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FAMILY AND MEDICAL LEAVE ACT (FMLA)
Michelle Anderson & Matthew LevittSupervisors’ Academy
March, 2011
Objectives
At the close of this session, you will be able to:
State what the FMLA is Be aware of your responsibilities as a
Supervisor as required by the law and TSD policy
Avoid actions prohibited by the law and other common errors
What is the FMLA?
The Family and Medical Leave Act (FMLA) is a Federal Law passed in 1993 and expanded in 2009 to grant job protection for absences related to certain family medical circumstances or military related absences.
Basic Provisions - Who is EligibleAn employee who has worked:For the State of Texas for at least 12
months ANDAt least 1250 hours for the State of
Texas in previous 12 months
Basic Provisions - Qualifying Events1. Birth2. Adoption or foster care placement3. Employee’s serious health condition4. Employee’s family member with
serious health condition
Basic Provisions - Qualifying EventsAND…recently added
5. Employee’s family member called up to active duty in Armed Forces
6. An employee’s injured or ill service family member
Basic Provisions - Serious Health ConditionAn illness, injury, impairment or physical/
mental condition that involves inpatient care or continuing treatment by a health care provider
Basic Provisions - Serious Health Condition Examples
YES Pregnancy and
childbirth Cancer Alzheimer's
Disease Epilepsy Bipolar disorder Depression
NO*•Common cold•Poison ivy•Eczema•Upset stomach•Routine dental work•Ear ache•Remember to look for continuing treatment
Basic Provisions - Employee BenefitsUp to 12 weeks of job protected leave
for reasons 1-5Up to 26 weeks of job protected leave
to care for an employee’s injured or ill service family member
Continuation of health insuranceReinstatement to same or equivalent
position
Basic Provisions - Job Protected LeaveFMLA is not a type of leave
☂sick leave, annual leave, sick leave pool,
FLSA overtime, compensatory time, holiday time, LWOP
Basic Provisions - Job Protected LeaveFMLA may be paid or unpaid -
depending on employee leave balancesTSD requires use of all paid leave
before going on unpaid leave
Basic Provisions - Job Protected Leave Time off only for time that is medically
necessary or for bonding time with new baby or adopted child
Military exigencies; time off for: Short notice deployment, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities.
Basic Provisions - Job Protected Leave
Leave may be:ContinualIntermittentReduced work schedule
Basic provisions - Health Insurance
State continues to pay State’s share of health insurance
Employee continues to pay employee share, including optional coverages
Optional coverage may be dropped at start of FML and reinstated without EOI at end of FML
Basic Provisions - Job ProtectionEmployee returns to same or equivalent
position, if return within FMLA protected time
FMLA protected leave is not considered an absence for disciplinary action
Employee Responsibilities
At least 30 days advance notice (when possible)
Provide documentation within 15 daysKeep HR informed of statusReturn to work medical certification
Supervisor Responsibilities
Refer employees to Human Resources, if potential qualifying condition
Inform timekeeper of potential FML timeContact HR if any employee misses
four continuous work shifts
HR Responsibilities
Inform staff of FMLA rightsMake preliminary FMLA designationsAsk employees to provide status updateRestore employees to same or
equivalent position
TSD Process - Notification
HR provides employee with necessary forms and information• A copy of the TSD FMLA procedure• The request for FMLA leave• The Certification of Health Care
Provider• The Return to Work Status Report,
including a copy of the job description
TSD Process - Designation
Based on medical documentation, HR determines if qualifying event
TSD Process - Timekeeping
Indicate on the timesheet that the employee is out on FML
Use all paid leave prior to LWOP
TSD Process - Return to WorkEmployee serious medical condition -
medical provider release to full dutyFamily member serious medical
condition - family member does not require employee care
Birth - end of 12 weeks
TSD Process - Return to WorkEmployee’s medical provider completes
“Return to Work” formMedical provider FAXes or employee
hand delivers “Return to Work” form to HR
Employee may not return to work if HR does not have “Return to Work” form
TSD Process - Return to Work with RestrictionsHR coordinates with department
If able to accommodate, employee returns to work
If unable to accommodate, employee must stay home until a full release is obtained
TSD Process - Unable to Return to Work
NOT Business Necessity - position is held for his/her return
Business Necessity; Superintendent reviews for concurrence with legal and HR If agrees, employee is terminated and
position filled If disagrees, position is held for his/her
return
TSD Process - Instructional Staff, End of Semester
Leave taken at the end of the school year which continues into the next school year is considered continual leave
Summer break time not counted against FMLA time
Special rules apply to “instructional employees”
TSD Process - Instructional Staff, End of Semester
“Instructional employees” are those whose principal function is to teach and instruct students in a class Included: teachers, athletic coaches driving
instructors, and special ed assistants, such as interpreters
Not included: teacher aides, counselors, psychologists, curriculum specialist, cafeteria workers, maintenance, or bus drivers
FMLA/ADA Coordination
If employee has medical condition which requires change in schedule or position due to not able to perform essential functions of current job, supervisor and employee must work with HR and legal to determine if employee qualifies under ADA for reasonable accommodations
Workers’ Comp/FMLA
Worker’s Comp (WC) injury resulting in absences of more than 3 days
WC medical paperwork (DWC 71) is medical documentation
NOT required to use paid leave
Tracking FMLA
HR records absences 480 hours (12 weeks X 40 hours per week)
per year for classified employees 420 hours (12 weeks X 35 hours per week)
per year for contract employees “Rolling year” - 12 weeks of FML starting with
the first day of FML designation FML eligible hours “roll back on” after one
year
Errors to Avoid
Do NOT make a designation of FML eligibility Do NOT contact the employee’s medical provider
with questions or to request information Do NOT ask employees for medical note for each
absence of intermittent leave Do NOT retaliate against employees who request or
use FML Do NOT take disciplinary action or terminate an
employee who does not return from FML or cannot perform functions; without coordinating with legal and HR
Common Misconceptions
FML Leave is always paid FML is additional leave time Employees do not have to use their own
leave while on FML An employee on FML will not incur any
LWOP FML begins after the employee exhausts
his/her leave balances FML is for consecutive time off only FML can be used for the employee only
Common Misconceptions
If on FML, an employee doesn’t need to provide status updates
FML time starts back at 480 hours after 1 year
Employee does not need medical certification for FML designation
Employee does not need to complete return to work form to come back after FML leave
Questions