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LEAVE OF ABSENCE –
COMPLEXITY AND
COMPLIANCE
©2016 Reed Group. Confidential and proprietary information. Do not duplicate or distribute.
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MEET YOUR HOSTS
Megan Holstein, Esq.
Vice President of Compliance
720.279.3463
ReedGroup
Lori Welty, Esq.
Compliance Attorney
720.440.6985
ReedGroup
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LEGAL DISCLAIMER
Not Legal Advice
This presentation is designed to provide accurate information in regard to the subject matter covered. It is provided with the understanding that Reed Group is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent attorney or other professional person should be sought. Due to the numerous factual issues which arise in any human resource, leave of absence, or employment question, each specific matter should be discussed with your attorney.
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WHAT IS FMLA?
The Federal Family and Medical Leave Act (FMLA) was passed in 1993 to provide unpaid leave for employees; the Act has been expanded several times
FMLA provides:
•12 weeks of job-protection leave (not paid leave)•While on FMLA leave, an employee is protected from being fired for being absent from work
•Upon return, employee must be restored to original or equivalent position
•In some cases, the leave may extend up to 26 weeks
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FMLA AND ADA
©2016 Reed Group. Confidential and proprietary information. Do not duplicate or distribute.RE E DG RO UP
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WHAT IS FMLA?
FMLA applies to:
Employees who have worked for a total of 12 months: 1,250 hours worked in 12 months
The employer must be a covered FMLA employer
The employee must work at a location with at least 50 employees employed within 75 miles
FMLA can be taken for:
Medical leave when the employee is unable to work because of a serious health condition
Care for an immediate family member (spouse, child, or parent) with a serious health condition
Birth and care of the newborn child of the employee, or placement of a child for adoption or foster care with the employee
“Qualifying exigency” for employee’s parent, child, or spouse called to active military duty
Care for injured service member
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AMERICANS WITH DISABILITIES ACT
Enacted in 1991
Key provisions related to employment relationship:
To provide reasonable accommodation to employee with a “disability” as defined by the Act
That will enable the employee to perform the essential functions of the job
Prohibits discrimination, harassment, and retaliation against a “qualified individual with a disability”
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AMERICANS WITH DISABILITIES ACT
Requires employers to engage in the “interactive accommodation process” with a “qualified individual with a disability” and provide a “reasonable accommodation”
Amended in 2009 by the ADAAA—but this did not change the duty to accommodate
Updated regulations effective March 2011
Focus is no longer on whether the employee is disabled, but rather whether the employer engaged in the interactive process to accommodate an employee to perform essential job functions
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#SettingtheCourse
Federal laws
80+ state leave laws
Separate municipal laws
Multiple requirements
Eligibility
Qualifying reasons
Available time
Americans With Disabilities Act
intersection
Complexity Risk and CostEnforcement
Since 2009—DOL increased staff by over
1,000 investigators
Leave initiatives a White House focus
Compliance costs
Recordkeeping/notification costs:
$213,188–$1.3 million*
$8.6 million dollar settlement for national
retailer for ADA violation (May, 2016)
$2M decree November 2012 EEOC
Disability Discrimination suit
Individuals can be liable for FMLA
violations
ChangeFederal Level
Change to same-sex marriage definition
FMLA regulations redone
6+ pending bill in Congress
Regulations revised March 8, 2013
State Level (last four years)
80+ new/changed state FMLA laws
9 new state sick pay leave laws
(multiple new municipal laws; 50+
bills pending for additional sick
leave laws)
Currently, 200+ state leave bills
* Employment Policy Foundation survey estimates as cited by the U.S. Department of Labor “Family and Medical Leave Act Regulations: A Report on the Department of
Labor’s Request for Information; Proposed Rule”; (June 28, 2007)
ABSENCE MANAGEMENT CHALLENGES—COMPLEXITY
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COMPLEXITY—ELIGIBILITY
Federal eligibility issues—12 months and 1,250 hours
•12 months Must count previous employment
(up to 7 years)
Can become eligible midway
through a leave
•1,250 hours Time “actually” worked
Several cases where the employer lost because it hadn’t counted the hours correctly
State eligibility issues—multiple requirements for qualifying leave reasons
•Independent review of each state criteria Multiple state level:
oFMLA laws
ofamily military acts
obone marrow donation laws
ocrime victim/court witness laws
oschool visitation laws
odomestic violence leave laws
oother (volunteer firefighter leave laws, blood donation etc.)
