Acknowledgment of Debt by Employee

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Acknowledgment of Debt by Employee Powered By Docstoc
					CAPLAW 2008 NATIONAL TRAINING CONFERENCE:

      MANAGING LEAVES OF ABSENCE:

      THIS TIME, THERE WILL BE A TEST!


               JUNE 18, 2008



                                              Presented by:
                                               Peter L. Ebb
                                         Ropes & Gray LLP
                                     One International Place
                                    Boston, MA 02110-2624




                                                         1
                    MANAGING LEAVES OF ABSENCE


                                                GET HELP!




This outline, and the presentation which accompanies it, is general and educational in nature and is not intended as
    legal advice with respect to any particular situation or circumstance, as which agencies should consult their own
                                                        legal counsel.



                                                                                                                        2
                        The Good Soldier


• A part-time Head Start classroom teacher, Bob, who started at the
  agency two months ago, enlisted in the Army three weeks ago, and
  now says he has been called up for service and is leaving tomorrow.
  He has no idea how long he will be gone, and said he did not have
  written orders to give to HR.
   – Does the CAA have to give him leave, even though he volunteered and
     despite the absence of written orders?
   – For how long?
   – Does it matter that granting the leave will be really inconvenient?
   – Does the CAA need to pay him?
   – What about his health insurance coverage?
   – What position does he get when he returns?



                                                                           3
                             The Good Soldier

•   Leave must be granted for service in the reserves, or for active duty
    (typically up to five years), with employee returned to same position

•   Need not be paid leave, but employees may use accrued vacation time (but
    cannot be required to do so). And check your policy for open-ended
    promises of make-up pay; do you really mean that for five years?

•   Not a defense that the employee volunteered

•   Not a defense that the employee enlisted after becoming employed

•   Employee must provide written or verbal notice of service obligation, unless
    impossible, unreasonable, or precluded by military necessity (like shipping
    out before the orders arrive)

•   COBRA continuation for 24 (not 18) months, at employee’s expense


                                                                               4
                  The Good Soldier’s Spouse


• Bob’s wife, Nancy, works part-time in accounting. She has used up
  her vacation time, but wants to be able to spend time at home
  dealing their day care situation and other issues related to Bob’s
  having been called up by the Army.
   – Does Nancy get the time off?




                                                                       5
                     The Good Soldier’s Spouse

• Not yet, but perhaps soon.
• Recent amendment to FMLA providing 12 weeks of unpaid leave for
  any “qualifying exigency” when an employee’s spouse, child or
  parent is on active duty or is notified of an impending call or order to
  duty in Armed Forces in support of a “contingency operation”
• Will not take effect until final regulations are released by DOL,
  probably later this year, defining “qualifying exigency”. Until then,
  DOL “encourages” employers to provide this leave
• To be eligible, Nancy will need to meet the standard FMLA eligibility
  requirements
    – Worked for the agency for at least 12 months
    – Worked at least 1250 hours in the prior 12 months; don’t need to count
      paid time off (not clear whether Nancy meets this test; careful if close?)
    – Employed at a facility in which at least 50 workers are employed by the
      agency within a 75 mile radius

                                                                                   6
                The Wounded Soldier’s Mother


• One year later, Bob has returned, with a wounded leg (don’t worry,
  he’ll make a full recovery, but it will take some time). Bob is 25
  years old. His mother, Rachel, who has worked full-time in the
  CAA’s weatherization program for the last three years (has anyone
  checked the agency’s anti-nepotism policy lately?), wants to take
  two months off, on the days when Nancy is working, to help Bob
  recuperate. Can she?




                                                                       7
                     The Wounded Soldier’s Mother

•   Yes, under recent amendment to FMLA (effective 1/28/08)
•   Available under the same eligibility requirements as FMLA (one year, 1250
    hours, 50 employees), but
     – for up to 26 (not 12) weeks
     – one time (no annual renewal), must be used in a single 12 month period
     – provided to care for spouse, child, parent or next of kin (defined as “closest blood
       relative”)
     – while service member is undergoing medical treatment, recuperation, or therapy,
       is on out-patient status, or is on the temporary disabled retired list for a serious
       illness or injury incurred in active duty
•   Even though Bob is over 17 years old and not disabled (and therefore not a
    “child” under the FMLA) he is Rachel’s “next of kin”
•   If Rachel has already used up 12 weeks of FMLA leave for another
    purpose, she will only have 14 weeks of FMLA leave for this purpose
•   Even if Nancy is home some of the time, Rachel can still take time off to
    help


