The FMLA Haystack

1. 1 The FMLA Haystack The Needle Is NOT So Hard To Find

2. 2 Underlying Policy of (W)FMLA Balance demands of workplace with needs of families Promote stability and economic security of families Minimum standard for reasonable leave for medical reasons, care of family, birth or adoption Promote equal employment opportunity Recognize societal change

3. 3 The FMLA Haystack Why do AA/EEO officers need to know? Not just a payroll/benefits issue Another tool to resolve employee needs Perceived inequities with other employees

4. 4 Sheaves of Wheat: A Review of the Field Federal FMLA Wisconsin FMLA (WFMLA) DER Policies System Leave Policies Campus Leave Policies Collective Bargaining Agreements

5. 5 First Approach Determine what the employee wants Frequently less than required by law Frequently less than provided by contract Can this be accommodated by work unit? Can the time be covered by policy or contract?

6. 6 Sheaves of Wheat: Federal FMLA (in general) Employees must have worked 1250 hours in preceding 12 months Up to 12 weeks leave during 12 month period Leave for: birth, adoption/foster care placement care for parent, child or spouse with serious health condition employee�s own serious health condition Intermittent leave Required only where medically necessary Employer consent for birth or adoption Restricted substitution of accrued leave Restored to same or equivalent position

7. 7 Sheaves of Wheat:WFMLA (in general) Employees must have worked for any state agency at least 1,000 hours in previous 52 weeks Family leave: Up to 6 weeks for birth or adoption placement Up to 2 weeks for care for child, spouse or parent with serious health condition Medical leave: up to 2 weeks for employee�s serious health condition Intermittent leave Required if does not unduly disrupt employer�s operations Employees may substitute any accrued paid leave Restored to same or equivalent position

8. 8 Sheaves of Wheat:System Policies Unclassified Employees Sick Leave UPG #10 22 days granted upon hire; 1 day per month after 18 months Used for personal illness, injury, disability, pregnancy or adoption Used for attendance upon immediate family member or death of family member Vacation and Holiday UPG #9 22 days per year 3.5 days personal holiday ALRA Benefits handbook: 12 mo. after birth or placement; or up to 2 semesters

9. 9 Sheaves of Wheat: Campus Policies Individual campus policies for unclassified staff Additional leave time after childbirth/adoption/foster placement? Leave time for care of partners? Leave time for other reasons?

10. 10 Sheaves of Wheat:DER Policies and CBA Non-represented Classified Employees Chapter ER 18, Wis. Adm. Code Sick leave, annual leave, personal holiday Leave of absence without pay 6 mo. after birth or placement Classified Employees Applicable collective bargaining agreement provisions regarding sick leave, annual leave, personal holiday, leave without pay

11. 11 Creating the Haystack The provision which provides the most generous benefit to the employee must be applied FMLA or WFMLA qualifying leaves run concurrently and are not identical UW and State policies are more generous than FMLA and WFMLA

12. 12 The Haystack:Length of Leave WFMLA Each calendar year 8 wks max. leave: 6 wks family leave 2 wks medical leave Leave runs concurrently with FMLA and policy and cba leave FMLA Each calendar year Fiscal yr for unclassified 12 wks max. leave total for all qualifying reasons Leave runs concurrently with WFMLA and policy and cba leave

13. 13 The Haystack:Length of Leave DER Policies Classified Employees Non-represented: mandatory 6 months for birth/placement; discretionary renewal Discretionary 1 year unpaid leave of absence UW Policies Unclassified Employees 12 months for birth/placement Accrued sick leave Leave without pay

14. 14 Finding the Needle:How Much Leave for Jane? Jane Doe requests 16 weeks of full time leave for debilitating cancer treatment. What FMLA, WFMLA and other leaves must the institution provide? 2 weeks WFMLA leave 10 weeks FMLA leave (12 � 2 = 10) 2 weeks other policy or cba leave NB: Combined total not more than policy or cba allows

15. 15 The Haystack:Reasons for Leave: New Child WFMLA 2 wks medical leave for birth�mother 2 wks medical leave to care for mother--father 6 wks family leave for care of child or placement for adoption�mother and father FMLA 12 weeks for birth or adoption/foster placement of child AND medical needs of mother--mother 12 weeks for father to care for newborn or child placement AND to care for mother--father

