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FMLA Training Part IV presented by The Office of the State Employer Employee Health Management Toni McFarland & Contract Negotiations/Administration Cheryl Schmittdiel. T he State of Michigan (SOM) must observe employee rights under the FMLA;
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FMLA Training Part IV presented by The Office of the State Employer Employee Health Management Toni McFarland & Contract Negotiations/Administration Cheryl Schmittdiel
The State of Michigan (SOM) must observe employee rights under the FMLA; • The State of Michigan must observe employee rights under an applicable collective bargaining agreement (CBA) or Civil Service Rules and Regulations (CSR&R); • The State of Michigan cannot interpret CBA or CSR&R to diminish rights guaranteed by the FMLA.
Employee Eligibility To be eligible for FMLA leave an employee must: • Work for a covered employer; and • Work for the covered employer for 12 months, which need not be consecutive months; and • Actually work at least 1,250 hours within the 12 months immediately prior to the FMLA leave. • Paid leave hours do not count; however, • Military leave hours do count toward 1,250 hours as time worked.
For leave to be designated as FMLA leave, an eligible employee need not mention the FMLA specifically when requesting leave, the employee must simply give an FMLA qualifying reason for the leave.
Qualifying Reasons The SOM, as a covered employer, must grant an eligible employee up to 12 workweeks of job-protected FMLA leave within a 12-month period for the following reasons: • the birth of an employee’s son or daughter, and to care for the newborn; • the placement with an employee of a son or daughter for adoption or foster care, and to care for the newly placed child; • to care for an employee’s spouse, son, daughter, or parent with a Serious Health Condition (SHC); and • because the employee's own SHC makes the employee unable to perform the essential functions of their position.
Spouse • Husband or wife, as defined or recognized under State law for purposes of marriage in the State where the employee resides. • Common law marriage qualifies in states where it is recognized; it is not recognized in Michigan. Note: We have employees who reside in other states.
Parent • A biological parent or a person who stands or stood in loco parentis to an employee when the employee was under 18. • In loco parentis means “in the place of a parent”. • Parent does not include parents-in-law.
Son or Daughter • Son or daughter includes a biological child, adopted child, foster child, stepchild, legal ward, or a child of a person standing in loco parentis. • The son or daughter must be: • under 18, or • 18 or older and “incapable of self-care because of a physical or mental disability.”
“Incapable of Self-care” • An employee’s son or daughter is “incapable of self-care” if the child requires active assistance or supervision to provide daily self-care in 3 or more activities of daily living (ADL) or instrumental activities of daily living (IADL): • ADL include bathing, dressing, and eating; • IADL include cooking, cleaning, shopping, transportation, etc.
“Physical or Mental Disability” • An employee’s son or daughter has a “physical or mental disability” if the child has a physical or mental impairment that substantially limits 1 or more of the child’s major life activities. • See the Americans with Disabilities Act (ADA) for definitions of these terms: • physical or mental disability • substantially limits • major life activities
Serious Health Condition • A SHC is any illness, injury, impairment, or physical or mental condition that involves either: • Inpatient care (i.e., overnight stay); or • Continuing treatment. • See Section 825.114.
Continuing Treatment 1. Incapacity of more than 3 consecutive calendar days with either: • treatment 2 or more times by a Health Care Provider (HCP), or • 1 time with a regimen of continuing treatment under the HCP supervision Note: If this is the reason for FMLA leave, then FMLA would also cover any subsequent incapacity or treatment relating to the same condition.
Continuing Treatmentcont. 2. Any incapacity due to pregnancy or for prenatal care Note: Need not be 3 consecutive days and need not receive treatment during the absence (unless the reason for the absence is prenatal care) but must be incapacitated.
Continuing Treatmentcont. 3. Any incapacity or treatment due to a chronic SHC: • requires periodic visits for treatment by HCP or under the supervision of HCP; and • may cause episodic periods of incapacity, examples include asthma, diabetes, epilepsy, etc. and • continues over an extended period of time, including recurring episodes of a single underlying condition; Note: Need not be 3 consecutive days and need not receive treatment during the absence but must be incapacitated.
Continuing Treatmentcont. • Permanent or long-term incapacity due to a condition for which treatment may not be effective: • must be under continuing supervision of HCP but need not be receiving active treatment; • examples include Alzheimer’s, a severe stroke, or the terminal stages of cancer.
Continuing Treatmentcont. • Any period of absence to receive multiple treatments for, including any period of recovery from, either: • restorative surgery after an accident or injury; or • a condition likely to result in incapacity of more than 3 consecutive calendar days in absence of medical intervention or treatment; examples include chemotherapy for cancer, physical therapy for severe arthritis, or dialysis for kidney disease.