                                                                                          8
                     Forgotten But Not Gone


• Doreen, a custodian, has been out of work, on an agency-approved
  leave, for 36 weeks, following a job-related injury. In preparing a
  letter advising Doreen that her FMLA benefits have been exhausted
  (a long time ago, in fact) and that a further leave will not be
  approved, the CAA realizes that it never sent Doreen any of the
  FMLA forms, and never designated the leave as FMLA leave (if this
  has happened to you, you are not alone).
   – Does Doreen still have 12 weeks of FMLA leave available to her?
   – Is there anything the CAA could have done differently?




                                                                       9
                     Forgotten But Not Gone

• In general, under the FMLA regulations, an employer must
  designate leave as FMLA leave in order for it to be counted against
  an employee’s 12 week allotment, and cannot do so retroactively.
• But, if the employer has failed to make a timely designation and a
  late designation would not unfairly prejudice the employee (for
  example, if the employee would have been out on leave whether it
  had been designated as FMLA leave or not), then the employer may
  be able to count the previously undesignated time; check with your
  lawyer
• Remember, time spent by an employee receiving workers’
  compensation benefits, or sick leave, or short or long-term disability
  pay, can (and generally should) be designated as FMLA leave
• If you are unsure if the leave qualifies under the FMLA, you can
  provisionally designate leave as FMLA leave, while you await
  additional information, in order to get the clock started.

                                                                      10
          Some People Don’t Know When To Leave


• Tim has been out of work for two weeks with flu-like symptoms, for
  which he has been to the hospital at least twice. HR has asked him
  to fill out an FMLA request form, but he has refused, saying he
  wants to save his FMLA leave for later in the year, when he will be
  having cosmetic surgery.
   – Can Tim “save” his FMLA leave time for a rainy day?
   – Is recovery from cosmetic surgery covered under the FMLA?




                                                                    11
          Some People Don’t Know When To Leave


• If an employee’s situation qualifies for leave under the FMLA, then
  the employer may designate it as FMLA leave, even if the employee
  objects
    – But note that if the employer grants leave to an employee who has not
      yet qualified for the FMLA, the employer cannot count that time against
      the employee’s 12 weeks of leave (no good deed goes unpunished)
• Cosmetic surgery is generally not considered a serious health
  condition under the FMLA, unless inpatient care is required or
  complications arise.




                                                                            12
                 12 Weeks Is Enough – Isn’t It?


• Angie, a long-term Head Start teacher, has used up her 12 weeks of
  FMLA leave while being treated for clinical depression. Her clinician
  now says, however, that she will not be able to return to work for at
  least another two months (sometime in August, at the earliest). The
  CAA has a rule that no leave will be granted for more than four
  months.
• Can the CAA tell Angie that she will be terminated, since she has
  used up her FMLA entitlement and will not be able to return within
  the agency’s four month leave limit?




                                                                     13
                    12 Weeks Is Enough – Isn’t It?

•   Not necessarily. If Angie’s condition constitutes a disability under the
    Americans with Disabilities Act, the CAA will at least need to consider
    whether a further leave of absence would be required as a reasonable
    accomodation, or would instead constitute an undue hardship. This is so
    even if the agency has a rule that leaves cannot exceed a particular
    duration (and the CAA may need to modify that rule)
•   Note that an indefinite leave is almost never required
•   The importance of continuity in the classroom may argue against an
    extended leave, but note that the balance of Angie’s leave request would
    fall during the summer months
     – If Angie had only used eight weeks of leave when the program closed for the
       summer, she would still have had four weeks of FMLA leave available to her
       when the program resumed in the fall (shutdown periods of a week or more don’t
       count against FMLA leave; holiday, however, do)
•   Ordinarily, an employee would expect to return to their former position,
    unless holding that particular position open for the requested period would
    constitute an undue hardship

                                                                                   14
   Is An FMLA Waiver Worth The Paper It Is Written On?

• George has been with the CAA for just over a year, and has been a
  problem employee since the day he started (why didn’t he get fired
  at the end of his probationary period, anyway?). With his one year
  evaluation (and his walking papers) about to be delivered, George
  suddenly develops a serious back-injury which will require him to
  miss work for at least four weeks. George applies for FMLA leave
  before his evaluation can be presented and before his exit interview
  can be held.
• The Executive Director, having been around this block a few times
  already, wants George fired, now, FMLA leave or no FMLA leave.
• Four months, $9500 in legal fees, and lots of headaches later, the
  CAA has worked out a separation agreement, including of course a
  release of all claims (and, especially, a waiver of George’s claim that
  he was fired for having taken FMLA leave), in return for $25,000.
• Good to go?

