The Alphabet Soup of Leave Administration in the Workplace
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The Alphabet Soup of Leave Administration in the Workplace

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FMLA, ADAA, WC, DBL – oh my! With such an alphabet soup, what is an employer to do? In this presentation, we review the various requirements, pitfalls and helpful hints when dealing with leaves and ...

FMLA, ADAA, WC, DBL – oh my! With such an alphabet soup, what is an employer to do? In this presentation, we review the various requirements, pitfalls and helpful hints when dealing with leaves and disabilities in the workplace. And, it’s not just for the larger employer as we will deal with issues of which all employers should be aware whether covered by the FMLA or not!

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The Alphabet Soup of Leave Administration in the Workplace The Alphabet Soup of Leave Administration in the Workplace Presentation Transcript

  • Alphabet Soup of Leave Administration To download a copy of today’s presentation please visit: www.alcottgroup.com/alphabet_soup Presented by: Dawn Davidson Drantch, Esq., In-House Counsel & Bob Chanin, Director of Human Resources Date(s) 5/7/13 and 5/16/13
  • Disclaimer The materials herein are for informational purposes only and are not intended to be, nor are they, legal advice. Every situation is different and you should consult with your own legal counsel for answers to your specific questions. 2 © 2013 Alcott HR Group LLC
  • About Alcott • We are a Professional Employer Organization (PEO) providing outsourced human resource services, support and administration to small and mid-sized companies • More than 25 years in business • Accreditations: • Employer Services Assurance Corp (ESAC) • Certification Institute for Workers’ Compensation Risk Management • Industry Leadership • NAPEO/NYS Leadership Council • ESAC 4 © 2013 Alcott HR Group LLC
  • What We Will Cover • The ABCs of LOAs • • • • • • • • • ADA ADAAA FMLA MMFMLA USERRA WC STD FEP Company Policies • Best Practices • Interplay of the Issues 5 © 2013 Alcott HR Group LLC
  • Alphabet Soup of Leave Administration THE ABCs OF LOAs
  • ADA (Americans with Disabilities Act) • To be a covered employer under the act: • Employer must have 15 or more employees • The law prohibits employers from discriminating against a qualified individual with a disability with regard to all terms and conditions of employment • Qualified individual with a disability = employee who can perform the essential functions of a job with or without reasonable accommodation 7 © 2013 Alcott HR Group LLC
  • ADA (cont’d) • Individual with a disability is one who: • Has a physical or mental impairment that substantially limits one or more major life activities (walking, speaking, breathing, seeing, hearing, working, etc.); • Has a record of such an impairment; or • Is regarded as having such an impairment 8 © 2013 Alcott HR Group LLC
  • ADA (cont’d) • Requires reasonable accommodation for qualified individual with a disability in order to perform the essential functions of the job • Exception for cases where accommodation poses undue hardship on employer • Reasonable accommodation= a modification or adjustment to a job, the work environment, or the way things usually are done that enables the qualified individual with a disability to enjoy an equal employment opportunity 9 © 2013 Alcott HR Group LLC
  • ADAAA (Americans With Disabilities Act Amendments Act) • Expands “major life activity” • Caring for oneself, performing manual tasks, everyday activities such as breathing, seeing, hearing, speaking, eating, sleeping, walking, standing, lifting, bending, learning, reading, concentrating, thinking, communicating and working • Adds non-exclusive list of major bodily functions which constitute “major life activities” • Functions of the immune system; normal cell growth; and functions involving the digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems • Reduces mitigating measures standard • More of an issue now of what kind of accommodation versus whether employee is a disabled person under the act 10 © 2013 Alcott HR Group LLC
  • FMLA (Family and Medical Leave Act) • To be a covered employer under the act: • Employer must have a minimum of 50 employees on payroll in any 20 weeks of the current or preceding calendar year • For the employee to be eligible to take leave: • Employee must work at a site with 50 or more employees within 75 mile radius of the worksite • Employee must be employed for a total of one year (can be over multiple years up to 7) • Employee must have worked 1250 hours during the 12 months prior to the leave 11 © 2013 Alcott HR Group LLC
  • FMLA (cont’d) • FMLA gives employees 12 weeks of unpaid job protected leave in a 12 month period with continuation of benefits for the following reasons: • Employee’s own serious health condition • Serious health condition of family member (parent, spouse or child generally under the age of 18) – “Child” includes child of a same-sex partner but not recognized for same-sex partner • Birth, adoption, or placement of child in foster care 12 © 2013 Alcott HR Group LLC
  • MMFMLA (Military Member FMLA) • Same length of service and distance requirements as FMLA • Two types: • Covered Active Duty Leave • Military Caregiver Leave 13 © 2013 Alcott HR Group LLC
