Employee Leave Issues – Managing the Law and Your Policies

1. Employee Leave Issues –Managing the Law and Your Policies

2. OKLAHOMA STATE LAW

3. Jury Service An employee gets time off for jury service. An employer may not require “or request” an employee to use his/her vacation or sick leave (or presumably PTO) for time spent on jury duty or related service.

4. Jury Service • An employer may not discharge or otherwise subject an employee to any adverse employment action for taking leave to serve as a juror • An employer need not provide paid time off, but you can. If your policy allows it, it • “shall be the decision of the employee whether to use paid leave or take leave without pay for absence from employment for jury duty.” • Yes, you can be sued for this

5. Jury Service – Policy Takeaway • If you have a policy, you need to address • That the employee will be allowed time off for jury service • Whether the company will pay for the time off and, if so, for how long • Whether the company will permit the employee to use his/her paid leave, if any, for the time off and, if so, confirming that it is within the employee’s discretion to do so

6. Time Off to Vote 3 consecutive hours off when polls open = no time off Otherwise, read the rules

7. Voting • Employees who have at least 3 hours before or after work while the polls are open are not entitled to time off to vote • An employer can change the work hours to permit employees to have at least 3 hours before or after the work day to vote which will negate any need for time off to vote

8. Voting (cont.) • Otherwise, registered voters must be permitted 2 hours of time off during the time when the polls are open to vote (or more if the person votes in another county and requires more time to travel) • The employee must notify the employer the day before the election of the need for time off • The employee should provide proof that s/he voted and then should suffer no penalty or loss of pay • Employer can select the hours to be absent

9. Time Off for Military Service

10. Military Leave • Oklahoma provides job protection to persons in the Reserves or the Armed Forces • They are entitled to a leave of absence • “If any employer in the private sector fails to comply …, the officer or employee may bring an action in district court for actual and compensatory damages for such noncompliance and may be granted such relief as is just and proper under the circumstances.”

11. Workers’ Compensation Leave

12. Workers’ Compensation Leave Employees may be required to be provided leave for on the job injuries or illnesses Employers may not discharge an employee for being absent from work while that employee is receiving temporary total disability (TTD) benefits

13. Employer-provided leave NOT Required by Law – Something Employers Grant (often to remain competitive in the marketplace) Vacation Holidays Sick PTO (the new catch-all)

14. Employer-provided paid leave • Oklahoma does not require paid leave such as vacation, sick, PTO, or holiday • If you provide paid leave, however, Oklahoma has laws governing it • If you provide paid leave and it meets the definition of “wages,” you must be mindful of the laws governing wages, which may include payment of unused paid leave time

15. Oklahoma’s Definition of “Wages” “compensation owed by an employer to an employee for labor and services rendered, including . . . holiday and vacation pay … and other similar advantages agreed upon between the employer and the employee which are earned and due, or provided by the employer to his employees in an established policy …”.

16. Oklahoma Department of Labor • ODOL Regulations provide that an “established policy” can be any of these • Written employment contract • Written manual, policy, promise • Verbal or implied promise supported by past course of conduct consistent with that promise • Because Oklahoma allows an employer to set the parameters, CLARITY in the written policy is KEY.

17. Paid Time Off Policy Considerations When does the employee earn the time off When can the employee use the time off Are there hoops to jump through to get it Does the employee have to use it in certain increments Does the employee have a time in which it must be used? If so, what happens if he does not? (Use it or lose it) What happens to earned but unused time at the end of the year? At the end of employment?

18. Oklahoma – Special Rules • State Employees – We will not be addressing the rights afforded State employees • Public School Teachers • Sick leave • Emergency Leave • Jury service / witness leave • Leave without pay under certain conditions • Public School Personnel other than Teachers • Sick leave; personal business leave

19. Oklahoma – Special Rules (cont.) • Railroad Employees • Running for public office; serving in a governmental, military, civil, or public office; jury duty

20. Where Oklahoma and Federal Law Intersect

21. Oklahoma Anti-Discrimination Act • “. . . unless the employer can demonstrate that accommodation for the disability would impose an undue hardship on the operation of the business of such employer.” • As of November 1, 2011, employees of any size employer can sue under Oklahoma law for discrimination (including failure to accommodate). • Question – does this include failure to accommodate religious beliefs as under Title VII?

