Sage HRMS I White PaperEmployee Leave Issues: Five Tips to HelpYou Navigate the Bermuda Triangle
Sage HRMSTable of ContentsIntroduction ......................................................................................
Introduction                                                                                     Sage HRMSIf your company ...
What are FMLA and ADA-AA?                                                                                  Sage HRMSAccord...
Sage HRMS     Work-Related Illness or Injury Decision Tree	    •	   Is the condition temporary (less than six months in du...
Sage HRMS             Educate Your Staff to Avoid Bermuda Triangle Traps             Trap: Failing to recognize that the e...
Sage HRMS            Strategies to Prevent FMLA Violations            1.   Create a comprehensive certification form.     ...
4.    Document Everything, Track Ongoing Cases, and Make Necessary Adjustments.                                          S...
About Sage HRMSAn industry-leading, customizable HRMS solution, Sage HRMS helpscompanies optimize their HR business proces...
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Employee Leave Issues: 5 Tips to Navigate the Bermuda Triangle of Employee Leave Laws

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If your company has more than 50 employees within a 75-mile radius, it must follow the requirements of the Family and Medical Leave Act (FMLA). There are also additional federal and state laws that your company must abide by in order to remain compliant with leave entitlement programs. These laws include the American with Disabilities Act Amendments Act (ADA-AA), workers’ compensation laws, Uniformed Services Employment and Reemployment Rights Act (USERRA), and state leave laws.

It is imperative that employers stay up to date on changing compliance requirements in order to ensure that employees receive the benefits and protections of these laws, as well as to control costs, and avoid possible penalties.

Three of these laws, FMLA, ADA-AA, and workers compensation, often intersect and can be tricky for employers to follow. These laws are sometimes referred to as a “Bermuda Triangle” of employee leave. Decisions about employee leave, as well as tracking of leave and documentation must be handled properly, or your company could face lost productivity and compensatory or punitive damages.

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Employee Leave Issues: 5 Tips to Navigate the Bermuda Triangle of Employee Leave Laws

  1. 1. Sage HRMS I White PaperEmployee Leave Issues: Five Tips to HelpYou Navigate the Bermuda Triangle
  2. 2. Sage HRMSTable of ContentsIntroduction .................................................................................................................. 1 Four Reasons Employers Should Recognize and Analyze the Interaction of the ADA-AA, FMLA, and Workers’ Compensation Laws ...........................1What are FMLA and ADA-AA? ................................................................................... 2 Work-Related Illness or Injury Decision Tree ...................................................3Five Tips to Effectively Navigate Bermuda Triangle Leave Issues ...................... 3 Educate Your Staff to Avoid Bermuda Triangle Traps......................................4 Strategies to Prevent FMLA Violations................................................................5Summary ....................................................................................................................... 6
  3. 3. Introduction Sage HRMSIf your company has more than 50 employees within a 75-mile radius, it must follow therequirements of the Family and Medical Leave Act (FMLA). There are also additional federal andstate laws that your company must abide by in order to remain compliant with leave entitlementprograms. These laws include the American with Disabilities Act Amendments Act (ADA-AA),workers’ compensation laws, Uniformed Services Employment and Reemployment Rights Act(USERRA), and state leave laws.It is imperative that employers stay up to date onchanging compliance requirements in order toensure that employees receive the benefits andprotections of these laws, as well as to controlcosts, and avoid possible penalties.Three of these laws, FMLA, ADA-AA, and workers’compensation, often intersect and can be trickyfor employers to follow. These laws are sometimesreferred to as a “Bermuda Triangle” of employeeleave. Decisions about employee leave, as wellas tracking of leave and documentation must behandled properly, or your company could facelost productivity and compensatory orpunitive damages. Four Reasons Employers Should Recognize and Analyze the Interaction of the ADA-AA, FMLA, and Workers’ Compensation Laws 1. The majority of unscheduled and scheduled absences are related to the illness of employees or their family members. One, both, or all three of these laws may be involved. 2. Violations of these laws may result in lost wages, back pay, reinstatement, retroactive benefits, compensatory damages, and punitive damages. 3. Other than the legal responsibilities, employers have moral and ethical responsibilities to assure that employees receive the benefits and protections these laws provide. 4. In some cases, employees may take advantage of this system of laws. It’s not hard for businesses to lose thousands of dollars if they don’t closely monitor employee leave. Source: SHRM 1