16. 16 The Haystack:Reasons for Leave: Medical WFMLA 2 weeks for serious health condition of employee FMLA 12 weeks for serious health condition of employee NB: 12 weeks is total for all combined reasons for FMLA leave

17. 17 The Haystack:Serious Health Condition WFMLA Disabling physical or mental illness, injury, impairment or condition involving Inpatient care, or Outpatient care requiring continuing treatment or supervision by health care provider Can include any sick leave used for illness For counting purposes only FMLA Illness, injury, impairment or physical or mental condition that involves Inpatient care (overnight), or Continuing treatment Period of incapacity for more than three days and subsequent treatment involving Two visits to health care provider, or One visit and regimen of continuing treatment

18. 18 The Haystack:Serious Health Condition FMLA cont�d Any period of incapacity due to chronic serious health condition which Requires periodic visits for treatment Continues over an extended period of time May cause episodic rather than continuing period of incapacity Any period of incapacity due to pregnancy or prenatal care

19. 19 The Haystack:Reasons for Leave: Family WFMLA 6 wks for birth or placement of child for adoption Must begin within 16 wks of birth or placement 2 wks for care of child, spouse or parent with serious health condition Parent means natural, adopted, foster, stepparent and in-laws Child includes natural, adopted, foster, stepchild or legal ward younger than 18 FMLA To care for newborn or newly placed child To care for spouse, son, daughter or parent with serious health condition Parent: not in-laws, includes one who stands in loco parentis Child means biological, adopted, foster, stepchild, legal ward or child � in loco parentis

20. 20 Sifting Through the Haystack:$1,000,000 Questions Since the UW and State policies and rules provide more lenient benefits for employees in most cases, why bother with the WFMLA and FMLA? Who cares? Why should I care?

21. 21 Sifting Through the Haystack:Final Answer The FMLA and WFMLA may provide greater flexibility on how to cover leave The FMLA and WFMLA may require intermittent leave or reduced schedule when policies may not Failure to designate leave as FMLA leave may lead to additional leave entitlement Lack of knowledge about FMLA and WFMLA can lead to loss of employee morale Failure to comply with FMLA and WFMLA can lead to legal liability, including fines

22. 22 The Haystack:Substitution of Other Leave WFMLA (unpaid) Employee may substitute accrued paid or unpaid leave of any other type for whole or part of unpaid family or medical leave Sick leave may be used even if not otherwise available Employer may not require substitution of paid leave FMLA (unpaid) Employee may substitute unused accumulated leave for whole or part of unpaid FMLA leave Sick leave may be used only to the extent circumstances meet requirements of policy, rule or cba

23. 23 Finding the Needle:Paying for Jane�s Leave 2 weeks WFMLA Leave Employee�s choice: any accrued paid leave or unpaid leave of any type 10 weeks FMLA leave Employee�s choice: sick leave to extent use is otherwise permitted by policy or cba, accrued paid leave (not compensatory time), unpaid leave Institution may require employees to use paid leave prior to use of unpaid leave, but must have policy and notify employee 2 weeks policy or cba leave if available: as permitted by policy or cba

24. 24 The Haystack:Employer�s Notice Obligations WFMLA Institutions must post required notice in conspicuous places where notices are customarily posted $100 fine for failure to post Poster available at http://der.state.wi.us/static/hrhandbk/chap724_Attachment4.htm No requirement to notify employee at time of leave FMLA Institutions must post required notice in conspicuous places $100 fine for failure to post Poster available at http://www.dol.gov/dol/esa/fmla.htm Information about FMLA must be in employee handbook, website, etc. Sample at http://der.state.wi.us/static/hrhandbk/chap724_Attachment6.htm

25. 25 The Haystack:FMLA Notice to Employee At time of a request for leave, the employer must notify the employee in writing, presented within one or two business days of the request, including specific expectations and obligations of the employee and consequences: Whether leave counted against annual FMLA entitlement Whether medical certification is required Right to substitute paid leave and if substitution is required Any requirement to make health benefit payments Any requirement for fitness for duty to return to work Right to restoration to same or equivalent job Potential liability for payment of health insurance premium if ee fails to return to work

26. 26 Sifting through the Haystack:Failure to Provide FMLA Notice If the employer does not provide the required written notice to the employee, the leave may not be able to be counted against the employee�s 12 week FMLA entitlement. Thus, the employee may have a right to another 12 week leave within the calendar year. (unsettled legal status of addt�l 12 weeks) Sample employer notice at www.dol.gov/dol/esa/fmla.htm

27. 27 Finding the Needle:Problems with Jane�s Leave Jane�s supervisor failed to notify her at the time she requested leave that she could substitute other leave, not just sick leave, for her leave for cancer treatment. Now that she has returned from leave, she wants to substitute some vacation time for sick leave. Can she do that?

