Paid leave fmla quagmire nrcsa 2015

NAVIGATING THE FMLA/PAID LEAVE QUAGMIRE Karen Haase Steve Williams Bobby Truhe

KSB School Law (402) 804-8000 karen@ksbschoollaw.com steve@ksbschoollaw.com bobby@ksbschoollaw.com KSB School Law @KarenHaase @SteveIsEsteban @btruhe

What applies? 

FMLA

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ADAAA

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Workers’ Compensation

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Sick Leave (and the dreaded “Sick Leave Bank” or “Donation”)

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Vacation Leave

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Personal Leave

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“PTO”

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Short-term Disability

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Long-term Disability

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Pregnancy Discrimination Act

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Pregnancy/STD Leave policies and practices

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Other paid or unpaid leaves you have permitted…

FMLA Keys to Remember 

May have policy to burn FMLA with other leave

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Covered Employer  

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Employ 50 or more employees During 20 or more weeks of preceding or current year

Employee Eligibility  Employed 12 months  1,250 hours of service  Worksite with 50 or more employees within 75 miles

Work Comp Keys to Remember  May burn FMLA and Work Comp simultaneously  FMLA – may agree but can’t require use of paid leave to supplement  Anti-discrimination protections (can’t retaliate)  Light duty not required, but can help

ADAAA Keys to Remember 

“Disability” is “a physical or mental impairment which substantially limits a major life activity”

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“Major life activity”: manual tasks, walking, standing, thinking, concentrating, working, bodily systems • Cancer • Diabetes • Chronic back problems • Mental illness

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Must make “reasonable accommodations”

PDA Keys to Remember 

Prohibits discrimination "on the basis of pregnancy, childbirth, or related medical conditions."

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Pregnancy must be treated like other short term disabilities

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May not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

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Must hold job open for same length of time jobs are held open for employees on sick or disability leave.

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Can’t have a “maternity leave” policy that is less generous that other types of leave

Hypothetical #1  Custodian hurts back in September  Begins Work Comp leave 9/15  10/1:Wants to supplement Work Comp with sick leave  Still on Work Comp 3/1 of the following year  Now what?

Hypothetical #1: Answers 

Should not fire employee while on leave

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Check with the carrier

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Confirm restrictions

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May burn FMLA leave simultaneously

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May supplement WC income with paid leave

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Replace and take a chance?

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May consider light or modified duty: refusal if approved by physician may result in loss of WC pay

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Should consider ADAAA upon return

Hypothetical #2

 Teacher knocked out by student  Begins Work Comp leave 10/1  Every week promises to “be back next week”  It’s 4/1: What are your options?

Hypothetical #2: Answers  Same considerations as Hypo #1, but more…  Long-term substitute? Replacement teacher contract?  Can she take sick leave once cleared by the doctor?  Can she take FMLA once cleared?  Do we owe ADAAA accommodations for chronic headaches?

Hypothetical #3  Teacher with cancer  Full FMLA eligible  60 sick leave days  10 vacation/personal leave days  Begins leave/treatment on 9/1  How much leave time?

Hypothetical #3: Answers  FMLA: 12 weeks  Sick Leave: at least 12 weeks  More if school breaks  Less if burned simultaneously with FMLA  Vacation/Personal: 2 weeks  Sick leave banks or donations…  Consider FMLA calendar designation issue

Hypothetical #4

 Pregnant teacher  Due 2/1  Begins leave the week before  How much leave is available?

Hypothetical #4: Answers  Same considerations as Hypo #3, but more…  Must treat leave like all other short-term disability  Be careful, this establishes your practice  Can she take sick leave beyond your maternity leave practice?  FMLA provides up to 12 weeks  But what if her spouse also works for the district? 

12 total weeks unless caring for complications of mother or child

If you’re in the quagmire…

 Pull your policies  Pull the teacher’s contract  Tally the employee’s leave  Determine which laws apply  Communicate with the employee

NAVIGATING THE FMLA/PAID LEAVE QUAGMIRE Karen Haase Steve Williams Bobby Truhe

KSB School Law (402) 804-8000 karen@ksbschoollaw.com steve@ksbschoollaw.com bobby@ksbschoollaw.com KSB School Law @KarenHaase @SteveIsEsteban @btruhe