iParks - Illinois Parks Association Risk Services

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Illinois Parks Association Risk Services
“The Choice for Illinois Park & Recreation Districts”
UPDATE
A QUARTERLY NEWSLETTER
WINTER 2014/2015
IPARKS Board of Directors
Ken Collin
Chairman
Freeport Park District
Jay Morgan
Vice Chairman
South Barrington Park District
21st Anniversary of the Family Medical
Leave Act: What this Means for Park District
Employers and Their Employees
By: Esther Joy Schwartz, Esq., Stellato Schwartz, Ltd.
Peter Murphy
Secretary
Illinois Association of Park Districts (IAPD)
What is the FMLA?
Urbana Park Foundation
The Family and Medical Leave Act of 1993 (“FMLA”) became
effective on August 5, 1993. This federal legislation requires all private
employers with 50 employees or more to provide 12 weeks of unpaid leave per year to eligible
employees to care for their children, spouse or parent suffering from a “serious health
condition” or for their own “serious health condition,” if that condition renders the employee
unable to work. Twenty-one years after the FMLA was put into action, the law continues
to develop and evolve. While employers must be cognizant of the new developments, there
are also important steps that must be taken to prevent abuse and fraud.
John Wassinger
Eligibility
Bensenville Park District
Only employees who worked at least one year and 1,250 hours within the previous
12-month work period are entitled to FMLA leave. Under the FMLA, employees are
permitted to take a maximum of 12 weeks of unpaid leave in a 12-month period.
Mark Badasch
Representing Roxana Community Park District
Larry DeGraaf
Representing Grandwood Park Park District
Dr. Bruce Larson
Jason Anselment
Ex-Officio IPARKS Board Member
Illinois Association of Park Districts (IAPD)
(Name)
Routing
❏ _____________________
However, because the employer suffers by losing
an employee for 12 weeks, the employer
may require the employee to take any paid
vacation, personal, sick or family leave as part
of the 12-week leave. This must be disclosed
to the employee before FMLA leave is taken.
❏ _____________________
❏ _____________________
What Qualifies as a
Serious Health Condition?
The FMLA defines a “serious health condition” to include an illness, injury, impairment,
or physical or mental condition that involves inpatient care in a hospital, hospice,
or residential healthcare facility or continuing treatment by a healthcare provider.
Cont’d on pg. 2
www.iparks.org
Every effort has been made to ensure the accuracy of the information in this newsletter.
Professional counsel should be sought before any action is taken or decision is made based on this material.
TM
IPARKS 8pgr_Layout 1 11/17/2014 4:27 PM Page 2
Cont’d from pg. 1
Continuing treatment includes: two or
more visits to or treatments by a healthcare
provider; a single visit that results in
continuing treatment; or, continuing
supervision which does not require being
actively treated.
Cosmetic treatments do not qualify as
serious health conditions and leave
pursuant to the FMLA is not available
for such procedures.
Child Care Leave
In addition to leave to care for someone
with a serious health condition (including
oneself), the FMLA also provides leave
to both parents to care for a son or daughter
because of their birth or placement for
adoption or foster care. This applies to
any employee that has responsibility for a
biological, adopted, foster child or stepchild,
or a legal ward. If both parents work for
the same employer, they are entitled to an
aggregate 12 weeks of family leave.
To What Benefits are Employees
Entitled While on Leave?
Employees are not only entitled to health
benefits while they are on leave, they are
also entitled to be restored to the positions
they held when the leave commenced or
to an equivalent position with the same
pay, conditions and benefits. Employees
must continue to pay all insurance
premiums while on leave. If an employer
denies FMLA leave, a valid reason must
be given to the employee.
www.iparks.org
“
Today, only
12 percent of the
U.S. workforce is
offered paid family
leave through their
employers.
