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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CONTRACTUAL LEAVE Bereavement Leave

Personal Leave

Extended Leave w/o Pay

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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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