count on more maspa support conference updates and compliance with fmla, ferpa, and bloodborne...
TRANSCRIPT
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MASPA Support Conference
UPDATES and COMPLIANCE with
FMLA, FERPA,and
BLOODBORNE PATHOGENSSTANDARDS
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FMLA - Overview
• Effective January 16, 2009• Based on:
– Fifteen years of history enforcing the FMLA– Court cases interpreting or invalidating the
prior regulations– Comments received in response to December
2006 DOL Request for Information– Passage of the National Defense
Authorization Act (NDAA) providing two new types of military FMLA Leave Topics to be covered
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FMLA - Overview
• Clarified regulations to help combat FMLA abuse
• Gave new leave rights to military families– To care for injured returning family service
members– To give relief to military reserve families
• Failed to adequately address problems with intermittent leave
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Types of Leave
• Leave for birth/adoption/placement
– Expires 12 months after birth/placement/adoption
– No automatic right to intermittent leave for healthy child
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Types of Leave
• Leave to care for employee’s spouse, son/daughter or parent with a serious health condition– Spouse is defined under state law – In-laws are not included– son/daughter must be under 18, or over 18 and
incapable of self-care due to a disability– The employer can require the employee to
provide reasonable documentation of the family relationship
– The employee need not be the only person available to care for the family member
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Types of Leave
• Leave due to the employee’s own serious health condition that makes the employee unable to perform the functions of the employee’s job• The employer now has the option of providing
the employee with a statement of the essential functions of the position, and requiring the health care provider to certify which of them the employee is unable to perform
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Types of Leave
• Serious health condition. • Many comments that definition was overbroad • DOL retained the existing definitions• concluding there was no alternative definition
that could address these concerns without improperly excluding the types of conditions that Congress intended to be FMLA-protected.
• The final rule provides a list of common ailments, such as colds and flu, which the DOL believes will be helpful to identifying ailments that ordinarily will not qualify for FMLA leave because they generally will not satisfy these regulatory criteria.
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Types of Leave
Qualifying Exigency Leave (NEW)
• The employee’s spouse, parent or son/daughter (of any age) is called to active duty in support of a contingency operation
• Applies to National Guard and Reserves
• Does not apply to members of the regular armed forces or certain state calls to duty
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Types of Leave
Qualifying Exigencies:
• Short-notice deployment (for orders to active duty within 7 days or less)
• Military events and related activities• Childcare and school activities (but not everyday
childcare)• Financial and legal arrangements• Counseling related to the call to active duty• Rest and recuperation (up to 5 days)• Post-deployment activities• Additional activities as agreed with employer
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Types of Leave
Military Caregiver Leave (NEW)
• To care for a current (not former) member of the armed forces who has a serious injury or illness incurred in the line of duty
• Employee must be spouse, son/daughter, parent or next of kin of service member (not in-laws)
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Length of Leave
• For all but military caregiver leave: 12 weeks during “any 12-month period”
• Employer can choose the method for determining the 12-month period, provided they do so consistently
• If the employer changes methods, must give 60 days notice
• You cannot force an employee to take more FMLA leave than they actually need (limited exceptions for teachers)
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Length of Leave
Military Caregiver Leave (NEW)
• 26 weeks of leave in a single 12-month period measured from the first day the employee takes leave, regardless of employer’s usual method
• The 26 weeks is applied on a per-service member per-injury basis, except that no more than 26 workweeks can be taken in any single 12-month period
• Husbands and wives working for the same employer get a combined total of 26 workweeks of leave
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Leave Increments
Leave increments unchanged but clarified.
• Employer must account for leave “using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave, provided it is not greater than one hour.”
• Employers may choose to use different increments at different points in time. (thus permitting employers to maintain a policy that, for example, discourages tardy arrivals. Employer may require that any type of leave may only be taken in a one-hour increment during the first hour of a shift ).