Incapacity Incapacity is the inability, due to the SHC, treatment for the SHC, or recovery from the SHC, to: • Work, • Attend school, or • Perform other regular daily activities
FMLA Entitlements An eligible employee with a qualifying reason is entitled to: • Up to a total of 12 work-weeks of job-protected FMLA leave in a 12 month period (unpaid/paid); and • Benefits protection during the FMLA leave; and • Job restoration upon return from FMLA leave.
Up to a Total of 12 Workweeks • Only the amount of FMLA leave actually taken may be counted towards the 12 workweeks. • The 12 workweeks are based on the employee’s normal workweek. • DCDS records time in hours, not workweeks. • For purposes of recording time in DCDS, the workweek is converted to hours.
Up to a Total of 12 Workweeks • 12 workweeks is always 12 workweeks: • An eligible full-time employee is entitled to up to a total of 480 hours of FMLA leave for qualifying reasons and every full day of FMLA leave used is recorded as 8 hours. • An eligible part-time employee who works 4-hour days, 5 days a week is entitled to up to a total of 240 hours of FMLA leave for qualifying reasons and every full day of FMLA leave used is recorded as 4 hours. • An eligible permanent-intermittent employee who works varying hours each workweek is entitled to the weekly average of hours worked over the 12 weeks prior to the beginning of the FMLA leave times 12 workweeks. • See Section 825.205.
Limitations • FMLA leave to care for an employee’s newborn child or a newly placed child must conclude within 12 months after the birth or placement. See Section 825.201. • Under the FMLA ,spouses employed by the same employer may be limited to a combined total of 12 workweeks of family leave for: • birth or care of a newborn son or daughter; or • placement with an employee of a son or daughter for adoption or foster care, and care for the newly placed child. • If limited, each spouse is entitled to the difference between the amount taken individually and 12 workweeks within the 12-month period for other FMLA qualifying events. *Note: Consult the employee’s CBA, it may alter this limitation.
Employer Substitution of Paid Leave • Under the FMLA, an eligible employee is entitled to up to a total of 12 workweeks of unpaid FMLA leave in a 12-month period for qualifying reasons. • The employer may require accrued paid sick leave be substituted for the unpaid leave if the reason for the leave is the employee’s own SHC or the SHC of the employee’s spouse, son, daughter, or parent. (See Section 825.207). • If requiring accrued sick leave to be substituted for unpaid FMLA leave, the employer must provide notice within 2 business days following the employee’s request for leave, or when sufficient information is obtained to determine that the leave qualifies as FMLA leave.
Employee Substitution of Paid Leave • If the employer requires substitution of accrued paid sick leave for unpaid FMLA leave for a SHC, the employee may choose to substitute accrued paid annual leave or personal leave instead. • If the employer does not require substitution of paid sick leave for a SHC, the employee may choose to substitute sick leave for the unpaid FMLA leave. • If the reason for the FMLA leave is other than the employee’s own SHC or the SHC of the employee’s spouse, son, daughter, or parent, the employee may choose to substitute accrued paid annual leave or personal leave for the unpaid FMLA leave.
Employee Substitution of Paid Leave cont. • Some CBA’s permit an employee to certify the need to use up to 2 weeks of sick leave, upon the birth of their child, prior to the beginning of any parental leave. • The 2 weeks of sick leave are deemed to be due to the SHC of the employee’s spouse or newborn child; however, no CS-1789 is required for these 2 weeks. • An employee may not substitute paid compensatory time, BLT, or deferred hours for unpaid FMLA leave. • If an employee uses compensatory time, BLT, or deferred hours for FMLA qualifying purposes, the time cannot be counted against the employee’s FMLA leave entitlement.
A 12-Month Period • An eligible employee with a qualifying reason is entitled to up to a total of 12workweeks of job-protected FMLA leave during a 12-month period beginning on the first date the employee's leave is taken. The next 12-month period begins the first time leave is taken after completion of any previous 12-month FMLA period. • Although the FMLA permits alternate ways to calculate the 12-month period, this is the method the SOM uses, which is incorporated into CBAs, and it cannot be changed by a department.
Job-Protected Leave • The employer is to grant FMLA leave to an eligible employee with a qualifying reason requesting FMLA leave. • The employer is to restore an eligible employee on FMLA leave to their position upon expiration of the FMLA leave.* • The employer cannot interfere with an employee’s exercise of FMLA rights. • The employer cannot retaliate against an employee for exercising FMLA rights. *Note: not an absolute, unqualified right
Intermittent Leave and Reduced Leave Schedule • Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. • A reduced leave schedule reduces an employee’s usual number of working hours per workweek, or hours of work per workday. • The leave may be taken in the shortest period used to account for absences or use of leave. • The employer cannot count more FMLA leave against an employee’s entitlement than is actually taken.
