Leave Me Alone! - Welcome to the SHRM Washington State...
Transcript of Leave Me Alone! - Welcome to the SHRM Washington State...
1
Leave Me Alone!Coordinating Leaves of Absence Under Federal,
State, and Local Leave Laws
March 12, 2013 Bellevue, WA
Presented by:
March 12, 2013
Jim ZisslerLittler Mendelson, P.C.Seattle [email protected]
206.381.4909
Deidra A. NguyenLittler Mendelson, P.C.Seattle [email protected]
206.381.4931
Sources of Leave
FMLA
Pregnancy Disability
Military Leave
Military Family Leave
Domestic Violence
Washington Family
Care Act*
Jury Leave
Voting Leave
Firefighter Leave
Seattle Sick and Safe Time
Worker’s Compensation
ADA/WLAD
Handbook Policies
2
Company‐Specific Leave Policies
Handbook Policies
First place to look. Follow your (current and lawful)
policies!
State and federal laws impact these
benefits
Application and implementation
must be consistent
Seattle Sick and Safe Time
3
Seattle Mandatory Paid Sickand Safe Time
Effective Sept. 1, 2012
Job‐protected leave of absence
Plus an accrued paid time off
bank
But no cash out (unless your policy says so)
Who is Covered
Covers private‐sector employers
Covers employees who “perform their work in Seattle”
Includes part‐time, temporary, intermittent and
seasonal employees
Includes employees telecommuting in Seattle
Nature of Benefit
Sick time:
– Employee’s own illness
– Illness or medical care of a family member
– Illness need not be serious
Safe time:
– Business closure or child’s school closure due to public hazard
– Domestic violence
– No safe time for weather closures
4
Minimum Benefit
Tier 1 – More than 4 FTEs, less than 50:
– Accrue 1 hr./40 hours worked (≈7 days/year)
– Allowed annual caps: 40 hours (5 days)
Tier 2 – 50 or more FTEs, less than 250:
– Accrue 1 hr./40 hours worked (≈7 days/year)
– Allowed annual caps: 56 hours (7 days)
Minimum Benefit
Tier 3 – 250 or more FTEs:
– Accrue 1 hr./30 hours worked (≈9 days/year)
– Allowed annual caps for sick and safe leave alone:
72 hours (9 days)
– Allowed annual caps for PTO: 108 hours
(13.5 days)
Pregnancy Disability Leave
5
Washington State PregnancyDisability Leave
Must provide leave to women who
are incapacitated as a result of
pregnancy or childbirth
May ask for a medical certification,
but only if employer treats other
disabilities in the same way
Length of leave is as long as
necessary
If employer has eight or more
employees, employee is entitled to
return to work
Military Leave(USERRA)
Military Leave
Applies to all employers,
regardless of size.
Applies to any service in the
uniformed services
– Active duty, training, national
guard/reserve, fitness for duty
examinations.
Reasonable notice
– May be verbal
6
Military Leave
Reinstatement rights
– Employee left to perform service
– Employee gave prior notice
– Five years accumulated length of
service
– Honorable discharge
– Timely application for reemployment
Service Less Than 31 Days
Report for work no later than the beginning of first full
regularly scheduled work period on first full calendar
day following:
– Completion of service; plus
– Eight hours after safe travel home.
If return to work is impossible/unreasonable, time
period is extended as is necessary.
Also applies to Fitness for Duty Examinations
Service More 31‐179 Days
Employee must request
reemployment no later than 14
days after completion of
service unless impossible or
unreasonable through no fault
of employee.
Untimely request is not an
automatic forfeiture of USERRA
rights.
7
Service More than 180 Days
Employee must request
reemployment no later than 90
days after completion of
service.
What Documents Must Returning Employee Provide?
Service 30 days or less: None.
Service more than 30 days: Employer may
request documentation of release from
service, but cannot delay or deny leave if
documentation not readily available.
Practice Point: Return employee to work
and request documentation.
Other Protections
Continuation of benefits while on leave.
– But no accrual of paid leave.
Return to position service member
would have attained with reasonable
certainty if continuously employed
(escalator principle).
Protection from
discrimination/retaliation.
Protection from termination except for
cause.
8
Post‐Reinstatement Termination
Certain returning employees are protected from
termination, except for “cause”:
– Service 31‐180 Days: Six months of protection.
– Service 181 or more days: One year of protection.
“Cause” – reasonable, non‐discriminatory reason for
action, but employee must have notice that the action
could lead to termination.
Military Family Leave
Military Family Leave
Applies to all employers,
regardless of size.
