Transcript Welcome to the Parker McCay Learning Lab

Practical Solutions in Managing
FMLA and NJFLA Leave Requests
Cameron R. Morgan, Esq.
June 4, 2015
New Jersey Family Leave Act (NJFLA) and
federal Family Medical Leave Act (FMLA)
What types of employers are covered?
•
•
All public entities are covered both under the NJ and Federal law
regardless of the number of employees
Private employers with at least 50 employees for at least 20 weeks in
the current or preceding calendar year
Base Requirements for Eligibility
• To be eligible for FMLA:
– Must have been employed by
the employer for at least 12
months
– Must have actually worked at
least 1,250 base hours during
the previous 12-month period
• To be eligible for NJFLA:
– Must have been employed by
the employer for at least 12
months
– Must have actually worked at
least 1,000 base hours during
the immediately preceding
12-month period
What does this mean?
• FMLA
– Does not need to be
consecutive
– Look back seven years to
determine whether the
employee has 12 months of
service
– Two exceptions: (1) look back
more than seven years if
employee is the military; and
(2) if the employer has a
contract with the employee
to rehire
• NJFLA
– Does not need to be
consecutive
1,250 or 1,000 hours:
How is that calculated?
• FMLA
– All hours worked count
– The employer must credit
time spent on guard or
reserve duty
– Overtime worked counts
– Determination made as of the
date FMLA leave is to start
• NJFLA
– All hours worked count
– The employer must credit
time spent on guard or
reserve duty
– Overtime worked counts
Amount of Leave Entitlement
• FMLA provides:
– Up to 12 work weeks of leave
in a 12-month period
– Leave can be paid or unpaid
• “Work week” means any week
in which the employee would
otherwise have been required to
work at least 1 day
• NJFLA provides:
– Up to 12 work weeks of leave
in a 24-month period
– Leave can be paid or unpaid
– How is the 24-month period
determined?
– Through one of three methods:
1)
2)
3)
The calendar year; or
Any fixed “leave year,” such as a
fiscal year or a year starting with
the EE’s “anniversary date”; or
A “rolling” 24-month period
measured backward from the
date the EE uses leave
Qualifying Reasons for Leave
• FMLA provides leave to:
– Care for certain close family
members who suffer from a
“serious health condition”
– Upon the birth or adoption of
a child (must be taken within
12 months of birth/adoption)
– Care for the employee’s own
“serious health condition”
– Because of a “qualifying
exigency” due to active
military duty status
• NJFLA provides leave to:
– Care for certain close family
members who suffer from a
“serious health condition”
– Upon the birth or adoption of
a child (must be taken within
12 months of birth/adoption)
What is a “Serious Health Condition”
•
“Inpatient care” - Overnight stay in a health care facility
•
(or subsequent treatment in connection therewith)
or
•
“Continuing treatment by a health care provider” – which means a period of incapacity for
more than three (3) consecutive, full calendar days, along with either:
• Two (2) in-person visits to a health care provider within 30 days of the incapacitation or
one (1) visit which results in a regimen of continuing treatment (unless extenuating
circumstances)
– Incapacity means “the inability to work (i.e., perform the essential functions of a job),
attend school, or perform other daily activities due to the serious health condition,
treatment therefore, or recovery therefrom.”
Serious Health Condition (continued)
•
“Pregnancy and Prenatal Care” - Covers any period of incapacity due to pregnancy and/or
prenatal care. (NO HEALTH CARE PROVIDER VISIT IS REQUIRED)
•
“Chronic condition” that incapacitates a person
– “Chronic condition” requires: (1) periodic visits for treatment by a health care provider
(at least twice per year), (2) continuing episodes over an extended period of time, and
(3) may cause episodic rather than continuing periods of incapacity (e.g., diabetes,
asthma, epilepsy, etc.)
•
“Permanent or Long-Term Condition” - Period of incapacity that is permanent or long-term
and under the continuing supervision of a health care provider (e.g., Alzheimer's, stroke,
terminal disease, etc.)
•
“Condition Requiring Multiple Treatments”
– Protects absence for multiple treatments and recovery therefrom (e.g., chemotherapy)
– Includes reconstructive surgery after an accident or injury, but not cosmetic procedures
Who is a Covered Family Member?
