1. An Overview of the FMLA for School Districts
Maureen Lemon
Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

2. IASPA Conference Jan. 28, 2016 Maureen Lemon
Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.
1804 N. Naper Blvd., Ste. 350
Naperville, IL 60563
(630)

3. The Family and Medical Leave Act
29 U.S.C. 2601, et seq.
Generally: To balance work and family, eligible employees are entitled to take unpaid, job-protected leave with continuation of group health insurance for up to 12 workweeks in a 12-month period.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

4. Topics to Be Covered Eligibility Employer Responsibilities Notices
Certifications
Record requirements
Employee Responsibilities
Special Provisions for Instructional School Employees
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5. Covered Employers All public agencies; Elementary schools;
Secondary schools; and
Private employers that employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year.
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6. Eligible Employees
Have worked 1,250 hours during the last 12- months prior to the start of leave;
Work at a location where the employer has 50 or more employees with 75 miles; and
Have worked for the employer for 12 months before their leave begins.
These twelve months need not be consecutive
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7. When Can An Employee Take FMLA Leave?
For birth and care of a newborn child;
For the placement and care of a child for adoption or foster care;
To care for an immediate family member (spouses, children, parents— but not in-laws) with a serious health condition;
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8. When Can An Employee Take FMLA Leave (cont’d)?
To take medical leave when the employee is unable to work because of a serious health condition;
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9. Special Provisions for Members of the Military: Family Military FMLA Leave
Military Caregiver Leave: Certain employees may take up to 26 weeks of FMLA in a single 12-month period to care for a covered member of the armed services or veteran with a serious injury or illness.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

10. Family Military FMLA Leave (cont’d)
Qualifying Exigency Leave: Eligible employees may take up to 12 weeks FMLA leave in a 12 month period to manage the affairs when the employee’s spouse, son, daughter, or parent is on covered active duty or called to covered active duty status to be deployed overseas.
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11. “Spouse” Includes individuals in a same-sex marriage
Includes individuals in a common law marriage
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12. “Son or Daughter”
A biological, adopted, or foster child; stepchild, legal ward; or child of a person standing in loco parentis
Under 18 years of age, or
Over 18 years of age AND incapable of self-care due to a mental or physical disability
For FMLA leave unrelated to military FMLA leave
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

13. FMLA Leave: Newborn Children
Mothers and fathers have the right to take FMLA leave to bond with a newborn
Mothers can take FMLA leave for prenatal care, incapacity due to pregnancy, and for serious health conditions following the birth of a child
Fathers can take FMLA leave to care for his spouse who is incapacitated due to pregnancy or child birth
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

14. Serious Health Condition
Inpatient care: Conditions requiring an overnight stay in a hospital or other medical care facility, or
Continuing treatment by a health care provider:
Incapacity + Treatment
Pregnancy
Chronic Conditions
Long term / Permanent Conditions
Absences to Receive Multiple Treatments
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15. Serious Health Condition: Incapacity + Treatment
Incapacity: Conditions that incapacitate an employee or their family members for more than 3 consecutive full calendar days, and
Treatment:
2 treatments by a health care provider (1 within 7 days of incapacity; 1 within 30 days of incapacity) or
1 treatment by a health care provider (within 7 days of incapacity) followed by regimen of continuing treatment
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16. Serious Health Condition (cont’d)
Pregnancy including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest
Chronic conditions that cause at least occasional periods of incapacity, require periodic visits to a health care provider (at least 2 times/year)
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

17. Intermittent FMLA Leave
May be taken to address a serious health condition if it is medically necessary (or for Military FMLA leave)
Employer must allow the shortest increment used to account for any leave: no greater than 1 hour increment
Reduced Leave Schedules: Employees can attain a “reduced leave schedule,” reducing the employee’s usual work requirement
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18. Intermittent FMLA Leave (cont’d)
Caveat: Employees must make a reasonable effort to schedule treatment so it does not unduly disrupt the employer’s operation
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19. Employer Responsibilities
Post / distribute notices in workplace
Provide notice of eligibility / designation
Maintain group health insurance
Maintain records
Restore employee to same or equivalent position
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20. Employer General Notice Obligations
Post a notice, in a conspicuous place, explaining the FMLA’s provisions and providing information for reporting violations
Include a general notice in employee handbooks or distribute a copy of the notice to each new employee
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21. How Do Employees Take FMLA Leave?
Advanced Notice for Foreseeable Leave: Provide 30 days advance notice as long as the need for FMLA leave is foreseeable and it is practicable to give notice.
Unforeseeable Leave: If leave is unforeseeable, the employee must provide notice as soon as practicable.
Usually the same or next business day.
Need not initially mention FMLA
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

22. Employer Response to Leave Request
Provide Notice of Eligibility for Leave
Within 5 business days of request or upon having enough information to determine if the leave qualifies
Provide new notice for subsequent qualifying reasons if eligibility status changes
Provide reason if employee is NOT eligible
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23. Employer Response to Leave Request
Provide Notice of Rights and Responsibilities
Designation determination
Applicable 12 month period
Certification requirements
Arrangements for insurance premium payments
Maintenance of benefits
Job restoration
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

