Georgia Association of School Personnel Administrators Whats new

Georgia Association of School Personnel Administrators What’s new? J. Stanley Hawkins, Esq Marvene T. Brooks Harben, Hartley & Hawkins, LLP December 3, 2008

What’s new with FMLA? l Regulations amended to incorporate provisions of new military service leaves enacted as part of National Defense Authorization Act enacted January 28, 2008 l Final regulations issued on November 17, 2008. l Effective January 16, 2009 2

Revised FMLA Regulations 29 CFR, Part 825 l l l Headings reworded into descriptive titles rather than old question and answer format Existing regulations reorganized and/or consolidated to improve accessibility 4 new regulations provide answers to questions related to new military family leave New definitions, clarifications of DOL positions, and changes due to relevant court decisions New optional forms provided 3

Some Leave Concepts Didn’t Change Employer can require, or employee can elect, substitution of accrued paid leave l Employee may take either new leave intermittently or on reduced leave schedule l Any combination of other FMLA leave with the 26 -weeks for servicemember care is limited to 26 weeks l Spouses working for the same employer may only take 12 weeks total when taking leave due to military family “exigency” leave l 4

Employer Notice - § 825. 300 General Notice Requirement may be met electronically if otherwise meets requirements and ALL employees and applicants can access information l Civil penalty for willful violation of posting requirement increased from $100 to $110/offense l Must include notice in employee handbooks or other written materials, if such exist, OR by giving notice to each new employee upon hiring l Where significant portion of employees not literate in English, notice must be in language in which they are literate 5 l

Eligibility Notice l Codifies DOL opinion letter l Extends time frame from 2 to 5 business days for employer to respond to employee request for FMLA leave l If employee not eligible, notice must state at least one reason why not l Clarifies when subsequent notice must be provided in same leave year 6

Rights & Responsibilities Notice l Must be provided at same time eligibility notice is provided l If employer will require fitness-for-duty certification that must address essential functions of job, must provide a list of essential functions with designation notice l Failure to provide any required notice can result in penalties specified in new reg 7

Employee Notice Foreseeable Leave § 825. 302 l If employee fails to provide 30 days notice when required, must explain why 30 - day notice was not practicable, if requested by employer l 30 -day advance notice requirement foreseeable leave does not apply to qualifying exigency leave 8

Employee Notice Unforeseeable Leave § 825. 303 Replaces “within no more than 1 or 2 days ” language with “within the time frame prescribed by the employer’s usual and customary notice requirements” l Requires employee seeking leave for previously certified FMLA condition to notify employer that leave is for condition that was previously certified l Calling in “sick” without more info doesn’t trigger employer’s obligations; may result in denial of FMLA protection if employee doesn’t respond to reasonable inquiries l 9

Eligible Employee § 825. 110 l 12 months of previous employment need not be consecutive; 7 year cap on breaks in service to count as part of 12 months l Two exceptions to 7 year rule – Break for National Guard or Reserves military obligations – Written agreement exists of employer ‘s intent to rehire after break in service 10

Military Family Leave Entitlements § 825. 100 l Eligible employee may take up to 26 weeks to care for covered servicemember with serious injury or illness during a “single 12 month period” (military caregiver leave) 11

Military Family Leave Entitlements § 825. 100 l Eligible employee may take FMLA while employee’s spouse, son, daughter, or parent (covered servicemember) is on active duty or call to active duty status for a “qualifying exigency” l A qualifying exigency is a reason listed in the regulations in support of a contingency operation, which is defined at § 825. 800. 12

What’s a Qualifying Exigency? § 825. 126 1. Short notice deployment (<7 days) 2. Military events and activities 3. Childcare and school activities 4. Financial and legal arrangements 5. Counseling 6. Rest and Recuperation (up to 5 days/instance) 7. Post-deployment activities 8. Additional activities where employee and employer agree on qualification & timing 13

Exigency Leave-“Call or Order to Active Duty” l Applies only to members of Reserves, National Guard, and certain retired, serving in support of contingency operation, not Regular Armed Forces l Refers to federal call to active duty, not state, unless emergency declared by President or Congress 14