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Leave Increments
• If impossible for employee to conform then entire time counts against FMLA. (airline employees)
• Holidays - When an employee uses FMLA leave in increments of less than one week, the holiday will not count against the employee's FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
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Leave Increments
• If the employer's business activity has temporarily stopped and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation), the days the employer's activities have stopped do not count against the employee's FMLA leave entitlement.
• If an employee would normally be required to work overtime, the employee may be charged FMLA leave for the hours not worked.
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Notice Obligations - Employer
Employer notice requirements.
• Employers are required to provide employees with four different types of notices: general notices, eligibility notices, rights and responsibilities notices, and designation notices.
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Notice Obligations - Employer
General Notice• Poster
• In conspicuous place• Must be posted even if no employees are
eligible• Written general notice
• Must have at least what is in the poster• Included in handbook OR distributed to new
employees on hiring• For both, electronic notice is acceptable. • For both, must provide in a language in which the
employees are literate
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Notice Obligations - Employer
Eligibility Notice
• Use DOL “Notice of Eligibility and Rights and Responsibilities” Form
• Due 5 business days from date leave is requested, absent extenuating circumstances
• If the employee’s eligibility changes, the employer must notify the employee
• If the employee is not eligible, the employer must state why
• Eligibility notice can be oral or in writing, but must be translated
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Notice Obligations - Employer
Rights and Responsibilities Notice
• Use DOL “Notice of Eligibility and Rights and Responsibilities” Form
• Due at the same time as the eligibility notice
• Details the specific expectations and obligations of the employee and the consequences for failing to meet them
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Notice Obligations - Employer
Rights and Responsibilities Notice includes:
• That the leave is designated and counted as FMLA• Certification requirements and the consequences of failing
to provide them• Employee’s right to substitute paid leave and any
conditions related to it• Any requirement that the employee make premium
payments and the consequences of failing to do so• Whether employee is a key employee• Employee’s right to continuation of benefits• Employee’s right to job restoration• Employee’s potential liability for payment of the employer’s
share of premiums if the employee does not return• Other required information: periodic status reports and
intention to return
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Notice Obligations - Employer
Designation Notice• Use DOL form• Due within 5 days of when the employer has enough information
to determine whether the leave is FMLA-qualifying • Includes:
• Whether or not the leave is designated as FMLA and how much• Whether the employer will require substitution of paid leave• Whether a fitness for duty certificate will be required
• If the information changes, the employer must notify the employee
• Failure to designate does not entitle an employee to leave that they would otherwise not be eligible to receive
• If there is a dispute over whether leave if FMLA-qualifying, the dispute should be resolved through discussions, which must be documented
• Retroactive designation is permitted if no injury/harm to employee
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Notice Obligations - Employees
• 30 days advance notice for foreseeable leave
• If not foreseeable, notice as soon as practicable
• Employee is required to follow the employer’s usual and customary procedures for reporting an absence, unless unusual circumstances
• Modifies a provision that had been interpreted to allow some employees to notify employers of their need for FMLA leave up to two full business days after an absence, even if they could provide notice sooner.
• Where an employee is seeking leave for a previously-certified FMLA condition, or for which the employee has previously taken FMLA leave, the new rules require the employee to specifically reference the particular reason for leave or the need for FMLA leave
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Medical Certification
• (NEW)• Employers have five business days (up from two
days) in which to request medical certification after receiving notice of an employee’s need for FMLA leave.
• Employees are required to provide medical certification within 15 days after leave is requested in all cases of FMLA leave unless not practical. (Previously, rules allowed for medical certification to be provided prior to commencement of foreseeable leave.)
• An employee can choose, but cannot be required, to comply with the certification requirement by giving the employer permission to talk directly to the health care provider
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Medical Certification
• Employers are not required to notify employees if medical certification has not been received.
• However, if an employer receives a certification that is deficient or incomplete, the employer must notify the employee in writing and explain what additional information is necessary to perfect certification.
• Employees are to be given seven days in which to
provide the additional information.
