FAMILY AND MEDICAL LEAVE ACT (FMLA)

Michelle Anderson & Matthew LevittSupervisors’ Academy

March, 2011

Objectives

At the close of this session, you will be able to:

State what the FMLA is Be aware of your responsibilities as a

Supervisor as required by the law and TSD policy

Avoid actions prohibited by the law and other common errors

What is the FMLA?

The Family and Medical Leave Act (FMLA) is a Federal Law passed in 1993 and expanded in 2009 to grant job protection for absences related to certain family medical circumstances or military related absences.

Basic Provisions - Who is EligibleAn employee who has worked:For the State of Texas for at least 12

months ANDAt least 1250 hours for the State of

Texas in previous 12 months

Basic Provisions - Qualifying Events1. Birth2. Adoption or foster care placement3. Employee’s serious health condition4. Employee’s family member with

serious health condition

Basic Provisions - Qualifying EventsAND…recently added

5. Employee’s family member called up to active duty in Armed Forces

6. An employee’s injured or ill service family member

Basic Provisions - Serious Health ConditionAn illness, injury, impairment or physical/

mental condition that involves inpatient care or continuing treatment by a health care provider

Basic Provisions - Serious Health Condition Examples

YES Pregnancy and

childbirth Cancer Alzheimer's

Disease Epilepsy Bipolar disorder Depression

NO*•Common cold•Poison ivy•Eczema•Upset stomach•Routine dental work•Ear ache•Remember to look for continuing treatment

Basic Provisions - Employee BenefitsUp to 12 weeks of job protected leave

for reasons 1-5Up to 26 weeks of job protected leave

to care for an employee’s injured or ill service family member

Continuation of health insuranceReinstatement to same or equivalent

position

Basic Provisions - Job Protected LeaveFMLA is not a type of leave

☂sick leave, annual leave, sick leave pool,

FLSA overtime, compensatory time, holiday time, LWOP

Basic Provisions - Job Protected LeaveFMLA may be paid or unpaid -

depending on employee leave balancesTSD requires use of all paid leave

before going on unpaid leave

Basic Provisions - Job Protected Leave Time off only for time that is medically

necessary or for bonding time with new baby or adopted child

Military exigencies; time off for: Short notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities.

Basic Provisions - Job Protected Leave

Leave may be:ContinualIntermittentReduced work schedule

Basic provisions - Health Insurance

State continues to pay State’s share of health insurance

Employee continues to pay employee share, including optional coverages

Optional coverage may be dropped at start of FML and reinstated without EOI at end of FML

Basic Provisions - Job ProtectionEmployee returns to same or equivalent

position, if return within FMLA protected time

FMLA protected leave is not considered an absence for disciplinary action

Employee Responsibilities

At least 30 days advance notice (when possible)

Provide documentation within 15 daysKeep HR informed of statusReturn to work medical certification

Supervisor Responsibilities

Refer employees to Human Resources, if potential qualifying condition

Inform timekeeper of potential FML timeContact HR if any employee misses

four continuous work shifts

HR Responsibilities

Inform staff of FMLA rightsMake preliminary FMLA designationsAsk employees to provide status updateRestore employees to same or

equivalent position

TSD Process - Notification

HR provides employee with necessary forms and information• A copy of the TSD FMLA procedure• The request for FMLA leave• The Certification of Health Care

Provider• The Return to Work Status Report,

including a copy of the job description

TSD Process - Designation

Based on medical documentation, HR determines if qualifying event

TSD Process - Timekeeping

Indicate on the timesheet that the employee is out on FML

Use all paid leave prior to LWOP

TSD Process - Return to WorkEmployee serious medical condition -

medical provider release to full dutyFamily member serious medical

condition - family member does not require employee care

Birth - end of 12 weeks

TSD Process - Return to WorkEmployee’s medical provider completes

“Return to Work” formMedical provider FAXes or employee

hand delivers “Return to Work” form to HR

Employee may not return to work if HR does not have “Return to Work” form

TSD Process - Return to Work with RestrictionsHR coordinates with department

If able to accommodate, employee returns to work

If unable to accommodate, employee must stay home until a full release is obtained

TSD Process - Unable to Return to Work

NOT Business Necessity - position is held for his/her return

Business Necessity; Superintendent reviews for concurrence with legal and HR If agrees, employee is terminated and

position filled If disagrees, position is held for his/her

return

TSD Process - Instructional Staff, End of Semester

Leave taken at the end of the school year which continues into the next school year is considered continual leave

Summer break time not counted against FMLA time

Special rules apply to “instructional employees”

TSD Process - Instructional Staff, End of Semester

“Instructional employees” are those whose principal function is to teach and instruct students in a class Included: teachers, athletic coaches driving

instructors, and special ed assistants, such as interpreters

Not included: teacher aides, counselors, psychologists, curriculum specialist, cafeteria workers, maintenance, or bus drivers

FMLA/ADA Coordination

If employee has medical condition which requires change in schedule or position due to not able to perform essential functions of current job, supervisor and employee must work with HR and legal to determine if employee qualifies under ADA for reasonable accommodations

Workers’ Comp/FMLA

Worker’s Comp (WC) injury resulting in absences of more than 3 days

WC medical paperwork (DWC 71) is medical documentation

NOT required to use paid leave

Tracking FMLA

HR records absences 480 hours (12 weeks X 40 hours per week)

per year for classified employees 420 hours (12 weeks X 35 hours per week)

per year for contract employees “Rolling year” - 12 weeks of FML starting with

the first day of FML designation FML eligible hours “roll back on” after one

year

Errors to Avoid

Do NOT make a designation of FML eligibility Do NOT contact the employee’s medical provider

with questions or to request information Do NOT ask employees for medical note for each

absence of intermittent leave Do NOT retaliate against employees who request or

use FML Do NOT take disciplinary action or terminate an

employee who does not return from FML or cannot perform functions; without coordinating with legal and HR

Common Misconceptions

FML Leave is always paid FML is additional leave time Employees do not have to use their own

leave while on FML An employee on FML will not incur any

LWOP FML begins after the employee exhausts

his/her leave balances FML is for consecutive time off only FML can be used for the employee only

Common Misconceptions

If on FML, an employee doesn’t need to provide status updates

FML time starts back at 480 hours after 1 year

Employee does not need medical certification for FML designation

Employee does not need to complete return to work form to come back after FML leave

Questions