  • MMFMLA (cont’d) • Covered Active Duty Leave • Employee may take if parent, spouse, child is on active duty, or called to active duty, to a foreign country and employee needs to take care of exigencies as defined in the regulations • 12 weeks in 12 month period or up to 15 days if family member is on authorized Rest and Recuperation Leave 14 © 2013 Alcott HR Group LLC
  • MMFMLA (cont’d) • The following are activities eligible for Covered Active Duty Leave: • Short-notice deployment • Attending official ceremonies or programs and related activities where the participation of the family member is requested by the military • Making arrangements for child care, school activities or elder care • Making financial or legal arrangements to address the military member’s absence • Attending counseling • Post deployment activities • Rest and recuperation • To care for a military member’s parent who is incapable of self-care when the care is necessitated by the military member’s covered active duty • Other events may qualify in the worksite employer’s sole discretion 15 © 2013 Alcott HR Group LLC
  • MMFMLA (cont’d) • Military Caregiver Leave • Employee may be spouse, son, daughter, parent or next of kin of a military member or covered veteran who is recovering from a serious illness injury sustained or aggravated in the line of active duty, as defined in the relevant regulations – “Next of kin” is defined as “the nearest blood relative” of the military member – “Covered veteran” is generally defined as an individual who was discharged or released under conditions other than dishonorable at any time during the five (5) year period prior to the first date of leave taken under military member FMLA leave • Up to 26 workweeks of leave, either continuously or intermittently, during a single 12-month period to care for the military member or covered veteran (including members of the Reserves and National Guard) who is undergoing medical treatment, recuperation or therapy for a serious injury or illness at any time during the five years preceding the date of treatment, recuperation or therapy 16 © 2013 Alcott HR Group LLC
  • FMLA and MMFMLA • Benefits (e.g., health, dental, vision) continue during periods of covered FMLA leave as if employee still active • Employee responsible for his/her share of premium • Notification and certification requirements with strict time periods • Upon timely return employee placed in the same position with the same pay rate , benefits, schedule and location • Certain “key” employees not guaranteed reinstatement to their positions 17 © 2013 Alcott HR Group LLC
  • USERRA (Uniformed Services Employment and Re-employment Rights Act) • To be a covered employer under the act: • USERRA applies to virtually all U.S. employers regardless of size • A covered employee is one who: • Ensures that the employer receives advance written or verbal notice of service • Has five years or less of cumulative service in uniformed services while with that particular employer • Returns to work or applies for reemployment in timely manner after conclusion of service • Has not been separated from service with a disqualifying discharge or under other than honorable conditions 18 © 2013 Alcott HR Group LLC
  • USERRA (cont’d) • • • • 19 Provides re-employment rights depending length of service leave Anti-retaliation provisions Reasonable accommodation provisions COBRA-like benefits © 2013 Alcott HR Group LLC
  • WC (Workers’ Compensation) • Virtually all employers in New York State must provide workers' compensation coverage for their employees • Workers that generally must be covered: • If working for for-profit employers (workers include part-time employees, borrowed employees, leased employees, family members and volunteers) • All corporate officers if corporation has more than two officers and/or two stockholders • Most workers compensated by nonprofit organization 20 © 2013 Alcott HR Group LLC
  • STD (State Short Term Disability Insurance(NY)) • Employers with one or more employees are subject to provisions of New York State Disability Benefits Law • All employees must be covered with few exceptions 21 © 2013 Alcott HR Group LLC
  • FEP (State and local fair employment practice laws) • Prohibit discrimination on basis of disability • May require leave as reasonable accommodation 22 © 2013 Alcott HR Group LLC
  • Company Policies • • • • • 23 Personal Leave Medical leave otherwise not covered by FMLA Sabbaticals Salary continuation policies Paid time off policies © 2013 Alcott HR Group LLC
  • Alphabet Soup of Leave Administration BEST PRACTICES
  • Best Practices • Company Policies • • • • Most important aspect of controlling leaves Included in policy manual Policies should be concise and up to date Should cover: – – – – – 25 Eligibility requirements Documentation requirements Maximum time permitted (in accordance with applicable law) Ongoing communication requirements Return to work requirements © 2013 Alcott HR Group LLC
  • Best Practices • Initial analysis • Company on notice that event occurred – Notification directly from employee – Indirect notice • Is employee qualified and eligible for leave? • Notification and approval process • Is the leave requested concurrently applied with other type of leave? • How will position be treated while employee is on leave? 26 © 2013 Alcott HR Group LLC
  • Best Practices • Documentation • No employee should ever be out on a leave that is not supported by documentation – Required paperwork – Suggested paperwork 27 © 2013 Alcott HR Group LLC
