WIXLIB

Leaves of Absence:FMLA, ADA, Workers’Compensationand PregnancyPresented By:Michael N. LaVelleMelinda B. KaufmannApril 20, 2017

Connecticut FMLA First passed in 1990, Connecticut’s FMLA is very similar, but notidentical, to the federal FMLA. The Connecticut Act grants an employee sixteen weeks of leavein any twenty-four month period – four weeks more than thefederal law, but in a twenty-four month period as opposed to oneyear – to:– (1) deal with their own serious health conditions,– (2) care for certain family members, or– (3) for the birth or placement of a son or daughter with thefamily.Conn. Gen. Stat. § 31-51kk-qq.2 2017 Pullman & Comley LLC

Connecticut FMLA Employers that employ seventy-five or more employees inConnecticut are covered by the CTFMLA. The twenty-four-month period begins on the first day of the leave. Excepted from the CTFMLA are municipalities, local or regionalboards of education or private or parochial elementary orsecondary schools. Eligible employees are those that have been employed by theemployer for at least twelve months and who have worked at least1,000 hours during the twelve months preceding the leave.3 2017 Pullman & Comley LLC

Federal FMLA Passed in 1993, and amended in 2010, the federal FMLA grantsemployees of covered entities twelve weeks of unpaid leave pertwelve month period to:(1) deal with a serious health condition that makes the employeeunable to perform the essential functions of his or her job; or,(2) to care for a spouse, son, daughter, or parent with serious healthconditions, or(3) for the birth or placement (adoption or foster care) of a son ordaughter with the employee’s family.29 U.S.C. §§ 2601(b)(2) and 2612(a)(1).4 2017 Pullman & Comley LLC

Federal FMLA(4) Service Member Leave: An eligible employee may also take up to 26 work weeks of leaveduring a "single 12-month period" to care for a covered servicemember with a serious injury or illness, when the employee is thespouse, son, daughter, parent, or next of kin of the servicemember. This "single 12-month period" for military caregiver leave isseparate from the 12-month period used for other FMLA leavereasons.5 2017 Pullman & Comley LLC

Federal FMLA Employers covered by the Act are those that employ fifty or moreemployees (within 75 miles of each other) for twenty or moreweeks during the calendar year.29 U.S.C. § 2611(4); 29 C.F.R. §§ 825.104-105. An employee becomes eligible for FMLA leave if he or she hasbeen employed by a covered employer for no less than a year andhas worked at least 1250 hours during the preceding twelvemonths.29 U.S.C. § 2611(2)(A); 29 C.F.R. § 825.111.6 2017 Pullman & Comley LLC

FMLA for Paraprofessionals Connecticut has extended the protections of the federal FMLA toparaprofessionals In order to be eligible, the paraprofessional must have worked 950hours in the twelve months prior to commencement of the leave Like the federal FMLA, only hours actually worked, not those forwhich the paraprofessional used paid leave such as sick leave orholidays counts toward the 950 hours Conn. Gen. Stat. §31-51rr7 2017 Pullman & Comley LLC

Federal FMLA An eligible employee may take FMLA leave to care for thefollowing family members:– parents (including individuals who stood in loco parentis to anemployee but specifically excluding parents-in-law),– children (including biological, adopted, foster or stepchildren, legalwards, children for whom the employee is standing in loco parentisand children 18 years old and older who are incapable of self-care)– and husbands or wives.29 C.F.R. § 825.113.8 2017 Pullman & Comley LLC

Federal FMLA –Defining “Serious Health Condition” Both the federal and Connecticut statutes define a “serious healthcondition” as“an illness, injury, impairment, or physical or mentalcondition that involves: (A) inpatient care in a hospital,hospice, or residential medical care facility; or (B)continuing treatment by a health care provider.”29 U.S.C. 2611 (11); Conn. Gen. Stat. § 31-51kk. The regulations demonstrate that the definition of the term“serious health condition” is intended to mean medical treatmentfor a disabling condition that is not a simple broken bone orfleeting illness. So the condition is more than the common cold9 2017 Pullman & Comley LLC

Federal FMLA –Defining “Serious Health Condition” An employee must demonstrate:(1) a "period of incapacity requiring absence from work,"(2) that this period of incapacity exceeded three days, and(3) that the employee received "continuing treatment by . ahealth care provider" within the period.Examples:– Pregnancy or prenatal care– Chronic conditions– Permanent or long-term conditions– Conditions requiring multiple treatments10 2017 Pullman & Comley LLC

Employer Responsibilities Provide notice (§ 825.300 )– Post a General Notice, and– Provide General Notice in employee handbook or, if nohandbook, distribute to new employees upon hire Maintain group health insurance Restore the employee to same or equivalent job and benefits Maintain records Provide Notice of Eligibility§ 825.300

FMLA –Employer Notice Requirements forConcurrent Leave Employers must advise an employee taking FMLA leave whethervacation or other paid leave must be used concurrently with theFMLA leave within two business days (absent extenuatingcircumstances) of its decision to count the time as FMLA leave.– 29 C.F.R. Section 825.208. Employers must give written notice of the designation, along withdetailed information concerning the employee's rights andresponsibilities under the Act, "within a reasonable time afternotice of the need for leave is given by the employee--within oneor two business days if feasible."– § 825.301(c).12 2017 Pullman & Comley LLC