                                                                       15
    Is An FMLA Waiver Worth The Paper It Is Written On?

•   According to recent court decisions, relying on language in the Department
    of Labor’s FMLA regulations, a release of FMLA claims is unenforceable
    unless it has been approved by a court or by the Department of Labor itself.
    Neither happened here, so George may still have the right to sue for
    violation of his FMLA rights (and perhaps even keep the $25,000,
    depending on the drafting of the separation agreement)
•   Note that the DOL has no interest in approving FMLA settlements (in fact,
    they refuse to do so). Not surprisingly, the DOL has proposed in its draft
    changes to the FMLA regulations that the language relied on by these
    courts be changed, so that only the waiver of future FMLA claims would be
    prohibited, but the resolution (by settlement) of past disputes would be
    permitted without the need for DOL or judicial permission
•   You should still get the waiver and an acknowledgment that there was no
    FMLA violation, but don’t be too confident it will work



                                                                              16
                   All Better Now? Says Who?


• Tim has been out of his position as a custodian with a bad back, for
  the last 10 weeks. While out, he has been placed on FMLA leave.
  Tim says he is ready to return, but the agency is not so sure.
  Having checked the agency’s personnel policies and confirmed that
  all employees on medical leave are required to submit a fitness-for-
  duty certificate, Tim’s supervisor tells Tim he will not be allowed to
  return until a clinician certifies that he can perform all of his job
  duties, and do so without significant risk of harm to himself or others.
• In response, Tim turns in a prescription form, on which his family
  physician has scribbled, “Tim is cleared to return to work.”
• Can the supervisor demand more?




                                                                        17
                   All Better Now? Says Who?


• Under the current regulations, Tim’s supervisor will have to accept
  the one-line scribble, and like it
• Recognizing the inadequacy of this process, the DOL’s draft
  regulations would permit an employer to obtain more complete
  information, and to provide the employee’s clinician with a list of job
  duties which the health care provider would then have to certify the
  employee could perform (but the employer would need to remember
  to provide the list of job duties to the employee at the start of the
  FMLA leave) .




                                                                       18
You’ll Never Guess What Happened While You Were Away


• Lucille, the agency’s accounts payable clerk, has been a star worker
  for 20 years, receiving consistently excellent reviews and the
  Employee of the Year Award four times. Recently, Lucille took an
  FMLA leave to recover from wrist surgery.
• While Lucille was out, a temporary employee discovered that her
  desk drawer was filled with unpaid bills, some of them more than six
  months old, and a series of dunning notices. The agency, which
  had thought it was ending the fiscal year with a small surplus, is in
  fact deeply in debt, and at least seven employees will likely need to
  be laid off.
• Can Lucille be one of the employee’s who gets laid off? How about
  just plain old fired?



                                                                     19
You’ll Never Guess What Happened While You Were Away


• An employer cannot discriminate against an employee for taking
  FMLA leave (or receiving workers’ compensation benefits, or
  requesting an accommodation for a disability). But
• Taking an FMLA leave, receiving workers’ compensation benefits, or
  being disabled is not the same thing as having tenure
• In general, if a layoff would have hit an employee on leave, the fact
  that the employee is on leave will not exempt them from being laid
  off (but Lucille has 20 years of service; would she have been laid
  off?)
• In general, if an employee would have been fired for misconduct
  before a leave, the fact that the misconduct was discovered during a
  leave will not preclude discharge (though the employer’s burden of
  proof will likely be a high one)

                                                                     20
           Is It Ever Too Late To Take A Vacation?


• Melinda is leaving the agency after 30 years, A hard-worker, she
  has stored up over 40 vacation days. CAA policy says that
  employees are not paid out accrued vacation time upon voluntary
  resignation, and Melinda is given nothing for her 40 vacation days.
• Two days later, the agency receives a call from the state attorney
  general’s office, which is investigating a claim of unpaid wages.
• But Melinda was paid for all of her hours worked before she
  resigned; what went wrong here?