28. 28 The Haystack:Intermittent Leave WFMLA Leave may be taken in non-continuous increments or partial absence of less than full days, as short time as permitted for any non-emergency leave Medical necessity is not required Employer may deny leave if request not properly made May transfer employee to alternative position with employee agreement FMLA Leave may be taken in separate blocks or on a reduced schedule Intermittent leave after birth of child only with employer agreement As medically necessary for self or family, in periods of an hour or more to several weeks Not required to take more leave than necessary May transfer employee to alternative position with same pay and benefits

29. 29 Sifting Through the Haystack:Scheduling Intermittent Leave WFMLA��does not unduly disrupt operations� For intermittent leave for new child employee must: Give as much notice as for non-emergency, non-medical leave, and Schedule sufficiently definite to be able to schedule replacement employees For intermittent leave for other reasons, employee must: Give notice with reasonable promptness after employee learns of the probable necessity for the leave, and Proposed schedule sufficiently definite�.

30. 30 Sifting Through the Haystack:Scheduling Intermittent Leave FMLA Employee must advise employer of reasons why intermittent/reduced schedule leave is necessary and the schedule Employer and employee must attempt to work out a schedule, subject to approval of health care provider Required as medically necessary May require medical certification

31. 31 Finding the Needle:Jane�s Intermittent Leave Before Jane goes on leave, she discovers she will be able to work on an intermittent basis. Her doctor anticipates she will not be able to work on the days she receives treatment, will be able to work 4 hours per day the following week, and full time the next week. Her treatments are scheduled every two weeks. What leave entitlement does she have under the WFMLA and FMLA? How can the leave be covered? How does she request leave?

32. 32 Sifting through the Haystack:Scheduling WFMLA Leave WFMLA Employee Obligations Notice for birth or adoption: in advance in a reasonable and practicable manner, with reasonable promptness Notice for planned medical treatment for self or family: reasonable effort to schedule treatment so does not unduly disrupt operations Provide proposed, sufficiently definite schedule with reasonable promptness As feasible given circumstances of medical necessity Leave for birth and child care may begin within 16 weeks before or after birth/placement Sample employee leave request form DER-DCLR-201

33. 33 Sifting Through the Haystack:Scheduling FMLA Leave FMLA Employee Obligations 30 day advance notice of need if foreseeable, or as much notice as feasible Need not state �FMLA� leave is requested Employer should inquire further In writing if other leaves must be requested in writing Planned medical treatment�must make reasonable effort to schedule to not unduly disrupt operations If need is not foreseeable, as much notice as practicable, by telephone, telegraph, fax, etc.; by self, adult family member, spouse

34. 34 Sifting Through the Haystack:Timing of the Leave WFMLA Family leave for birth or adoption may begin no earlier than 16 wks before birth/placement and no later than 16 wks after. IF taken incrementally, last increment must begin within 16 weeks after. Maximum of 8 wks of combined leave per year Calendar year for classified Fiscal year for unclassified FMLA Leave for birth or adoption expires 12 months from date of birth or placement Designation of leave as FMLA leave must be given to employee within 2 days of request Cannot be made after return from leave (conditions)

35. 35 Finding the Needle:Jane�s Emergency A week before Jane�s anticipated leave date she passes out while taking a walk. A stranger finds her and calls 911. At the hospital she has emergency surgery. No notice is provided of her absence until six days later when her sister calls you. What type of leave is she entitled to?

36. 36 Sifting through the Haystack:Medical Certification WFMLA (first 2 wks) May be required if the employee requests medical leave, or family leave to care for a family member with a serious health condition FMLA (next 10 wks) May be required when leave is requested for serious health condition of employee or employee�s family member. Employees must be allowed at least 15 days to complete and return the requested certification.