  4. 4. What are FMLA and ADA-AA? Sage HRMSAccording to the Department of Labor, “the Family and Medical Leave Act (FMLA) provides certainemployees with up to 12 weeks of unpaid, job-protected leave per year. It also requires thattheir group health benefits be maintained during the leave. Employers must continue to provideinsurance, but employees remain responsible for paying their share of the premiums even whileon leave. FMLA is designed to help employees balance their work and family responsibilities byallowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeksto accommodate the legitimate interests of employers and promote equal employment opportunityfor men and women.”The FMLA is enforced by the Department of Labor’s Wage and Hour Division. Sometimes state lawsmay provide broader protections than federal requirements. Employees are eligible for FMLA if theyhave worked for their employer at least 12 months, worked at least 1,250 hours over the past 12months, and work at a location where the company employs 50 or more employees within 75 miles.The American with Disabilities Act (ADA) is a federal civil rights law that prohibits the exclusion ofpeople with disabilities from everyday activities, including the ability to hold a job. The range ofcovered disabilities was greatly expanded by the 2008 American with Disabilities Act AmendmentsAct. The combined Acts are now commonly referred to as ADA-AA.ADA-AA is enforced by the Equal Employment Opportunity Commission (EEOC). Under this Act,a disability is defined as having three parts: 1. A physical or mental impairment that substantially affects one or more major life activities (MLAs). 2. A record of such impairment. 3. Being regarded as having such impairment.MLAs can include activities, as well as bodily functions, as long as the impairment substantially limitsdaily life activities. Employers need to follow the law in order to prevent violations. For example, ifan employee has a hearing disability and uses a hearing aid, even though his hearing may not beimpacted because of the hearing aid, his hearing still qualifies as a disability under ADA. Sometimesa disability might not qualify, but if an employee is disciplined for something and treated like hehas a disability–it will qualify. For example, if an employee speaks slowly to control a stutter and isdisciplined for poor communication skills, then this could qualify under ADA.Sometimes an employee may have a work-related illness or injury that requires protection underFMLA and ADA-AA in addition to workers’ compensation laws. The determination for qualificationcan be complicated, and this paper doesn’t cover all circumstances. When you are concernedabout a particular situation, it is always a good idea to check with your legal counsel orADA-AA experts. 2
  5. 5. Sage HRMS Work-Related Illness or Injury Decision Tree • Is the condition temporary (less than six months in duration)? If yes, then it is not likely to qualify under ADA-AA; if it isn’t temporary, then ADA-AA protection applies. • Is the condition a serious health condition? If yes, then FMLA protection applies, so give notice and request a medical certification. • Is the condition permanent? If yes, then you must consider potential reasonable accommodations under ADA-AA. Non-Work Related Illness or Injury • Is the condition temporary? If yes, then it’s not an ADA-AA issue. • Is the condition a serious health condition? If yes, provide FLMA documents and request medical certification. Begin evaluating to determine if it also qualifies under ADA-AA. • Is the condition permanent, or does it otherwise qualify under ADA-AA? Apply the same decision-making as above. Source: Daniel Kaplan, Foley and Lardner1In this paper, we will discuss some of the basics of FMLA and provide you with five tips to help youmanage the Bermuda Triangle of leave issues.Five Tips to Effectively Navigate Bermuda Triangle Leave Issues1. Educate and Be Prepared to Spot and Respond to Bermuda Triangle Issues. Provide training for your managers and supervisors so they are prepared to spot leave issues. Make sure everyone stays up to date on changing requirements and make necessary adjustments to your internal policies and procedures. Was the employee absent for three full days? Did the employee make a visit to his or her healthcare provider within seven days of the three-day absence? If so, this may be considered an FMLA qualifying event, and your managers should be instructed to contact HR to talk with the employee to determine if this could qualify. It is important to determine if the injury or illness is a disability, a serious health condition, or both. From here, you can ensure that subsequent leave issues are handled properly and accurately tracked. Managers should track absences in any and all circumstances. It’s a best practice to make the distinction that managers should be able to evaluate what they normally track to determine if a qualifying event may be occurring. It’s vital to emphasize the importance of tracking all leave whether it is for sick leave, vacation, PTO, unpaid leave, or any other type of leave. Employers are required to provide general notice regarding FMLA, eligibility, rights and responsibilities, and designation. Although this is usually part of your employee handbook, policy and procedure manual, and/or your public postings, once a determination is made, it’s always a good idea to go over the information with the employee, in person if possible, to review rules and responsibilities and clarify any questions the employee may have. 3