Federal FMLA Returning an Employee to Work Once an employee is able to return from FMLA leave, he or she isentitled to be restored to the same job or an equivalent positionwith the same pay, benefits and duties (or substantially the sameduties pay, benefits, and conditions of employment).– 29 U.S.C. § 2614(a)(1). Reinstatement is required even if the employee has been replacedor his or her position has been restructured to accommodate theemployee's absence.– 29 C.F.R. § 825.214.13 2017 Pullman & Comley LLC

Federal FMLA Returning an Employee to Work An equivalent position must involve the same or substantiallysimilar duties and responsibilities that have equivalent skill,effort, responsibility, and authority as the employee’s previousjob.– 29 C.F.R. § 825.215. A returning employee also is entitled to restoration of the samebenefits that the employee had prior to taking FMLA leave.– Including being restored to a position with the same or equivalent payrate and premiums, including any overtime ordinarily available forthat position and the same or an equivalent opportunity for bonuses,profit sharing, and other similar payments.14 2017 Pullman & Comley LLC

Return to Work Issues Underthe State and Federal FMLAs Under CTFMLA, if the employee is medically incapable ofperforming the duties of the employee’s former job, the employeehas the right to be transferred to a suitable job, if one is available.Sec. 31-51qq-22. However, under FMLA, if the employee is unable to perform anessential function of the position the employee is not entitled toanother position. Therefore, Connecticut employers with less than seventy-fiveemployees, need not consider a job transfer under the state FMLA,but must then evaluate the other laws that may be applicable, suchas CFEPA or ADA.15 2017 Pullman & Comley LLC

Key Employee Exception A covered employer may deny restoration to a “keyemployee” if necessary to prevent substantial andgrievous economic injury to its operations. A key employee is a salaried, FMLA-eligible employeewho is among the highest paid 10% of all employees,both eligible and not eligible, within 75 miles of theworksite.16 2017 Pullman & Comley LLC

Federal FMLA –Employee Notice Requirements While an employee does not have to ask specifically for FMLA leave tomeet the Act’s notice requirements, the employee must notify theemployer “as soon as practicable” of a qualifying reason for FMLA leave.– 29 C.F.R. 825.302; Conn. Regs. § 31-51qq-27 Where the need for leave is foreseeable, the employee should give theemployer thirty days’ notice. Additionally, an employer may require an employee on FMLA leave toreport periodically to the employer on the status and intention of theemployee to return to work. Finally, the employee’s notice must provide the employer with enoughinformation to make clear that the employee’s reason for seeking leavequalifies under the FMLA.17 2017 Pullman & Comley LLC

Federal FMLA – FMLA MedicalCertification Requirements An employer may require an employee who has been on FMLAmedical leave to obtain a certification from a health care providerindicating that the employee is ready/able to return to work. An employer may delay reinstatement until the employeecompletes a fitness-for-duty certification. An employer must tell an employee at the start of the FMLAmedical leave that a fitness-for-duty certification is necessary The fitness-for-duty process must be described in written policies. If an employer decides to require a fitness-for-duty certification,this process must be administered in a consistent manner.18 2017 Pullman & Comley LLC

Federal FMLA –FMLA Medical CertificationRequirements Employers may require medical certification of the circumstancesthat supports the employee’s request for FMLA leave.– 29 C.F.R. 825.305; Conn. Regs. § 31-51qq-30. Employers must give notice each time that they requirecertification. With the employee’s permission, a health care providerrepresenting the employer may contact the employee’s health careprovider seeking clarification and authentication.19 2017 Pullman & Comley LLC

Federal FMLA –FMLA Medical CertificationRequirements The certification should contain information explaining how anemployee’s condition meets the definition of “serious healthcondition.”– 29 C.F.R. § 825.306 (2000); Conn. Agencies Regs. § 31-51qq-31. It should also list when the condition began and how long it isexpected to last, as well as what treatments will be required andwhether it is necessary for the employee to take leaveintermittently or have a reduced work schedule.20 2017 Pullman & Comley LLC

Interplay between FMLA andCTFMLA The state and federal regulations provide that an eligibleemployee must be provided the twelve week federal FMLA leaveeach year. That means that an eligible employee may take sixteen weeks CTFMLA leave in a given year, then an additional twelve weeksleave under FMLA during the next year. But if an employee takes twelve weeks of FMLA leave first, thenthe four weeks of leave under CT FMLA are subsumed within thetwelve during the second year of eligibility and only twenty-fourweeks of leave is available during a two year period.21 2017 Pullman & Comley LLC

S.B. 1 – Earned Family andMedical LeaveReported out of Labor and Public Employees Committee; on Senatecalendar.1.Establishes paid leave for 12 weeks in 12 month period. 2.Family and Medical Leave Compensation Program funded byemployee contributions, starts 7/1/2020.Revises State FMLA FMLA applies to employers with at least 2 employees Employee eligibility based on earnings of 2,375 in highest of fiveprevious quarters Reconciles with federal FMLA – 12 weeks in 12-month period Adds grandchildren Eliminates employer option to change employer-paid leaveconcurrently22 2017 Pullman & Comley LLC