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Medical Certification
• An employer can request re-certification:• Every six months• If employee requests an extension• If circumstances change• If the employer receives information casting doubt on the stated
reason for the absence
• No second or third opinions are permitted for re-certifications
• No re-certifications allowed for military leave• Provisions for second and third opinions do not
apply to military caregiver leave
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Medical Certification
• A diagnosis may not be required. • An employer may require that the medical certification
specify whether an employee is able to perform the essential functions of the employee’s job.
• The employer must provide a list of essential job functions when it requires such certification.
• Certification for intermittent or reduced leave must include information confirming that such leave is medically necessary.
• Employers also may require the health care provider’s specialization to be included in the certification.
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Medical Certification
Contacting health care providers. • An employer is allowed, under the final rules, to contact
an employee’s health care provider directly in order to obtain information required for certification.
• Employee’s direct supervisor cannot make contact. • Employee may not be required to provide an
authorization, release, or waiver permitting the employer to contact their health care provider directly.
• Any contact with health care providers must conform to the requirements of the HIPAA Privacy Rule.
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Medical Certification
Burden on employee.
• The new rules expressly state it is the employee’s burden to provide complete and sufficient certification
• An employer may “deny” FMLA leave until the required certification is provided. (Previously, the rule stated an employer may “delay” leave.)
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Fitness for Duty
• Under the new rules, employers may require that the certification specifically confirm that the employee is able to perform the essential functions of the employee’s job.
• Employer must inform the employee that it will require fitness-for-duty certification at the time it notifies the employee that it is designating the employee’s leave as FMLA leave.
• If fitness for duty required, employer must provide the employee with a list of the essential job functions at same time as employee receives designation notice.
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Other Clarifications
• Pregnant spouse. The final rules clarify that a “husband” is entitled to FMLA-protected leave if he is needed to care for his spouse who is incapacitated due to her pregnancy The wording of this provision has been changed from “father” to “husband” to clarify that FMLA leave to care for a pregnant woman is available only to a spouse and not, for example, to a boyfriend or fiancé who is the father of the unborn child.
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Other Clarifications
• Waiver of FMLA rights. • The final regulations clarify that employees may
choose to waive any FMLA claims based on past conduct by an employer, whether or not such claims have been filed or are even known to the employee as of the date of signing a settlement or severance agreement containing such a waiver.
• Employees may not waive prospective rights
under the FMLA.
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Recordkeeping
• Basic payroll data
• Dates/hours of FMLA leave
• All notices (medical ones stored separately and treated as confidential)
• Leave/benefits policies
• Records about disputes regarding the designation of leave
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What Do I Need To Do?
• Obtain/review DOL forms and informational materials: http://www.dol.gov/esa/whd/fmla/finalrule.htm
• Post the new poster
• Update your FMLA and related policies
• Make sure that your FMLA policy includes everything that is on the poster
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What Do I Need to Do?
• Decide how the leave year will be calculated
• Decide whether employees must use accrued paid time during leave
• Determine notice and procedural requirements for taking time off generally
• Decide about accrual and use of paid time off generally
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What Do I Need to Do?
• Decide whether outside employment is permitted during of leave
• Decide whether employees will be required to periodically report on their status and intent to return
• Will employees need to submit a fitness-for-duty certificate before being permitted to return
• Employees can be terminated for use of illegal drugs or alcohol
• Decide how to handle coverage for employees who fail to pay premiums
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FERPA
• General RuleGenerally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions :
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FERPA
• School officials with legitimate educational interest;
• Other schools to which a student is transferring;
• Specified officials for audit or evaluation purposes;
• Appropriate parties in connection with financial aid to a student;
• Organizations conducting certain studies for or on behalf of the school;
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FERPA
• Accrediting organizations;
• To comply with a judicial order or lawfully issued subpoena;
• Appropriate officials in cases of health and safety emergencies; and
• State and local authorities, within a juvenile justice system, pursuant to specific State law
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FERPA
The term “education records” is defined by FERPA as all records, files documents and other materials containing information directly related to a student; and maintained by the education agency or institution, or by a person acting for such agency or institution.
