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  1. Managing Employee Absenteeism: Outsourcing Solutions for Leave Management

  2. Susan Rider, CSFS, CDHC PPACA Certified srider@gregoryappel.com 317-686-6459 Susan Rider is an Account Executive in the Employee Benefits Department for Gregory & Appel. Susan has 11 years of experience. Susan is a national presenter as it relates to Healthcare Reform and Employee Benefits Administration.Susan was elected President of Indiana State Association of Health Underwriters (ISAHU) for 2011, and received the Presidential Citation from the National Association of Health Underwriters (NAHU). Susan holds her PPACA Certification, CSFS (Certified Self-Funding Specialist Certification), CDHC Certification as well has her Wellness Certification from NAHU.

  3. The presentation is intended as general information only and does not carry the force of legal opinion.

  4. Compliance and Chaos FMLA in place for 20 years, and is still being implemented Why is this important? Why bother out-sourcing?

  5. Objectives • The Basics • FMLA and Workers Compensation • Record Keeping and Notification Requirements • Costs of Absences • Consequences of Absences • Managing Unplanned Absences • Premiums for Benefits While on Leave • Outsourcing Solutions for Leave Management

  6. Introduction Purpose: • Balance work and family life • Promote economic security of families and serve national interest in preserving family integrity Shared Responsibilities: • Communication is key

  7. FMLA Works The best available evidence suggests that adopting flexible practices in the workplace potentially boosts productivity, improves morale, and benefits the economy

  8. FMLA Works • The Family and Medical Leave Act codified a simple and fundamental principle: Workers should not have to choose between the job they need and the family members they love and who need their care • The significance of the FMLA is in its recognition that workers aren't just contributing to the success of a business, but away from their jobs they are contributing to the health and well-being of their families

  9. The Basics of FMLA ADA – Equal Employment Opportunity Commission (EEOC) FMLA – Department of Labor (Wage and Hour Division) Workers’ Compensation Laws – State Workers’ Compensation Commissions

  10. The Basics of FMLA These are the areas of interplay between the ADA, FMLA, and Workers’ Compensation that employers need to consider when managing employee absenteeism. NOTE: State laws may provide broader protections that federal requirements. • Employer Coverage • ADA – 15 or more employees for 20 weeks during current or preceding calendar year • FMLA – 50 or more employees within a 75-mile radius for at least 20 weeks during current or preceding calendar year • Workers’ Compensation – Applies to most, even small employers. State laws govern

  11. The Basics of FMLA What employers are covered by FMLA? The FMLA applies to private employers with 50 or more employees on each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. It is not necessary that an employee actually performs work on each working day or receives compensation for the week to be counted as employed, so long as the employee’s name appears on the employer’s payroll. Employees on leave are counted as employed if the employer has a reasonable expectation that they will return to active employment. • The FMLA applies to public agencies and to public as well as private elementary and secondary schools, regardless of the number of employees employed.

  12. The Basics of FMLA Who is eligible for FMLA leave? • Employed by covered employer • Worked at least 12 months • Have at least 1,250 hours of service during past 12 months before leave begins • Employed at a work site with 50 employees within a 75 mile radius

  13. The Basics of FMLA What are qualifying reasons for FMLA leave? 12 weeks vs. 26 weeks

  14. The Basics of FMLA Is FMLA leave paid or unpaid? • In general, FMLA leave is unpaid. However, an employee may elect, or an employer may require an employee, to substitute any accrued paid leave for FMLA leave. An employee's ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy. When an employee chooses or an employer requires substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. If the employee does not comply, the employee is not entitled to substitute accrued paid leave. • If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave, the employee will remain entitled to all the paid leave earned or accrued under the terms of the employer’s plan.

  15. The Basics of FMLA Who is a health care provider under the FMLA? • Health care providers include: state authorized doctors of medicine or osteopathy; podiatrists; dentists; clinical psychologists; optometrists; chiropractors in limited circumstances; nurse practitioners; nurse-midwives; clinical social workers; physician assistants; and Christian Science practitioners. • The FMLA also recognizes any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits. Finally, the FMLA recognizes a health care provider listed above who practices and is authorized to practice in a country other than the United States.

  16. The Basics of FMLA What are unlawful acts under the FMLA? • It is unlawful for any employer to interfere with, restrain or deny the exercise of any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing or complaining about any illegal practice, or because of the employee’s involvement in any proceeding related to the FMLA. Additionally, an employer is prohibited from discriminating against an employee or prospective employee who has used FMLA leave. Employees cannot waive and employers cannot induce employees to waive their prospective rights under the FMLA. This does not prevent the voluntary settlement or release of FMLA claims by employees based on past employer conduct. • Receiving notice of FMLA complaints pending against a covered predecessor employer may be relevant in determining a successor employer’s liability for the predecessor’s FMLA violations.