  • Best Practices • Communication • Documentation • Interactive process • Keep communication lines open throughout duration of leave – BEWARE! “No Fault” or “Automatic Termination” policies run afoul of ADA or and state reasonable accommodation rules – Indefinite Leaves 28 © 2013 Alcott HR Group LLC
  • Best Practices • Terminating employees on leave • Determination of undue hardship • Key position • Company precedent and consistent treatment – – – – – Policy applied uniformly for all employees ? Treatment consistent with employee’s previous leave(s)? ( if any) Is termination close in time to employee’s expected return? How has work been covered while employee on leave? Replacing employee? • Inform of ability to re-apply when ready to return 29 © 2013 Alcott HR Group LLC
  • Best Practices • Develop and update job descriptions • Defines essential functions • useful for accommodation, FMLA certifications and fitness for duty certifications • Update forms and use in all cases 30 © 2013 Alcott HR Group LLC
  • Alphabet Soup of Leave Administration INTERPLAY OF THE ISSUES
  • Interplay of the Issues If an employee returns from FMLA leave with light-duty restrictions, what are the company’s obligations? • Employer not required to create new position to accommodate need for light duty under FMLA, ADA(AA), DBL, WC • Do not confuse with intermittent or reduced schedule leave which may be required under FMLA or ADA accommodation • Not required to offer light duty under FMLA, but may be required under ADA and WC • If light duty offered under WC and employee refuses, employee may be disqualified for WC benefits 32 © 2013 Alcott HR Group LLC
  • Interplay of the Issues If an employee returns from active duty and in the same twelve month period needs FMLA, how does the employer count the hours of service for FMLA eligibility purposes? • All time spent on active duty leave is counted as time worked for FMLA eligibility determinations 33 © 2013 Alcott HR Group LLC
  • Interplay of the Issues If we are not covered by the FMLA and an employee goes out on an extended leave, for how long do we have to cover his health benefits? • An employee out on non-FMLA covered leave may be offered COBRA as soon as the employer’s policy and practice permits 34 © 2013 Alcott HR Group LLC
  • Interplay of the Issues What happens if an employee is out on FMLA beyond twelve weeks and the company receives a doctor’s note that she needs two more weeks of leave? • Leave is considered an accommodation under ADA(AA) and most state FEP laws unless undue hardship Can a company terminate the employee because the leave is now going beyond twelve weeks? • No “drop-dead dates” • Each case is fact specific • Workers compensation rules may require company to keep employee employed 35 © 2013 Alcott HR Group LLC
  • Interplay of the Issues What happens if an employee is out beyond the date stated on the doctor’s note ? • Contact the employee to let them know that they were due back to work by X date and give them a date by which either to return or give the company updated medical documentation If we do that and the employee fails to show or give us updated documentation can we terminate the employee? • Generally, if you have followed the outlined steps then yes 36 © 2013 Alcott HR Group LLC
  • Interplay of the Issues If an employee has childcare issues can he take FMLA intermittently to deal with the problem? • Generally not covered by FMLA unless it is within the first year of child’s birth (or adoption or placement for foster care) and can be intermittent if employer agrees 37 © 2013 Alcott HR Group LLC
  • Interplay of the Issues We received an unemployment claim for an employee who was out on medical leave. Can we terminate her? • No. The company should respond to the unemployment office that the employee is still employed, but on medical leave 38 © 2013 Alcott HR Group LLC
  • Interplay of the Issues What is the difference between the reasonable accommodation requirements of the ADA and USERRA? • USERRA requires that employers make reasonable efforts to assist veterans returning to employment in becoming qualified for a job • Employer must help veteran become qualified to perform duties of position whether or not veteran has service-connected disability or even a disability as defined under the ADA 39 © 2013 Alcott HR Group LLC
  • Interplay of the Issues If an employee is on workers compensation can he also be on FMLA? • Yes. In fact company policies should always indicate that such leaves run concurrently If the company is not covered by FMLA, do we have to hold the employee’s job open until he comes back from workers compensation or disability leave? • Not necessarily, but you must do the “employee termination” analysis. Remember that leave is considered an accommodation under the ADA and state fair employment practice laws 40 © 2013 Alcott HR Group LLC
  • Interplay of the Issues If an employee is called up to active duty, does that qualify as FMLA under the new FMLA Military Leave rules? • No, as the rules do not apply to the military member him/herself, but rather a family member of the person called to duty If an employee’s spouse has been called up to active duty, does that qualify for FMLA if the spouse is an employee and wants to take leave? • Possibly, if it qualifies as a military exigency under the rules 41 © 2013 Alcott HR Group LLC
  • If you would like additional information about Alcott HR, or are looking for an HR solution for your business, please call 1-888-4ALCOTT or email: marketing@alcottgroup.com © 2013 Alcott HR Group LLC