• FMLA
– Spouse – husband or wife as
defined by state law
– Son or daughter – biological
child, adopted child, foster
child, stepchild, legal ward)
– Parent – biological or person
standing in loco parentis (not
in-laws)
The employer CAN request
documentation to confirm
family relationship
• NJFLA
– Same as FMLA, except that
same sex partners and civil
union partners may qualify
for leave
Employer Notice Requirements
– Post a general notice at facility even if no eligible employees are
working there
– Provide the employee with the Eligibility Notice within 5 business
days of the FMLA request or of learning that an employee may be
absent for an FMLA qualifying reason
• Notify employees of statutory eligibility or ineligibility
• If not eligible, employer must provide at least one reason why
• If an employee requests leave for different reason, must do a new notice
within 5 days
• Form WH-381
– Provide Rights and Responsibilities Notice
• Provided on the same day as the eligibility notice
Employer Notice Requirements
(continued)
– Provide Designation Notice within 5 business days of
employer obtaining enough information to determine if
leave is being taken for an FMLA qualifying reason.
• Form WH-382
• Provide within 5 business days of learning of qualifying condition
– You can require a Certification of a Health Care Provider
• Form WH-380-E (for EE’s own serious health condition)
• Form WH-380-F (for family member’s serious health condition)
– Employee must fill out all forms completely
Employee Notice Requirements
• Foreseeable Leave: Employees must give 30 days’ notice when
leave is foreseeable. If 30 days is not practicable, the employee
must give notice “as soon as practicable.”
• Unforeseeable leave: Absent unusual circumstances, employees
must follow their employer’s usual notice and procedural
requirement for taking leave, unless they are more stringent than
the FMLA permits.
• Employee’s notice must provide “sufficient information” to make
his/her employer aware of the need for FMLA and must state the
employee’s anticipated timing and duration of leave.
Medical Certifications
• Employer must provide the form to the employee within 5 business days
of learning of the possible need for leave due to a serious health
condition.
• Use Form WH-380-E (employee) or WH-380-F (family member)
• Employee has 15 calendar days to submit the completed form to the
employer.
• If the employee does not submit the form or the form is not complete, the
employee must be given at least 7 days to cure an incomplete or
insufficient certification.
• An employer is permitted to obtain a medical certification for a family
member of the employee, if the employee is taking leave to care for a
family member.
Medical Certifications (continued)
• A representative of the employer who is NOT the employee’s direct
supervisor may contact the employee’s health care provider directly for
AUTHENTICATION or CLARIFICATION of the certification, provided the
employee has been given an opportunity to cure a faulty certification.
• An employer may obtain return-to-work certifications, also known as
fitness-for-duty certifications from employees returning from leave.
•
NEVER request a form for leave to care for a healthy newborn, adopted or
foster child, unless the employee is seeking to utilize sick leave time outside of
the presumptive period of disability
Substituting Paid Leave
• Employer may require an employee to use accrued paid leave when
he/she chooses to take FMLA leave, or
• Employee may voluntarily substitute accrued paid leave
• However, this subject is negotiable. See Lumberton Educ. Ass’n v.
Lumberton Bd. of Educ., P.E.R.C. No. 2002-13, 27 NJPER 372, aff’d,
28 NJPER 427, No. A-1328-01T5 (App. Div. October 8, 2002).
Therefore:
• If you have a collective negotiations agreement that speaks to this issue,
follow the CNA language. If no contractual language exists, abide by your
district’s past practice.
• If you require the employee to take leave, you must so say so on the leave
designation notice.
The Presumptive Period of Disability
• For employees taking pregnancy-related FMLA leave, the
“presumptive period of disability” is the period 4 weeks
before the expected due date and 4 weeks after the date of
delivery, during which time the employee is presumed to be
medically disabled without having to furnish a medical
certification.
• Established and upheld by the Appellate Division in the case
of Hynes v. Bd. of Educ. of Twp. of Bloomfield, 190 N.J. Super.
36, 42 (App. Div. 1983).
What does the Presumptive Period
of Disability mean?
• During the “presumptive period of disability,” if the employer
has a policy or practice permitting employees to substitute
paid leave, then the employee may use her accumulated sick
days to receive pay during the presumptive period, to the
extent available, without having to furnish a medical
certification to substantiate her disability.
