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FMLA Training Part II presented by The Office of the State Employer Employee Health Management Toni McFarland & Contract Negotiations/Administration Cheryl Schmittdiel. Review. The State of Michigan must observe employee (EE) rights under the FMLA;
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FMLA Training Part II presented by The Office of the State Employer Employee Health Management Toni McFarland & Contract Negotiations/Administration Cheryl Schmittdiel
The State of Michigan must observe employee (EE) rights under the FMLA; • The State of Michigan must observe EE rights under Collective Bargaining Agreements (CBA) and Civil Service Rules & Regulations (CSR&R) ; and • The State of Michigan cannot interpret CBA or CSR & R to diminish rights guaranteed by FMLA.
Employee Eligibility • Work for covered employer (ER) -- Public Agencies are covered ERs; and • Work 12 months, which need not be consecutive; and • Work at least 1,250 hours within the 12 months prior to the leave; and • Military leave counts as time worked.
Qualifying Events • The State of Michigan (SOM) as a covered ER must grant an eligible EE up to a total of 12 workweeks of paid/unpaid FMLA leave in a 12 month period for any of the following reasons: • for the birth of a son or daughter and to care for the newborn; • for the placement of a child for adoption or foster care, and to care for the newly placed child; • to care for a spouse, son, daughter, or parent with a Serious Health Condition (SHC); and • for the EE's own SHC that makes the EE unable to perform the essential functions of their position.
Employee Notification to Employer • Notice to ER may be given • In writing • Verbally • In person • By telephone • By fax machine • After the employee returns, but within two (2) business days • By EE’s spokesperson
Foreseeable Leave • When need for leave is foreseeable EE notifies ER 30 days or more before leave begins • Or, as soon as practicable, but within two (2) business days of learning leave is necessary • Verbal or written notification is acceptable
Unforeseeable Leave • When need for leave is unforeseeable EE notifies ER as soon as practicable • Within two (2) business days of going on leave; or • Within two (2) business days of returning from leave
Employer Rules • Any ER or department rules or requirements regarding call in or notification when an EE cannot work are still in effect and are not relieved under the FMLA. • However, a transgression cannot serve as a basis for denial if timely notice is given. • “No call, no show” and subsequent FMLA request…
Employer Knows the Reason for FMLA Leave • The ER’s designation decision must be based only on information received from the EE or the EE's spokesperson (e.g., if the EE is incapacitated, the employee's spouse, adult child, parent, doctor, etc., may provide notice to the ER of the need to take FMLA leave).
Employer Hears It Through the “Grapevine” • If the EE tells their supervisor they are taking annual leave and that annual leave will be for an FMLA qualifying reason, then the EE has told the ER. • If the EE has told a co-worker and the co-worker tells the supervisor then the ER has not been told. However, the ER may request that the CS-1789 be filled out and returned. If the EE does not confirm the absence or fill out the paperwork the ER may not designate the leave as FMLA, and the EE has no FMLA protection.
FMLA, LTD and Workers’ Compensation • If an EE qualifies for an FMLA leave and the absence also qualifies for LTD or Workers’ Compensation, then all of the pertinent forms, documents, letters and notification need to be sent to the EE simultaneously.
Family Medical Leave ActEmployee Request & Employer ResponseForm CS-1790
Family Medical Leave ActEmployee Request & Employer Response Form CS-1790
Employee Request • The EE is not required to use the CS-1790 to notify the ER. • If notification is made in any other manner, the ER/Supervisor/Human Resources office will complete Section I of the CS-1790 as well as Section II.
Employee Request • The EE need not specifically mention FMLA. • The EE must make clear the reason for the leave. • If the ER asks, the EE must provide details about the reason for leave, either for their condition or that of the EE’s family member, or the leave may not be approved.
Employee Request • The EE does not need to provide the diagnosis for a SHC. • ER may ask if this is a SHC. • Staying home for personal problems, if too sick to work or because a child is ill, do not trigger FMLA protection.
Reason for Leave Request • EE must have SHC and be unable to do the “essential functions” of the job. • The ability to perform other jobs or light-duty work is not relevant. • Consecutive days refers to calendar days, not work days, and weekends are included even if the EE is not scheduled to work. • A full or partial day absence to receive medical treatment counts as a day of incapacity. • If an EE is absent for substance abuse and is not receiving inpatient treatment or continuing treatment by a health care provider, they do not qualify for FMLA leave.
Reason for Leave Request • Some CBA’s permit EE to certify the need to use up to two weeks of sick leave, upon the birth of their child, prior to the beginning of any parental leave. • The time counts against the 12 weeks of FMLA. • An eligible EE is entitled to a total of 12 weeks of FMLA leave in a 12-month period. The two weeks of sick leave are deemed to be due to the serious health condition of the EE’s spouse or newborn child and are attributable to family care leave under the FMLA.
Notice Requirements “Section 301 Notice” • The CS-1790 meets the FMLA “Section 301 notice” requirements. • This form replaces the US DOL WH 381 and the need to provide the EE with Fact Sheet #28.
Designation Rights & Responsibilities • The ER must make a preliminary designation of whether or not the leave qualifies as FMLA leave. • The ER has a duty to “inquire further” if the ER needs additional information to determine whether a request for leave is for an FMLA qualifying reason. • ER may only inquire further of EE or EE’s spokesperson. • ER may not have direct contact with EE’s healthcare provider.