”
Types of Claims Employees Can
Bring Under the FMLA
There are two types of civil claims an
employee can bring against an employer
under the FMLA. The first type of claim
is referred to as an “interference claim,”
in which the employee asserts that his/her
employer denied or otherwise interfered
with his/her substantive rights under
FMLA. The second type of claim is called
a “retaliation claim,” in which the
employee asserts that his/her employer
discriminated against him/her because
he/she engaged in activity protected
by FMLA.
Today, only 12 percent of the U.S.
workforce is offered paid family leave
through their employers. However, paid
leave insurance programs passed in
California, New Jersey and Rhode Island,
and are being considered by working
families, unions, businesses and
policymakers in a dozen other states. With
these new developments on the horizon,
compliance is key and knowledge as to
how to prevent employee abuse is equally
as important.
The simplest way to prevent both abuse
and claims is to maintain an open dialogue
with employees. When employees are
first hired, inform them of their rights
under the FMLA and give them written
notice requiring them to provide certification
of a serious health condition before they
request leave under the FMLA. This
certification is signed by a medical care
provider and may be accompanied by
a “fitness for duty” medical exam. This
certification requirement expands to
family members’ conditions as well as
the employees’.
The Future of the FMLA and How
to Prevent Employee Abuse of
the Act as Well as Claims for
Violation of the Act
Employers who question the validity
of an employee’s request for leave may,
at their own expense, require a second
medical opinion before granting leave
under the FMLA.
Recently, the U.S. Department of Labor
explicitly stated it will increase FMLA
enforcement, including more onsite visits
by federal investigators to ensure that
employers are abiding by the FMLA’s
provisions and granting leave when
appropriate. While the cost of complying
with the FMLA may seem significant,
employees who file and prevail on claims
alleging FMLA violations have received
an average award of $335,000.
Other less-expensive solutions include:
speaking to other employees about their
knowledge of employees on FMLA
leave – this can be especially effective
because existing employees often have to
pick up the slack of employees on leave;
checking in with the employee while
he/she is on leave; checking social media
sites such as Facebook and Instagram;
hiring a private investigator to ensure
that the employee has a serious health
Another important development is the
push for paid leave under the FMLA.
Cont’d on pg. 3
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Member Profile: Frankfort Community Park District
Situated within a small thriving community
in the heart of southern Illinois, the
Frankfort Community Park District serves
approximately 8,000 residents. “We are
a diverse park district providing many
opportunities for recreation. Unlike other
park districts, we are open all the time, we
do not close,” stated Mr. Don Rhine,
Facility Director at Frankfort Community
Park District for the past five years. Mr.
Rhine brings a wide range of experience
and expertise garnered by working with
park districts in Miami, Florida; San
Antonio, Texas; and Tucson, Arizona.
“I like the people here and it makes working
with the park district quite enjoyable,”
commented Mr. Rhine.
“The facilities we offer for the size of our
community are excellent. The park
district features a pond, baseball and
softball fields, a band shell, large shelters
and picnic pavilions. The banquet hall
accommodates up to 300 guests. Our
Aquatic and Activities Center operates an
indoor pool. The most frequently used
facility is the gymnasium with basketball
courts and a weight room,” observed
Mr. Rhine. “Our tennis courts are also
popular with residents. The courts were
donated by Mr. Bob Burton in honor of his
family. Mr. Burton is a generous community
member and supporter of the park district
and the City of West Frankfort.”
When asked what aspect of the park
district he is most proud of, Mr. Rhine
easily replied, “There are two things.
First, I am proud of what we have done to
upgrade the facilities, both inside our
buildings and outside on our grounds. The
upgrades have made the park more pleasant
for residents. Secondly, I am proud of our
board of directors. We have a really good
board who has worked together for the
past 20 years. They have provided
excellent leadership through the ups and
recognition of that commitment. Frankfort
Community Park District chose
IPARKS because, “they were highly
recommended,” remarked Mr. Rhine.