• Only if the employee wishes to be paid for sick time outside of
this presumptive period, should the employer require a
physician’s certification.
Concurrent vs. Consecutive
• First, what does the law say? The regulations of the FMLA
and NJFLA state as follows on the subject:
– FMLA Reg: “If leave qualifies for FMLA leave and leave under State
law, the leave used counts against the employee’s entitlement under
both laws.” 29 C.F.R. 825.701(a).
– NJFLA Reg: “Where an employee requests leave for a reason covered
by both the [NJFLA] and another law [i.e., the FMLA], the leave
simultaneously counts against the employee’s entitlement under both
laws. N.J.A.C. 13:14-1.6(a).
Concurrent vs. Consecutive (continued)
• Second, does this depend on past practice???
• When analyzing a labor law issue, we ask:
• First inquiry – Is it a negotiable subject?
• Second inquiry – Is there contract language in the
Collective Negotiations Agreement speaking to the
subject?
• Third inquiry – Is there a uniform policy or past practice on
the subject in your district?
Concurrent vs. Consecutive (continued)
• In order to answer these questions, let us review some blackletter principles of New Jersey labor law.
• The test for determining negotiability is as follows:
[A] subject is negotiable between public employers and employees when (1) the item
intimately and directly affects the work and welfare of public employees; (2) the subject
has not been fully or partially preempted by statute or regulation; and (3) a negotiated
agreement would not significantly interfere with the determination of governmental
policy. To decide whether a negotiated agreement would significantly interfere with
the determination of governmental policy, it is necessary to balance the interests of the
public employees and the public employer. When the dominant concern is the
government’s managerial prerogative to determine policy, a subject may not be
included in collective negotiations even though it may intimately affect employees’
working conditions.
[In re Local 195, IFPTE, 88 N.J. 393, 404-05 (1982).]
Concurrent vs. Consecutive (continued)
• And. . . . some more black-letter labor law:
• A statute or regulation preempts negotiations when it specifically,
expressly, and comprehensively establishes a term of employment.
Hunterdon County Bd. of Chosen Freeholders and Comm. Workers of
Am., 116 N.J. 322, 330 (1989); Bethlehem Twp. Bd. of Educ. v.
Bethlehem Twp. Educ. Ass’n, 91 N.J. 38, 44 (1982).
• The statute or regulation must “speak[] in the imperative and
eliminate[] the parties’ discretion to vary that condition in a
negotiated agreement.” Hillsborough Bd. of Educ., P.E.R.C. No. 200697, 32 NJPER 97 (2006).
Concurrent vs. Consecutive (continued)
• In determining whether the subject of FMLA and NJFLA running
concurrently vs. consecutively is negotiable, let us compare and
contrast a case in which the court addressed a similar issue.
• In Lumberton Educ. Ass’n v. Lumberton Bd. of Educ., P.E.R.C. No.
2002-13, 27 NJPER 372, aff’d, 28 NJPER 427, No. A-1328-01T5 (App.
Div. October 8, 2002), the Appellate Division held that the FMLA did
not preempt negotiations on the issue of using paid leave (i.e.,
vacation leave or sick leave) concurrently with FMLA leave.
• In Lumberton, the board had adopted a policy requiring employees
to use paid leave concurrently when taking an FMLA leave.
Concurrent vs. Consecutive (continued)
• In the Lumberton case, the federal statute at-issue provided:
• “(A) In general – An eligible employee may elect, or an employer may require the
employee, to substitute any of the accrued paid vacation leave, personal leave, or
family leave of the employee for leave provided under [the FMLA] for any part of
the 12-week period of such leave under such subsection.”
• “(B) Serious Health Condition – An eligible employee may elect, or an employer
may require the employee, to substitute any of the accrued paid vacation leave,
personal leave, or medical or sick leave of the employee for leave provided under
[the FMLA] for any part of the 12-week period of such leave under such subsection,
except that nothing in this subchapter shall require an employer to provide paid
sick leave or paid medical leave in any situation in which such employer would not
normally provide any such paid leave.”
[29 U.S.C.A. 2612(d)(2).]