22. FEDERAL LAW

23. Time off for Military Service

24. USERRA • Your employee is entitled to leave and reinstatement after that leave if • He gives you advance notice of his leave for military service • He has five years or less of cumulative service in the uniformed service while in your employ • He returns in a timely manner after conclusion of the military service, and • He was not separated from military service with a disqualifying or other than honorable discharge

25. Time Off for Religious Reasons

26. Title VII – Religious Accommodation • An employer (15 or more employees) must provide a reasonable accommodation to an employee if: • The employee makes the employer aware of the need for the accommodation and • The fact that the accommodation is being requested due to a conflict between religion and work

27. Title VII – Religious Accommodation • Reasonable Accommodation • Can be many things, including time off • Religious holidays • Prayer or other religious expression during work day (schedule changes) • Employers are not required to provide an accommodation which cause an “undue hardship”

28. Title VII – Religious Accommodation • Undue Hardship • Under Title VII, the undue hardship defense requires a showing that the proposed accommodation in a particular case poses a “more than de minimus” cost or burden. • Note that this is a lower standard for an employer to meet than undue hardship under the ADA. • An employer does not have to provide an accommodation which would violate a seniority system or CBA.

29. Title VII – Religious Accommodation • Specific Regulations • “A mere assumption that many more people, with the same religious practices as the person being accommodated, may also need accommodation is not evidence of undue hardship.” • The EEOC encourages employers to allow employees to voluntarily swap shifts or work times to allow accommodations

30. Time Off to Accommodate A Person with a Disability

31. ADA - Accommodation • The ADA requires employers (15 or more employees) to provide a reasonable accommodation qualified individuals with a disability, unless doing so would cause an undue hardship • Reasonable accommodation may include time off • Intermittent • Extended

32. ADA – Accommodation • Undue Hardship – Factors to be considered • The nature and net cost of the accommodation, including any tax credit/deduction and/or outside funding • Overall financial resources, number of persons employed, the effect on expenses and resources • Overall financial resources, size of the business, number, type, and location of facilities • Type of operation(s); and geographic separateness and administrative or fiscal relationship of the facility to the covered entity • Impact of the accommodation upon the operation of the facility, including impact on the ability of others to perform their duties

33. Family and Medical Leave Act

34. FMLA What types of leave are covered? What employers are covered? Which employees are eligible? For how long? And how do you count that?! 12 weeks 26 weeks And what about . . .

35. FMLA – Covered Employers • Covered Employers • Employs 50 or more employees for each working day during each of 20 or more calendar weeks in the current or preceding calendar year

36. FMLA – Eligible Employee • Eligible Employee • An employee who has been employed • At least 12 months and • At least 1,250 hours during the previous 12 months (prior to the leave)and • Works at a worksite which employs at least 50 employees within 75 miles

37. FMLA – Quick Fact • You could be an Covered Employer and have NO Eligible Employees • In this case, you are still required to post the FMLA poster.

38. FMLA – Leave “Entitlement” Birth of a son or daughter and in order to care for such son or daughter Placement of a son or daughter for adoption or for foster care Care for the spouse, son, daughter, or parent of the employee if such spouse, son, daughter, or parent has a serious health condition SHC of the employee that makes employee unable to perform his / her job functions Any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces

39. FMLA – Qualifying Exigencies • May include • Attending certain military events • Arranging for alternative childcare • Addressing certain financial and legal arrangements • Attending certain counseling sessions • Attending post-deployment and reintegration briefings

40. FMLA – Up to 26 Weeks Leave • Special leave entitlement of up to 26 weeks to care for a covered servicemember during a single 12-month period for • A current member of the Armed Forces (including Guard or Reserves) who is undergoing medical treatment, recuperation or therapy, in outpatient status, or on temporary disability retired list, for a serious injury or illness; or • A veteran discharged or released (not dishonorably discharged) during the 5 years prior to the FMLA leave who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness

41. FMLA – Serious Health Condition • Illness, injury, impairment or physical or mental condition that involves • Inpatient care OR • Continuing treatment by a health care provider

42. FMLA – Continuing Treatment • Incapacity and Treatment • Pregnancy or Prenatal Care • Chronic Conditions • Permanent or Long-term Conditions • Conditions Requiring Multiple Treatments

43. FMLA Forms Poster Notice of Eligibility and Rights Certifications (4) Designation Notice

44. FMLA Forms • DOL’s New Poster • https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf • Notice of Eligibility and Rights and Responsibilities • http://www.dol.gov/whd/forms/WH-381.pdf • Designation Notice • http://www.dol.gov/whd/forms/WH-382.pdf

45. FMLA Forms • Certification of Health Care Provider for Employee’s Serious Health Condition • http://www.dol.gov/whd/forms/WH-380-E.pdf • Certification of Health Care Provider for Family Member’s Serious Health Condition • http://www.dol.gov/whd/forms/WH-380-F.pdf

46. FMLA Forms • Certification of Qualifying Exigency for Military Family Leave • http://www.dol.gov/whd/forms/WH-384.pdf • Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave • http://www.dol.gov/whd/forms/WH-385.pdf

47. FMLA – Intermittent Leave

48. Questions?

49. Presented by Kenneth T. Short www.dsda.com kshort@dsda.com