FAMILY AND MEDICAL LEAVE ACT AND OTHER LEAVES OF ABSENCE
May 16, 2012
Illinois ASBO Conference
Peoria Civic Center
Cheryl Jez & Shawn McLain
TYPES OF LEAVE Family and Medical Leave Act (FMLA) American with Disabilities Act (ADA) Uniformed Services Employment and
Reemployment Rights Act (USERRA) Illinois Family Military Leave Act Illinois Victims’ Economic Security and Safety
Act (VESSA) Illinois School Code Leave (Sick Leave) Illinois School Visitation Rights Act Contractual Leave Workers’ Compensation
BASIC FMLA RIGHTS
Up to 12 workweeks of leave during a 12-month period because of: Birth of employee’s child, care for newborn Placement of child with employee due to
adoption/foster care Care for employee’s child, parent, spouse with
serious health condition Employee’s own serious health condition **New provisions related to leave to care for
covered service members Right to reinstatement to same or equivalent
position, subject to exceptions Right to group health plan benefits
continuation
• 12 months; may not be consecutive (exclusion: 7 year gap) AND1250 hours in the preceding 12 months (24 hrs/wk)
• 50+ employees/75 mile radius – surface miles by available transportation from worksite (usually
waived/does not apply to Public Sector)
• “No fixed worksite” (i.e. sales): headcount of site they report to
• Determined at time of request; may re-request count during a leave
ELIGIBILITY
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HEALTH BENEFITS
Employers must maintain employee group
health coverage
Employees must pay their portion of premium. If
unpaid, benefits could cease with appropriate
employee notification
Employers can recover unpaid premiums
Employer is not obligated to maintain any other
benefits unless benefits are continued for other
leave types
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JOB PROTECTION
Entitles employee to resume pre-leave or equivalent
position with equivalent pay and benefits
Layoffs OR a Reduction in Force
No FMLA protection
If employment would end as an active employee,
the employee can be terminated while on leave
No entitlement to accrue seniority while on leave
(promotions and benefits)
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“INSTRUCTIONAL EMPLOYEES” DEFINED
Instructional employee/Teacher — Instructional employees are those whose principal function is to teach and instruct students in a class, a small group, or an individual setting. This term includes not only teachers, but also athletic coaches, driving instructors, and special education assistants, such as signers for the hearing impaired.
It does not include teacher assistants or aides who do not have as their principal job actual teaching or instructing, nor does it include auxiliary personnel such as counselors, psychologists, or curriculum specialists.
It also does not include cafeteria workers, maintenance workers, or bus drivers
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SPECIAL RULES FOR “INSTRUCTIONAL EMPLOYEES”
The 50 employee rule
does not apply
Eligibility requirements
for employees apply
with the exception that
full-time teachers are
deemed to have met the
1,250 hours of
employment
The FMLA has special
rules for instructional
employees to enable
them to take family or
medical leave without
disrupting the classroom
at a critical point in the
school term
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LEAVE FOR INTERMITTENT OR REDUCED SCHEDULE Planned medical treatment – < 20% absent work days
Take leave for a period of a duration not great than the duration of the planned medical treatment
Temporarily transfer to an available alternative position with equivalent pay and benefits
Leave begins > 5 weeks before end of a term Employer may require the employee to continue taking leave until the
end of the term if the leave will last for at least 3 weeks and the employee would return during the final 3 weeks of the term
Any longer leave required cannot be counted against 12 weeks
Example: Third grade teacher Mary begins FMLA leave to care for her seriously ill child on Oct. 1 and plans to return to work on Nov. 15. The school term ends on Dec. 1. Mary’s employer may require her to continue taking leave until the end of the term because her return would occur within three weeks of the end of the school semester
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TRACKING METHODS
12 month period Calendar year Any 12 month period applied consistently Forward (looks back to a fixed date, the start date of the
first leave) Rolling backward (12 month look back for each day taken)
26 month period for Military Caregiver Leave: Forward from first day of Caregiver leave, regardless of
FMLA time already taken in the past
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ABSENCE TYPES
Continuous
Four or more consecutive calendars days off of work Could be Friday, Saturday, Sunday and Monday)
Intermittent
Reduced number of days in a workweek Reduced number of hours in a day
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INTERMITTENT SPECIFICS
Must meet a serious health condition definition
Can be a single injury/illness day doctor appointment, prenatal exam physical therapy, chemotherapy morning sickness
Must be measured in same increment of time as other leaves no longer than 1 hour
Can be intermittent for care of newborn if agreed upon by employer
Must be calculated according to employees scheduled time Required OT missed can be FMLA
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FAMILY MEMBER DEFINITION
SpouseHusband or wife as defined by state law including common law marriages. Federal FMLA does not include same sex domestic partners
ParentBiological parent or individual who stands or stood in loco parentis to employee. Federal FMLA does not include parents-in-law or grandparents
ChildBiological, adopted, foster, stepchild, legal ward, or child of person standing in loco parentis. Must be under 18 unless incapable of self-care due to disability (documentation or merely a statement of loco parentis acceptable)
• Next of Kin for service member leave the nearest blood relative of the individual
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MILITARY LEAVE OVERVIEW
Two Types
Qualifying Exigency
Military Caregiver
Same Eligibility for Employers
Special Eligibility for Employees
New definitions of “children”
New category, “next of kin.”