“For the number of members IPARKS
serves, there is wide diversity with regard
to the size of the park districts and their
location in Illinois. Additionally, our
primary concerns are liability issues and
IPARKS helps us with loss control and
prevention. We are always concerned
about the safety of our guests and the
cleanliness of our facilities. The IPARKS
representatives and customer service
teams have always been there for us,”
complimented Mr. Rhine.
downs. They know what to look for and
work well together. Our accountant keeps
us on track financially. Together, we
continue moving forward and growing
the park district.”
Frankfort Community Park District
celebrated 15 years of IPARKS Membership
in June 2014, and received a plaque in
For more information about Frankfort
Community Park District, we invite you to
visit its website at www.westfrankfort-il.com
and select Community Park from the
drop-down menu. If you would like to
learn how IPARKS can benefit your park
district, forest preserve, conservation
district or special recreation agency,
please contact an IPARKS representative
at 800-748-0554.
Cont’d from pg. 2
condition or is taking care of a family
member; and, consulting an attorney
before taking any action which may result
in an FMLA violation.
As the U.S. Department of Labor continues
to crack down on FMLA enforcement,
employers who are well-prepared and
well-versed on how to comply with the
Esther Joy Schwartz is a named partner at Stellato Schwartz. She has practiced
law since 1981, and concentrates her practice in the areas of insurance coverage,
bad faith, and other insurance-related services. Esther has handled insurancerelated disputes and bad faith litigation throughout the country, and briefed and
argued over 250 appeals in state and federal courts of appeal. She is directly
responsible for many leading decisions in tort immunity, civil rights, and premises
Claims Services 866.964.6257
FMLA will avoid the costs of litigation
and the collateral damage associated with
denying employees their rights under
federal law.
liability. Esther was named to the “Top 50 Female Illinois Super Lawyers” by Illinois
Super Lawyers ® in 2010. Since 2006, Esther has been selected each year by Leading
Lawyers ® Network as a “Leading Lawyer” in insurance coverage and appeals.
Esther achieved an AV ® Preeminent rating from Martindale-Hubbell. She is a
frequent lecturer on insurance coverage law.
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FOIA Requires Disclosure of Public Records, Not Information
By Stacy E. Crabtree, Heyl, Royster, Voelker & Allen
Despite being called the Freedom of Information Act
(“FOIA”), an appellate court in Illinois recently reminded
us that FOIA really entitles
the public to records, but
not necessarily information.
I n C h i c a g o Tr i bu n e
Company v. The Department
of Financial and Professional
Regulation, 2014 IL App
(4th) 130427, the Chicago
Tribune filed suit after the
Department of Financial
and Professional Regulation
denied the Tribune’s FOIA
request for the number of
initial claims received by
the Department against
certain named physicians. In defense of the lawsuit,
the Department argued that it did not maintain any record
tracking the number of claims made which would allow it
to respond to plaintiff’s request. The Court ruled in favor
of the Department, and, in doing so, relied on the legislative
intent behind FOIA, as set forth in Section 1 of FOIA,
which includes the following:
Department’s investigative files. Prior to filing a lawsuit,
the Chicago Tribune filed a request for review with the Public
Access Counselor at the
Attorney General’s Office,
who ultimately issued a
letter finding against the
Department. The Chicago
Tr i bu n e t h e n fi l e d t h e
subject lawsuit and, for the
first time, the Department
raised the argument that it
does not actually maintain
s u c h in fo rma tio n . Th e
Chicago Tribune argued that
the Department could not
now raise such a defense
because the Department did
not raise it in its denial letter or even with the Public Access
Counselor. The Court found, however, that it was proper for
the Court to consider all possible defenses under FOIA, not
just those initially claimed by the Department with the Public
Access Counselor, based on the language of the statute.
More importantly, though, the Court points out that, had the
Public Access Counselor issued a binding opinion as
opposed to a letter, the Department may have, in fact, lost
its right to claim such a defense.
This Act is not intended to create an obligation on
the part of any public body to maintain or prepare
any public record which was not maintained
or prepared by such public body at the time when
this Act becomes effective, except as otherwise
required by applicable local, state or federal law.
