1 Presenter: Denise Lowell-Britt, Esq. Udall Shumway, PLCASPAA Fall Conference November 20, 2014 “Staying Above the Poop Deck” Presenter: Denise Lowell-Britt, Esq. Udall Shumway, PLC
2 Poop Deck (definition)The deck that forms the roof of a cabin built in the rear, or "aft", part of the superstructure of a ship.
3 Alternative Presentation TitleUse and Abuse of Leaves of Absence by School Employees: What’s an Employer to Do?
4 Examples of Negative Impact of Leave AbuseReduced effectiveness & efficiency of the organization/departments. Financial – cost of substitutes, overtime. Interpersonal – harms relationships when employees have to “cover” for those abusing leave or lose confidence in ethics of co-workers or supervisors.
5 Different Types of LeaveSick leave Discretionary leave Military leave Legal leave (jury duty, victim leave)
6 Different Types of LeaveReligious leave Family Medical Leave Act Americans with Disabilities Act Worker’s compensation
7 Interplay Between LeavesAt times, HR must analyze a request for leave or other aspects of an employee’s leave under more than one Policy or law. FMLA / ADA / Worker’s Comp
8 Governing Board Policies & Related RegulationsGBGD – Workers’ Compensation GCC – Absent Without Leave GCCA – Sick / Bereavement
9 Governing Board Policies & Related RegulationsGCCB – Discretionary Leave (Personal/ Emergency/ Religious) GCCC –Long term leaves; FMLA GCCD – Military / Legal (jury, victim, military)
10 No ASBA Policy on the ADAASBA does not have a Policy or Administrative Regulation specifically relating to the ADA. The ADA is highly relevant to the issue of leave time for employees with disabilities.
11 Additional ADA Leave An employee who has used all of his/her FMLA leave may be entitled to additional leave (beyond 12 weeks) under the ADA, as a reasonable accommodation. The additional absence length, if any, must be decided on a case-by-case circumstance.
12 So, What’s the “Poop?” on Preventing Abuse?Step 1: Know your responsibilities as an employer. Step 2: Know your rights as an employer.
13 Easier Said than Done! The laws are very prescriptive.The interplay between them can be confusing. Congress has updated the FMLA and ADA in recent years.
14 Mandatory FMLA Notices to EmployeesTo protect the District’s rights vis-à-vis FMLA: Ensure written notices of employer’s decisions & rules are provided to employees. Use current DOL forms (there are some February 2013 updates)
15 Mandatory FMLA Notices to EmployeesNotice to employees requesting leave whether they are eligible for FMLA leave. If so, notice must specify any additional information required + employees’ rights and responsibilities. If not, notice must provide reason for ineligibility.
16 Mandatory FMLA Notices to EmployeesEmployer must inform employees if leave will be designated as FMLA- protected leave & the amount of leave counted against employee’s leave entitlement. If the leave is not FMLA-protected, the employer must notify the employee.
17 Use or Abuse? Sample Situations…
18 Indeterminate Leave RequestEmployer responsibility: Determine- Is the leave “mandatory” under FMLA? Is the request a reasonable ADA accommodation?
19 Indeterminate Leave RequestEmployer rights: Request a medical certification of the employee’s condition and projected need for leave. Tip: Provide medical provider with the employee’s job description with “essential job functions” highlighted
20 Indeterminate Leave RequestEmployer rights: The employer is NOT obligated to provide an employee who is unable to work at all with an indefinite leave of absence. Wood v. Green, 323 F.3d 1209, 1314 (11th Cir. 2003).
21 Indeterminate Leave RequestEmployer rights: Indefinite leave of absence with no clear prospective of recovery is objectively an unreasonable accommodation. Walsh v. United Parcel Service, Inc., 201 F.3d 718, (6th Cir. 2000).
22 Employee’s Failure to Provide Medical CertificationEmployer responsibility: Notify employee of responsibility to provide certification. Use the DOL certification form. Request that employee provide the certification immediately or w/in 5 business days of leave request (or w/in 5 business days of time leave begins for unforeseen leave).
23 Employee’s Failure to Provide Medical CertificationEmployer rights: May request certification at a later date if there is reason to question the appropriateness of leave or duration. May expect to receive the certification w/in 15 calendar days (unless employer allows more time or time frame is not feasible despite employee’s good faith diligent efforts).