Eligibility/Ineligibility Notice • If the ER fails to notify the EE that they do not meet the eligibility requirement prior to the start of leave, when the leave is foreseeable, then the EE could be “deemed eligible” even if they do not meet the eligibility criteria. • See US DOL Opinion Letter, FMLA 2002-1.
Designation of FMLA Leave • Provisional designation should be given pending receipt of CS-1789 Medical Certification form. • If the ER fails to designate FMLA leave and the EE takes 12 weeks, then later the EE states they want to take more time, the EE must establish that they would have shortened their original leave if it had been designated FMLA. • The designation of FMLA leave must be made within two (2) business days after the EE returns to work and can be made by either the EE or the ER. If not designated within two (2) business days cannot be designated FMLA.
Medical Certification • The ER must give specific notice of the need for medical certification and the consequences of failing to obtain medical certification. • The EE must be given the CS-1789 Medical Certification form within two (2) days of the EE notice of need for FMLA. • The ER may ask for only the information on the CS-1789, no greater amount of information is allowed.
Medical Certification cont’d • The information on the CS-1789 must relate only to SHC for which the current need for leave exists. • The EE has 15 calendar days to have the form completed and returned to the ER. • If the form is incomplete the ER may ask the EE for clarification. • Any charges associated with completing the form are the EE’s responsibility.
Paid or Unpaid Leave • An employee may elect to use accrued sick, annual or personal leave, as appropriate, in place of an unpaid FMLA leave. • If the EE fails to designate sick, annual or personal leave for an unpaid leave, the ER may require the use of appropriate accrued leave before allowing an unpaid leave. • The EE must be informed within two (2) business days of giving FMLA notice that the paid leave will be imposed except where the ER does not have sufficient information to make an FMLA designation.
Group Health Benefits • Group Health Benefits (health, dental and vision) must be maintained during FMLA leave. • EEs make arrangements with their Human Resources Office to pay their bi-weekly premium share. • If an EE is laid off or their limited term appointment expires during an FMLA leave, the ER can stop paying for the EE’s health insurance.
Fitness for Duty Certification • This certification must be required uniformly for all similarly-situated EEs. • The certification can be as simple as a statement that the EE is able to return to work. • There is no fitness-for-duty certification for intermittent leave. • The ER cannot contest the fitness-for-duty certification through second and third opinions. • The EE may be terminated if the fitness-for-duty certification is not provided and notice was given of the requirement.
Fitness for Duty Certification • If a CBA permits ER to require an EE to have a medical examination, notice of this requirement must be given to an EE when leave is requested or shortly after leave is requested. • The medical examination must be to determine whether: • The EE’s ability to perform the essential job functions is impaired by a medical condition; or • The EE poses a direct threat to other EEs due to a medical condition.
“Key Employee” • The “Key EE” exemption is very rare. • It applies only to high-salaried (must be in the highest 10% of all EEs for the ER) EEs whose reinstatement after a leave would cause the ER substantial and grievous economic injury. • A “Key EE” may not be denied the right to take FMLA leave if the EE is eligible and the FMLA leave is properly designated, but can be denied reinstatement if properly noticed of “Key EE” designation.
Periodic Report & Intent to Return
Periodic Report &Intent to Return • An ER may require an EE on FMLA leave to report periodically on the EE’s status and intent to return to work. • If there is a change in the EE’s circumstances that will allow them to return to work earlier, or will need to extend their leave, they are required to notify the ER within two (2) business days of the change in their circumstances. • If an EE gives unequivocal notice of intent not to return to work, the ER’s obligations under FMLA to maintain health benefits and to restore the EE cease unless the EE will not be returning due to a continuation of a SHC.
Periodic Report &Intent to Return • A returning EE is entitled to any unconditional pay increases that occurred during the leave, unless the pay increases are dependent on seniority, work performed or length of service. • If an EE is no longer qualified for their position because they have not renewed a license, attended a necessary course, flown a minimum number of hours due to the FMLA leave, the EE must be given a “reasonable opportunity” to fulfill those conditions upon their return to work.
Periodic Report &Intent to Return • An equivalent position must have the same pay, benefits, working conditions and must also have substantially similar duties and responsibilities, authority, skill and effort. • The returning EE is not entitled to any more preferential treatment,(e.g., if the EE’s position is eliminated due to a reduction in force or a limited term appointment has expired) than they would have had if they had been at work. • An EE may be terminated while on FMLA leave if the EE would have been terminated absent their leave.
Re-certification • For pregnancy, chronic, or permanent/long term conditions under continuing supervision of a health care provider the ER may request re-certification no more often than every 30 days and only in connection with an absence unless: • Circumstances described in the previous certification have changed (change in severity of the condition or frequency of absences). • The ER receives information that casts doubt on the reason for the EE’s absence.
Re-certification • If the minimum period of continuous incapacity on the previous certification is more than 30 days, the ER may not request re-certification (this also applies to intermittent leave and leave taken for treatment) during the designated period unless: • The EE requests an extension of leave. • Circumstances described in the previous certification have changed (change in severity of the condition or frequency of absences). • The ER receives information that casts doubt on the reason for the EE’s absence.
