Effective immediately, the Department of Labor (DOL) Wage and Hour Division (WHD) will now require employers to offer employees the opportunity to use intermittent leave under the Family and Medical Leave Act (FMLA) to attend Individualized Education Program (IEP).
Under the Individuals with Disabilities Education Act (IDEA), public schools are obligated to create Individualized Education Program (IEP) for any child, “who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel.” Additionally, the most recent decision concludes that FMLA applies to any meetings “held pursuant to the IDEA, and any applicable state or local law.” The wording of this Opinion can be interpreted to mean that FMLA protections for employees can include intermittent leave for parent-teacher conferences, individualized course-planning and other specialized education meetings.
Employer obligations under FMLA have expanded under recent court decisions creating serious exposures and confusion.
For example, FMLA protections must be offered to employees from employers who have more than 50 employees (regardless of distance and/or radius between locations). Employees may qualify for FMLA protection if they work at a facility that has more than 50 employees in a 75-mile radius.
However, employers who are UNDER 50 are now required to notify employees of what FMLA protections are available to them; handbook policies are NOT considered ample notification regardless of whether or not employees have signed the employee handbook receipt.
Furthermore, employees are NOT required to ask for FMLA. It is incumbent upon employers to recognize the triggers for FMLA notification and send out appropriate information as listed below:
When an employee has a qualifying leave event (whether standard or intermittent leave), they should always receive (in-person with a signed receipt AND regular mail:
- Notification of rights and responsibilities
- Certification of a Health Care Provider (with a job description)
- Agreement to pay benefits while on leave (if applicable)
- A letter (with signed receipt) describing important dates and milestones (such as the date information is due, use and accrual of paid time off, and that the employee is required to provide a return-to-work notice indicating potential accommodations)
Upon receipt of the information, employers should send a Designation Notice and a letter describing milestones and important dates.
Employees who are denied FMLA because they have not worked for one year (and/or 1,250 hours in the current or preceding year), they do not work for an employer with 50 or more employees OR they do not work at a location that has 50 or more employees in a 75-mile radius, should receive virtually the same information. FMLA will also run CONCURRENT with Workers’ Compensation-related time off.
Remember also that employees who do not qualify for FMLA may still be protected under the Americans with Disabilities Act (ADA) and unpaid personal leaves of absence.
Most employers (regardless of number of belly buttons in the census) find FMLA to be very confusing (and infuriating, if I am being honest). Just remember that I am here to help. A good place to start is to make sure your handbook policies cover the following (not an exhaustive list):
- FMLA (should be at least 8 pages long)
- Non-FMLA leave (typically called Unpaid Personal Leave of Absence/pregnancy leave/paternity leave)
- Policies delineating how paid leave should be used during leaves of absence (are employees required to use, can request to use or request not using)
- Return-to-work programs
- Disabilities accommodation policies
- Workers’ Compensation policies
- Attendance policies and requirements under leaves of absence
- Strong privacy (HIPAA) policies that STRICTLY PROHIBIT any communication (electronic or otherwise) about any medical information whatsoever
IMPORTANT: never EVER send FMLA information or paperwork via EMAIL
In addition to other support services, Ask Linda HR Consulting Services offers personalized and realistic Employee Handbook reviews AND FMLA training (and administration) according to your business model and culture.
Although I have tried to highlight the important issues, I am a multi-state human resources/employment law professional and NOT a writer (I am sure you can tell)…so please feel free to reach out to me with any questions or a free onsite consultation.
Linda Drassen, BSM, MM/HRM, PHR, SHRM-CP
President & Your Personal Human Resources Sherpa
Proud member of the ASA