Category Personnel/Employment
Title Family and Medical Leave Act Overview (2018)
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Preview Family and Medical Leave Act Overview (2018)
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Family and Medical Leave Act of 1993 Overview (2018)

Introduction

In February 1993, Congress passed and President Clinton signed the Family and Medical Leave Act of 1993 (FMLA). No exemptions were provided for churches or religious entities, such as schools. FMLA requires covered employers to provide up to 12 weeks of unpaid, job protected leave to "eligible" employees for certain family and medical reasons. Employees are eligible if they have worked for a covered employer for at least one year, and for 1,250 hours over the previous 12 months, and if there are at least 50 employees working at related facilities within 75 miles. All ACSI member K-12 schools are "covered employees" under at least one part of FMLA regarding the posting of notices.

Under FMLA, unpaid leave must be granted for any of the following reasons: (1) to care for the employee's child after birth, or placement for adoption or foster care; (2) to care for the employee's spouse, son or daughter, or parent, who has a serious health condition; or (3) for a serious health condition that makes the employee unable to perform the employee's job.

In most instances the employee is required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met. An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer's expense) and a fitness for duty report to return to work. For the duration of FMLA leave, the employer must maintain the employee's health coverage under any "group health plan." Upon returning to work, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.

The following analysis of the Family and Medical Leave Act of 1993 is provided by the law firm of Ball, Murren & Connell of Harrisburg, PA.  

Covered Employees  

The regulations impose certain obligations on all "covered employers" to post notices, and most "covered employers" to revise any personnel policy manuals the employer distributes and, in some instances, revise benefit plans.  

"Covered employers" which must comply with regulatory requirements are those with 50 or more employees. The Act has express provisions covering private schools in Section 108. While "covered employers" have the duty to take certain steps to institute a leave plan, not all covered employers have "eligible employees" who are entitled to family and medical leave. This will be most true in the case of smaller ACSI member schools. To be included as a covered employer, an institution or religious entity must generally employ 50 or more people. Private elementary and secondary schools are also "covered" employers without regard to the number of persons employed.  

Because a school may be affected by the Act in two ways, i.e., (1) because a school is a "covered employer," or (2) the school is an employer with more than fifty employees, this review will address each situation separately.

Part A. Covered Employer as a "Local Education Agency"

Under the FMLA, all K-12 educational institutions are covered by the law and the regulations as "local education agencies" even if they do not employ 50 employees. If the school employs fewer than 50 people, no employee is actually eligible for FMLA leave. However, if the school has two or more sites less than seventy-five miles apart and the combined total of employees equals more than 50 people, the employees are, (at least for the number of employees tested), eligible employees under FMLA leave provisions. In this case see part B of this article for additional requirements. Church-related schools must count both the church and school staff when determining FMLA eligibility unless the school is separately incorporated from the church. Part-time staff also is counted toward the threshold number of 50 employees.  

All elementary and secondary schools are required to post the FMLA notice. A sample is provided in this newsletter. Failure to post the notice may result in the assessment of a civil penalty of $100 for each separate offense.  

If your school has less than 50 employees, it is recommend that the following additional notice be published and posted or distributed to employees on an 8 1/2" x 11" sheet with legible bold-faced print:  

This school is a "covered employer" under the FAMILY AND MEDICAL LEAVE ACT OF 1993. However, because the school does not employ fifty or more people, no employee is eligible for leave under the provisions of the Act. The school has its own policies for leave and those shall continue to apply subject to any changes made from time to time.

Part B. Covered Employer - 50 or More Employees

The most important duties for such an employer are:  

1. Post a notice in the format shown as a sample in this newsletter.              

a. Posting must be on 8 1/2" x11" or larger paper and the text must be "fully legible."              

b. Posting must be at a location like an employee bulletin board, near a time clock, near employee mailboxes, "conspicuous places where employees are employed," or in a personnel or employment office since the notice also must be posted where it can be readily seen by applicants. This posting requirement must be carefully followed since failure to post the notice may result in the assessment of a civil penalty of $100 for each separate offense.

c. If a workforce has a significant portion of workers not literate in English, the employer is responsible to provide the information in a language in which the employees are literate.  

2. If there is an employee handbook or other written guidance to employees, the entitlements and employee obligations under FMLA must be set forth in the handbook or other document.  

3. If the employer does not have written policies, manuals or handbooks describing employee benefits, the employer must provide written guidance to an employee whenever the employee requests leave under FMLA. (Check with the Wage and Hour Division of the U.S. Department of Labor for information about what must be included in the written guidance).  