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MILITARY FAMILY LEAVES
Qualifying Exigency – up to 12 weeks Covered employees may take up to 12 weeks of leave
per year to deal with certain issues relating to a family member’s active duty or call to active duty including deployment to a foreign country – starts on the first day of leave
Military Caregiver - up to 26 weeks Covered employees may take up to 26 weeks in a single
year to care for a family member who is/was seriously ill or injured in active military duty (within 5 years of the military service) – starts on the first day of leave
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MILITARY PROVISIONS(QUALIFYING EXIGENCY)
FMLA allows families of National Guard and Reserve on active duty to take FMLA to manage their affairs, for "qualifying exigency" leave
The new rule defines "qualifying exigencies" as: (1) short-notice deployment; (less than 7 days)(2) military events and related activities; (3) childcare and school activities; (4) financial and legal arrangements; (5) counseling; (6) rest and recuperation; (5 days)(7) post-deployment activities; (up to 90 days, includes death)(8) additional activities the employer and employee agree to
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MILITARY CAREGIVER
FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. The family member can be a “Next of Kin”
Leave is up to 26 workweeks of leave in a
single 12-month period measured forward
from the first day of leave
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FMLA Serious Health Condition definition is broad and is
intended to cover many physical and medical conditions
• Employees Own Serious Health Condition
• Care for employees (well) child after birth, or
placement for adoption / foster care
• Care for employees spouse, child, parent, (next of
kin if service member) who has a serious health
condition
• Deployment Activities for Military
QUALIFYING EVENT
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SIX SERIOUS HEALTH CONDITION DEFINITIONS
Inpatient care plus incapacity and treatment
More than 3 consecutive calendars days of
incapacity plus treatment
Colds, flu, common headaches, and other
common ailments can qualify
Pregnancy-prenatal care
Chronic conditions
Permanent & long-term conditions
Multiple treatments
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REQUIRED VISITS TO A HEALTH CARE PROVIDER
If leave involves more than three consecutive calendar days of incapacity plus two visits to a health care provider
two visits must occur within 30 days of incapacity
first visit in person within 7 days of first date of incapacity
If the leave is for a chronic
serious health condition, there
must be at least two visits/year
to the health care provider
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EMPLOYER NOTICE - 5 BUSINESS DAYS (NOT 2)
WHEN: employees request FMLA leave when employers acquire knowledge that an employee’s leave
may be for an FMLA-qualifying reason
ACTION: employers must notify employees of their eligibility to take
FMLA leave within five business days, absent extenuating circumstances
1 2 3
4 5
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ELIGIBILITY NOTICE
Eligibility notice must include:
• “Rights and Responsibilities” that detail expectations/obligations and explain any consequences of the employee’s failure to comply– Notice of rights and responsibilities may be distributed
electronically if it meets the requirements in the law • Requirements to provide medical certification, the right to
substitute paid leave, whether to and how to pay premiums for benefits, and job restoration rights upon expiration of FMLA leave
• May include the FMLA medical certification form
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DESIGNATION NOTICE
Notifies the employee of exactly how much time is applied to FMLA If not possible for employer to determine how much time will
be used, employer must provide the information every 30 days upon employee’s request if leave is taken within the 30-day period
Must inform employees of Fit for Duty requirements and essential
functions of job if doctor certification requires Job Description review
Rights and Responsibilities notice
is to be included if not already
sent with eligibility notice
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EMPLOYEE REQUIREMENTS Employees must comply with usual and
customary notice and procedural requirements for requesting leave (absent unusual circumstances)
Requirements may include providing written notice of the reasons and anticipated start and duration of the leave or requirement that employees contact a specific individual to request leave
Examples of “unusual circumstances” include: a) no one answered telephone number the employee calledb) company voice mail box is fullc) employees are unable to use telephone because they are seeking emergency treatment
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EMPLOYEE REQUIREMENTS
Employee to explain: reasons for leave to allow a determination as to whether
the leave qualifies
