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EMPLOYEE BENEFITS
The Partners Group is committed to protecting the privacy of your account information, and we trust that...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Welcome and Introductions
■ The Partners Group (TPG) Overview
■ TPG Absence Managemen...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Employer Services
Retirement &
InvestmentServices
Commercial &
IndividualInsurance
Inte...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Patty Borst Jean Shearer Brycie Repphun
TPG Total Absence Management
Practice Leads
80+...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Compliance Risk Assessment
■ Total Cost of Absence Analysis
■ Absence Management Solu...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Why does it Matter?
■ Risk of Non-Compliance
■ Cost of Absenteeism
■ Consistent and Coo...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Jeff Nowak, Partner, Franczek Radelet
■ Mr. Nowak serves as co-chair of Labor and Emplo...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Is Anyone Listening to Me?
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Susie is a supply clerk: has two elderly parents
who require her support and attentio...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Pattern:
■ Occasionally, Susie reports her absences late
■ Susie’s supervisor now wan...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ “The Employer may find it necessary to inquire
further to determine if the leave is b...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Employee must comply with employer’s usual
and customary notice and procedural
requir...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Jamie: Psychiatric technician for Univ. of Pitt.
■ Awful attendance record: In the th...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
“I Need to Take Leave.
But How ‘Bout We Not Call It FMLA…”
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Maria seeking leave to care for her father
■ Maria was an FMLA pro: 15 previous leave...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Maria files FMLA interference lawsuit
■ Key issue: Can an employee decline FMLA?
■ Co...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Should We Follow the Escriba decision?
■ Ignore Escriba decision?
■ What do you tell ...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
The Social Media Bust:
What Do You Do When Facebook
Nabs Your Employee?
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Gia: needs to care for mom in Mexico
■ Continuous leave for 4 weeks; provides certifi...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Waaaaaahoooooo!!
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Some courts: job protection can be denied
based on an “honest belief/suspicion” that
...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Courts look for complete/exhaustive investigation
■ Employers lose when there is no s...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Best Practices in Recertification
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Fred is one of your direct reports
■ Suffers from irritable bowel syndrome
■ Can we s...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ General Rule:
Recertification
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Do we have a significant change in frequency?
■ Pattern?
Frequency/Pattern
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Where FMLA Ends, ADA Begins
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Last year, Susie transferred to the position of Asst.
Director, Addictions Services
■...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Does employer have obligation to communicate?
■ What are employee’s obligations?
■ Wh...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
As of [date], you exhausted all FMLA leave available to you and presently are on
additi...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Susie contacts you: needs another 4 weeks off,
since she’s recuperating from surgery ...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Medical condition or facts at issue (no diagnosis!)
■ How condition affects employee’...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ You tell her “OK,” but you need a note in 4 weeks
confirming she can return without r...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Significant losses in productivity because work is
completed by less effective, tempo...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ If additional leave is requested (before or
after maximum is reached), an employer
al...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Employers have no obligation to provide leave of
indefinite duration
■ EEOC Resource:...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Two other credit analysts and Henry’s boss had taken on
extra work that resulted from...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ Give serious consideration to employee’s request
■ Interview supervisory staff to det...
39
www.fmlainsights.com
40
www.fmlainsights.com
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
■ All participants of today’s webinar will receive a copy
of the PowerPoint and a link ...
EMPLOYEE BENEFITSEMPLOYEE BENEFITS
Questions?
Please send any additional questions to
Patty Borst at patty@tpgrp.com
and J...
EMPLOYEE BENEFITS
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Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues

Overview:
Human Resource professionals regularly cite FMLA administration as one of the most frustrating parts of their job. Throw in ADA for good measure and you end up with one nasty headache. FMLA Insights blog author and labor and employment attorney, Jeff Nowak, will take us through some of the most difficult FMLA and ADA compliance issues and offer practical steps employers can take to maximize compliance and minimize the headaches.

Key Messages include:
- Recognizing an employee’s need for FMLA leave. Is a text message good enough?
- Whether an employer should designate FMLA leave on occasions when an employee does not want FMLA to apply.