  17. The Basics of FMLA How does the FMLA affect other laws or agreements? • The FMLA does not affect any other federal or state law which prohibits discrimination. It does not supersede any state or local law which provides greater family or medical leave protection, and it does not affect an employer’s obligation to provide greater leave rights under a collective bargaining agreement or employee benefit plan. The FMLA also encourages employers to provide more generous leave rights. • Salaried executive, administrative, professional or computer employees of covered employers who meet the Fair Labor Standards Act (FLSA) criteria for exemption from minimum wage and overtime under federal regulations, 29 CFR Part 541, do not lose their FLSA-exempt status by using any unpaid FMLA leave.

  18. The Basics of FMLA What does next of kin mean? • Next of kin means the nearest blood relative of a covered servicemember other than the servicemember's spouse, parent, son or daughter, in the following order of priority: • Blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions; • Brothers and sisters; • Grandparents; • Aunts and uncles; and • First cousins.

  19. The Basics of FMLA Who is a covered servicemember? • A covered servicemember is: • A member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status or is otherwise on the temporary disability retired list, for a serious injury or illness; or • A veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness and who was a member of the Armed Forces, including a member of the National Guard or Reserves, at any time during the period of five years preceding the date on which the veteran undergoes that medical treatment, recuperation or therapy.

  20. Case Study Case STUDY • Alice, assembly line worker

  21. Case Study Case STUDY Using the areas of interactions between the ADA, FMLA, and Workers Compensation laws, here is an analysis of Alice’s absence. • Employer Coverage – XYZ Manufacturing is covered under and must comply with the ADA, FMLA and the state Workers Compensation Laws. • Employee Eligibility – Alice may be eligible for protection under the ADA and FMLA, depending on the severity of her condition. A workers’ compensation claim must be filed, processed, and a determination made as to coverage under Workers’ Compensation.

  22. Case Study Case STUDY • Length of Leave – Leave as a reasonable accommodation under the ADA is not an issue at this point as Alice’s absence, with proper medical certification, will be designated as FMLA leave. Should her absence exceed 12 weeks, additional leave of absence may be a reasonable ADA accommodation. If the condition is determined to be work-related, workers’ compensation leave will run concurrently with the FMLA leave. • Medical Documentation – Under the ADA, no medical documentation is yet required. FMLA medical certification is required. Medical documentation will be required by the workers’ compensation insurer.

  23. Case Study Case STUDY #1 • Restricted or Light Duty – Not required at the present time as Alice is unable to work in any capacity until further notice. When she is able to return to work and if she has medical restrictions, light duty, if available, must be offered as a reasonable accommodation under the ADA unless this creates an undue hardship on the employer. Light Duty cannot be required if FMLA leave is still available. Light duty should be offered under Workers’ Compensation. • Fitness-to-Return-to-Work Certification - Not required at the present time as Alice is unable to work in any capacity until further notice. When she is able to return to work, depending on any restrictions, she may be required to provide this certification under the ADA, FMLA, and Workers’ Compensation.

  24. Case Study Case STUDY • Benefits While on Leave – Not required under the ADA. Under FMLA, Alice’s health benefits will be continued at the same level as prior to her leave and she will receive other benefit continuation given for employees on similar non-FMLA leave. No additional benefit continuation under Workers’ Compensation is required. • Reinstatement – Alice must be reinstated to her previous job under the ADA unless doing so would create an undue hardship on her employer. If she can return before her 12 weeks of FMLA leave have been exhausted, she will be reinstated in her previous or a similar position. Workers Compensation does not provide for reinstatement under most state laws, except for retaliatory discharge.

  25. FMLA and Worker’s Compensation Does FMLA leave run concurrentlywith a workers’ compensation absence?

  26. FMLA and Worker’s Compensation Cont. Can an employer require an employee to substitute accrued paid leave if the employee is concurrently on workers’ compensation and FMLA leave?

  27. FMLA and Worker’s Compensation Cont. What benefits is an employee entitled to while on concurrent workers’ compensation and FMLA leave?

  28. FMLA and Worker’s Compensation Cont. How may an employee on concurrent workers’ compensation and FMLA leave pay for group health coverage? For other non-health benefits?

  29. FMLA and Worker’s Compensation Cont. What may an employer do if it questions the adequacy of a medical certification?

  30. FMLA and Worker’s Compensation Cont. Is an employee required to return to a “light duty” job when it is not the same job or is not equivalent to the job the employee left?

  31. FMLA and Worker’s Compensation Cont. What happens to an employee on concurrent workers’ compensation and FMLA leave once the FMLA leave entitlement has run out?

