice must be given as soon as practicable </li></ul><ul><ul><li>Defined as soon as possible or practical (no bright line, DOL says within one or two days) </li></ul></ul><ul><li>If an employee is using paid leave, employee must only follow notice required for leave plan </li></ul><ul><ul><li>If employee fails to provide proper notice, employer may delay leave until after the 30 day time has lapsed </li></ul></ul><ul><ul><li>The employee must have actual notice of the requirement </li></ul></ul>
  37. 42. 7.4.5.5 Requirement of Notice <ul><li>In the case of birth, adoption, or placement of a child within the employee's family, the employee shall provide the County with not less than thirty days notice before the date the leave is to begin except for unforeseeable and reasonable circumstance warranting less than the thirty days notice. </li></ul><ul><li>In the case of providing care for a spouse, child, or parent of the employee or because of a serious health condition of an employee, the employee shall make a reasonable effort to notify the County at the earliest possible date that the leave is to begin and shall make a reasonable effort to schedule the treatment so as to not disrupt the operations of the County , subject to the approval of the health care provider of the employee or health care provider of the spouse, child, or parent of the employee. </li></ul>
  38. 43. Employer designation and certification <ul><li>Employer must designate the leave as FMLA leave and provide notice to the employee, generally within 5 days of the notice of the need for the leave (825.300(b)) (same provision of County policy) </li></ul><ul><li>DOL form WH-381 </li></ul><ul><ul><li>If designation not properly done by employer, it may not count against the FMLA leave allotment if the employee can show harm or injury as a result (825.301) -- effectively extends 12 weeks </li></ul></ul><ul><ul><li>Employer and employee may agree to retroactive application </li></ul></ul><ul><li>Employer must provide notice of specific obligations and expectations of employees on leave; Form WH 382. Note that if the employer will seek fitness for duty (discussed later) that intent and essential job functions must be on this form </li></ul>
  39. 46. Medical Certifications <ul><li>Form WH-380 </li></ul><ul><li>Employer does not have right to get medical records </li></ul><ul><li>Form does not require records, but does provide enough information for employer to determine if leave is FMLA qualifying (if properly filled out) </li></ul><ul><li>If form incomplete, employer must specify deficiency and employee gets 7 days to cure deficiency </li></ul>
  40. 47. Certifications Cont. <ul><li>All employer contacts to an employee health care provider must comply with HIPAA </li></ul><ul><li>Contact must be by another health care provider, HR professional, leave administrator, or management official (NOT a supervisor ) </li></ul><ul><li>Employee needs to provide authorization to health care provider for certification (not for records) </li></ul><ul><li>Information sought is limited by the medical certification form– cannot ask for more. </li></ul>
  41. 48. More certification issues <ul><li>Employer may not require a release or waiver of medical records </li></ul><ul><li>It is employee’s responsibility to provide the employer with a complete certification (if doc charges for form, employee pays) </li></ul><ul><li>If employer does not provide either a complete certification or an authorization allowing the health care provider to do so, FMLA leave may be denied </li></ul>
  42. 49. 7.4.5.7 Certification <ul><li>. . . An employee requesting the leave because of a serious health condition must supply a certification that the employee is unable to perform the functions of the position held by the employee and in the case of certification for intermittent or leave on a reduced leave schedule, the certification must state the dates on which such treatment is expected to be given and the duration of such treatment. </li></ul>
  43. 55. Recertification <ul><li>If expected duration unknown, employer may seek recertification every 30 days </li></ul><ul><li>If condition is known to be longer than 30 days at the outset, that specified duration must lapse before recertification is sought </li></ul><ul><li>In all cases employer may seek recertification every 6 months </li></ul><ul><li>May seek recertification in less than 30 days if there is specific reason to suspect fraud, and other specified reasons </li></ul>
  44. 56. 2d and 3d opinions <ul><li>Employer may seek second opinion by own health care provider at its own expense </li></ul><ul><li>If two opinions conflict, employer may seek and pay for a third opinion </li></ul><ul><ul><li>Third health care provider must be agreed upon by employer and employee </li></ul></ul><ul><ul><li>Third’s opinion will be binding and final </li></ul></ul>