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COMPLEXITY—ENTITLEMENT
Entitlement Issues—12 weeks in a 12-month period
12 weeks
Intermittent leave
Changes based on normal weekly schedule (e.g., 12 weeks x 37.5 hr/wk schedule = 450 total hours)
Exception: Military Caregiver Leave—26 weeks of federal FMLA
In a 12 month period
Four methods to calculate—rolling backward is the most prevalent, but time rolls back on a daily basis.
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COMPLEXITY—ENTITLEMENT
Entitlement—intermittent FML leave
Prevalent
Reed Group study of 112,000 closed FMLA claims indicates 51 percent had a period of Intermittent FML time and of those 21 percent had a short-term disability claim within 6 months
Intermittent leave is extremely difficult to:
Track—can be taken in one minute increments
Manage—often self-diagnosed (e.g., migraines, stress disorders)
Certify—cannot require certification of each absence—“interferes” with an employee’s rights (Jackson v. Jemberg Industries, Inc. 677 F. Supp. 2d 1042 (N.D. III 2010); Oak Harbor Freight Lines, Inc. v. Antti, 2014 WL 690247 (Dist. OR 2014)).
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COMPLEXITY—ADA INTERSECTION WITH FMLA
The Americans with Disabilities Act (as amended in 2008) provides another layer of complex analysis.
A “qualified individual with a disability” is one who:
Has the basic skills, experience, education, etc., required for the position
Has a “disability” as defined
Can perform the essential functions of the position
With or without a reasonable accommodation
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COMPLEXITY—ADA INTERSECTION WITH FMLA
Two basic mandates for employers:
Prohibits discrimination, harassment, and retaliation against a “qualified individual with a disability”
Requires employers to engage in the “interactive accommodation process” with a “qualified individual with a disability”
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COMPLEXITY—ADA INTERSECTION WITH FMLA
Employer responsibility:
The employer must provide a “reasonable accommodation” to a qualified individual with a disability. Three-step analysis:
1.Is the workplace modification or adjustment reasonable?
Plausible, feasible, reasonable in the ordinary situation?
2.Is the workplace modification or adjustment effective?
Does it enable the employee to perform the essential functions of his/her position?
3.Does the workplace modification or adjustment impose an undue hardship on the employer’s business?
Even if an accommodation is reasonable and effective, the employer doesn’t have to provide that accommodation if it will impose an undue hardship on the employer’s business
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COMPLEXITY—ADA INTERSECTION WITH FMLA
The employer challenge
Current thorough guidance on how employers should provide leave as an accommodation is scare or nonexistent.
When and why is a leave an appropriate accommodation?
How long should the leave be?
When can an employer deny a leave request?
What are the employee’s rights upon return from leave?
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PROPOSED LEGISLATION
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PREGNANCY LEAVE LAWS
©2016 Reed Group. Confidential and proprietary information. Do not duplicate or distribute.RE E DG RO UP
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PREGNANCY LAWS – PREGNANCY ACCOMMODATION LAWS
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PREGNANCY LAWS – PREGNANCY DISABILITY OR MATERNITY SPECIFIC LEAVE LAWS
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PREGNANCY LAWS – ANTI-DISCRIMINATION LAWS
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PREGNANCY LAWS – FMLA-LIKE LAWS THAT COVER PREGNANCY
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PREGNANCY LAWS – PARITY LAWS
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PREGNANCY LAWS
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PREGNANCY LAWS
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PREGNANCY LAWS
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PREGNANCY LAWS
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PREGNANCY LAWS
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#SettingtheCourse
COST—LOSING AN FMLA CASE AT TRIALASSUMES: $40,000/YEAR SALARY TWO YEARS OF UNEMPLOYMENT UNTIL TRIAL
Damages Item Comment Typical
Amount
Back pay—two Common award in termination case—lost wages
up to date of judgment
$80,000
Front pay—one year Awarded if employee has not yet become re-
employed at time of judgment—lost wages
looking forward
40,000
Pre-judgment interest—on back
pay only
Always awarded; rate and whether compounded
varies; estimate here
8,000
Liquidated damages Similar to punitive damages—equal to amount of
front/back pay plus pre-judgment interest
128,000
Plaintiff’s attorney’s fees and
costs
Employer pays if employee wins 125,000
Employer’s est. attorney’s fees
and costs
Employer always pays (and is usually larger than
employee’s fees)
125,000
Total $506, 000
Based on Reed Group’s research, see Brown v. Nutrition Management Services Co. (E.D. Pa. 2009)(total verdict $477,311.64);
Hurley v. Kent of Naples, Inc. et al., 2013 WL 2399188 (M.D. Fla 2013)(total verdict $1,262,780)
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#SettingtheCourse
RISK AND COST—RECENT EEOC CHALLENGES
Employer Date of
Consent
Decree
Amount Challenged Practice
S&B Industry February 2017 $110,000 Denying employment to two hearing-impaired applicants
because of their disability
Papa Johns Pizza January 2017 $125,000 Terminated employee with an intellectual disability despite
successful employment with a job coach
Diallo’s of Houston January 2017 $139,366 Forced employee to provide medical documentation to
prove she was not HIV-positive, and then fired her when she
failed to provide such documentation
Wal-Mart December 2016 $75,000 Failed to accommodate employee, a cancer survivor with
physical limitations, and subjected her to harassment based
on her disability.