4. When an employee provides notice of his/her need for FMLA leave, an employer must provide notice detailing the expectations and obligations of the employee in connection with leave. The notice will vary according to circumstances but could include:              

a. Notice that leave will be counted against the annual FMLA leave entitlement;              

b. Any requirements by an employer for the employee to furnish medical certification when requesting "medical" leave and an explanation of the consequences for failing to do so;              

c. Any requirements for the employee to provide a fitness-for-duty certificate in order to be restored to employment; and,              

d. For a "key employee," notification that the person occupies such a status and notice that restoration may be denied following FMLA leave. 

Special Rules for Eligible Employees

Eligible employees working in larger elementary and secondary schools that have 50 or more employees within 75 miles are subject to "special rules". The special rules affect the taking of intermittent leave, leave on a reduced leave schedule, or leave near the end of an academic term (semester) by instructional employees. Such instructional employees are those whose principal function is to teach and instruct in a class, small group or individual setting. The term includes teachers and athletic coaches, driving instructors and special education assistants such as signers for the hearing impaired. The special rules do not apply to teacher aides (who do not actually teach as their principal function) nor counselors, psychologists, cafeteria workers, maintenance workers or bus drivers. However non-instructional personnel in a school are covered by the basic FMLA policies when the total number of employees in the school or church/school exceeds fifty within seventy-five miles.  

The law firm of Ball, Murren & Connell recommends that the duties set forth in Part B #1-4 above be followed for both instructional and non-instructional employees, and that for instructional employees the school consider what it will require of its teachers or instructors under the "special rules." The options to be considered according to the interim rules are set forth below in a Question and Answer format. Whatever choices the school makes for instructional employees, they must be set forth in any employee handbook covering teachers, or, if none, then they must appear in a prepared written notice and given to the instructional employees. The nature of the special notice depends on what the school decides to require.  

If a school imposes limitations on the intermittent leave which its instructional employees may take, the law office of Ball, Murren & Connell recommends that the school post a notice similar to that in bold print below in the same area as it posted the "official poster" announcing FMLA.

INSTRUCTIONAL EMPLOYEES
Affected by The Family and Medical Leave Act of 1993  

a. If an eligible instructional employee requests intermittent leave or leave on a reduced schedule and will be on leave for more than twenty percent of the total number of working days over the leave period, the school has adopted certain requirements about which such an employee should inquire.  

b. If an eligible instructional employee does not give required notice of foreseeable FMLA leave, certain conditions apply about which the employee should inquire.  

c. Different rules apply for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term and less than three weeks before the end of a term. Instructional employees interested in the rules should inquire.  

d. Restoration to an "equivalent position" after FMLA leave will be made on the basis of school policies and practices and shall be made known in writing to an instructional employee prior to the beginning of FMLA leave.

Special Rule Limitations

Q: What limitations apply to the taking of intermittent leave by instructional employees on a reduced leave schedule?   

A: (A)(1) If an eligible instructional employee requests intermittent leave or leave on a reduced leave schedule to care for a family member, or for the employee's own serious health condition, which is foreseeable based on planned medical treatment, and the employee would be on leave for more than 20 percent of the total number of working days over the period of the leave would extend, the employer may require the employee to choose either to:              

(i) Take leave for a period or periods of a particular duration, not greater than the duration of the planned treatment; or              

(ii) Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee's regular position.  

(2) These rules apply only to a leave involving more than 20 percent of the working days during the period over which the leave extends. For example, if an instructional employee who normally works five days each week needs to take two days of FMLA leave per week over a period of several weeks, the special rules would apply. Employees taking leave which constitutes 20 percent or less of the working days during the leave period would be subject to the usual rules for taking intermittent or reduced schedule leave. The usual rules would apply, for example, to such an employee who needs only one day of leave per week. "Periods of a particular duration" means a block, or blocks of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed, and may include one uninterrupted period of leave.

(B) If an instructional employee does not give required notice of foreseeable FMLA leave to be taken intermittently or on a reduced leave schedule, the employer may require the employee to take leave of a particular duration, or to transfer temporarily to an alternative position. Alternatively, the employer may require the employee to delay the taking of leave until the notice provision is met. However, an employer may not have stricter FMLA notice requirements than are required for other employees taking paid or unpaid leave, as appropriate.

Q: What limitations apply to the taking of leave near the end of an academic term?