  45. 57. Fitness for duty <ul><li>Employer may have uniformly applied policy that requires employee’s health care provider to certify that the employer is able to return to work </li></ul><ul><li>Fitness for duty should specify the essential job functions </li></ul><ul><li>If employee in on intermittent or reduced schedule leave, employer may seek fitness for duty certifications every 30 days if reasonable safety concerns exist regarding the employee’s ability to perform duties </li></ul>
  46. 58. Policy Weave-- 7.4.5.7 Certification <ul><li>The employee may be required to provide a fitness-for-duty certification prior to being restored to employment. If such certification is required but not timely received, return to work may be delayed until certification is provided. </li></ul><ul><li>FMLA Certification Forms shall be maintained by the Department Head in the employee’s private medical data personnel file. </li></ul>
  47. 59. If certification not provided <ul><li>FMLA leave may be delayed or denied </li></ul><ul><li>Similarly, if fitness for duty is not provided, job restoration may be denied. </li></ul>
  48. 63. Intermittent Leave <ul><li>Employee may take leave in small increments or part-time leave if there is a medical necessity for that type of leave </li></ul><ul><li>The amount of leave actually taken is counted against the 12-week allotment </li></ul><ul><li>During such leave, an employer may assign an employee to an alternative position with equivalent pay and benefits that better accommodates the employee’s intermittent leave </li></ul>
  49. 64. Tricky intermittent issues <ul><li>Employee must make a reasonable effort to schedule intermittent treatment so as not to unduly disrupt employer’s operations </li></ul><ul><li>Remember, must be for a serious health conditions (can’t use FMLA leave for routine doc/dental appointments); certifications required </li></ul><ul><li>In the past, these were trickiest certification issues--- doctor’s notes frequently vague, and it was unclear whether employer could seek more information </li></ul>
  50. 65. 7.4.5.4 Intermittent or Reduced Leave <ul><li>… The need for intermittent leave or a reduced schedule must be documented by the employee’s or family member’s health care provider. An intermittent or reduced leave schedule shall not cause a reduction in the total amount of leave to which the employee is entitled under this policy. Nothing will prevent Sherburne County from requiring an employee to transfer temporarily to an available alternative position for which the employee is qualified and that has equal pay and benefits to the current position and better accommodates recurring periods of leave than the regular employment position of the employee. </li></ul>
  51. 66. Reinstatement <ul><li>Employee reinstated to equivalent position with equivalent benefits, pay and other terms or conditions of employment </li></ul><ul><ul><li>Fairly strict interpretation of “equivalent position” </li></ul></ul><ul><li>All unconditional pay increases and non-performance bonuses must be applied to employee upon return (can’t count FMLA leave against attendance bonus) </li></ul>
  52. 67. Scenario <ul><li>Employee returns from FMLA leave and employer offers a position with same pay, prestige and benefits, but different hours or shift </li></ul><ul><li>Is that permissible? </li></ul><ul><li>What about a different position with same pay, benefits, hours, but not as much qualification (not as much education required)? </li></ul>
  53. 68. Scenario <ul><li>Does an employee earn seniority on FMLA leave? </li></ul><ul><li>Generally, no. Look to CBA and USSERA. </li></ul>
  54. 69. 7.4.5.8 Employment and Benefits Protection <ul><li>Except for employees who choose to take intermittent leave or a reduced leave schedule, employees shall be entitled on return from such leave, to be restored by the County to the position of employment held by the employee when the leave commenced; or to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. The taking of leave under this section shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced. </li></ul>
  55. 70. Cont. <ul><li>However, an employee electing such leave and returning to work shall not be entitled to the accrual of any seniority or employment benefits during such leave or to any right, benefit, or position of employment other than any other right, benefit or position to which the employee would have been entitled had the employee not taken the leave. For intermittent or reduced schedule leave the County shall calculate hours of work in granting seniority based benefits. </li></ul>
