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
New Federal Mandatory Sick Leave Looms: Potential Policies may Leave Employers Feeling a Little Under the Weather
President Obama has been busy making his mark on business owners once again in a new bid for Congress to pass a bill designed to make employers pay employees at least 7 days for sick leave annually. The memorandum, signed on January 15, 2015, currently allows Federal workers to take up to six weeks of sick leave under the new policy; however, until Congress passes this Bill, private employers are only “encouraged” to develop a paid sick-leave policy.
Although I anticipate this requirement being difficult for business-owners to swallow, the bill is not without altruistic merit. This latest request from President Obama is largely designed to keep working mothers in the workforce, citing the financial burden that working mothers face when forced to take unpaid leave for maternity leave or to care for sick children. Of course, new articles do not specifically mention fathers who are charged with the same responsibilities, but the final bill will likely address the situation as “any qualified employee” once Congress finally makes a decision.
Love or hate the idea, the labor law regarding paid leave has not been significantly modified since the 1930s, when most families had a stay-at-home mother. The only current Federally-mandated leave, Family and Medical Leave Act (FMLA), only covers about one-half of the current workforce, and in most states, this leave can remain unpaid and most employees are not able to afford the allowable 12-weeks of leave without pay.
Keeping in mind that the United States is the only developed country resisting government-sponsored paid maternity leave, one could argue that it is well past the time to explore other options. However, such a Bill comes at a time when Americans are weary of government-involvement, especially due to the confusing nature of the Affordable Care Act.
Still, a recent study concludes that employees who are offered paid time off are less likely to leave a job and tend to be more productive. As a human resource professional, I am not altogether convinced that this will help employers thrive. New mandates such as this will need to comingle with FMLA and seamlessly integrate with a multitude of Department of Labor laws and regulations, which will likely create more confusion and more opportunities for lawsuits.
So what is the answer? Employers may want to consider modifying existing PTO policies to include paid sick leave to soften the blow when the inevitable mandates arrive. It is incumbent upon employers to understand multi-state laws and address them in your handbooks.
Current State Laws May Already Mandate Sick Leave
States that currently have MANDATORY sick leave (private employers) programs (NOTE: This list is not all-inclusive; it is merely a breakdown of general guidelines
|Arkansas||No paid sick leave; however, it is mandatory for an employer to give employees 90 days of unpaid leave for organ/bone marrow donation. Employers who offer paid sick leave programs may be entitled to a tax credit.|
|California||There is no California state law that requires private employers to provide employees with paid or unpaid sick leave. Any employer who offers sick leave must allow employees to use part of their accrued and available sick leave time in a calendar year to take care of a sick child, parent, spouse, domestic partner, or child of a domestic partner. Each year, employees are entitled to use the amount of sick leave they would earn in six months for this purpose. NOTE: San Francisco employees have different criteria. IF YOU HAVE EMPLOYEES IN CALIFORNIA, YOU WILL LIKELY NEED A SEPARATE HANDBOOK.|
|Connecticut||State law mandates that paid sick leave be provided to service workers such as waiters, cashiers, and hairstylists. The law requires covered employers to provide service workers one hour of sick time for every 40 hours worked, up to a maximum of 40 hours per calendar year. Circumstances and requirements for eligible employees vary for type of illness. Other categories of employees may be covered under different mandatory paid time off laws for this state.|
|District of Columbia||Accrued Sick and Safe Leave Act of 2008 applies to all employers with one or more employees and the District government. The amount of paid sick leave given to the employees depends on the size of the employer.|
|Hawaii||Some mandatory paid time off protection for those under a collective bargaining agreement.|
|Louisiana||Some mandatory paid time off protection is available for employees who wish to donate bone marrow or those who are victims of domestic violence. Mandatory paid time off for those who work for a parish or city school board.|
|Maine||Employers with 25 or more employees must allow an employee who receives paid leave, such as sick leave, vacation time, or compensatory time, to use that time to care for an ill immediate family member.|
|Maryland||The state Flexible Leave Act (for employers with 15 or more employers for each working day in each of 20 or more calendar weeks in the current or preceding year) requires employers that provide paid leave under a policy or collective bargaining agreement to allow employees to use their paid leave for illness of an immediate family member.|
|Minnesota||Some mandatory unpaid leave for bone marrow donations. If employers offer sick leave, employers must allow employees to use sick leave to care for covered family members.|
|New Jersey||Some Temporary Disability Benefits Law (TDB) requirements are available for employees under certain circumstances.|
|New York||Earned Sick Time Act requires New York City employers with 20 or more employees to provide paid sick time at a minimum accrual rate of one hour of sick time for every 30 hours worked. Time off for blood donations may also be paid for by the employer under some circumstances.|
|Oregon||No state laws in Oregon; however, the City of Portland now requires employers with at least 6 employees to provide qualifying employees up to 40 hours (5 days) of paid sick leave per calendar year.|
|Pennsylvania||No state laws in Pennsylvania; however, the city of Philadelphia requires certain employers who conduct business with the city to provide full-time employees with paid sick leave.|
|Rhode Island||State temporary disability insurance (TDI) benefits provisions require up to 4 weeks of wage replacement in a benefit year for workers who take time off under certain circumstances.|
|Washington||Several paid time off programs exist for private employers in Washington and Seattle. These circumstances include family illnesses, sexual assault, domestic violence and/or stalking.|
|Canada||There is no requirement to provide paid sick leave in any Canadian jurisdiction. The employment standards legislation of several jurisdictions requires employers to provide unpaid sick leave or emergency leave to their employees including the federal jurisdiction, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan, and Yukon.|
NOTE: The following states have ADDITIONAL FMLA requirements (private employers only; state and federal employers may have different requirements not addressed here): Alaska, California, Colorado, Connecticut, D.C., Hawaii, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington, Wisconsin, Canada.
Understanding Employment Law in Multi-State Locations
The trick to all this chatter is that we must determine which state laws must be followed in an organization that has multiple locations in different states. In other words, if you have multiple locations in different states, it would be prudent to follow that states’ employment laws. AskLinda HR Consulting Services can help you develop easy methods to unravel the mysteries – we always have a solution for you. Remember, if you are using the same handbook for every state, you are unnecessarily exposed to lawsuits.
If you require further information or more details as to how we can help you comply with this or any other multi-state location laws, please contact Linda Drassen at Linda@asklindahr.me or 210.846.4900 to schedule a meeting today.