37. 37 Sifting through the Haystack:Medical Certification cont�d WFMLA (first 2 wks) May not request more than the following: That a serious health condition exists The date the condition began and probable duration Medical facts regarding condition Extent to which employee is able to perform duties Sample medical certification form available upon request

38. 38 Sifting through the Haystack:Medical Certification, cont�d FMLA (next 10 wks) May request limited information: Which part of the definition of serious health condition apply How medical facts meet definition Date the condition began and probable duration If pregnancy, the likely frequency and duration of incapacity Whether and how long intermittent schedule needed Regimen of treatment Whether inpatient care needed Extent to which employee is unable to perform duties That family member needs employee�s assistance Sample medical certification form at www.dol.gov/dol/esa/fmla.htm

39. 39 Sifting through the Haystack:Second Medical Opinion WFMLA (first 2 wks) Second opinion may be requested If disagreement between two, Personnel Commission may appoint a third FMLA (second 2 wks) Second opinion by a provider who is designated by the appointing authority may be requested A third opinion by a mutually agreed upon provider will be binding

40. 40 Sifting through the Haystack:Recertification WFMLA (first 2 wks) No recertification provided for. FMLA (next 10 wks) May be requested at reasonable intervals but not more than every 30 days Where circumstances have changed significantly May require return to duty fitness certification if notice given to employee before leave or if cba requires May state only that employee is able to return to work

41. 41 Finding the Needle:Jane�s Recovery Jane�s surgery was successful. She is cleared to return to work after only two weeks of medical leave. Her supervisor is suspicious. Can a fitness to return to work certification be requested? Jane will need follow-up treatment, as described previously. What does she need to do now?

42. 42 Finding the Needle:Employer Obligations Post both the FMLA and WFMLA notices Place in employee handbook information (policy) on employees� entitlements and obligations under the FMLA and WFMLA and the institution�s policies. Provide employees with appropriate written notice of rights, obligations and consequences when leave is requested Responsibly answer questions from employees about their rights and responsibilities under the FMLA

43. 43 When the Needle Pricks:Disputes WFMLA Employees can file a complaint with the State Personnel Commission FMLA US Department of Labor, Wage and Hour Division, investigates complaints

44. 44 Finding the Needle:Is the Leave (W)FMLA Leave? If employee does not request FMLA or WFMLA leave explicitly and the reason for leave appears to qualify, ask the employee. The best first question to ask the employee is what he/she wants in terms of leave, and determine whether that can be accomplished through policies, rules or the cba. The employer may designate leave as FMLA leave even if the employee does not request it. Qualifying leave, and potentially all sick leave use, counts automatically as WFMLA leave. The employer may request, in writing, medical certification for the leave. Use proper certification form

45. 45 Finding the Needle:Help! Where To Get It UW System HR Office; Campus HR Office UPG #10; Collective Bargaining Agreements FMLA: Department of Labor interactive website at www.dol.gov/elaws/fmla.htm FMLA: Department of Labor FMLA website at www.dol.gov/dol/esa/fmla.htm WFMLA and FMLA: DER HR Handbook at http://der.state.wi.us/static/hrhandbk/chap724.htm Department of Workforce Development website at www.dwd.state.wi.us/er/familyandmedicalleave1.htm UW System General Counsel website at http://www.uwsa.edu/gc-off/ Click on Legal Q and A

46. 46 Can You Find the Needle? An employee requests maternity leave for six months. She is eligible for leave under both the WFMLA and the FMLA. She has accumulated at least six weeks of annual leave and holiday leave, and at least six weeks of sick leave. The employee wishes to maximize use of paid leave. What paid leave may she take?

47. 47 Can You Find the Needle? An employee requests paternity leave for six months. He is eligible for leave under both the WFMLA and the FMLA. He has accumulated at least six weeks of annual leave and holiday leave and at least six weeks of sick leave. The employee wishes to maximize use of paid leave. What paid leave may the employee take for paternity leave?

48. 48 Can You Find the Needle? An employee requests and has approval for a six month leave of absence to care for his spouse who has a serious health condition. He is eligible for leave under both the WFMLA and the FMLA. He has accumulated at least four weeks of annual leave and eight weeks of sick leave and wishes to maximize the use of paid leave. What paid leave may the employee take?

49. 49 Can You Find the Needle? An employee requests three days of sick leave to stay home with his child who has an upper respiratory virus. What type of leave is he entitled to?