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
ADAAA
Workers’ Compensation
Sick Leave (and the dreaded “Sick Leave Bank” or “Donation”)
Vacation Leave
Personal Leave
“PTO”
Short-term Disability
Long-term Disability
Pregnancy Discrimination Act
Pregnancy/STD Leave policies and practices
Other paid or unpaid leaves you have permitted…
FMLA Keys to Remember
May have policy to burn FMLA with other leave
Covered Employer
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”
“Major life activity”: manual tasks, walking, standing, thinking, concentrating, working, bodily systems • Cancer • Diabetes • Chronic back problems • Mental illness
Must make “reasonable accommodations”
PDA Keys to Remember
Prohibits discrimination "on the basis of pregnancy, childbirth, or related medical conditions."
Pregnancy must be treated like other short term disabilities
May not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
Must hold job open for same length of time jobs are held open for employees on sick or disability leave.
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
Check with the carrier
Confirm restrictions
May burn FMLA leave simultaneously
May supplement WC income with paid leave
Replace and take a chance?
May consider light or modified duty: refusal if approved by physician may result in loss of WC pay
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