  6. 6. Sage HRMS Educate Your Staff to Avoid Bermuda Triangle Traps Trap: Failing to recognize that the employee may have Protected Leave Rights. Suppose an employee calls and says he is “feeling ill” and will be unable to come to work for an estimated five days. Many supervisors and managers may not recognize this as a potential FMLA or ADA-AA request. Solution: Train your managers to understand the words that may trigger legal obligations. Under the FMLA, notice is sufficient if the employee give facts that suggest the employee needs leave for a qualifying condition. Under the ADA-AA, employees do not need to mention the phrase “reasonable accommodation” or the ADA-AA. Any statement that suggests that the employee has a qualifying illness or injury, and would like some help, may trigger ADA-AA protections. Source: Randy Sutton, Saalfeld Griggs, PC12. Develop and Implement a Plan to Handle Issues. Keeping informed is important for maintaining compliance with regard to the Bermuda Triangle of leave laws. In order to successfully navigate the Triangle, know the laws and know who to go to when you need help with interpretations. Keep your employees and your managers informed of their rights and responsibilities and how the company’s policies and procedures should be interpreted with regard to FMLA, ADA-AA and Worker’s Compensation laws. Your company should have well-researched, well-written, and easy-to-understand policies covering leave issues. You should regularly and clearly communicate these policies throughout the company and consistently enforce the associated procedures. One thing that will help you successfully meet leave requirement is to write and maintain specific job descriptions. Make sure you include the physical capabilities needed, for example standing 80% of the work day or lifting 80 pounds of equipment intermittently, so that it is easy to determine if a worker can or cannot perform job duties as a result of illness, injury, or disability. You should also make sure that managers know that they should always discipline behavior and never the cause. For example, a manager can tell an employee that it is unacceptable that he or she is out every Monday, but not that they are sick. Don’t let managers discipline for absenteeism that could be covered under FMLA, or other leave laws.1 Randy Sutton, “Bermuda Triangle Traps & Strategies,” Saalfeld Griggs, PC newsletter. 4
  7. 7. Sage HRMS Strategies to Prevent FMLA Violations 1. Create a comprehensive certification form. 2. Ask for a second or third opinion to verify diagnosis (be prepared to pay for these healthcare provider visits). 3. Ask for recertification. According to the Department of Labor, “The regulations allow recertification no more often than every 30 days in connection with an absence by the employee unless the condition will last for more than 30 days. For conditions that are certified as having a minimum duration of more than 30 days, the employer must wait to request a recertification until the specified period has passed, except that in all cases the employer may request recertification every six months in connection with an absence by the employee. The regulations also allow an employer to request recertification in less than 30 days if the employee requests an extension of leave, the circumstances described in the previous certification have changed significantly, or if the employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.” 4. Attach a letter to certification requests along with the worker’s attendance record. Don’t be afraid to ask the healthcare provider if the worker’s serious health condition and need for leave is consistent with such a pattern. 5. If you believe an employee is taking advantage of entitlement programs, consider hiring a private detective. Sources: Stever Meyer, HRInfo Center2 and Department of Labor33. Regular Communication is Key. Make sure employees communicate and follow standard procedures for notification of absences. Regular contact is important to let employees know how important they are to the company and that they are missed at work. With regular communication, you will be less likely to have problems with employees returning to work as they move through the eligibility period. Know what you can ask and what you can’t. Employers may not ask for specific diagnostic information, but it is perfectly legal to ask how an employee’s absence will impact your business. Here’s where a specific position description can be useful: You can show the employee’s healthcare provider a copy of the job description and ask how the injury or illness affects the employee’s ability to perform their job duties. How often will the employee be absent? Are there special accommodations needed? Consult with legal counsel to verify when it does cross to coverage under ADA-AA.2 Stever Meyer, “Four strategies to beat FMLA violation,” HR Info Center, January 14, 2010.3 Department of Labor, “Frequently Asked Questions About Revisions to the Family and Medical Leave Act.” 5