Georgia Power November 2016 $1.5 Million + Refusing to hire applicants and firing employees based on
their disabilities or perceived disabilities.
United Airlines June 2015 $1 million + Requiring workers with disabilities to compete for vacant
positions for which they were qualified and which they
needed in order to continue working
Staples June 2015 $275,000 Failing to notify employee of his FMLA rights and properly
apply FMLA protections to his leave
Parker Drilling June 2015 $245,619 Withdrawing its initial job offer to hire applicant because he
had no vision in his left eye
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ABSENCE MANAGEMENT SOLUTIONS
©2016 Reed Group. Confidential and proprietary information. Do not duplicate or distribute.RE E DG RO UP
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#SettingtheCourse
Source: Bureau of Labor Statistics, December 2014
LOST PRODUCTIVITY
•The average Fortune 500 employer spends 12 to 15 percent of payroll on total time off, often with very little management of these dollars
•Time off is one of the highest-valued benefits to employees—often second only to pay
26.60%
21%
2%
21%
14%
15.40%
Slicing the Benefit Dollar
Paid Leave
Health Benefits
Other Insurance Benefits
Legally require benefits
Supplemental Pay
Retirement and savings
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#SettingtheCourse
UNDERSTAND YOUR CLIENTS/PROSPECTS CHALLENGES
•Culture•Current process Centralized/decentralized
Multi-site/state
STD
oOutsourced or in-house
oInsured or self-insured
•Intermittent leave issues/abuse•Tracking limitations
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#SettingtheCourse
•Non-integrated outsourced solutions In-house administration oSoftware solutions available
o$$$$
Third party—TPA or payroll vendor administrationoTypically available for most employers 100 to 250+
•Integrated solution Placement of FML, STD and
LTD with one carrier/vendor solution
Some are providing ADA services
For large employers (1,000+) many provide vocational rehabilitation resources to increase return to work rates and may even assist with stay at work programs
Primarily available to employers 500+
UNDERSTAND THE OPTIONS/SOLUTIONS
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#SettingtheCourse
WHAT DOES INTEGRATED ABSENCE MANAGEMENT LOOK LIKE
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#SettingtheCourse
THE BUSINESS CASE:UNDERSTAND THE BENEFITS/IMPACT OF ABSENCE MANAGEMENT
SOLUTIONS
•Key to success—employer engagement•The ripple effect—impacts productivity, engagement, and healthcare spend Improved productivity, employee communication, employee satisfaction,
employee engagement, compliance
Reduced lost time days (absenteeism), healthcare cost, long term disability cost
Integration with wellness programs and disease management program initiatives
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OTHER RESOURCES
LeaveAdvisor.com ReedGroup.com/blog MDGuidelines.com
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OUR BIOS
Megan Holstein, Esq., is Vice President of Compliance at Reed Group. Ms. Holstein provides leadership, product creation, and effective guidance to ensure ReedGroup’s software and service products are best in class and compliant with governing law. Specifically, Ms. Holstein's work focuses on, and she has developed an expertise in, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and their state law equivalents as well as disability and family leave benefits, including ERISA as it pertains to short- and long-term disability plans. Ms. Holstein is the product owner for ReedGroup’s ADA and Workplace Accommodation product offering. Ms. Holstein co-authored ReedGroup’sLeaveAdvisor™ online reference tool and ReedGroup’s white papers regarding leave as an accommodation under the ADA, absences and accommodations for pregnant employees, and paid sick leave laws.
Lori Welty, Esq. is a Compliance Attorney at Reed Group. Ms. Welty tracks and analyzes pending legislation and bills relating to leave of absence law in local municipalities, the 50 states, and the United States Congress. She provides expertise in all areas of state and federal leave law, including Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and their state law equivalents as well as disability and family leave benefits. Ms. Welty is an ongoing author of ReedGroup’s LeaveAdvisor™ online reference tool. She was the lead researcher and co-authored ReedGroup’s white papers regarding accommodations for pregnant employees, and paid sick leave laws.
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THANK YOU FOR
ATTENDING!