Concurrent vs. Consecutive (continued)
• In Lumberton, the federal regulation at-issue provided:
• “If an employee does not choose to substitute accrued paid leave, the
employer may require the employee to substitute accrued paid leave
for unpaid FMLA leave. The term ‘substitute’ means that the paid
leave provided by the employer and accrued pursuant to established
policies of the employer, will run concurrently with the unpaid FMLA
leave. . . . An employee’s ability to substitute accrued paid leave is
determined by the terms and conditions of the employer’s normal
leave policy.”
[29 C.F.R. 825.207(a).]
Concurrent vs. Consecutive (continued)
• Construing those statutory and regulatory provisions in light of the
applicable principles of New Jersey labor law (which I set forth
earlier), the court in Lumberton held that the FMLA did not
preempt negotiations on the issue of whether employers could
require that accrued paid leave (i.e., vacation days, personal days,
or sick days) be used concurrently with FMLA leave.
• Why? Because the statute and regulation said “may” and did not
speak in the imperative (by using “must” or “shall” language).
• Thus, that subject is negotiable. See also In re Bridgeton Bd. of
Educ., P.E.R.C. No. 2011-64 (February 24, 2011) (citing Lumberton
and recognizing same).
Concurrent vs. Consecutive (continued)
• As an aside, ask yourselves: Was it “worth it” for the board in
Lumberton to litigate that case?
• What did they hope to achieve through that litigation? What right was
the board seeking to preserve?
• How important was the right to require employees to use their sick or vacation
days concurrently with FMLA leave?
• What did they end up with in the end result?
• Was it worth setting this legal precedent?
• How would you have assessed the cost/benefit or risk/reward analysis
of pursuing that litigation?
Concurrent vs. Consecutive (continued)
• What about the concurrent/consecutive issue when it comes to
FMLA leave versus NJFLA leave?
• Let’s go back to the statutory and regulatory language applicable to
that issue and analyze whether PERC or the court would likely reach
the same or a different result as they did in the Lumberton case?
• FMLA Reg: “If leave qualifies for FMLA leave and leave under State law,
the leave used counts against the employee’s entitlement under both
laws.” 29 C.F.R. 825.701(a).
• NJFLA Reg: “Where an employee requests leave for a reason covered by
both the [NJFLA] and another law [i.e., the FMLA], the leave
simultaneously counts against the employee’s entitlement under both
laws. N.J.A.C. 13:14-1.6(a).
Concurrent vs. Consecutive (continued)
• Both the federal and state regulations use the term “counts against” and
appear to speak in the imperative.
• As such, although the issue has not been directly addressed in our courts
or by PERC, if raised, PERC may well rule that this issue is distinguishable
from the statutory and regulatory language in Lumberton on the issue of
concurrent/consecutive for FMLA leave versus accrued paid leave time.
• In Lumberton, the law said “an employer may” and did not speak in the imperative.
• On this issue, the law says leave “counts against” the entitlement under both
statutes if taken for a reason that qualifies under both statutes.
• Is that language that “specifically, expressly, and comprehensively
establishes a term of employment?” In my opinion, yes, it appears
to speak in the imperative and leave no discretion to the parties.
Concurrent vs. Consecutive (continued)
• Takeaway -- While boards may choose to negotiate over this, the
subject of concurrent vs. consecutive as it relates to the interaction
between FMLA and NJFLA leave may very well be non-negotiable.
• As such, although this issue has not been directly addressed by our
courts or by PERC, if raised, PERC may well rule that this issue is
distinguishable from the statutory and regulatory language in
Lumberton on the issue of concurrent vs. consecutive for FMLA
leave and accrued paid leave time.
• Practical Approach – Run FMLA and NJFLA concurrently when
taken for a reason that qualifies under both laws.
Minimizing Abuse/Misuse of Leave
•
Always verify that the employee or family member has a serious health condition
by obtaining a physician’s certification (unless during the presumptive period)
•
If the employer doubts the authenticity of the medical form, a representative from
HR (not a direct supervisor) should call for authentication/clarification of the form
•
If appropriate, ask for a second opinion. The employer may request the employee
see a doctor designated by the employer. If the two opinions differ, a third
doctor’s opinion must be obtained.