Intermittent Leave and Reduced Leave Schedule cont. • FMLA leave may be taken intermittently or on a reduced leave schedule when medically necessary for: • planned or unanticipated medical treatment of a SHC; • recovery from treatment for a SHC ; or • recovery from a SHC. • Intermittent FMLA leave or a reduced leave schedule may be taken for absences where the employee is unable to perform the essential functions of the position because of a chronic SHC. • Intermittent leave or a reduced leave schedule may be taken only with the employer’s approval to care for a newborn or newly placed adopted or foster care child. • See Section 825.203.
“Medically Necessary” • Intermittent leave or leave on a reduced schedule must be “medically necessary”. • “Medically necessary” means there must be a medical need for the leave, which is best accommodated through intermittent leave or a reduced leave schedule. • Employees needing intermittent leave or leave on a reduced schedule must attempt to schedule leave so the employer’s operations are not disrupted. • The employee may be assigned to an alternative position that better accommodates an employee’s intermittent leave or reduced leave schedule. • See Section 825.117.
Alternative Position • The employer may transfer an employee to an alternative position during the period of intermittent leave or reduced leave schedule if: • leave is foreseeable based on planned medical treatment; or • the employer has agreed to permit intermittent leave or leave on a reduced schedule due to the birth of a child, or placement of a child for adoption or foster care. • Any transfer to an alternative position must be in compliance with an applicable CBA, and state and federal laws.
Alternative Position cont. • An alternative position need not be equivalent in duties. • The alternative position must: • have equivalent pay and benefits; and • better accommodate recurring periods of leave than the regular position of the employee. • The employer may proportionately reduce benefits, such as annual and sick leave accruals, that are based on the number of hours worked. • The employer may not transfer an employee to an alternative position to discourage the taking of FMLA leave.
HRMN Notifications • HRMN is now sending notifications to the departments when a date is entered that is not at least 9 months from the start date of the employee’s FMLA leave, and when the employee’s FMLA qualifying year has expired and the expiration date has not been removed or reset. • “The below employee had an FMLA expiration date of entered in HRMN that is less than 9 months out from the Date of the "MISCUPDAT2" Personnel Action. This action was entered by User000000. Please adjust the date to at least 9 months in the future.” • “The below employee had a FMLA expiration date that is over 14 days ago. Please review the employee's record, either reset the expiration date or remove it, and zero out the FMLA time accrual hours.”
Benefit Protection • During FMLA leave, an employer must maintain the employee’s coverage under any group insurance plan (health, dental and vision) the employee was enrolled in prior to the FMLA leave. • While on FMLA leave, an employee is entitled to any new or changed group insurance plan benefits provided by the employer to the same extent as the employee would have been if not on leave. • The employer’s obligation ceases if and when the employment relationship would have ended if the employee had not taken FMLA leave. • An employee may choose not to retain group insurance plan coverage during FMLA leave.
Job Restoration • Upon return from FMLA leave, an employee is entitled to restoration to the same position or an equivalent position as long as the employee is able to perform all of the essential functions of their position. (See Section 825.214) • An equivalent position must have the same benefits, pay, and other terms and conditions of employment prior to the FMLA leave. • A “key employee” is not necessarily entitled to job restoration but this provision rarely applies in the state classified service. (See Section 825.217)
Notifying the Employer • Notice of the need for FMLA leave may be given: • in writing • orally • in person • by telephone • by fax machine • after the employee returns, but within two (2) business days • by the employee’s spokesperson • An employee is not required to use the CS-1790 to notify the employer of the need for FMLA leave. • If notification is made in any other manner, the employer will complete Sections I and II of the CS-1790.
Notifying the Employer cont. • Notice for foreseeable leave is to be given: • 30 days or more into the future; or • as soon as practicable, which is within two (2) business days of beginning leave. • Notice for unforeseeable leave may be given as soon as practicable: • within two (2) business days of going on leave; or • within two (2) business days of returning from leave. • Any employer rules regarding call in or notification required when an employee cannot work remain in effect and are not relieved under the FMLA; however, a transgression cannot serve as a basis for denial if timely notice of the need for FMLA leave is given.
1. FMLA allows eligible employees to take time off to care for the following family members with a SHC: • child, spouse, grandparent • spouse, grandparent, sibling, child • child, spouse, parent