Available to employee
– whose spouse is a member of
the armed forces of the United
States, national guard, or
reserves, and
– employee works 20 or more
hours per week.
9
Military Family Leave
Leave of 15 days during period
of military conflict if spouse is
deployed or notified of an
impending call or order to active
duty.
Reinstatement to same position.
Continuation of benefits.
Retaliation is prohibited.
Military Family Leave
Employee must give notice within 5 business days of
receiving official notice of the impending call or order
to active duty, or of spouse’s leave from deployment.
Employee may use accrued paid leave or take the
leave as unpaid time off.
Domestic Violence Leave
10
Domestic Violence Leave
Applies to all employers and employees
Provides reasonable leave to employees who are the victims (or
family members are victims) of domestic violence, sexual assault,
or stalking to:
– Seek legal or law enforcement remedies to ensure employee’s health
and safety
– Seek medical treatment or to recover from injuries
– Obtain counseling
– Obtain services from a victim services provider
– Relocate or secure existing home
Washington Family Care Act
Washington Family Care Act
Applies to all employers with paid leave policies,
regardless of size
Employees may use paid sick leave or other PTO to
care for
– A child of the employee with a health condition that
requires treatment or supervision; or
– A spouse, parent, parent‐in‐law, or grandparent of the
employee who has a serious health condition or an
emergency condition.
Does not govern whether employees may take
advanced leave.
Employees must comply with employer’s policy.
Retaliation prohibited
11
Health Condition That Requires Treatment or Supervision
• Medical condition requiring treatment or medication that the child cannot self administer;
• Medical / mental health condition which would endanger the child’s safety or recovery without the presence of a parent or guardian; or
• Condition warranting treatment or preventive health care when a parent must be present to authorize and when sick leave would be available for employee’s preventative care
Serious Health Condition
Illness, injury, impairment, or physical or mental condition that involves any
period of incapacity or treatment connected with inpatient care (i.e., an
overnight stay) in a hospital, hospice, or residential medical care facility, and any
period of incapacity or subsequent treatment or recovery in connection with such
inpatient care; or that involves continuing treatment by or under the supervision
of a health care provider or a provider of health care services and which includes
any period of incapacity (i.e., inability to work, attend school or perform other
regular daily activities).
Emergency Condition
Health condition that is a sudden,
generally unexpected occurrence
or set of circumstances related to
one’s health demanding
immediate action, and is typically
very short term in nature.
12
Washington Family Care Act
Does not apply to healthy
newborns.
No restriction on verification.
May be counted as FMLA leave.
Jury Duty Leave
Jury Duty Leave
Applies to all employers,
regardless of size.
If the employee is summoned for
jury duty, the employer must
provide a sufficient leave of
absence to serve as a juror.
Unpaid
Retaliation is prohibited.
13
Jury Duty Leave
Intentional violation of the statute
constitutes a misdemeanor.
Retaliation also gives rise to civil
action for damages and
reinstatement.
VotingLeave
Voting Leave
Applies to all employers, regardless of size.
Must provide reasonable time (up to two hours ) for
employees to vote in election during time that polls are
open.
14
Voting Leave
If the employee's work schedule does not give the employee 2
free hours while the polls are open (not including breaks), the
employer shall permit the employee up to two hours to vote. In
such a case, the employer shall add this time to the time for
which the employee is paid.
Applies only if there was insufficient time for the employee to
secure an absentee ballot between the time the employee
learned of her schedule and election day.
– Vote by mail has arguably made this irrelevant.
Leave for EmergencyServices Personnel
Leave for EmergencyServices Personnel
Applies to employers with 20
or more FTEs in the prior
calendar year.
Statutory complaint
procedure; civil action for
reinstatement (with back pay)
or withdrawal of disciplinary
action.
15
Leave for EmergencyServices Personnel
Employers are prohibited from discharging
or disciplining
– A volunteer firefighter or reserve
officer because of leave
taken related to an alarm
of fire or an emergency call; or
– A civil air patrol member because
of leave taken related to an emergency
service operation.