calling in sick is not considered sufficient notice to trigger an employer’s FMLA obligations
If employee fails to explain the reasons, leave may be denied Note, if self reported for 2 days and not at work on 3rd,
employer should consider this may qualify and provide FMLA notice
Employee to give information: must specifically reference the qualifying reason for leave
or the need for FMLA leave
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CERTIFICATION OF SERIOUS HEALTH CONDITION
Certification from health care provider must be submitted by the
employee within 15 days of the request
Certification must state that the employee
is unable to perform job functions
is needed to care for a child, spouse, parent or next of kin
(service
member leave) and the estimated amount of time needed to
care
for the family member
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INCOMPLETE CERTIFICATIONS
New rule’s for incomplete/insufficient
certifications:
Notify employees in writing of the additional
information that is needed within 5 business days
Allow 7 calendar days to provide the additional
information
If employees fails to submit a complete/sufficient
certification,
the FMLA leave may be denied
No obligation to notify employee that the
document has not been received
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AMERICANS WITH DISABILITIES ACT Covered Employers:
15 or more employees
Within 20 or more calendar weeks in current or preceding year
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WHAT IS A DISABILITY? Physical or mental impairment, or
History of impairment, or
Perceived as having an impairment…
… Which substantially limits one or more major life activities.
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MAJOR LIFE ACTIVITIES Caring for oneself Performing manual tasks Walking Seeing Breathing Learning and/or working
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“SUBSTANTIALLY LIMITS”
Unable to perform a major life activity, or
Significantly restricts the condition, manner, or duration under which an individual can perform a major life activity as compared to average person.
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QUALIFIED INDIVIDUAL WITH A DISABILITY
With or without reasonable accommodation, can perform “essential functions” of the job.
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REQUIREMENTS AND LEAVE UNDER THE ADA District required to provide reasonable
accommodations to perform essential functions of job unless undue hardship
Reasonable accommodation may include flexible leave time and modified work schedules.
Leave is reasonable accommodation only if it may help an employee eventually perform the essential function of the job.33
2009 ADA AMENDMENTS Went into effect January 1, 2009. Undo a decade of employer-friendly ADA
court decisions. Require courts to interpret the term
“disability” in a much broader fashion. Require courts to disregard ameliorative
effects that mediation or other assistive devices may have on an individual’s physical or mental impairment for purposes of determining whether or not they have a “disability.”
Broaden the definition of “major life activity”.
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USERRA
USERRA is the acronym for the Uniformed Services Employment and Reemployment Rights Act of 1994.
Establishes the cumulative length of time that an individual may be absent from work for military duty and retain certain employment rights.
5 years, with some exceptions: initial enlistments lasting more than five years, periodic National Guard and Reserve training duty,
and involuntary active duty extensions and recalls,
especially during a time of national emergency. 35
USERRA
USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent from military service with Same seniority Same status Same pay All other rights and benefits determined by
seniority.
Requires reasonable efforts be made to refresh/upgrade returning service members’ skills to help them re-qualify for employment.
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USERRA
Other requirements and issues: Notice requirements Health coverage Pension continuation Department of Labor, Veteran's Employment and
Training Services provides enforcement assistance to persons having USERRA claims.
Growing area of litigation—just be aware of the issue and the law.
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ILLINOIS FAMILY MILITARY LEAVE ACT Family military leave is leave requested by
an employee who is the spouse, parent, child, or grandparent of a person called to military service lasting longer than 30 days with the State or US pursuant to the orders of the Governor or President.
Leave occurs during the time federal or state deployment orders are in effect
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ILLINOIS FAMILY MILITARY LEAVE ACT Employers 15-50 Employees:
Employees receive up to 15 days of unpaid family military leave.
Employers 50+ Employees: Employees receive up to 30 days of unpaid
family military leave. Number of days may be reduced by number of
days provided to the employee under Section 102(a)(1)(E) of FMLA.