A: (A) There are also different rules for instructional employees who begin leave more than five weeks before the end of a term, less than five weeks before the end of a term, and less than three weeks before the end of a term. Regular rules apply except in circumstances when:  

(1) An instructional employee begins leave more than five weeks before the end of a term. The employer may require the employee to continue taking leave until the end of the term if:              

(i) The leave will last at least three weeks, and              

(ii) The employee would return to work during the three-week period before the end of the term.  

(2) The employee begins leave for a purpose other than the employee's own serious health condition during the five-week period before the end of a term. The employer may require the employee to continue taking leave until the end of the term if:              

(i) The leave will last more than two weeks, and              

(ii) The employee would return to work during the two-week period before the end of the term.  

(3) The employee begins leave for a purpose other than the employee's own serious health condition during the three-week period before the end of a term, and the leave will last more than five working days. The employer may require the employee to continue taking leave until the end of the term.  

(B) For purposes of these provisions, "academic term" means the school semester, which typically ends near the end of the calendar year and the end of spring each school year. In no case may a school have more than two academic terms or semesters each year for purposes of FMLA. An example of leave falling within these provisions would be where an employee plans two weeks of leave to care for a family member which will begin three weeks before the end of the term. In that situation, the employer could require the employee to stay out on leave until the end of the term. 

Q: Is all leave taken during "periods of a particular duration" counted against the FMLA leave entitlement?

A: (A) If an employee chooses, or is required, to take leave for "periods of a particular duration" in the case of intermittent or reduced schedule leave, or is required to continue taking leave until the end of a school, the entire period of leave taken will count as FMLA leave.  

(B) In the case of an employee who is required to take leave until the end of an academic term, if the employee's leave entitlement under FMLA ends before the involuntary leave period is completed, the employer is required to maintain health benefits and must restore the employee and provide other FMLA entitlements when the period of leave ends.  

Q: What special rules apply to restoration to "an equivalent position?   

A: The determination of how an employee is to be restored to "an equivalent position" upon return from FMLA leave will be made on the basis of "established private school policies and practices". The "established policies" used as a basis for restoration must be in writing, must be made known to the employee prior to the taking of FMLA leave, and must clearly explain the employee's restoration rights upon return from leave. Any established policy which is used as the basis for restoration of an employee to "an equivalent position" must provide substantially the same protections as provided in the Act for reinstated employees. In other words, the policy must provide for restoration to an "equivalent position" with equivalent employment benefits pay, and other terms and conditions of employment.
______________________________

With such a new law and untested regulations, there are certain to be questions which will arise. Specific facts may affect the response of any school. Administrators should also be aware that some states have adopted similar legislation that may also apply to their schools. Provisions of a state law may be stricter than the federal law reviewed in this article. Large church-related and independent schools should check with their local attorneys if they have questions or need further details regarding FMLA or state law. Attorney Richard Connell of the law offices of Ball, Murren & Connell may also be contacted regarding FMLA at (717) 232-8731 at the school's own expense. His office is located in Harrisburg, Pennsylvania.

To obtain more FMLA information or a copy of the "Certification of Physician or Practitioner" medical form, contact the nearest Wage and Hour Division office of the U.S. Department of Labor. 

Follow-up Questions on the Family and Medical Leave Act of 1993

ACSI continues to receive questions from member schools regarding the new federal law known as the Family and Medical Leave Act of 1993 (FMLA). The following answers are based on materials supplied by Attorney Richard Connell of the law firm of Ball, Murren & Connell of Harrisburg, Pennsylvania.

Q: My school has more than one campus. Must the FMLA notice be posted at each location?

A: Yes. All elementary and secondary schools must post the notice at each campus even if the other provisions of FMLA will not apply because they have less than 50 employees working at related facilities within 75 miles.

Q: What constitutes a "part-time" employee that must be counted under FMLA?   

A: For purposes of counting employees to see whether your school is covered by FMLA under the 50 employee "threshold" test, any employee whose name appears on the employer's payroll will be considered employed each working day of the calendar week, and must be counted whether or not the part-time employee receives any compensation for the week. Part-time employees are considered to be employed each working day of the calendar week as long as they are maintained on the payroll. Employees on paid or unpaid leave, leaves of absence, disciplinary suspension and similar absences are counted if the employer has a reasonable expectation that the employee will later return to active employment. NOT counted are employees who are laid off (whether temporary, indefinite or long-term).  

The number of hours a part-time employee works is not relevant. The focus is whether the person is maintained on the payroll. By way of example, if "A" is hired on a one-time basis to work for eight hours cleaning a school building, "A" is not a part-time employee. If "B" is hired to come to school for a total of four hours each week to assist in cleaning and is "on the payroll" because he has a weekly commitment, "B" is a part-time employee.  