5 ILCS 140/1.
In conclusion, it is important when responding to FOIA
requests to assess whether the request is actually for a
public record or an inquiry for information not already
maintained or created by the public body. If the latter, a
denial may be in order, but, any such denial letter should
reference the fact that the request is not for a public record
which the public body possesses. Due to the potential for
financial penalties and the requester’s ability to collect
attorney’s fees and costs, public bodies should consult with
their attorney if there is any question as to the appropriate
basis for a denial.
Consequently, FOIA requests to public bodies must reasonably
identify a public record to be produced and not general data,
information or statistics. The fact that the Department
would have had to compile the information and essentially
create a new document in order to respond indicated the
FOIA request was not, in fact, for a public record in the
Department’s possession.
This case also provides us with one other reminder, and that
is the importance of citing all reasons for the denial of a
FOIA request in the initial response. By way of background,
the Department initially denied the Chicago Tribune’s
request, claiming the documents were exempt as part of the
www.iparks.org
Stacy E. Crabtree is an attorney in the Governmental Practice at Heyl, Royster,
Voelker & Allen (www.heylroyster.com). She concentrates her practice on
governmental affairs as well as tort litigation and the representation of corporate
clients in the areas of commercial and contract law. Stacy regularly counsels her
clients on legal compliance and corporate governance issues.
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IPARKS Resource eLibrary and Online Training Courses
IPARKS makes available to its
M e m b e r s a n ex t e n s ive o n l i n e
resource library as part of its risk
management and loss control services.
Exclusive to IPARKS Members, the
library provides DVDs that can be
ordered online at no charge to the
Member. In addition, documents
including personnel manuals, articles,
loss control policies and procedures,
job descriptions, checklists, forms,
and guidelines are available for
customization.
IPARKS Members can also access
online training courses at the Member’s
convenience and free of charge to the
Member. Five hundred courses are
available, which range from safety to
human resources.
The Oswegoland Park District
frequently uses the Resource
eLibrary, including free webinars, to
expand staff member safety awareness:
“
The DVDs arrived quickly and we appreciate
the lenient return policy. The whole process is very
convenient. The title summaries are good and it’s
especially helpful to include the running time of the
DVD. We also appreciated the Spanish version of
the DVD; our park district is bilingual and it was
helpful to provide a language option.
”
– Mary Drew, Oswegoland Park District
We invite all IPARKS Members to
take advantage of these valuable and
convenient services. Please follow
these instructions to enter the library
and access the resources.
Loss Control Services 800.367.4818
• Log onto the IPARKS website at
www.IPARKS.org.
• Click “Loss Control Library.”
• Not Yet Registered? Click on
“Register” and complete the
5
registration form. Once your
IPARKS membership has been
verified, you will receive an
Activation Notice via e-mail
containing your username and
password.
• Already Registered? Simply enter
your username and password, then
click “Login.”
• Forgot Password? Click on “Forgot
Password” and enter your e-mail
address. Once your e-mail address
has been verified, your username
and password will be e-mailed to you.
If you are not yet an IPARKS Member
and would like to learn more about
how IPARKS can benefit your park
district, forest preserve, conservation
district or special recreation agency,
please call 800-748-0554 and ask to
speak with an IPARKS representative.
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IPARKS Celebrates Membership Loyalty
On behalf of the Illinois Parks Association
Risk Services (IPARKS) Board of Directors
and your fellow IPARKS’ Members, we
would like to extend our congratulations to
the 24 IPARKS Members listed here that, in
2014, are celebrating a 5-, 10-, 15- or 20-year
anniversary of membership with IPARKS.
10
YEARS
Phoenix Park District
Bensenville Park District
Markham Park District
Berkeley Park District
Hanover Township Park District
In recognition of their long-standing
membership, plaques were distributed to these
Members by IPARKS representatives Ryan
Pnakovich, John Sanford and Eddie Wood.
Thank You!