FMLA / Washington Family Leave Act
FMLA/Washington FLA
Family and Medical Leave Act
Applies to:
– Employers with 50 or more employees within 75 miles for 20 or
more weeks in current or previous calendar year
– Employees of those employers who have (a) worked at least
12 months (may have breaks in service), and (b) 1,250 hours
within the last 12 months
16
FMLA/WFLA
Employees may take up to 12* weeks of annual unpaid
leave for:
– Birth of employee’s child and to care for a newborn child
– Placement of and care for newly adopted or newly placed foster child
– Care of a child’s, parent’s, or spouse’s serous health condition
– Care for the employee’s own serious health condition
– A family member’s qualified military absence
– A qualifying exigency
*26 Weeks for Military Care leave
FMLA/Qualified Exigency Leave
Qualified Exigency Leave:
– Up to 12 weeks if a family member is
on active duty or call to active duty
or is deployed to a foreign country
– Broad permitted uses of leave
• E.g., military events and related
activities, childcare and related
activities, financial and legal activities,
counseling, rest and recuperation, and
post‐deployment activities
FMLA/Military Caregiver Leave
Military Caregiver Leave:
– 26 weeks to care for a covered service member with a serious
illness or injury incurred in the line of duty while on active duty
– Entitled to leave during a single 12‐month
period beginning on the first day the
eligible employee takes military
caregiver leave and ends
12 months after that date
17
FMLA Intermittent Leave
Intermittent leave: FMLA leave taken in separate blocks
of time due to a single qualifying reason
Reduced schedule leave: a leave schedule that reduces
an employee’s usual
number of working hours
per workweek, or
hours per workday
FMLA/Certification Process
Scrutinize the Certification
– Must be “complete and sufficient” (i.e., clear)
– First step: Designation notice explaining specific portions that
are incomplete or unclear
– 7‐day time limit, unless not practicable despite employee’s
“diligent good faith efforts.”
– Second step: Option to seek authorization to speak to medical
provider re: clarification
FMLA Post‐CertificationLeave Administration
Second/Third Opinions:
– Use sparingly – assess basis for doubt and nature of the
employee’s condition
– Not available for Exigency or Caregiver Leave
– Consider suggesting to second medical provider that he/she
obtain ‘all relevant medical information’ pertaining to the
serious health condition from the employee’s doctor before
completing the certification. If employee refuses to authorize,
FMLA may be denied.
18
FMLA and GINA
FMLA forms implicated by GINA
– Eligibility/Rights and Responsibilities Notice (Cautionary)
– Certification of Health Care Provider for Employee’s Serious
Health Condition
– Certification of Health Care Provider for Family Member’s
Serious Health condition
– Designation Notice
GINA Safe Harbor
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits
employers and other entities covered by GINA Title II from requesting or requiring
genetic information of an individual or family member of the individual, except as
specifically allowed by this law. To comply with this law, we are asking that you
not provide any genetic information when responding to this request for medical
information. “Genetic information,” as defined by GINA, includes an individual’s
family medical history, the results of an individual’s or family member’s genetic
tests, the fact that an individual or an individual’s family member sought or
received genetic services, and genetic information of a fetus carried by an
individual or an individual’s family member or an embryo lawfully held by an
individual or family member receiving assistive reproductive services.
The difference in the definition of spouse between state
and federal law creates traps for the unwary employer:
– Employee in registered domestic partnership/same‐sex
marriage may have ability to take 12 weeks of WFLA and still
have 12 weeks of FMLA leave available.
– Employers who wrongfully deduct exempt
employees’ salary for use of WFLA related
to registered domestic partner/same‐sex spouse may destroy
the salary basis, exposing employer to potential liability
for minimum wage and overtime.
Washington Marriage Equality Act and FMLA
19
FMLA Reminders
Help us help you!!!
Ensure you have a process in place to properly
designate and track all absences attributable to a FMLA
qualifying condition.
Ensure your FMLA policy is up to date – you need it to
designate FMLA leave year (FMLA poster/your policy in
handbook/and FMLA notice at end of handbook).
The DOL forms are your friends.
Worker’sCompensation
Worker’s Compensation
Provides paid time loss for
on‐the‐job injury
Job protection arises from
WLAD/ADA
Consider other laws impact
on issues of return to work
and leave
Retaliation is prohibited
20
ADA / Washington LawAgainst Discrimination
Definition of Disability
ADA: Physical or mental impairment that
substantially limits one or more major life
activities.
WLAD: Sensory, mental, physical
condition that is medically cognizable or
diagnosable.
– May be temporary
– Need not be substantially limiting or
impact major life activity.
Disability Leaves
Duty to engage in interactive process.
– No formal notice required.
– No magic words.
– Need not request leave.
No prescribed length of leave.
– Request medical certification.
– Follow up to determine whether leave is working as
accommodation.
21
Additional Resources
Littler ASAPs
Littler Breakfast Briefing Series
– March 28 – Dealing with Workplace
Threats and Workplace Violence
– April 25 – Wage and Hour Issues
Questions?
Jim ZisslerLittler Mendelson, P.C.Seattle [email protected]
206.381.4909
Deidra A. NguyenLittler Mendelson, P.C.Seattle [email protected]
206.381.4931