Q: Does the FMLA apply to church employees of a church-related school?   

A: If the employer for a church-sponsored school is the church and there are more than 50 employees (at the church and at the school), the act applies to the "church" employees. That is, they would be "eligible" for family and medical leave as would the "school" employees. However, the special rules for intermittent leave which apply to schools, apply only to "instructional employees." Therefore non-"school" employees would not be affected by rules on intermittent leave, on a reduced schedule, or leave near the end of an academic term.    

Q: Does the number of employees need to be evaluated continuously or at the beginning of each school year?   

A: The number of employees needs to be evaluated continuously. Once an employer meets the 50 employees for 20 or more work weeks threshold, the employer remains covered until it no longer has employed 50 employees for 20 (not necessarily consecutive) workweeks in the current and preceding calendar year.  

For example, if an employer meets the 50 employees/20 workweeks test in the current calendar year as of August 5, 1993, and subsequently drops below 50 employees before the end of 1993 and continues to employ fewer than 50 employees in all workweeks throughout the calendar year 1994, the employer continues to be covered throughout 1994 because it met the criteria for 20 workweeks of the preceding (i.e., 1993) calendar year.  

Q: Are substitute teachers and vacation replacements also included in the number of employees?   

A: Such employees are considered temporary employees if they are "maintained on the payroll." How that test really applies to substitute teachers is not at all clear. Practically, just because a substitute's name might be "on the payroll," i.e., has completed all paperwork to serve as a substitute, should not make that substitute a "part-time" employee for every week or month of the school year. At most, such a temporary employee should only be counted as such for any week in which the person occupied a substitute position. Thus, a person called once as a substitute in September would not again be counted if no other substitute days occurred. Practically then, only a "regular substitute," that is, one coming in on a weekly or bi-weekly basis ought to be included as a "part-time" employee.  

To obtain additional FMLA information, contact the nearest Wage and Hour Division office of the U.S. Department of Labor.

2009 Changes to FMLA

On November 17, 2008, the U.S. Department of Labor published the first major revisions of the FMLA regulations since 1993 in the Federal Register in the section titled "The Family and Medical Leave Act of 1993; Final Rule." These revisions went into effect on January 16 of this year. Here is a summary of the changes:

1. The definition of "serious health condition." The final rule retains the six individual definitions of "serious health condition." However, it adds guidance on some regulatory matters. It clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a healthcare provider, the two visits must occur within 30 days of the period of incapacity. It also defines "periodic visits" to a healthcare provider for chronic serious health condition as at least two visits to a healthcare provider per year.

2. Military caregiver leave. The final rule implements the requirement to expand FMLA protections for eligible family members caring for a covered service member who incurs a serious injury or illness while on active duty. These family members can now take up to 26 workweeks of leave in a 12-month period.

3. Leave for "qualifying exigencies" for familyies of National Guard and Reserve members. The final rule entitles families of National Guard and Reserve personnel who are on active duty to take FMLA job-protected leave to address certain "qualifying exigencies." The new regulations go on to define the types of situations that qualify.

4. Gaps in service. The final rule adds a paragraph addressing the requirement that employees are eligible to take FMLA leave only if they have been employed by an employer for at least 12 months and 1,250 hours of service in te 12-month period that precedes the leave. Even though those 12 months of employment don't have to be consecutive, the rule now adds that employment before a continuous break in service of seven years (or sometimes more, depending on the reason for the gap) doesn't have to be counted.

5. Intermittent leave. The final rule clarifies that employees who take intermittent FMLA leave for medical treatment have a "statutory obligation to make a 'resonable effort' to schedule such treatment so as not to disrupt unduly the employer's operations."

6. Certification process. The final rule makes the certification process more efficient. Employers may now have direct contact with an employee's healthcare provider to authenticate or clarify information required on a certification form. However, the employee's direct supervisor may not make these inquiries. The new regulations limit this right to a human-resource professional, a leave administrator, or a management official.

7. Employer notice. The final rule encourages further notice of FMLA rights and obligations. As before, there must be a general notice to all employees that is posted in every workplace and incorporated into the employee handbook. In addition, employers must issue an "eligibility notice" within five days now-instead of two-of a request for leave or after learning that a leave may be FMLA-qualifying. Employers also have to give the employee a written "rights and responsibilities notice" at the same time they give the eligibility notice. And employers must issue a written "designation notice" within five days after receiving enough information to decide whether the need for leave qualifies for FMLA.   

8. Employee notice. The final rule states that employees must follow their employer's customary call-in procedures when notifying an employer of their need for leave, unless there are unusual circumstances.   