  56. 71. Cont. <ul><li>As a condition of restoration to work under this section, the County shall be provided a certification from the health care provider of the employee that the employee is able to resume work. </li></ul><ul><li>An employee electing to take leave under this section shall report the status and intention of the employee to return to work at the end of the third, sixth and ninth week of the leave or at other times as requested by the Employer. Failure to report as specified shall be just cause for discipline. </li></ul>
  57. 72. Exceptions to Reinstatement <ul><li>If employer can show that employee would not be able to return regardless of leave (i.e. the employee would have been laid off), employer need not reinstate </li></ul><ul><ul><li>Better have pretty clear cut evidence </li></ul></ul><ul><li>Employer need not reinstate a “key employee” under 825.220; top 10% earner and restoration would impose “grievous” and significant injury </li></ul><ul><li>If the employee unequivocally tells the employer before or during the leave that the employee does not intend to return to work </li></ul>
  58. 73. Collecting health premiums <ul><li>If employee does not stay employed for at least 30 days after FMLA leave, the employer may collect its share of the health care premiums paid during FMLA leave </li></ul><ul><ul><li>Unless the reason for failure to return is for a serious health condition or other reason beyond the employee’s control </li></ul></ul><ul><ul><li>Again, employer entitled to– doesn’t mean it will </li></ul></ul>
  59. 74. 7.4.5.9 Maintenance of Health Benefits <ul><li>The County shall provide health insurance coverage to the employee under any of its group health plans for the duration of the leave at the level and under the conditions of coverage that would have been provided if the employee had continued in employment for the duration of such leave. However, the County may recover any unpaid premium paid by the County if the employee fails to return from leave or the employee fails to return to work for a reason other than a serious health condition or circumstances beyond the control of the employee. </li></ul>
  60. 75. Enforcement and remedies <ul><li>Individuals may bring suit for FMLA violations, or the Department of Labor may get involved </li></ul><ul><li>Damages for the FMLA include liquidated damages (double), injunctive relief, interest, costs and fees. </li></ul>
  61. 76. Retaliation prohibited <ul><li>Larger leave statutes prohibit employers from retaliating against employees for exercising leave rights </li></ul><ul><li>Courts would likely imply similar restriction in smaller ones too </li></ul>
  62. 77. Even more leave under ADA? <ul><li>Yes, perhaps. </li></ul><ul><li>If additional leave would be a reasonable accommodation to the employee under the Americans With Disabilities Act, it must be provided </li></ul><ul><ul><li>Employer can try to show it is an undue burden </li></ul></ul>
  63. 78. Minnesota Leaves <ul><li>Based on public policy considerations that our state legislature felt were sufficient to require employees to be provided leave </li></ul><ul><li>Beware: A number of these are paid leaves </li></ul><ul><li>Beware: most are relatively unchallenged and untested, so it may be unclear how it applies in certain cases </li></ul>
  64. 79. Parenting Leave Minn. Stat. 181.940-941 <ul><li>6 weeks unpaid leave </li></ul><ul><li>For the birth of adoption of a child </li></ul><ul><li>For natural or adoptive parent </li></ul><ul><li>Runs concurrently with FMLA leave (means that it most often overlaps) </li></ul><ul><li>Unlike FMLA, no minimum number of employees required </li></ul>
  65. 80. 7.4.4 Parenting Leave <ul><li>An employee who is a natural or adoptive parent may request an unpaid leave of absence in conjunction with the birth or adoption of a child. The length of the unpaid leave shall not exceed six weeks under state law and twelve weeks under federal law. See Section 7.4.5 (Family and Medical Leave Policy). </li></ul><ul><li>A leave of absence longer than the state or federal requirements for parenting leave must be approved by the County Board. The employee must request the Parenting Leave at least sixty days prior to the beginning of the leave unless unexpected circumstances warrant less notice and is acceptable to the Department Head and Human Resources Director. </li></ul>
  66. 81. Cont. <ul><li>The leave may begin not more than six weeks after the birth or adoption except in the case where the child must remain in the hospital longer than the mother, the leave may not begin more than six weeks after the child leaves the hospital. Health insurance coverage shall remain available to the employee while on the Parenting Leave of Absence, however, the employee shall reimburse the County for the employee share of the costs of the insurance in advance of the month for which the employee desires to be covered. </li></ul>