Leave may consist of unpaid leave.
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ILLINOIS VICTIMS’ ECONOMIC SECURITY AND SAFETY ACT (VESSA) Employee who is a victim of domestic or
sexual violence, or who has a family or household member that is the victim of domestic or sexual violence whose interest are not adverse to those of the employee, may take unpaid leave from work to address the issue in a manner provided for in 820 ILCS 180/20(a).
The employer may require the employee to certify that the victim has been the subject of domestic or sexual violence and that the leave is being taken to address the violence.
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ILLINOIS VICTIMS’ ECONOMIC SECURITY AND SAFETY ACT (VESSA) 15-49 Employees:
8 weeks during any 12-month period.
50+ Employees: 12 weeks during any 12-month period.
Intermittent or on reduced leave schedule.
Confidentiality provisions requiring the strictest of confidence.
Unpaid leave41
ILLINOIS VICTIMS’ ECONOMIC SECURITY AND SAFETY ACT (VESSA) Employee who takes leave entitled to:
Same or equivalent position as when leave started
No loss of benefits accrued prior to taking leave Maintained group health coverage
Employee not entitled to: Accrual of seniority or employee benefits Position employee would have been entitled to if
they had not taken the leave
IL Department of Labor enforces violations.
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ILLINOIS SCHOOL CODE LEAVE
Several Types in School Code: Sick Leave Jury Duty Leave Sabbatical Leave Association President Leave Retirement Trustee Leave Teaching Overseas
Sick Leave is most common type of leave used from the school code.
Teacher may not be discharged for using sick leave when it is used for an appropriate purpose.
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ILLINOIS SCHOOL CODE LEAVE:SICK LEAVE School districts must give their full-time
teachers no fewer than 10 sick leave days per school year. (105 ILCS 5/24-6).
All 10 days become available on the first day of school (unless different in CBA).
Unused sick leave may be accumulated to at least 180 days.
Leave may be used for personal illness, home quarantine, or serious illness or death in the immediate family or household.
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ILLINOIS SCHOOL CODE LEAVE:SICK LEAVE Employee may also use sick leave to stay at home with
sick spouse or child without losing pay.
School Board may require employee to submit a physician’s certificate to support a claim for sick leave pay for personal illness more than 3 days or 30 days for the birth or as a the school board may deem necessary in other cases. If the leave was fewer than 3 days, then the District must pay
the expense of obtaining the certificate.
For paid leave for adoption or placement for adoption, the school board may require that the teacher or other employee provide evidence that the formal adoption process is underway, and such leave is limited to 30 days unless a longer leave has been negotiated with the exclusive bargaining representative.
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ILLINOIS SCHOOL CODE LEAVE:JURY DUTY LEAVE An employee who is summoned for jury duty
must be given time off and may not be discharged if the employee gives reasonable notice to the employer.
A teacher does not lose salary as a result of jury duty, although the board may deduct the amount received for jury duty from the teacher’s pay. 105 ILCS 5/10-20.7.
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ILLINOIS SCHOOL VISITATION RIGHTS ACT Employer must grant an employee leave up
to 8 hours during any school year; no more than 4 hours may be taken on any given day
Employee must be employed at least 6 months and employed at least part‐time Part-time is specific to employer’s polices and
procedures or collective bargaining agreement
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ILLINOIS SCHOOL VISITATION RIGHTS ACT Cannot be taken unless all accrued time‐off,
with the exception of sick and disability leaves, has been exhausted. This includes accrued vacation and personal
leave.
Leave is generally unpaid or employee can request to utilize a make-up shift if there is a reasonable opportunity to do so. If it would require overtime, it is not reasonable.
Employee benefits will continue during the leave
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ILLINOIS SCHOOL VISITATION RIGHTS ACT Upon completion of school visitation rights, the
school administrator shall provide documentation of the school visitation.
The employee will be required to submit such verification to the manager within two working days of the school visitation.
Failure to complete any of the necessary notification may result in disciplinary procedures.
Employer penalty for violation of act is a fine of not more than $100.00.
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ILLINOIS WORKERS’ COMPENSATION Compensating injured employees. 820 ILCS
305/1 et. seq. May run simultaneously with FMLA and
counted against FMLA Paid leave cannot overlap
Work Comp pay v. sick leave WC is paid leave and employer can’t require
employee to take other forms of paid leave at same time (unpaid FMLA leave may run at the same time)
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