Military Caregiver Leave § 825. 127 To care for current member of Armed Forces, including National Guard or Reserves, or on temporary disability retired list from such groups, undergoing treatment or therapy for serious illness or injury incurred in line of active duty; otherwise on outpatient status or on temporary disability retired list l Doesn’t apply to former members of such groups or those on permanent disability retired list l 15

Single 12 -Month Period for Caregiver Leave Begins on first day of caregiver leave and ends 12 months after that date, regardless of employer’s method of determining 12 weeks for other FMLA reasons l Unused portion of 26 weeks during “single 12 month period” is forfeited l Leave is “per-covered servicmember, perinjury” basis; (employee could take >1 period of 26 weeks if different servicemember or subsequent injury to same servicemember) l 16

Eligible Caregivers Employee must be spouse, son, daughter, parent, or next of kin of servicemember l Next of kin- nearest blood relative, [other than spouse, parent, son, daughter], in this priority: l Blood relative granted legal custody Brothers and sisters Grandparents Aunts and uncles First cousins UNLESS servicemember designated another blood relative for purposes of caregiver leave – – – 17

Designation of Caregiver l If no designation made and multiple employees have same level of relationship to servicemember, all are considered next of kin and may take leave, either consecutively or simultaneously l When designation made, designated individual considered only next of kin 18

Certification, General Rule § 825. 305 Increases time frame for employer to request medical certification from 2 to 5 business days after employee notice of need l Applies 15 -day time period for providing requested certification to all cases l Provides employee additional time (7 calendar days) either to submit certification or cure deficiency, where employee shows diligent, good faith efforts l 19

Complete and Sufficient Certification If employer requires certification, employee’s responsibility to provide complete and sufficient information l Employer must advise in writing if found to be incomplete or insufficient and what else is needed l Incomplete: applicable entries not completed l Insufficient: complete certification, but information provided is vague, ambiguous or nonresponsive l 20

Consequences of Failure to Provide Certification l At time employer requests certification, must also advise employee of consequences of failure to provide adequate certification l If employee fails to provide any certification, despite opportunity to cure, employer may deny FMLA leave 21

Annual Medical Certification l Where employee’s need for leave for own or family member’s serious health condition lasts beyond a single year, employer may require new medical certification in each subsequent leave year l Such certifications subject to authentication and clarification, including 2 nd and 3 rd opinions 22

Medical Certification-Serious Health Condition § 825. 306 l 2 new optional certification forms: 1 for employee’s condition, 1 for family member’s; can’t require info beyond that specified in regs l Clarifies that where serious health condition may also be disability, employer not prevented from following ADA procedures for requesting medical info 23

Certification for Serious Health Condition l Codifies DOL’s long-standing position that employer may not require employee to sign release of medical info as condition of taking FMLA leave l HIPAA authorization supplants and serves same purpose as “with the employee’s permission” under previous regulation 24

Certification for Serious Health Condition l Increases from 2 to 5 business days, unless extenuating circumstances, time employers have to provide copy of 2 nd or 3 rd opinion to employee who requests one; l Employee must provide, upon request, written translation of any certification by foreign HC provider completed in language other than English 25

Authentication and Clarification § 825. 307 If certification is complete and sufficient, employer may not request additional info from health care provider; employer may contact provider for clarification or authentication (initial or recertification) after employee has opportunity to cure l Employer must use a health care provider, HR professional, leave administrator, or management official to contact provider, but NEVER the employee’s immediate supervisor l 26

Employer Contacts with HC Providers l Authentication- providing HC provider a copy of certification and requesting verification that info was completed and/or authorized by provider who signed; can’t request additional medical info l Clarification- contacting HC provider to understand handwriting or meaning of a response; can’t request additional med. info 27

Certification- Exigency Leave § 825. 309 l For first request, employee must provide only once a copy of active duty orders or other military documentation l Must provide new orders or military documentation if exigency arises out of different call for same or different military member 28

Certification Information. Exigency Leave Can request appropriate facts, dates, time estimates, contact information to support request l DOL optional form reflects certification requirements l Employer may use another form with same basic information, but cannot request information beyond that specified in reg l No provision for recertification l 29

