Effective immediately, the Department of Labor (DOL) Wage and Hour Division (WHD) will now require employers to offer employees the opportunity to use intermittent leave under the Family and Medical Leave Act (FMLA) to attend Individualized Education Program (IEP).
Under the Individuals with Disabilities Education Act (IDEA), public schools are obligated to create Individualized Education Program (IEP) for any child, “who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel.” Additionally, the most recent decision concludes that FMLA applies to any meetings “held pursuant to the IDEA, and any applicable state or local law.” The wording of this Opinion can be interpreted to mean that FMLA protections for employees can include intermittent leave for parent-teacher conferences, individualized course-planning and other specialized education meetings.
Employer obligations under FMLA have expanded under recent court decisions creating serious exposures and confusion.
For example, FMLA protections must be offered to employees from employers who have more than 50 employees (regardless of distance and/or radius between locations). Employees may qualify for FMLA protection if they work at a facility that has more than 50 employees in a 75-mile radius.
However, employers who are UNDER 50 are now required to notify employees of what FMLA protections are available to them; handbook policies are NOT considered ample notification regardless of whether or not employees have signed the employee handbook receipt.
Furthermore, employees are NOT required to ask for FMLA. It is incumbent upon employers to recognize the triggers for FMLA notification and send out appropriate information as listed below:
When an employee has a qualifying leave event (whether standard or intermittent leave), they should always receive (in-person with a signed receipt AND regular mail:
- Notification of rights and responsibilities
- Certification of a Health Care Provider (with a job description)
- Agreement to pay benefits while on leave (if applicable)
- A letter (with signed receipt) describing important dates and milestones (such as the date information is due, use and accrual of paid time off, and that the employee is required to provide a return-to-work notice indicating potential accommodations)
Upon receipt of the information, employers should send a Designation Notice and a letter describing milestones and important dates.
Employees who are denied FMLA because they have not worked for one year (and/or 1,250 hours in the current or preceding year), they do not work for an employer with 50 or more employees OR they do not work at a location that has 50 or more employees in a 75-mile radius, should receive virtually the same information. FMLA will also run CONCURRENT with Workers’ Compensation-related time off.
Remember also that employees who do not qualify for FMLA may still be protected under the Americans with Disabilities Act (ADA) and unpaid personal leaves of absence.
Most employers (regardless of number of belly buttons in the census) find FMLA to be very confusing (and infuriating, if I am being honest). Just remember that I am here to help. A good place to start is to make sure your handbook policies cover the following (not an exhaustive list):
- FMLA (should be at least 8 pages long)
- Non-FMLA leave (typically called Unpaid Personal Leave of Absence/pregnancy leave/paternity leave)
- Policies delineating how paid leave should be used during leaves of absence (are employees required to use, can request to use or request not using)
- Return-to-work programs
- Disabilities accommodation policies
- Workers’ Compensation policies
- Attendance policies and requirements under leaves of absence
- Strong privacy (HIPAA) policies that STRICTLY PROHIBIT any communication (electronic or otherwise) about any medical information whatsoever
IMPORTANT: never EVER send FMLA information or paperwork via EMAIL
In addition to other support services, Ask Linda HR Consulting Services offers personalized and realistic Employee Handbook reviews AND FMLA training (and administration) according to your business model and culture.
Although I have tried to highlight the important issues, I am a multi-state human resources/employment law professional and NOT a writer (I am sure you can tell)…so please feel free to reach out to me with any questions or a free onsite consultation.
Linda Drassen, BSM, MM/HRM, PHR, SHRM-CP
President & Your Personal Human Resources Sherpa
Proud member of the ASA
By now you all have learned that a Texas federal judge passed a preliminary injunction to halt the overtime rule scheduled to become effective December 1. As much as I want to help you celebrate, I must instead remind you that this latest turn of events affects the salary threshold ONLY; if your salaried-exempt employees do not meet the duties tests, then your exposure still exists.
If you are unsure about what a “duties test” is, you are not alone. So much focus has been placed on the unreasonableness of increasing the minimum salary threshold from $23,660 per year to $47,476 per year (or changes to the highly-compensated threshold from $100k to $134,004k) that no one has been talking about the other very real (and less easy-to-understand) requirements: the duties tests.
Employees cannot (under existing or new regulations) be permitted to be exempt from overtime just because they work in an office, have a fancy title, handle the books or make some decisions regarding changes to estimates or pricing. The reality is that job titles have absolutely nothing to do with whether or not a person can be exempt from overtime and having authority to change pricing is not necessarily considered significant enough when determining a salaried classification.
While the duties-tests have been around for years, the duties definitions can be confusing (even the Department of Labor had to settle a $7m lawsuit in August for misclassifying their own employees). This is especially the case for employers who attempt to review job descriptions without the aid of an outside resource. Employers are more prone to forcing the duties tests to meet the exemption definitions rather than taking an objective view of whether the duties actually qualify for the exempt-status. This costly and potentially catastrophic situation occurs because employers have a hard time separating the potential overtime costs from the need to reclassify the employee.
I promise, whatever you spend for a consultant is much less than you would spend for the inevitable wage and hour lawsuits; unfortunately, I have seen the devastating reality of misclassification.
President-elect Trump will likely make some changes to the threshold requirements for small-businesses (which is typically defined as 50 or less belly-buttons), but having been in human resources for two decades I can tell you, changing the threshold will not fix the issue your organization may be facing and thanks to Obama’s new overtime initiative, your employees and their partners/spouses are much more educated as to what constitutes an exempt employee.
This injunction is temporary so I urge you to continue to educate yourself on the duties requirements so that you can reclassify your employees where necessary before it is too late.
To learn more, I would like to invite you to my highly educational seminar on December 13, 2016 at 8:00 a.m. – 11:00 a.m. at Memco (10876 Hillpoint Drive, San Antonio, TX 78217).
During this seminar you will receive valuable information about classification that extends beyond the threshold. You will learn:
- How to survive the new regulations without killing your budget
- How to communicate reclassification without begging employees to sue you for past misclassification mistakes
- How to review your employee classifications
- What changes you should make to your handbook
- Determine what changes will need to be communicated to the individuals you reclassify from salary to hourly status
- Clocking in and out requirements (and how to report time accurately to keep you out of the weeds)
- How to determine your exposure with 1099 subcontracted employees, travel pay requirements, training and education pay, and so much more
Please RSVP at firstname.lastname@example.org or via phone at 210.846.4900 by December 12, 2016 as seating is extremely limited. The cost is $45.00 and can be paid via check on the date of the seminar or via PayPal at email@example.com .
Please join me on November 22, 2016 for the NEW Form I-9 training.
WHERE: Memco, 10876 Hillpoint Drive, San Antonio, TX 78217
WHEN: November 22, 2016 from 8:00 am – 11:00 a.m.
$45.00 per person at the door OR $180.00 per person for the entire HR Training Series.
You may also pay at Paypal.com (firstname.lastname@example.org).
Seating is INCREDIBLY LIMITED so please RSVP by November 21, 2016. Because of the limited space, NO REFUNDS WILL BE GIVEN.
**Although the topics are subject to change, the HR Training Series will include important topis such as FLSA (Wage & Hour Compliance), Federal Contract Compliance, Winning Unemployment Claims, Safety Audits, and FMLA