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Leave Me Alone!Coordinating Leaves of Absence Under Federal,

State, and Local Leave Laws

March 12, 2013 Bellevue, WA

Presented by:

March 12, 2013

Jim ZisslerLittler Mendelson, P.C.Seattle [email protected]

206.381.4909

Deidra A. NguyenLittler Mendelson, P.C.Seattle [email protected]

206.381.4931

Sources of Leave

FMLA

Pregnancy Disability

Military Leave

Military Family Leave

Domestic Violence

Washington Family

Care Act*

Jury Leave

Voting Leave

Firefighter Leave

Seattle Sick and Safe Time

Worker’s Compensation

ADA/WLAD

Handbook Policies

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Company‐Specific Leave Policies

Handbook Policies

First place to look. Follow your (current and lawful)

policies!

State and federal laws impact these

benefits

Application and implementation

must be consistent

Seattle Sick and Safe Time

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Seattle Mandatory Paid Sickand Safe Time

Effective Sept. 1, 2012

Job‐protected leave of absence

Plus an accrued paid time off

bank

But no cash out (unless your policy says so)

Who is Covered

Covers private‐sector employers

Covers employees who “perform their work in Seattle”

Includes part‐time, temporary, intermittent and

seasonal employees

Includes employees telecommuting in Seattle

Nature of Benefit

Sick time:

– Employee’s own illness

– Illness or medical care of a family member

– Illness need not be serious

Safe time:

– Business closure or child’s school closure due to public hazard

– Domestic violence

– No safe time for weather closures

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Minimum Benefit

Tier 1 – More than 4 FTEs, less than 50:

– Accrue 1 hr./40 hours worked (≈7 days/year)

– Allowed annual caps: 40 hours (5 days)

Tier 2 – 50 or more FTEs, less than 250:


– Allowed annual caps: 56 hours (7 days)

Minimum Benefit

Tier 3 – 250 or more FTEs:


– Allowed annual caps for sick and safe leave alone:

72 hours (9 days)

– Allowed annual caps for PTO: 108 hours

(13.5 days)

Pregnancy Disability Leave

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Washington State PregnancyDisability Leave

Must provide leave to women who

are incapacitated as a result of

pregnancy or childbirth

May ask for a medical certification,

but only if employer treats other

disabilities in the same way

Length of leave is as long as

necessary

If employer has eight or more

employees, employee is entitled to

return to work

Military Leave(USERRA)

Military Leave

Applies to all employers,

regardless of size.

Applies to any service in the

uniformed services

– Active duty, training, national

guard/reserve, fitness for duty

examinations.

Reasonable notice

– May be verbal

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Military Leave

Reinstatement rights

– Employee left to perform service

– Employee gave prior notice

– Five years accumulated length of

service

– Honorable discharge

– Timely application for reemployment

Service Less Than 31 Days

Report for work no later than the beginning of first full

regularly scheduled work period on first full calendar

day following:

– Completion of service; plus

– Eight hours after safe travel home.

If return to work is impossible/unreasonable, time

period is extended as is necessary.

Also applies to Fitness for Duty Examinations

Service More 31‐179 Days

Employee must request

reemployment no later than 14

days after completion of

service unless impossible or

unreasonable through no fault

of employee.

Untimely request is not an

automatic forfeiture of USERRA

rights.

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Service More than 180 Days

Employee must request

reemployment no later than 90

days after completion of

service.

What Documents Must Returning Employee Provide?

Service 30 days or less: None.

Service more than 30 days: Employer may

request documentation of release from

service, but cannot delay or deny leave if

documentation not readily available.

Practice Point: Return employee to work

and request documentation.

Other Protections

Continuation of benefits while on leave.

– But no accrual of paid leave.

Return to position service member

would have attained with reasonable

certainty if continuously employed

(escalator principle).

Protection from

discrimination/retaliation.

Protection from termination except for

cause.

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Post‐Reinstatement Termination

Certain returning employees are protected from

termination, except for “cause”:

– Service 31‐180 Days: Six months of protection.

– Service 181 or more days: One year of protection.

“Cause” – reasonable, non‐discriminatory reason for

action, but employee must have notice that the action

could lead to termination.




regardless of size.

Available to employee

– whose spouse is a member of

the armed forces of the United

States, national guard, or

reserves, and

– employee works 20 or more

hours per week.

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Leave of 15 days during period

of military conflict if spouse is

deployed or notified of an

impending call or order to active

duty.