Verification- Exigency Leave If employee submits complete and sufficient certification to support leave, employer may not request more info from employee l If exigency requires employee meeting with 3 rd party, employer may contact 3 rd party, without employee’s permission, to verify meeting and its nature, but may not request additional info l Also allows employer to contact Dept. of Defense (DOD) to verify duty call or status but may not request further info l 30

Certification- Caregiver Leave § 825. 310 Employer may require employee to submit certification info specified in reg l Health care providers authorized to complete certification: DOD, VA, DOD TRICARE (military health system) network providers l DOL optional form reflects certification requirements l Employer may use another form with same basic information, but cannot request information beyond that specified in reg l 31

Certification- Caregiver Employer may seek authentication and/or clarification , but not second and third opinions or recertification for caregiver leave l Employer may require employee to provide confirmation of covered family relationship to seriously injured or ill military member l Employer requiring certification must accept as sufficient invitational travel order (ITO) or authorization (ITA) issued to relative to join injured or ill at bedside l 32

Invitational Travel Order (ITO) or Authorization (ITA) l Is sufficient for eligible employee regardless of whether employee is named in invitation issued to any family member l Employee may take continuous or intermittent leave without additional or separate certifications during time specified in ITO or ITA 33

What’s new with ADA? l Signed into law on September 25, 2008, the ADA Amendments Act of 2008 (ADAAA) will go into effect January 1, 2009. Its stated purpose is to broaden the coverage and protections of the Act for more people. l Law still requires a physical or mental impairment that substantially limits a major life activity to meet definition of “disability. ”

Changes to Americans with Disabilities Act l Now the term disability is to be “construed in favor of broad coverage of individuals” l Disabilities that are episodic or in remission qualify if they substantially limit an activity when active l Mitigating measures not to be considered

Case emphasis shifted l Prior to the ADAAA, most cases were dismissed at the summary judgment phase because plaintiffs were unable to establish the existence of a “disability. ” l Congress intends for the emphasis to shift to whether employers are meeting their obligations, and that determining the existence of a disability should be simple.

What is a major life activity? l l l l l Caring for one’s self Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending

And more…. l l l l l Speaking Breathing Learning Reading Concentrating Thinking Communicating Working The operation of a major bodily function

Even those without disability are protected if you regard them as having a disability l But doesn’t apply to transitory or minor impairments l Those lasting less than 6 months

Section 504 made consistent with new ADA – Both are effective 1/1/09

The importance of job descriptions l Used to define the essential functions of the job l Therefore, must be accurate and up to date l Must be specific where needed, such as, special education parapros, different custodial positions, maintenance jobs, etc. l Include physical requirements

What other functions do job descriptions serve? l FLSA exempt status l Chain of command l Placement on salary or supplement schedule l Foundation for evaluation l Required for some positions by state law, OCGA § 20 -2 -211(d)

FMLA and ADA changes present an opportunity Your leave policies are a mess! Use these two federal laws as a reason to fix them.

What’s new and particularly unpleasant? l Fact 1: Approximately 85% of school operating costs go to personnel. l Fact 2: We are in a major recession. l Fact 3: State and local funds are becoming very scarce. l Can you say RIF?

Reduction-in-Force l One of the 8 grounds under the Fair Dismissal Act; “reduce staff due to loss of students or cancellation of programs” l The dangers of seniority or other objective criteria l How to insure that a reduction in force maintains the most competent employees

The elements of a policy l Separate the policy decision made by the Board from the personnel decision – Need to reduce budget by certain amount – Need to reduce staff due to student numbers – Decision to eliminate program or specific position l Require development of a plan to implement policy decision and have the plan approved by the Board

Remaining elements of RIF policy l l l Define the group from which the RIF will occur Have multiple criteria to be used to determine specifics of RIF with goal being to best serve the students Make sure you can articulate the reasons for the application of the plan to specific employees Make sure you have evidence that supports the reasons Make sure the evaluation file testifies for you and not against you

QUESTIONS?

ADJOURN