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FERPA
• This includes all records regardless of medium, including, but not limited to, handwriting, videotape or audiotape, electronic or computer files, film, print, microfilm, and microfiche.
• “Personally identifiable” information includes, but is not limited to, a list of personal characteristics that would make the student’s identity easily traceable, or other information that would make the student’s identity easily traceable. (non-directory).
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FERPA
• Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. (Not SS# or I.D. if identifiable). However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.
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FERPA
• Michigan requires districts to exempt directory information from disclosure if requested for the purpose of surveys, marketing or solicitation.
• Unless purpose is consistent with educational mission and beneficial to student.
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FERPA
• Steps to take
• Amend directory information policies.
• May take steps to ensure not used for surveys, etc.
• May require requestor to sign an affidavit stating directory information will not be so used.
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• Steps to Take (cont.)• Make sure school has provided notice to parents
of the types of personal data it has designated as ”directory information.”
• Make sure school has provided opt-out.
• Make sure school has identified the period of time for parents to provide written notice of opt-out.
• Eligible students may exercise opt-out rights.
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• Personally Identifiable InformationThe new regulations add biometric records to the list of personal identifiers and add other indirect identifiers like date and place of birth, mothers maiden name to the list of personally identifiable information.
• Definition of Student/ Internet Based LearningThe regulations clarify that students who study online via videoconference, internet, satellite, or other electronic information and telecommunications technology and who are otherwise are not physically present in the classroom are covered by FERPA.
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FERPA
• Returning Data to the Record CreatorThe regulations exclude from the definition of “disclosure” the release or return of an education record, without consent, to the party identified as the party that created the record. The regulations would also permit a state or local educational entity to redisclose education records without consent to the school district that provided the information. The reason for this change is that school officials have reported receiving what appear to be falsified transcripts, letters of recommendation, and other student information claiming to be from educational agencies and institutions. The change would allow a school to verify the accuracy of this type of information without FERPA concerns.
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FERPA
• Definition of Education RecordsThe regulations clarify that with respect to former students, education records excludes records that are created or received after an individual is no longer a student in attendance and are not directly related to the individuals attendance as a student. (i.e. alumni activities)
• Peer-graded assignments The regulations clarify that peer-graded assignments that have not been collected and recorded by a teacher are not considered “maintained by” an educational agency or institution, such that they are not “education records” covered by FERPA.
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FERPA
• De-identified Student DataYou can disclose education records without consent if the education record has been de-identified through the removal of all personally identifiable information. Personally identifiable information includes direct identifiers such as a social security number as well as indirect identifiers such as the name of the student’s parent or family member that would allow a reasonable person in the community to identify the student with reasonable certainty.For example: A student is suspended for cheating. The student’s parent believes the punishment is too harsh for the offense. The parent requests the records of others suspended for the same offense. One other student was suspended for the same type of offense and the incident was reported in the media. The school cannot disclose that information as it personally identifies the student. (This is a TOUGH one – so be careful)
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FERPA
• Parental Rights for Higher Education Students The regulations clarify that an educational agency may disclose educational records to the student’s parents without student consent if the student is a dependent for Federal Income Tax purposes. (Common error)
• State Auditors Exception The regulations clarify that educational agencies and institutions may provide personally identifiable information within education records to state auditors without prior consent without violating FERPA
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FERPA
• Outsourcing Services The regulations expand the school official exception to include contractors, consultants, volunteers, and other outside parties to whom an educational agency has outsourced institutional services that it would otherwise use employees to perform. The outside party must be under the direct control of the agency and must follow the same rules and laws as the agency. The regulations also require educational agencies and institutions that outsource institutional services and functions to comply with the annual FERPA notification requirement to parents and eligible students by specifying their contractors, consultants and volunteers who will be retained for these purposes.