•
Recertification: Employer can request recertification every thirty (30) days, except:
– More than 30 days, if the first certification contains a longer period of time
– Less than 30 days, if an extension is requested, there is a significant change in
circumstances, or the employer obtains information that casts doubt on the
stated reason for the leave
Intermittent Leave
• Leave may be taken intermittently or on a reduced leave schedule, under
the following circumstances:
– If taken for the birth or adoption of a child, an employee may take
intermittently leave only if the EMPLOYER agrees.
– If taken for a serious health condition of a family member or for an employee's
own serious health condition, leave may be taken intermittently or on a
reduced leave schedule when medically necessary.
• “Intermittent leave” is leave taken in separate blocks of time due to a
single illness or injury and may include leave periods from an hour or more
to several weeks.
– Examples include leave taken on an occasional basis for medical appointments
or leave taken several days at a time spread over a period of six months, such
as for chemotherapy.
• A reduced leave schedule reduces an employee's usual number of working
hours per work week, or hours per workday.
Determining the Amount of Leave Used on
Intermittent or Reduced Leave Schedule
•
The employee’s actual workweek is the basis for determining the employee’s FMLA leave entitlement
•
•
An EE who regularly works a 5-day week of 8 hours/day is entitled to 480 hours of leave (12 weeks x 40 hrs/wk)
Similarly, an EE who works a 4-day week of 8 hours/day is entitled to 384 hours of leave (12 weeks x 32 hrs/wk)
•
If an employee's schedule varies from week to week, a weekly average of hours worked over the 12 months prior
to the beginning of the leave period will be used to calculate the employee's normal workweek.
– The individual worked 6 weeks of 50 hours, 3 weeks of 60 hours, and 3 weeks of 40 hours. The "workweek"
for purposes of charging the FMLA entitlement is 50 hours. Therefore, the worker would be entitled to 600
hours of FMLA leave, which might be taken in the form of 12 50-hour weeks, or as intermittent leave that
adds up to that total.
•
Only the amount of leave actually taken may be counted toward the 12 weeks of leave.
– If an employee normally works 5 days/week and takes off 1 day, the employee uses eight (8) hours;
– If a full-time employee who normally works 8-hour days, instead works 4-hour days under a reduced leave
schedule, the employee uses 20 hours of FMLA leave each week.
Transfer to Alternate Position
• Employer may require employee on foreseeable intermittent
leave to transfer to alternative available position:
– Must have equivalent pay and benefits
– Must better accommodate the recurring leave
– This right is only available in cases of foreseeable leave for planned
medical treatment
Scheduled Medical Treatment
• Employee must make a “reasonable efforts” to schedule
intermittent leave so as not to disrupt operations.
• “Reasonable efforts” means trying to arrange treatment on a
schedule that accommodates the employer’s needs
– Employee “must consult” with the employer before scheduling
– Employee’s “convenience” does not justify disrupting operations
– This right is only available in cases of foreseeable leave for planned
medical treatment
Fitness-for-Duty Certifications
• Uniformly applied policy requiring fitness for duty certification
• Addresses employee’s ability to: (1) return to work, and
(2) to perform essential duties of the position.
• Employer may delay return to work so long as employer
provides notice that fitness for duty was required
• In most cases, employer cannot require a fitness for duty
certification following absence related to intermittent leave
• No second opinions allowed
Continuation of Health Insurance Benefits
FMLA Regulations provide:
•
“During any FMLA leave, an employer must maintain the employee’s coverage under
any group health plan [as defined by law] on the same conditions as coverage would
have been provided if the employee had been continuously employed during the entire
leave period.” 29 C.F.R. § 825.209(a).
•
“Group health plan benefits must be maintained on the same basis as coverage would
have been provided if the employee had been continuously employed during the FMLA
leave period. Therefore, any share of group health plan premiums which had been
paid by the employee prior to FMLA leave must continue to be paid by the employee
during the FMLA leave period. If premiums are raised or lowered, the employee would
be required to pay the new premium rates. Maintenance of health insurance policies
which are not a part of the employer's group health plan, as described in §825.209(a),
are the sole responsibility of the employee. The employee and the insurer should make
necessary arrangements for payment of premiums during periods of unpaid FMLA
leave.” 29 C.F.R. § 825.210(a).