  8. 8. 4. Document Everything, Track Ongoing Cases, and Make Necessary Adjustments. Sage HRMS In order to ensure compliance, take the time to document everything related to employee leave issues. Keep records of important dates, communications between the employer and employee, attendance records, and any accommodations made on behalf of the employee. Tracking requirements in HR are becoming more and more complex. In addition to the traditional tracking of sick leave, vacation, disability, and COBRA, laws such as the Uniformed Services Employment and Reemployment Rights Act (USERRA) add new tracking and record-keeping responsibilities. In the case of USERRA, service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment. This requires the employer to be prepared to reinstate the employee with the same seniority, status, and pay, as well as any other rights and benefits determined by seniority. A qualified employee cannot waive his or her right to this benefit.5. Don’t Do It Alone—Seek Help From an Attorney and HR Software. Because the Bermuda Triangle of leave laws can be confusing to navigate, it is helpful to track leave through a human resources management system (HRMS) so that everything is documented and available electronically. HRMS systems also provide regular government updates so you can make sure that you’re tracking for FMLA, ADA-AA, and other types of leave remains compliant with federal and state laws. If your company has to deal with complicated or revolving leave issues, don’t be afraid to ask for assistance from your company’s legal counsel. It is always better to have the facts and be prepared than to face penalties for noncompliance.SummaryThere is no question that dealing with Bermuda Triangle leave issues can be complicated. Educatingyour employees as well as your managers on the basics of leave protections and effectivecommunication are great places to start. Your company should develop and implement soundpolicies so that managers know how to identify and respond to leave issues, and employees areaware of their rights and responsibilities. Your success will depend on your company’s ability toclearly communicate, document, and consistently enforce policies and procedures.It is important to approach each law separately, “as if the employee is on three separate train tracks:the Workers’ Compensation track, the FMLA track, and the ADA-AA track.”4 Ensure that HR,managers, and employees are performing all of the necessary steps. If a mistake is made alongthe way, it may be difficult to mitigate, and your company may face compensatory or punitive fines.You can find help managing the requirements of the Bermuda Triangle of Leave by using a humanresources management system (HRMS) and seeking legal counsel.4 Kaplan, Daniel, “Navigating the Bermuda Triangle of Employment Leave,” Foley and Lardner Labor and Employment Law Perspectives, October 4, 2010. 6
  9. 9. About Sage HRMSAn industry-leading, customizable HRMS solution, Sage HRMS helpscompanies optimize their HR business processes as well as maximize theirReturn On Employee Investment (ROEI)™. Developed by HR professionalsfor HR professionals, Sage HRMS delivers a tightly integrated set ofcomprehensive features and functionality that increases efficiency andimproves productivity at every level in the organization.With Sage HRMS, you can successfully meet and respond to the HRmanagement challenges you face every day in the areas of payroll, benefits,employee self-service, attendance, recruiting, training, workforce analytics,and more. By automating and streamlining your day-to-day HR businessprocesses using Sage HRMS, you and your staff are freed up to spend moretime and energy on the business asset that is most vital to your company—your employees.A global $2.2 billion software company with over 30 years of experienceand 6.3 million customers, Sage has provided HRMS solutions longer thanany other company in North America. By choosing Sage, you not only getproductivity-boosting HR and payroll software solutions, you get the supportof an award-winning customer service team and access to many otherbusiness tools and resources that make your work life easier.To learn more, please call us at 800-424-9392, or visitour website at: www.SageHRMS.comSage888 Executive Center Dr. W., Suite 300 | St. Petersburg, FL 33702 | www.SageHRMS.com©2011 Sage Software, Inc. All rights reserved. Sage, the Sage logos, and the Sage product and servicenames mentioned herein are registered trademarks or trademarks of Sage Software, Inc., or its affiliatedentities. All other trademarks are the property of their respective owners. 11/11

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