- Investigating employee conduct after social media posts show them acting inconsistently with their need for FMLA leave.
- The latest on managing FMLA intermittent leave, seeking re-certification, and the value of second opinions.
- The age-old question: Leave as an ADA reasonable accommodation – when is enough plenty?

Presenter:
Jeff Nowak, Co-chair of FranczekRadelet, Labor and Employment Practice

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Effectively Managing Difficult FMLA (Family and Medical Leave Act) and ADA (Americans with Disabilities Act) Issues

  1. 1. EMPLOYEE BENEFITS The Partners Group is committed to protecting the privacy of your account information, and we trust that you will show the same sensitivity regarding the content of this presentation. Reproduction or further distribution is strictly prohibited. Employee Benefits __ Commercial & Individual Insurance __ Retirement & Investment Services __ Business Consulting www.tpgrp.com 800-722-6339 Portland | Lake Oswego Bellevue | Bend | Bozeman EMPLOYEE BENEFITS Today’s Webinar Effectively Managing Difficult FMLA and ADA Issues Hosted by: Presented by: The Partners Group Jeff Nowak, Partner Total Absence Management Franczek Radelet
  2. 2. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Welcome and Introductions ■ The Partners Group (TPG) Overview ■ TPG Absence Management Services ■ FMLA ■ ADA Today’s Agenda
  3. 3. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Employer Services Retirement & InvestmentServices Commercial & IndividualInsurance Interas™ Data and Analytics www.tpgrp.com Complementary Health & Wealth Management Services The Partners Group (TPG)
  4. 4. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Patty Borst Jean Shearer Brycie Repphun TPG Total Absence Management Practice Leads 80+ combined years of experience and insights: - Total Cost of Absence Analysis and ROI models - Policy review, program design and process improvement - Integrated Absence Management and Population Health Strategies - Market Analysis, RFP Management, Vendor Selection - Project and Implementation Management for outsourced and insourced solutions - Data Analytics and Performance Benchmarking - Transitional Return to Work Programs - Leave and ADA training and communication strategies - Compliance updates and best practice recommendations Industry Leading Experts
  5. 5. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Compliance Risk Assessment ■ Total Cost of Absence Analysis ■ Absence Management Solutions Review TPG Total Absence Management Services
  6. 6. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Why does it Matter? ■ Risk of Non-Compliance ■ Cost of Absenteeism ■ Consistent and Coordinated Management Absence Management – Employer Challenges
  7. 7. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Jeff Nowak, Partner, Franczek Radelet ■ Mr. Nowak serves as co-chair of Labor and Employment practice for Franczek Radelet P.C. ■ Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting audits and training and litigating FMLA and ADA lawsuits. ■ The author of the highly regarded FLMA Insights blog and serves on the editorial board of the Family and Medical Leave handbook. ■ Jeff received his B.A. from Indiana University and graduated cum laude from Indiana University School of Law. Today’s Speaker jsn@franczek.com www.franczek.com www.fmlainsights.com http://linkedin.com/in/jeffnowak@jeffreysnowak
  8. 8. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Is Anyone Listening to Me?
  9. 9. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Susie is a supply clerk: has two elderly parents who require her support and attention ■ Recently: Employee Notice
  10. 10. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Pattern: ■ Occasionally, Susie reports her absences late ■ Susie’s supervisor now wants to discipline her for her poor attendance Employee Notice
  11. 11. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ “The Employer may find it necessary to inquire further to determine if the leave is because of a serious health condition . . .” 29 C.F.R. 825.302(c) ■ Fairly broad right to talk directly to employee ■ Employer has right to know: What Can an Employer Ask An Employee?
  12. 12. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Employee must comply with employer’s usual and customary notice and procedural requirements for requesting leave absent unusual circumstances ■ If employee does not follow, FMLA may be delayed or denied Enforce Your Call-In Policy!