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FERPA
• Disclosure to a School Where Student Seeks to EnrollThe regulations allow an educational agency to disclose educational records without consent to another institution even after a student has enrolled and not just if a student seeks or intends to enroll if the disclosure is for purposes related to the student’s enrollment or transfer. This regulation is implemented in the wake of the Virginia Tech tragedy. The purpose is to clarify that all education records, including health and disciplinary records, may be disclosed in an attempt to facilitate good information sharing.
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FERPA
• USA Patriot ActTo conform with the requirements of the USA Patriot Act, the regulations make clear that educational institutions must disclose education records to the Attorney General in response to an ex parte court order as part of an investigation or prosecution related to potential terrorism.
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FERPA
• Campus Sex Crimes Prevention Act To conform with the requirements of the Campus Sex Crimes Prevention Act, the regulations permit campus officials to release information received from a state community notification program about a student registered as a sex offender in the State. This is a new exception to the consent requirement to allow educational agencies to disclose information concerning registered sex offenders provided under state sex offender programs.
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FERPA
• Sexual Offense AllegationsThe regulations prohibit a school from requiring a victim of an alleged sexual offense to agree not to disclose information he or she receives from the institution about the alleged perpetrator as part of a campus disciplinary proceeding.
• Expanding ED’s Authority to Investigate Clarifies that U.S. Department of Education has the authority to investigate possible violations of FERPA even if a complaint by a parent has been withdrawn or no complaint has been filed.
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FERPA
• LAW ENFORCEMENT RECORDFERPA excludes from the definition of education records – and thereby from the restrictions of FERPA – records that a law enforcement unit of a school or school district creates and maintains for a law enforcement purpose.
A “law enforcement unit” is an individual, office, department, division, or other component of a school district – such as a unit of commissioned officers or noncommissioned security guards – that is officially authorized or designated by the school district to enforce any federal, state, or local law or maintain the physical security and safety of the school.
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FERPA
• FERPA narrowly defines a law enforcement record as a record that is (1) created by the law enforcement unit, (2) for a law enforcement purpose, and (3) maintained by the law enforcement unit.
• Thus, while a school district can disclose, without student consent, student education records to school law enforcement units under FERPA’s exception for school officials with legitimate educational interests, these records are not thereby converted into law enforcement unit records unless the records were created, maintained by, and for the purpose of the law enforcement unit.
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FERPA
• Organizations Conducting Studies The regulations require an educational agency or institution that discloses an education record without consent to an organization conducting studies on its behalf to enter into a written agreement with the recipient organization that specifies the purposes of the study. The written agreement must specify that (1) the information from education records may only be used to meet the purposes of the study stated in the written agreement, (2) the records must not be redisclosed, and (3) the information must be destroyed upon completion of the study.
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FERPA
• Health and Safety Exceptions The language allows an educational agency to disclose after taking into account the totality of the circumstances pertaining to a threat to the safety or health of a student or other individuals. If the educational agency or institution determines that there is an “articulable and significant threat” to the health or safety of a student or other individuals, it may disclose information from education records to third parties whose knowledge of the information is necessary to protect them. The U.S. Department of Education stated that as long as there is a “rational basis” for that determination at the time the decision is made, it would not substitute its judgment for that of the educational agency or institution.
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FERPA
• Limitations on Redisclosure The regulations require that a party who has received personally identifiable information from an education record from an educational agency to provide notice to the parents or students before redisclosing personally identifiable information on behalf of the educational agency in response to judicial order or subpoena.
• Directory InformationThe regulations allow an agency to continue to honor any valid request to opt out of directory information disclosures while the individual is a student until rescinded.
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FERPA
• Authentication of Identity
The regulations require an educational agency to make reasonable efforts to identify and authenticate the identity of parents, students, school officials and others seeking personally identifiable formation.