Continuation of Health Insurance Benefits
(continued)
NJFLA Statute provides:
• “During a leave taken under section 4 of this act, the employer
shall maintain coverage under any group health insurance
policy, group subscriber contract or health care plan at the level
and under the conditions coverage would have been provided if
the employee had continued in employment continuously from
the date the employee commenced the leave to the date the
employee returns to work pursuant to section 7 of this act or the
date on which the employee's coverage would have expired had
the employee not been on leave, whichever is sooner.”
N.J.S.A. 34:11B-8a.
Continuation of Health Insurance Benefits
(continued)
• General Rule: Thus, the Board must maintain coverage for the
employee under the same terms and conditions as if the
employee were not on leave, provided the employee covers
their portion of premium costs.
• As best practice, employees should be notified of this in their
leave designation notices and directed to contact the Business
Office to make arrangements in advance of the leave for
payment of their contributions to health insurance premiums.
Continuation of Health Insurance Benefits
(continued)
• What if the employee fails to make his or her contributions
toward health insurance premiums?
• Employer may cease coverage if the employee’s premium payments
are more than 30 days late, provided that:
• Prior to doing so, the employer must furnish the employee with notice
at least 15 days in advance of the date coverage is to cease advising
the employee that coverage will cease if payment is not received by
that date.
Reporting Requirements
•
•
•
Employers are required to make, keep, and preserve records pertaining to their obligations under FMLA, in accordance with
the recordkeeping requirements of the Fair Labor Standards Act (FLSA)
Employers must keep the records for no less than three (3) years and make them available for inspection by Department of
Labor representatives upon request
Covered employers who have eligible employees must maintain records that disclose the following:
– Rate or basis of pay
– Daily and weekly hours worked per pay period
– Additions to or deductions from wages
– Total compensation paid
– Dates of FMLA leave taken by FMLA eligible employees. Leave must be designated in records as FMLA leave, and may
not include leave required under state law or an employer plan which is not also covered by FMLA
– Hours of FMLA leave taken by FMLA eligible employees, if taken in increments of less than one full day
– Copies of employee notices of leave furnished to the employer
– Copies of all written notices given to employees as required under FMLA
– Documents describing employee benefits or employer paid and unpaid leave policies and practices
– Premium payments of employee benefits
– Records of disputes between the employer and the employee regarding FMLA
– Records and documents relating to medical certifications, re-certifications, or medical histories of employees or
employees’ family members, created for purposes of FMLA
Contractual Leaves vs. Statutory Leaves
• Most boards of education have provisions in their Collective
Negotiations Agreements allowing for contractual leaves of
absence for various reasons.
• Takeaway: These are additional negotiated benefits that are
in addition to the statutory leaves discussed here. When
taken, they should also be clearly designated in writing.
Apply your contract language as written.
• Generally speaking, employees often take FMLA/NJFLA
followed by a contractual leave of absence.
The Five Commandments
(for avoiding FMLA/NJFLA mistakes)
1) Thou shalt not fail to designate leave as FMLA or NJFLA!
2) Thou shalt not fail to deny leave requests from employees who do
not meet the base statutory requirements!
3) Thou shalt not fail to require a physician’s certification for
employees seeking leave for their or their family member’s serious
health condition (unless during the presumptive period)!
4) Thou shalt not allow FMLA and NJFLA leaves to run consecutively
when taken for a reason that qualifies under both statutes!
5) Thou shalt not fail to make arrangements to collect employee
contributions toward health insurance premiums!
Designating Leaves in Practice:
Examples and Hypotheticals
And NOW, without further adieu. . . .
Let’s designate some leaves. . . .
Thank You!
CONTACT COMPLIANCE, HUMAN RESOURCES, OR YOUR
BOARD ATTORNEY WITH ANY QUESTIONS.
Cameron R. Morgan, Esq.
Parker McCay P.A.
© 2015 Parker McCay P.A. All rights reserved. This presentation is a service of the Public Schools and Education Department of Parker McCay P.A. and is intended for informational purposes only.
This presentation has been carefully prepared, but it necessarily contains information in summary form and is therefore not intended to be a substitute for detailed research or the exercise of
professional judgment. The information provided in this presentation should not be construed as legal or any other professional advice or service, nor does it create an attorney-client
relationship. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to Cameron R. Morgan,
Esq., Parker McCay P.A., 9000 Midlantic Drive, Suite 300, P.O. Box 5054, Mount Laurel, New Jersey 08054.