                                                                        21
            Is It Ever Too Late To Take A Vacation?


• Depends on your state, and your policy
• In some states, accrued vacation time must be paid out, no matter
  what the reason for termination and no matter what the agency
  policy says, and the failure to pay may be considered a failure to pay
  wages, carrying multiple damages and even criminal penalties
• In other states, accrued vacation time must be paid out only if the
  employer has a policy or practice of doing so, and may otherwise be
  forfeited
• Know your state law, and know (and if necessary fix) your policies
• What can be done to minimize this liability? Varies by state, but:
    – Use it or lose it
    – Cap on new accruals
    – Require time to be accrued, don’t give it in chunks

                                                                      22
         HELPFUL HINTS IN MANAGING LEAVES


• Call the personnel department!

• Use the standard forms!

• If an employee is out of work, determine whether he/she should be
  placed on leave and whether the leave should be designated as
  FMLA leave

• If an employee is on leave, make sure the employee stays in touch,
  and keeps you apprised of her/his status




                                                                      23
     HELPFUL HINTS IN MANAGING LEAVES (cont.)


• If an employee is about to exhaust his/her leave, determine the
  employee's intentions about returning to work

• If an employee is unable to return to work at the end of the leave
  period, determine what (if any) further leave should (or must) be
  offered to comply with ADA requirements

• Don't wait until an employee goes out on leave to "discover" and
  document performance problems

• Call the personnel department!



                                                                       24
Some Basic Leave Rules




MEDICAL/FAMILY LEAVES




                         25
        FAMILY AND MEDICAL LEAVE ACT LEAVE


The Basics

• Up to 12 weeks leave, in 12 month period (which may be calendar
  year, rolling 12 months, fiscal year, or other fixed period for
  measuring leave; employer can define, but if not defined will be
  looked at on the basis most favorable to the employee)

• To be eligible, employees must have worked for at least one year,
  and 1250 hours within the 12 months preceding the leave

• To be eligible, employee must work at a site where the CAA
  employees at least 50 employees within a 75 mile radius


                                                                      26
    FAMILY AND MEDICAL LEAVE ACT LEAVE (con’t)


• Leave must be granted for:

   – The birth or adoption of a child under 18, or older if the child is unable to
     care for himself/herself (leave does not need to commence immediately
     after birth or adoption, but must be completed during the initial 12 month
     period following birth or adoption). Unlike maternity leave benefits, this
     benefit is available to both male and female employees.

   – Caring for a spouse, child or parent who has a serious health condition

   – A serious health condition of the employee rendering the employee
     unable to do his/her job




                                                                                27
    FAMILY AND MEDICAL LEAVE ACT LEAVE (con’t)


• Employees must give at least 30 days’ notice, where the leave is
  foreseeable. Otherwise, employees must give as much advance
  notice as possible.




                                                                     28
    FAMILY AND MEDICAL LEAVE ACT LEAVE (con’t)


• The CAA can ask for medical certification (the DOL has approved a
  model form; use only this form, unless legal counsel advises
  otherwise)

• If the form has not been completed adequately, the CAA can insist
  that it be completed

• The CAA can ask for its own medical evaluation. In the event of a
  “tie,” a third, independent medical evaluation will govern




                                                                      29
     FAMILY AND MEDICAL LEAVE ACT LEAVE (con’t)


• Upon completion of the leave, an employee must be returned to the
  same position, or to an equivalent position having equal pay,
  benefits, and other terms and conditions of employment




                                                                      30
    FAMILY AND MEDICAL LEAVE ACT LEAVE (con’t)


In Detail

• Benefits: During FMLA leave, the CAA must continue its
  contributions to the premium cost of group health insurance.

• Serious Health Condition: A “serious health condition” is an illness,
  injury, or physical or mental condition requiring either in-patient care
  or continuing treatment of a health care provider.




                                                                        31
     FAMILY AND MEDICAL LEAVE ACT LEAVE (con’t)

•   Designation of Leave: The CAA must designate leave as FMLA leave in
    order for any period of leave to be counted against an employee’s 12 week
    allotment, and typically may not do so retroactively (but there may still be
    hope if you miss this the first time). Where the CAA is unsure whether
    leave qualifies as FMLA leave, it may provisionally designate the leave as
    FMLA leave, subject to a later re-determination.
•   Intermittent/Reduced Hour Leave: Leave may be taken on an intermittent
    basis, such as one day per week, or a few hours each day. However,
    where an employee takes leave on an intermittent basis, the employee may
    be transferred to another position which better accommodates their needs
    and the organization’s operating concerns. The CAA is not required to
    grant intermittent or reduced hour leave for birth or adoption of an
    employee’s child, but intermittent/reduced time leave is mandatory for other
    FMLA-covered circumstances.