24 Employee’s Failure to Provide Medical CertificationEmployer rights: May deny the request for FMLA* * As long as the employer provided the employee with notice of this consequence at the time the certification was requested.
25 Employees Who Don’t Report AbsencesEmployer Responsibility: Have a clear, written Policy requiring employees to call in absences when taking leave (i.e. sick leave, unplanned leave, intermittent leave). Notify employees of requirement. Consistently apply the Policy to FMLA and non-FMLA absences.
26 Employees Who Don’t Report AbsencesEmployer rights: “Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.” 29 C.F.R (d).
27 Employees Who Don’t Report AbsencesEmployer right: May discipline or dismiss employee’s who fail to comply with absence reporting requirements, so long as the employer’s actions are applied consistently for all forms of absences.
28 Employee Leave Request to Avoid Negative ConsequencesTypical Scenario: Employee requests FMLA due to “stress”, “anxiety” or “depression” when - Unhappy with supervisor’s demands for performance Provided with poor evaluation Notified of possible disciplinary action Facing reduction in force
29 Employee Leave Request to Avoid Negative ConsequencesEmployer responsibility: Ensure a non-discriminatory, legitimate business reason for action taken or to be taken against the employee. Create & maintain good documentation. For teachers: District will need to continue teaching inadequacy improvement period until end of leave period.
30 Employee Leave Request to Avoid Negative ConsequencesEmployer rights: Need not reinstate an employee where – The employee would have been laid off even if he/she had not taken leave. The employer has a legitimate reason to terminate the employee not related to leave. Elimination of employee’s job that is unrelated to the leave.
31 Employee Leave Request to Avoid Negative ConsequencesEmployer rights: Invoking FMLA does not protect an employee from unrelated discipline already “in the pipeline”. If employee is dismissed: FMLA rights continue to be effective until the dismissal is effective.
32 Employee Leave Request to Avoid Negative ConsequencesADVICE: Consult with your District’s legal counsel before taking action in this situation! Disciplining employees who request FMLA leave or who are on FMLA leave is risky!
33 Disruptive Intermittent Leave by Instructional EmployeesEmployer responsibility: Provide employee with notice of FMLA rights and applicable rules.
34 Disruptive Intermittent Leave by Instructional EmployeesEmployer rights: FMLA special rules - Apply to teachers and others whose principal function is to teach (i.e. athletic coaches). Do not apply to counselors, psychologists, curriculum specialists. Apply to K-12, not preschool.
35 Disruptive Intermittent Leave by Instructional EmployeesEmployer rights: Special rules apply - When the employee needs intermittent leave or reduced leave schedule to care for self or family member or covered service member. When the leave is needed for more than 20% of the total number of working days over the period of time the leave would extend.
36 Disruptive Intermittent Leave by Instructional EmployeesEmployer rights: Require employee to - Take leave for a period of a particular duration not greater than the duration of the planned treatment; or Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay & benefits.
37 Employee Demand for Leave & Pay While Receiving WC BenefitsEmployer responsibility: Advance notice to employee of - Whether time off for work injury covered by Worker’s Compensation is counted as FMLA leave. Whether employer allows paid leave to supplement WC benefits.
38 Employee Demands re: Leave & Pay While Receiving WC BenefitsEmployer rights: May count time taken off from work due to injury covered by WC against the employee’s FMLA entitlement if employer has a policy of designating the leave as FMLA.
39 Employee Demand for Leave & Pay While Receiving WC BenefitsEmployer rights: May not require the employee to substitute accrued paid leave during WC leave but may agree to have paid leave supplement WC benefits if permitted by State law. Arizona law is silent on the issue. Check with District’s WC carrier re: possible “coordination of benefits” implications.
40 Helpful FMLA ResourcesThe Fair Labor Standards Act 29 C.F.R. Part 825 (FMLA) U.S. Department of Labor Wage & Hour Division:
41 Disclaimer This presentation and related handout is for informative purposes only and should not be used in place of legal advice.
42 1138 North Alma School Road, Suite 101 Mesa, Arizona 85201 Denise Lowell-Britt Udall Shumway plc 1138 North Alma School Road, Suite 101 Mesa, Arizona |