Stuff happens. In our office, there are countless ways life might come before work. Tyler might injure his back lifting his Dungeons and Dragons table. (Wearing that wizard's hat while lifting can really put the strain on your back!) Are Tyler’s treatment visits to the chiropractor covered by the FMLA? Sara might jet off on a trip to Palm Springs (to drink wine, lay by the pool and read trashy novels) *ahem* to care for her mother’s serious health condition which requires treatment in a remote (and clearly delightful) location. Is this an allowable situation to care for the serious health condition of a parent? Can Coady obtain a doctor’s note claiming he needs intermittent leave from the office based on back problems and then fly to Hollywood to audition for a spot on the next season of Big Brother? This week we explore the mechanics of FMLA leave.
Part 3: It’s Easy as 1, 2, 3
Despite the classic reference to the Jackson 5 song ABC, the mechanics of FMLA leave may not seem as easy as 1, 2, 3. We will break down the process to simplify the steps you should take as the employer to process an FMLA request. As a refresher, Part-1 discussed FMLA basics and the type of family and health events that trigger FMLA eligibility. Part-2 focused on employer notice obligations and special FMLA rules for instructional employees at schools. Today begins with a Q&A about the mechanics of FMLA leave, followed by a hypothetical situation to demonstrate.
An eligible employee requested FMLA leave. You’re compiling an eligibility notice. Now what?
Can you require the employee to provide certification of the qualifying reason?
Yes, if the employee is seeking FMLA leave for a serious health condition, whether it is the employee’s serious health condition or that of the employee’s immediate family member, you may request certification. Similarly, if the employee is seeking military family FMLA leave, you may request certification.
You should provide the employee with one of the certification forms found here. https://www.dol.gov/agencies/whd/fmla/forms
Speaking of forms, you must also include an eligibility notice form. This is required to inform the employee of whether or not the employee is eligible for FMLA leave. You must also include a designation notice. The purpose of the designation notice is to inform the employee whether the FMLA request is approved and the amount of FMLA leave designated to be counted against the employee’s annual FMLA entitlement.
Form recap:
Must include:
Eligibility notice form.
Rights and responsibilities form.
Designation notice form.
May include:
Certification form if you wish to require certification.
You can find these forms here.
Is there anything else an employer should know about certification?
Yes, the employer must allow the employee at least 15 calendar days to obtain certification. If the certification is incomplete, the employer must state in writing what is required to make the certification complete and give the employee at least 7 calendar days to cure the deficiency.
What if the employer doubts the validity of a medical certification?
The employer, at its expense, may require a second or third medical opinion. Second and third opinions are only permitted in cases of medical certification. In the case of military leave, an employer may not require second or third opinions on a qualifying exigency certification.
Once the employer has received a complete and sufficient medical certification, the employer cannot contact the health care provider for additional information.
If the employee has paid time off available, can you require that the employee use such paid leave before or as part of the employee’s FMLA entitlement?
Yes, the employer may require the employee to substitute or run concurrently accrued paid leave.
Once the employee’s FMLA leave has begun, how do you count the days/weeks?
You may remember from Part-1 that the typical FMLA leave entitlement is up to 12 workweeks in a 12-month period. A workweek is defined as the number of hours an employee typically works. For example, an employee who normally works 40 hours per week would use one-fifth of a workweek if the employee used 8 hours of FMLA leave.
The FMLA leave entitlement is 12 weeks within a 12-month period. Is the 12-month period a calendar year?
Maybe. The method of calculating the 12-month period is determined by the employer. Employers have 4 options:
A calendar year.
Any fixed 12-month leave year.
A 12-month period measured forward.
A rolling 12-month period measured backward.
You should check your district’s FMLA policy to be sure how your board has determined a 12-month period will be calculated at your district.
When can we retroactively designate FMLA leave?
What if you fail to recognize an employee’s absence as FMLA-qualifying? You can retroactively designate leave as FMLA leave if it wouldn’t cause harm or injury to the employee.
You just received a leave request. Now what?
Joyce has worked for the school district as a teacher for 12 years. She hardly misses a day, except for a few big vacations. On a recent trip to Alaska, Joyce’s husband Jim severely injured his leg, which is going to require surgery. Although her vacation days are dwindling, Joyce has banked 6 weeks of paid sick time. Unfortunately, Jim is going to need closer to 10 weeks to recover.
As soon as the accident occurred, Joyce notified you. Although she was unable to provide 30 days’ notice, such notice is not required when the leave is unforeseeable. Joyce is eligible for FMLA leave because she has worked over 1,250 hours in the preceding 12 months, the district employs over 50 people within 75 miles of her school, and she has worked for the district for over 12 months.
After your preliminary review, you must deliver the appropriate forms to Joyce. Always include the notice of eligibility form, along with the rights and responsibilities form. You may include an appropriate certification form.
After Joyce completes the certification form, evaluate it. Is it timely? Is it clear, complete, and sufficient? Will you require a second or third opinion (at the district’s expense)? Assuming the certification form is complete, the last requirement is to deliver the designation notice to Joyce.
The designation notice informs Joyce of the amount of leave that is designated to be counted against the employee’s FMLA entitlement. In this case, the district has a rule requiring employees to substitute paid leave. Therefore, the FMLA designation here is 10 weeks. Joyce will receive 6 weeks paid from her sick bank and the remaining 4 weeks unpaid. The importance of immediately designating Joyce’s leave as FMLA-qualifying is that the entitlement clock starts immediately, instead of after her 6 weeks from her sick bank have concluded.
Conclusion
If you have any questions about Joyce’s predicament or Parts 1 and 2 of our FMLA series, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.
Part-4 Teaser
What happens as Joyce returns from FMLA leave? What if she does not return? No matter the scenario, what are the district’s responsibilities? The employee’s? Tune in next week as we wrap up our FMLA series for a quick post about how to ensure an employee’s seamless reentry into the workforce, or how to ensure the district is protected if an employee does not return.