                                                                              32
    FAMILY AND MEDICAL LEAVE ACT LEAVE (con’t)


• Medical Certifications: The employee must be given at least 15
  days to comply with a request for medical certification

• Leave Cannot Be The Basis For A Penalty: Employees cannot be
  disciplined or otherwise penalized for having taken FMLA leave.

   But:

• Leave is Not Tenure: If an employee who is on leave would have
  been laid off if they had still been actively employed, the employee
  may be laid off while on leave. But, such decisions should be made
  with caution.


                                                                     33
                FMLA and STATE LEAVE ACTS


• State laws in at least 20 states provides additional leave benefits for
  private sector employees (and even more states provide additional
  leave rights to public employees)

• Where state law is more generous than the FMLA, both will apply




                                                                       34
           FMLA – Holidays and Shutdown Periods


• If a holiday occurs during a week in which an employee is on FMLA
  leave, the CAA may still count the period as a full week of leave

• If a leave is interrupted by a shut down of operations of one or more
  weeks (for example, a winter holiday break, or a summer vacation
  period), then the shut down period is not counted against the FMLA
  entitlement of 12 weeks of leave




                                                                      35
         THE AMERICANS WITH DIABILITIES ACT


• The Americans With Disabilities Act (the "ADA") prohibits
  discrimination against "disabled" employees, and requires
  "reasonable accommodation" of disabilities for employees who are
  able to perform the "essential functions" of the job. (Essentially
  identical requirements are also imposed by state laws in most
  states)

• As applied to a leave of absence situation, this means looking at the
  issue of whether granting a leave of absence is a "reasonable
  accommodation" (or, to the contrary, would impose an "undue
  burden" on the program). An indefinite, open-ended leave of
  absence will almost never be required.



                                                                       36
     THE AMERICANS WITH DIABILITIES ACT (con’t)

• What is a "disability"?: A protected disability is any physical or
  mental impairment substantially limiting a major life activity
  (including the ability to work). Not every illness or injury is a
  disability (for example, a broken leg is not a disability, because of its
  transitory nature; the inability to work with a particular supervisor,
  even if interactions with that supervisor cause severe mental
  "stress," is not a disability, because it affects only a narrow range of
  jobs, and therefore doesn't "substantially limit" a major life activity).
• What this means for you: If an employee has exhausted his/her
  approved leave, it still may not be safe to terminate employment.
  You should at least consider, together with the personnel
  department, whether granting a continued leave (or offering a
  modified duty option, or a transfer to another position) would cause
  an operational burden
    – In contrast, FMLA does not involve “balancing”

                                                                         37
              WORKERS’ COMPENSATION ACT

• In most states, receipt of workers' compensation benefits is not the
  same thing as being on leave, but in some states there are severe
  restrictions on a CAA’s ability to terminate the employment of a
  workers’ compensation recipient

• An employee on workers' compensation will usually be eligible for
  FMLA leave and, if not meeting the requirements of the FMLA, may
  be eligible for leave under the ADA or state handicap discrimination
  laws

• An employee on workers' compensation should be placed on FMLA,
  where applicable. Otherwise, the employee may still be eligible for
  (and be required to be granted) 12 weeks of FMLA leave starting
  months after the injury occurred, and after months of absence have
  already passed

                                                                         38
          WORKERS’ COMPENSATION ACT (con’t)


• An employee may not be terminated from employment (or denied a
  job in the first place) in retaliation for having applied for or received
  workers' compensation, and may not be discriminated against for
  having assisted in a workers' compensation proceeding

• Even if an employee's leave period has expired while on workers'
  compensation and the employee has been properly terminated from
  employment, he/she may still be entitled under state law to rehire
  preference after having recovered




                                                                          39
                            JURY DUTY


• In most states, employees must be granted leave for jury duty,
  including grand jury leave

• State laws differ on the extent to which an employer is obliged to
  provide pay for jury duty, or to make up the difference between jury
  pay and regular wages

• Be careful of policies which promise no loss of pay, without time
  limitation




                                                                      40
QUESTIONS?




             41

				
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