24. FMLA Designation Notice
Timely (usually within 5 days)
Paid or unpaid
Whether fitness for duty certification will be required
Number of hours, days, or weeks counted as FMLA leave
Use certified mail
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25. Certification of Serious Health Conditions
By a health care provider
Through the employee, at the employee’s cost
Use U.S. DOL forms
Allow the employee at least 15 calendar days to obtain such a certification
Upon receipt, identify any deficiencies in writing and provide employee 7 days to cure deficiencies
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

26. Certification of Serious Health Conditions (cont’d)
Deadline for Certification Requests:
If leave is foreseeable, employers have 5 business days after the notice for FMLA leave has been given to request certification.
If leave is unforeseeable, employers generally have 5 business days after the leave begins to request certification.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

27. Contacting a Health Care Provider
HIPAA implications
NOT the Employee’s DIRECT SUPERVISOR
May be the Human Resources Professional, a Leave Administrator or a Management Official
To authenticate validity of certification
To clarify the meaning of a response
NOT to ask more information than the DOL form
What if the Employee’s direct supervisor is the HR professional who would contact the health care provider?
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28. Recertification of Serious Health Condition
Generally, no more than every 30 days
In less than 30 days
If Employee requests an extension
If circumstances have changed
If Employer receives information that casts doubt on need for leave
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29. Fitness for Duty Certification
Before returning to work after employee’s own serious health condition
Per uniformly applied policy
With notice at time FMLA leave is granted
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30. Effect of Paid Vacation Time and Sick Days
FMLA requires only unpaid leave
May be paid leave, per Board policy or collective bargaining agreement provision
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31. Routine Leave Rules Apply
Employees must also comply with an employer’s routine leave notice policies when taking FMLA leave.
Employees are also required to follow routine call-in procedures.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

32. Special Provisions for School Employees
There are several special exceptions for instructional employees of schools that govern:
Intermittent or reduced leave, and
Leave taken near the end of an academic term.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

33. School Employees: Intermittent or Reduced Leave (cont’d)
If a leave period ends with the school year and begins with the next year, it is considered consecutive and not intermittent—the summer vacation time does not count.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

34. School Employees: Intermittent or Reduced Leave (cont’d)
A school district has 2 options if an instructional employee’s foreseeable leave to care for a family member with a serious health condition receiving planned treatment causes the employee to miss more than 20% of the total number of working days over the leave period.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

35. School Employees: Intermittent or Reduced Leave (cont’d)
The employee may be asked to:
Take leave for a period of a particular duration (not greater than the time of planned treatment); or
Be temporarily transferred to an alternative, equally-compensated position during the leave.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

36. School Employees: Leave Taken Near the End of an Academic Term
If an instructional employee’s leave begins more than 5 weeks before the end of a term, the employee may be required to stay on leave through the end of the term if:
Leave will last at least 3 weeks; and
The employee would return to work during the 3-week period before the end of the term.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

37. School Employees: Leave Taken Near the End of an Academic Term (cont’d)
If an instructional employee begins leave during the 5-week period before the end of a term because of:
Birth, placement for adoption, or placement for foster care of a child;
A need to care for a spouse, son, daughter, or parent with a serious health condition; or
A need to care for a covered servicemember
the following applies:
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

38. School Employees: Leave Taken Near the End of an Academic Term (cont’d)
the employee may be required to stay on leave through the end of the term, provided that:
The leave will last more than 2 weeks; and
The employee would return to work during the 2-week period before the end of the term.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

39. School Employees: Leave Taken Near the End of an Academic Term (cont’d)
If an instructional employee begins leave during the 3-week period before the end of a term because of:
Birth, placement for adoption, or placement for foster care of a child;
A need to care for a spouse, son, daughter, or parent with a serious health condition; or
A need to care for a covered servicemember
the following applies:
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

40. School Employees: Leave Taken Near the End of an Academic Term (cont’d)
Then the employer may require the employee to stay on leave through the end of the term if the leave will last more than 5 working days.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

41. School Employees: Leave Taken Near the End of an Academic Term (cont’d)
Note: When an instructional employee is required to extend leave through the end of the term, only the amount of time up until the employee is ready and able to return to work will count against the employee’s FMLA leave entitlement.
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

42. Employer Recordkeeping
Dates FMLA leave is taken
Hours FMLA leave is taken
Policies / handbook provisions / postings
Copies of FMLA leave notices, certifications
Correspondence with employee
Payroll information
Health insurance premium payment information
Record of disputes
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

43. For further information
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.

44. Contact Information
Maureen Lemon Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd N. Naper Blvd., Ste Naperville, IL (630)
Copyright 2016 Ottosen Britz Kelly Cooper Gilbert & DiNolfo, Ltd.