5
YEARS
La Harpe Park District
Blue Mound Park District
Franklin Township Park District
Warsaw Park District
Hanna City Park District
10 years - Markham Park District’s Broker Bruce Mitchell
and Executive Director Quintina Brown.
20
YEARS
20 years - Hennepin Park
District’s Executive Director
Saundra Hrasch and IPARKS
Representative Eddie Wood.
5 years - Hanna City Park District’s Treasurer Bill Libolt.
www.iparks.org
Hennepin Park District
Putnam County
Conservation District
Grandwood Park Park District
Brookeridge Park District
Braidwood Park District
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15
YEARS
Frankfort Community Park District
Quincy Park District
Salt Creek Rural Park District
Inverness Park District
Havana Park District
15 years - Havana Park District’s Director Jill Hills and IPARKS
Representative Eddie Wood.
15 years - Frankfort Community Park District’s Board President
Brett Dunston, IPARKS Representative John Sanford, Facility
Director Donald Rhine, and Agency Principal of Howell
Insurance Agency Susan Patton.
20 years - Grandwood Park Park District’s Executive Director
Coleen Wattleworth and IPARKS Representative Ryan
Pnakovich.
IPARKS Service Center 800.748.0554
Westmont Park District
Beardstown Community Park District
Granite City Park District
Broadview Park District
15 years - Beardstown Community Park District’s Director of Parks
& Recreation Steve Megginson and IPARKS Representative
John Sanford.
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PRESORTED
STANDARD
U.S. POSTAGE
PAID
SOUTHFIELD, MI
PERMIT #63
IPARKS Service Center
315 S. Kalamazoo Mall
Kalamazoo, MI 49007
If our mailing records need to be updated or if you want to receive newsletters electronically,
please contact the IPARKS Service Center at (800) 748-0554, ext. 3136.
IPARKS Earns AAA (Unsurpassed) Rating
Demotech, Inc., a leading financial
analysis services firm located in
Dublin, Ohio, recently completed its
annual audit of the IPARKS program.
For the 20th consecutive year,
IPARKS has earned the highest
possible Financial Stability Rating®
in all assessment categories.
Administration - Based upon
Demotech’s independent
investigation and review of the
procedures and controls utilized
by the Pool’s administrator,
York Risk Pooling Services,
Inc. (York), IPARKS earned a
rating of: AAA (Unsurpassed).
Financial Stability - Based upon
Demotech’s independent review
of pertinent data, IPARKS earned
a rating of: AAA (Unsurpassed).
Overall Performance - Finally,
based on the opinions, analysis
a n d th e ove ra ll h is to ry o f th e
program, IPARKS earned an overall
rating of: AAA (Unsurpassed).
Loss Reserve Opinion - Based on
the firm’s review and analysis of
IPARKS’ Intergovernmental Contract
and the program’s loss reserves,
IPARKS’ loss reserve adequacy was
rated as: AAA (Unsurpassed).
IPARKS continues to fulfill its founding
principle of providing long-term, stable
and broad coverage to park districts,
forest preserves, conservation districts and
special recreation agencies in the state
of Illinois. On behalf of the IPARKS
Board of Directors, the Illinois
Association of Park Districts, the various
program service providers and more
than 170 members, we thank you for your
continued support and participation.
If you are not already a member and
would like to learn more about
IPARKS, please call 800-748-0554 or
visit the website at www.iparks.org.
Upcoming Events
IPARKS Welcomes New Member
2015 IAPD/IPRA
Soaring to
New Heights
Conference
Hollis Park District
For over 40 years, the Hollis Park
District has been serving the residents of
Hollis Township and the surrounding
areas. The park district includes: Butler
Haynes Park, Tuscarora Park, the Hollis
Recreation/Fitness Center, Moppet Park,
Boswell Park and Reed City Lake.
“We are pleased to welcome Hollis Park
District to IPARKS after joining in August 2014,” expressed
Eddie Wood, IPARKS representative.
January 22-24, 2015
Hyatt Regency Chicago
For more information,
please visit: www.ilparksconference.com
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