  67. 82. Voting Leave <ul><li>Minn. Stat. 204C.04 </li></ul><ul><li>Provides employees the right to be absent the morning of a state or federal election </li></ul><ul><li>State primary or general election </li></ul><ul><li>Elections to fill vacancies for US senator or representatives; state senator or rep; presidential primary </li></ul><ul><li>Violation a misdemeanor conviction </li></ul><ul><li>Why? So employees can be good citizens </li></ul>
  68. 83. Shorter leaves required -- School leave <ul><li>MN Kids’ school leave: Minn. Stat. 181.9412: Employers must provide leave for employees to attend school conferences and activities </li></ul><ul><li>16 hours in any 12 month period </li></ul><ul><li>Employee must give reasonable notice and make effort so as not to be disruptive (i.e. meeting cannot be scheduled outside work hours) </li></ul>
  69. 84. Organ Donation Leave <ul><li>Employees are entitled to up to 40 hours of paid leave for the purpose of donating an organ </li></ul><ul><li>Minn. Stat. 181.9456 </li></ul>
  70. 85. Bone Marrow <ul><li>20 hours of paid leave for employees to provide bone marrow </li></ul><ul><li>Leave does not exceed 40 hours per donation </li></ul><ul><li>Minn. Stat. 181.945 </li></ul>
  71. 86. 7.4.2 Court Duty Leave <ul><li>Employees subpoenaed as witness in connection with County employment or called for jury duty shall receive their regular compensation and other benefits less the amount of jury or witness fees. Employees shall notify their supervisor when served with a subpoena or notice of jury duty. Any fees received shall be remitted to the County Treasurer within ten (10) days following receipt by the employee. Employees shall return to their regular work duties if released from court duty during their scheduled hours of work </li></ul>
  72. 87. MN Military Leave <ul><li>Public employees get 15 days of paid leave </li></ul><ul><li>Includes reservists and guard duties </li></ul><ul><li>Employees cannot lose benefits </li></ul><ul><li>Also USSERA leave rights </li></ul><ul><li>Minn. Stat. 181.967, 948: 10 days leave if immediate family member killed in active service </li></ul><ul><li>Also for family members to send off and homecoming ceremonies when employee ordered into service </li></ul><ul><li>MN Stat. 192.266 et seq. </li></ul>
  73. 88. 7.4.3 Military Duty Leave <ul><li>Employees who are members of any reserve component of the military forces of the United States or National Guard shall be granted leave of absence with compensation not to exceed fifteen (15) working days per year when ordered to training as required by Minnesota Statutes 192.26 </li></ul><ul><li>Employees shall be entitled to military leaves of absence without compensation not to exceed four (4) years for service in the Armed Forces of the United States, provided a war or national emergency has been declared at the time of induction. Reinstatement to a comparable position within ninety (90) days of discharge from active duty shall be available to such employees. </li></ul><ul><li>Pursuant to M.S. 192.261 subd. 2, when an employee returns from a leave of absence due to qualifying military duty the salary upon return shall be the same salary which the employee would have received if the leave had not been taken. </li></ul>
  74. 89. Nursing mothers <ul><li>Must allow breaks for nursing mothers to breast-feed </li></ul><ul><li>Must provide private space </li></ul><ul><li>May not be unduly disruptive of employer operations </li></ul>
  75. 90. Leave to deal with Domestic Abuse <ul><li>Employee are provided reasonable time off to obtain TRO or protective order to get relief with respect to domestic disturbances </li></ul><ul><li>Minn. Stat. 609.748 subdiv. 10(a) </li></ul><ul><li>Also Minn. Stat. 518B.01, subdiv. 23(a) </li></ul>
  76. 91. Crime Victim Leave <ul><li>Employee may take time off for criminal proceedings if the employee or certain members of the employee’s family are victims of a crime </li></ul><ul><li>Minn. Stat. 611A.01; 611A.036 </li></ul>
  77. 92. 7.4.1 Personal Leave <ul><li>Personal leave without compensation up to six (6) months may be granted to an employee for any reasonable purpose and extended for any reasonable period. Employees shall submit a written request for personal leave to the Department Head. </li></ul><ul><li>To enable consideration of the leave request, the Department Head shall address the following questions: </li></ul><ul><ul><li>Can the employee's position be reasonably left vacant or filled on a temporary basis during the leave period? </li></ul></ul><ul><ul><li>Is there a reasonable expectation that the employee will be willing and able to return to work after the requested leave? </li></ul></ul><ul><ul><li>And, are there significant risks, costs or benefit to the County for granting the leave request? </li></ul></ul><ul><ul><li>Upon return from personal leave, the employee shall be assigned to their previous position or a position in a comparable class. </li></ul></ul>

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