  13. 13. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Jamie: Psychiatric technician for Univ. of Pitt. ■ Awful attendance record: In the three months leading up to her termination: absent twice, tardy six times and switched shifts constantly ■ She called her supervisor prior to a scheduled shift and shared the following: ■ Supervisor wrote in log: “Sick mom” ■ 3rd Circuit: Question of fact as to whether employer had sufficient information Lichtenstein v. U. of Pitt., 691 F.3d 294 (3rd Cir. 2012) Issues Involving Employee Notice
  14. 14. EMPLOYEE BENEFITSEMPLOYEE BENEFITS “I Need to Take Leave. But How ‘Bout We Not Call It FMLA…”
  15. 15. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Maria seeking leave to care for her father ■ Maria was an FMLA pro: 15 previous leaves ■ Maria: no contact until two weeks after scheduled return; terminated for no call/no show Need Leave…But Not FMLA Leave?
  16. 16. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Maria files FMLA interference lawsuit ■ Key issue: Can an employee decline FMLA? ■ Court: Circumstances in which employee might seek time off but intend not to exercise his or her rights under the FMLA Escriba v. Foster Poultry Farms (9th Cir. Feb 25, 2014) Need Leave…But Not FMLA Leave?
  17. 17. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Should We Follow the Escriba decision? ■ Ignore Escriba decision? ■ What do you tell your employees? How Do We Deal with this Decision?
  18. 18. EMPLOYEE BENEFITSEMPLOYEE BENEFITS The Social Media Bust: What Do You Do When Facebook Nabs Your Employee?
  19. 19. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Gia: needs to care for mom in Mexico ■ Continuous leave for 4 weeks; provides certification ■ Two weeks into Gia’s FMLA leave, one of Gia’s co- workers, Molly, tells HR manager: Here’s the photo of her new FB profile pic Gia is the one in front… The Social Media Bust
  20. 20. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Waaaaaahoooooo!!
  21. 21. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Some courts: job protection can be denied based on an “honest belief/suspicion” that the employee was abusing leave ■ Analysis is largely fact-intensive Honest Belief Defense “Honest belief/suspicion” test (7th Cir.): An employer “need not conclusively prove that [the plaintiff] had misused her leave; an honest suspicion will do.”
  22. 22. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Courts look for complete/exhaustive investigation ■ Employers lose when there is no sense of “due process” or there is a rush to judgment ■ What is a complete investigation of the facts? Honest Belief: Best Practices
  23. 23. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Best Practices in Recertification
  24. 24. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Fred is one of your direct reports ■ Suffers from irritable bowel syndrome ■ Can we seek recertification? If so, why? ■ What does recertification look like? Fred Seeks Recertification
  25. 25. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ General Rule: Recertification
  26. 26. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Do we have a significant change in frequency? ■ Pattern? Frequency/Pattern
  27. 27. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Where FMLA Ends, ADA Begins
  28. 28. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Last year, Susie transferred to the position of Asst. Director, Addictions Services ■ Neck pain, blurred vision, dizziness ■ Diagnosed with spinal cord compression ■ Provide accommodations (time off, staggered schedule), but condition gets worse ■ Takes FMLA leave; medical certification = “indeterminable” ■ Don’t hear from Susie ■ Coming up on 10th week of FMLA leave and nervous she will not return What do you do? Where FMLA Ends, ADA Begins
  29. 29. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Does employer have obligation to communicate? ■ What are employee’s obligations? ■ What does employer’s communication look like? Where FMLA Ends, ADA Begins
  30. 30. EMPLOYEE BENEFITSEMPLOYEE BENEFITS As of [date], you exhausted all FMLA leave available to you and presently are on additional leave provided by [name of employer]. Presently, you have no additional leave time available. We understand that you currently are unable to work through ___________________. As such, we expect you to return to work the following workday, ______________. If you fail to report for work on your expected return date and have not contacted us, we will presume that you have voluntarily resigned your employment. If you are not able to return to work by the above date, or if you believe you may need some assistance or accommodation to resume your normal job duties, or if there is any other information about your return to work that you wish to call to our attention, you must contact [contact name / telephone no.] as soon as possible before this date. Before returning to work, you will be required to provide a return-to-work certification from your health care provider confirming that you are able to perform the essential duties of your position and are able to return to work. I Just called…to say…I Love You!