Reinstatement to same position.

Continuation of benefits.

Retaliation is prohibited.


Employee must give notice within 5 business days of

receiving official notice of the impending call or order

to active duty, or of spouse’s leave from deployment.

Employee may use accrued paid leave or take the

leave as unpaid time off.

Domestic Violence Leave

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Domestic Violence Leave

Applies to all employers and employees

Provides reasonable leave to employees who are the victims (or

family members are victims) of domestic violence, sexual assault,

or stalking to:

– Seek legal or law enforcement remedies to ensure employee’s health

and safety

– Seek medical treatment or to recover from injuries

– Obtain counseling

– Obtain services from a victim services provider

– Relocate or secure existing home

Washington Family Care Act


Applies to all employers with paid leave policies,

regardless of size

Employees may use paid sick leave or other PTO to

care for

– A child of the employee with a health condition that

requires treatment or supervision; or

– A spouse, parent, parent‐in‐law, or grandparent of the

employee who has a serious health condition or an

emergency condition.

Does not govern whether employees may take

advanced leave.

Employees must comply with employer’s policy.

Retaliation prohibited

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Health Condition That Requires Treatment or Supervision

• Medical condition requiring treatment or medication that the child cannot self administer;

• Medical / mental health condition which would endanger the child’s safety or recovery without the presence of a parent or guardian; or

• Condition warranting treatment or preventive health care when a parent must be present to authorize and when sick leave would be available for employee’s preventative care

Serious Health Condition

Illness, injury, impairment, or physical or mental condition that involves any

period of incapacity or treatment connected with inpatient care (i.e., an

overnight stay) in a hospital, hospice, or residential medical care facility, and any

period of incapacity or subsequent treatment or recovery in connection with such

inpatient care; or that involves continuing treatment by or under the supervision

of a health care provider or a provider of health care services and which includes

any period of incapacity (i.e., inability to work, attend school or perform other

regular daily activities).

Emergency Condition

Health condition that is a sudden,

generally unexpected occurrence

or set of circumstances related to

one’s health demanding

immediate action, and is typically

very short term in nature.

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Does not apply to healthy

newborns.

No restriction on verification.

May be counted as FMLA leave.

Jury Duty Leave

Jury Duty Leave


regardless of size.

If the employee is summoned for

jury duty, the employer must

provide a sufficient leave of

absence to serve as a juror.

Unpaid

Retaliation is prohibited.

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Jury Duty Leave

Intentional violation of the statute

constitutes a misdemeanor.

Retaliation also gives rise to civil

action for damages and

reinstatement.

VotingLeave

Voting Leave

Applies to all employers, regardless of size.

Must provide reasonable time (up to two hours ) for

employees to vote in election during time that polls are

open.

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Voting Leave

If the employee's work schedule does not give the employee 2

free hours while the polls are open (not including breaks), the

employer shall permit the employee up to two hours to vote. In

such a case, the employer shall add this time to the time for

which the employee is paid.

Applies only if there was insufficient time for the employee to

secure an absentee ballot between the time the employee

learned of her schedule and election day.

– Vote by mail has arguably made this irrelevant.

Leave for EmergencyServices Personnel


Applies to employers with 20

or more FTEs in the prior

calendar year.

Statutory complaint

procedure; civil action for

reinstatement (with back pay)

or withdrawal of disciplinary

action.

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Employers are prohibited from discharging

or disciplining

– A volunteer firefighter or reserve

officer because of leave

taken related to an alarm

of fire or an emergency call; or

– A civil air patrol member because

of leave taken related to an emergency

service operation.

FMLA / Washington Family Leave Act

FMLA/Washington FLA

Family and Medical Leave Act

Applies to:

– Employers with 50 or more employees within 75 miles for 20 or

more weeks in current or previous calendar year

– Employees of those employers who have (a) worked at least

12 months (may have breaks in service), and (b) 1,250 hours

within the last 12 months

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FMLA/WFLA

Employees may take up to 12* weeks of annual unpaid

leave for:

– Birth of employee’s child and to care for a newborn child

– Placement of and care for newly adopted or newly placed foster child

– Care of a child’s, parent’s, or spouse’s serous health condition

– Care for the employee’s own serious health condition

– A family member’s qualified military absence

– A qualifying exigency

*26 Weeks for Military Care leave

FMLA/Qualified Exigency Leave

Qualified Exigency Leave:

– Up to 12 weeks if a family member is

on active duty or call to active duty

or is deployed to a foreign country

– Broad permitted uses of leave

• E.g., military events and related

activities, childcare and related

activities, financial and legal activities,

counseling, rest and recuperation, and

post‐deployment activities

FMLA/Military Caregiver Leave

Military Caregiver Leave:

– 26 weeks to care for a covered service member with a serious

illness or injury incurred in the line of duty while on active duty

– Entitled to leave during a single 12‐month

period beginning on the first day the

eligible employee takes military

caregiver leave and ends

12 months after that date

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FMLA Intermittent Leave

Intermittent leave: FMLA leave taken in separate blocks

of time due to a single qualifying reason

Reduced schedule leave: a leave schedule that reduces

an employee’s usual

number of working hours

per workweek, or

hours per workday

FMLA/Certification Process

Scrutinize the Certification

– Must be “complete and sufficient” (i.e., clear)

– First step: Designation notice explaining specific portions that

are incomplete or unclear

– 7‐day time limit, unless not practicable despite employee’s

“diligent good faith efforts.”

– Second step: Option to seek authorization to speak to medical

provider re: clarification

FMLA Post‐CertificationLeave Administration

Second/Third Opinions:

– Use sparingly – assess basis for doubt and nature of the

employee’s condition

– Not available for Exigency or Caregiver Leave

– Consider suggesting to second medical provider that he/she

obtain ‘all relevant medical information’ pertaining to the

serious health condition from the employee’s doctor before

completing the certification. If employee refuses to authorize,

FMLA may be denied.

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FMLA and GINA

FMLA forms implicated by GINA

– Eligibility/Rights and Responsibilities Notice (Cautionary)

– Certification of Health Care Provider for Employee’s Serious

Health Condition

– Certification of Health Care Provider for Family Member’s

Serious Health condition

– Designation Notice

GINA Safe Harbor

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits

employers and other entities covered by GINA Title II from requesting or requiring

genetic information of an individual or family member of the individual, except as

specifically allowed by this law. To comply with this law, we are asking that you

not provide any genetic information when responding to this request for medical

information. “Genetic information,” as defined by GINA, includes an individual’s

family medical history, the results of an individual’s or family member’s genetic

tests, the fact that an individual or an individual’s family member sought or

received genetic services, and genetic information of a fetus carried by an

individual or an individual’s family member or an embryo lawfully held by an

individual or family member receiving assistive reproductive services.

The difference in the definition of spouse between state

and federal law creates traps for the unwary employer:

– Employee in registered domestic partnership/same‐sex

marriage may have ability to take 12 weeks of WFLA and still

have 12 weeks of FMLA leave available.

– Employers who wrongfully deduct exempt

employees’ salary for use of WFLA related

to registered domestic partner/same‐sex spouse may destroy

the salary basis, exposing employer to potential liability

for minimum wage and overtime.

Washington Marriage Equality Act and FMLA

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FMLA Reminders

Help us help you!!!

Ensure you have a process in place to properly

designate and track all absences attributable to a FMLA

qualifying condition.

Ensure your FMLA policy is up to date – you need it to

designate FMLA leave year (FMLA poster/your policy in

handbook/and FMLA notice at end of handbook).

The DOL forms are your friends.

Worker’sCompensation

Worker’s Compensation

Provides paid time loss for

on‐the‐job injury

Job protection arises from

WLAD/ADA

Consider other laws impact

on issues of return to work

and leave

Retaliation is prohibited

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ADA / Washington LawAgainst Discrimination

Definition of Disability

ADA: Physical or mental impairment that

substantially limits one or more major life

activities.

WLAD: Sensory, mental, physical

condition that is medically cognizable or

diagnosable.

– May be temporary

– Need not be substantially limiting or

impact major life activity.

Disability Leaves

Duty to engage in interactive process.

– No formal notice required.

– No magic words.

– Need not request leave.

No prescribed length of leave.

– Request medical certification.

– Follow up to determine whether leave is working as

accommodation.

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Additional Resources

Littler ASAPs

Littler Breakfast Briefing Series

– March 28 – Dealing with Workplace

Threats and Workplace Violence

– April 25 – Wage and Hour Issues

Questions?

Jim ZisslerLittler Mendelson, P.C.Seattle [email protected]

206.381.4909

Deidra A. NguyenLittler Mendelson, P.C.Seattle [email protected]

206.381.4931