9. Fitness-for-duty certification. The final rule stipulates that employers can now require a fitness-for-duty certification to address the ability of an employee to perform essential job functions. However, if the employers have such a requirement, a list of essential job functions must be provided to the employee no later than when the designation notice is given to him or her.   

10. Light-duty work. The final rule clarifies that time spent performing light-duty work does not count against the annual 12-week allotment of FMLA leave and that the employee retains the right to return to his or her prior job (as long as he or she is still able to perform the associated essential job functions).

The Family and Medical Leave Act has a number of other changes that you as an eligible employer must follow. Be sure to include FMLA policies in your handbook—after those policies have been reviewed by legal counsel.

LLU 19.3

Many companies would like to sell you this poster. However, you don't have to spend anything on it. You can download the free copy from the DOL website, www.dol.gov/whd/regs/compliance/posters/fmla.htm.    

Printout for legal poster appears next—(2018)

Employee Rights Under the Family and Medical Leave Act
The United States Department of Labor Wage and Hour Division

Leave Benefits

Eligible employees who work for a covered employer can take up to 12 weeks of unpaid, job-protected leave in a 12-month period for the following reasons:

  • The birth of a child or placement of a child for adoption or foster care; 
  • To bond with a child (leave must be taken within one year of the child's birth or placement);
  • To care for the employee's spouse, child, or parent who has a qualifying serious health condition;
  • For the employee's own qualifying serious health condition that makes the employee unable to perform the employee's job;
  • For qualifying exigencies related to the foreign deployment of a military member who is the employee's spouse, child, or parent. 

An eligible employee who is a covered servicemember's spouse, child, parent, or next of kin may also take up to 26 weeks of FMLA leave in a single 12-month period to care for the servicemember with a serious injury or illness.

An employee does not need to use leave in one block. When it is medically necessary or otherwise permitted, employees may take leave intermittently or on a reduced schedule.

Employees may choose, or an employer may require, use of accrued paid leave while taking FMLA leave. If an employee substitutes accrued paid leave for FMLA leave, the employee must comply with the employer's normal paid leave policies. 

Benefits and Protections

While employees are on FMLA leave, employers must continue health insurance coverage as if the employees were not on leave.

Upon return from FMLA leave, most employees must be restored to the same job or one nearly identical to it with equivalent pay, benefits, and other employment terms and conditions.

An employer may not interfere with an individual's FMLA rights or retaliate against someone for using or trying to use FMLA leave, opposing any practice made unlawful by the FMLA, or being involved in any proceeding under or related to the FMLA. 

Eligibility Requirements

An employee who works for a covered employer must meet three criteria in order to be eligible for FMLA leave. The employee must:

  • Have worked for the employer for at least 12 months;
  • Have at least 1,250 hours of service in the 12 months before taking leave;* and
  • Work at a location where the employer has at least 50 employees within 75 miles of the employee's worksite.

*Special "hours of service" requirements apply to airline flight crew employees

Requesting Leave

Generally, employees must give 30-days' advance notice of the need for FMLA leave. If it is not possible to give 30-days' notice, an employee must notify the employer as soon as possible and, generally, follow the employer's usual procedures.

Employees do not have to share a medical diagnosis, but must provide enough information to the employer so it can determine if the leave qualifies for FMLA protection. Sufficient information could include informing an employer that the employee is or will be unable to perform his or her job functions, that a family member cannot perform daily activities, or that hospitalization or continuing medical treatment is necessary. Employees must inform the employer if the need for leave is for a reason for which FMLA leave was previously taken or certified.

Employers can require a certification or periodic recertification supporting the need for leave. If the employer determines that the certification is incomplete, it must provide a written notice indicating what additional information is required.

Employer Responsibilities

Once an employer becomes aware that an employee's need for leave is for a reason that may qualify under the FMLA, the employer must notify the employee if he or she is eligible for FMLA leave and, if eligible, must also provide a notice of rights and responsibilities under the FMLA. If the employee is not eligible, the employer must provide a reason for ineligibility.

Employers must notify its employees if leave will be designated as FMLA leave, and if so, how much leave will be designated as FMLA leave. 

Enforcement

Employees may file a complaint with the U.S. Department of Labor, Wage and Hour Division, or may bring a private lawsuit against an employer.

The FMLA does not affect any federal or state law prohibiting discrimination or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights. 


For Additional Information or to file a complaint:
1-866-4-USWAGE
www.dol.gov/whd   

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

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Phone: 719.528.6906
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