  31. 31. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Susie contacts you: needs another 4 weeks off, since she’s recuperating from surgery to remove fluid from her back. “I know I am a burden to you, but I still am in pain. I miss you guys.” ■ Her doctor will review her status to determine whether she can return to work at that point ■ How do you respond? First Extension
  32. 32. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Medical condition or facts at issue (no diagnosis!) ■ How condition affects employee’s ability to perform essential job functions; and what job functions ■ Whether doctor can identify any accommodations that would help employee perform job functions ■ Expected date upon which employee can perform essential job functions ■ Will requested leave allow employee to perform essential functions in near future? What Information is an Employer Entitled to?
  33. 33. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ You tell her “OK,” but you need a note in 4 weeks confirming she can return without restrictions ■ After doctor appointment, Susie avoids you ■ You give her an extra week (for a total of five weeks) and call her ■ Susie still cannot return to work ■ Requests another four weeks. Pressure in back is diminishing, but still in pain. Physician wants to meet with her in four weeks for follow up. (“Doc thinks I will be ready to return…”) What do you think? Second extension…
  34. 34. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Significant losses in productivity because work is completed by less effective, temporary workers or last- minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error ■ Lower quality and less accountability for quality ■ Lost sales (not here) ■ Less responsive client service and increased client dissatisfaction ■ Deferred projects ■ Increased burden on management staff required to find replacement workers, or readjust workflow or readjust priorities in light of absent employees ■ Increased stress on overburdened co-workers ■ Lower morale “Costs” to Employer: Undue Hardship?
  35. 35. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ If additional leave is requested (before or after maximum is reached), an employer also can request that the employee’s HCP respond to the following: ■ EEOC Resource: May also request relevant information to determine undue hardship Extension Requests
  36. 36. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Employers have no obligation to provide leave of indefinite duration ■ EEOC Resource: EEOC Position on Indefinite Leave “Indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so it does not have to be provided as a reasonable accommodation.”
  37. 37. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Two other credit analysts and Henry’s boss had taken on extra work that resulted from Henry’s absence, which in turn strained the department ■ No other employee in the bank was available to temporarily fill Henry's analyst position, causing an overload on dept ■ Hiring a temp employee was not an advisable business practice, due to the confidential nature of the client information to which the credit analysts have access and the particularized training involved ■ Analysts’ loan review responsibilities expected to increase because of increased regulations on the financial industry ■ The Bank was expecting an increase in new loans, creating further stress on a short-handed staff Henry v. United Bank
  38. 38. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ Give serious consideration to employee’s request ■ Interview supervisory staff to determine: ■ Document the alternatives you have examined to extend leave and the undue hardship ■ Don’t Forget about Reassignment! ■ Before termination, justify—with documentation—the rationale for the decision But really, how does this work?
  39. 39. 39 www.fmlainsights.com
  40. 40. 40 www.fmlainsights.com
  41. 41. EMPLOYEE BENEFITSEMPLOYEE BENEFITS ■ All participants of today’s webinar will receive a copy of the PowerPoint and a link to a recording of this presentation ■ For any questions that we didn’t have time to address today, we will send a summary Q & A ■ A short survey will follow at the end of this webinar. Please take a few minutes to reply Information to follow
  42. 42. EMPLOYEE BENEFITSEMPLOYEE BENEFITS Questions? Please send any additional questions to Patty Borst at patty@tpgrp.com and Jean Shearer at jshearer@tpgrp.com
  43. 43. EMPLOYEE BENEFITS The Partners Group is committed to protecting the privacy of your account information, and we trust that you will show the same sensitivity regarding the content of this presentation. Reproduction or further distribution is strictly prohibited. The Partners Group is committed to protecting the privacy of your account information, and we trust that you will show the same sensitivity regarding the content of this presentation. Reproduction or further distribution is strictly prohibited. www.tpgrp.com 800-722-6339 Portland | Lake Oswego Bellevue | Bend | Bozeman EMPLOYEE BENEFITS Thank you for the opportunity to present to you today!

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