• ConclusionGiven the sweeping changes to the regulations, it would be prudent for school districts to undertake a global review of their FERPA policies and practices. Feel free to contact your Clark Hill attorney to discuss how these regulations impact your school
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Bloodborne Pathogens
• The Occupational Safety and Health Administration (OSHA) has issued regulations whose purpose is to reduce or eliminate the possibility of an employee contracting any of a series of diseases that are spread through blood contact.
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Bloodborne Pathogens
• The two viruses of most concern are the Human Immunodeficiency Virus (HIV) and the Hepatitis B virus (HBV). Prevention of HBV exposure is the main purpose of these regulations in the school setting. HIV and HBV are potentially life-threatening bloodborne pathogens. These viruses are transmitted through exposure to blood and other infectious body fluids and tissues.
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Bloodborne Pathogens
• The Bloodborne Pathogens Standards require covered employees to do the following:
• (1) Write an exposure control plan to determine how exposure to body fluids will be handled. Every job-related task in the school must be evaluated in light of the likelihood of exposure to blood products and body fluids;
• (2) Offer free HBV vaccination to all employees who are required to come into contact with body fluids as a direct result of their responsibilities (such as school nurses and physical education instructors);
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Bloodborne Pathogens
• (3) Train all employees in the use of universal precautions (such as hand washing and use of gloves); and
• (4) Develop and maintain records and procedures to document compliance with these regulations and to handle any exposure incidents that occur. Records of employees who have received vaccinations and written refusals of employees to receive vaccinations must be part of the documentation. Also, records must be kept related
to training.
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Bloodborne Pathogens
• The regulations are very specific regarding elements of the exposure control plan, precautions for employees, training, documentation, and handling an exposure. They are contained in Part 1910 of title 29 of the Code
of Federal Regulations.
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Bloodborne Pathogens
• What is an exposure control plan?
The exposure control plan is the employer's written program that outlines the protective measures an employer will take to eliminate or minimize employee exposure to blood and other potentially infectious material.
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Bloodborne Pathogens
• The exposure control plan must contain at a minimum:
• The exposure determination which identifies job classifications and, in some cases, tasks and procedures where there is occupational exposure to blood and other potentially infectious material;
• The procedures for evaluating the circumstances surrounding an exposure incident; and
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Bloodborne Pathogens
• A schedule of how and when other provisions of the standard will be implemented, including methods of compliance, hepatitis B vaccination and post-exposure follow-up, communication of hazards to employees, and recordkeeping
• Summary of training program
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Bloodborne Pathogens
Highlights of the Standard in Michigan
• Engineering controls that isolate or remove biological hazards must be used to minimize or eliminate employee exposure. These includes sharp disposal containers, self-sheathing needles, and needleless systems. Used in combination with work practice controls.
• Work practice controls need to be implemented and enforced. Work practices are commonly associated with standard operating procedures such as hand washing, sharps disposal, specimen packaging, decontamination, laundering, and housekeeping activities such as cleaning of work surfaces, spills and broken glassware.
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Bloodborne Pathogens
• Personal protective equipment must be provided at no cost to the employee. Items including gloves, gowns, masks, face shields, shoe covers, pocket masks, etc. must be properly cleaned, repaired and replaced as needed.
• An employee that has an “exposure incident” must be provided, at no cost, with a confidential medical evaluation and follow-up. Specific contact of blood or other infectious material to the eyes, mouth, other mucus membrane, nonintact skin, and (needle sticks, human bites, cuts, etc.) are exposure incidents.
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Bloodborne Pathogens
• Information and training must be provided by a knowledgeable trainer to employees at the time of their initial assignment and at least annually. Annually, means within 12 months of the previous training.
• Recordkeeping is required for medical records, training records, and a sharps injury log.
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Bloodborne Pathogens
The procedure for evaluating an exposure incident shall include:
• The engineering controls and work practices in place
• The protective equipment or clothing used at the time of the exposure incident
• An evaluation of the policies and "failures of controls" at the time of the exposure incident.
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Bloodborne Pathogens
• Model plan at:• http://www.michigan.gov/
documents/cis_wsh_cet5231_hc_90279_7.doc