  32. Case Study Employers don’t have to offer double leave for the birth of a child

  33. Case Study Employers must notify employees in writing that their leave will be counted as FMLA

  34. Employer Records • Records must be made and kept by a covered employer pertaining to its obligations under the FMLA. These records must be preserved for a minimum of three years.

  35. Maintaining FMLA RelatedMedical Records • Employee FMLA records relating to medical certifications, recertifications or medical histories of employees or their family members must be maintained as confidential medical records in separate files from employee personnel files. However, individuals such as managers, safety personnel or government officials investigating compliance may be informed of relevant FMLA medical information as necessary.

  36. NotifcationRequirments General Notice • Covered employers must prominently post a general FMLA notice approved by the Department of Labor (DOL), where it can be readily seen by employees and applicants for employment. The general notice explains an employee’s rights and responsibilities under the FMLA and provides information concerning the procedures for filing complaints of violations. The DOL has developed a model general notice for employers to use.

  37. NotifcationRequirments General Notice Cont. • Covered employers must post this general notice even if no employees are eligible for FMLA leave. Electronic posting is sufficient to meet this posting requirement. An employer that willfully violates this posting requirement may be subject to a fine of up to $110 for each separate offense. • In addition, covered employers that have any eligible employees must provide this general notice to each employee by: • Including the notice in any written guidance to employees, such as an employee handbook, that explains other employee benefits or leave rights, if such written guidance exists; or • Distributing a copy of the general notice to each new employee upon hiring. • In either case, this may be done electronically.

  38. NotifcationRequirments Rights and Responsibilities Any requirement for the employee to make any premium payments to maintain health benefits and related information; The employee’s status as a “key” employee and related issues of reinstatement; The employee’s rights to maintenance of benefits during the FMLA leave and restoration to the same or equivalent job upon return from FMLA leave; The employee’s potential liability for employer payment of health insurance premiums if the employee fails to return to work; and Other information as appropriate. • A statement that the leave may be designated and counted against the employee’s annual FMLA leave entitlement and the applicable 12-month period for FMLA entitlement; • Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness or qualifying exigency arising out of covered active duty and the consequences of failing to do so; • A description of the employee’s right to substitute paid leave and whether the employer will require it and the employee’s entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave;

  39. NotifcationRequirments Designation Notice • The employer is responsible in all circumstances for designating leave as FMLA-qualifying and for giving written notice of the designation to the employee within five business days of receiving sufficient information to grant or deny FMLA leave. • If possible, the notice must include the number of days, hours or weeks that will be counted against the employee’s annual allotment of FMLA leave, and must address whether paid leave will be substituted for any portion of unpaid FMLA leave. The notice must notify the employee if a fitness-for-duty exam will be required prior to the employee’s return to work as well as a list of essential functions so the health care provider can address these duties in the fitness-for-duty certification. The DOL has provided a sample designation notice for employers to use.

  40. NotifcationRequirments Designation Notice Cont. • If the information provided by such notice changes, the employer must, within five business days of receipt of the employee’s first notice of need for leave following any change, provide written notice of the change. • If the leave is not designated as FMLA leave because it does not meet the requirements of the FMLA, the notice to the employee that the leave is not designated as FMLA leave may be in the form of a simple written statement.

  41. Consequences of Failing to Provide FMLA Notice • Failure by an employer to follow the notice requirements of the FMLA regulations may constitute an interference with, restraint or denial of the exercise of an employee's FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, of other actual monetary losses sustained as a direct result of the violation and for appropriate equitable or other relief, including employment, reinstatement, promotion or any other relief tailored to the harm suffered.

  42. EmployeesShould Be NotifiedWhen… • Employees should give employers as much notice as possible when requesting leave under the FMLA. While not required to use the term "FMLA" when seeking leave, the employee must provide sufficient information for the employer to determine if the leave qualifies for FMLA protection. When an employee seeks leave due to an FMLA-qualifying reason for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for leave in notifying the employer.

  43. EmployeesShould Be NotifiedWhen… • If leave is foreseeable for the birth of a child, to adopt or place a foster child, for planned medical treatment of a serious health condition of the employee or family member, or for the planned medical treatment for a serious injury or illness of a covered servicemember, employees must provide the employer with at least 30 days’ advance notice before the leave begins. If 30 days’ advance notice is not provided, the employer has the right to delay the taking of FMLA until 30 days' notice is provided. When leave will begin in less than 30 days, employees must give notice to an employer as soon as practicable.

  44. Employer’sResponsibilities Sample Notice of Eligibility

  45. EmployeesShould Be NotifiedWhen… • For foreseeable qualifying exigency leave, notice must be provided as soon as practicable, regardless of how fair in advance the leave is foreseeable. • When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular situation. • In some cases, verbal notice is sufficient to inform employers of leave. Notice may be given by the employee’s spokesperson (for example, spouse or adult family member) if the employee is unable to do so personally. • An employee taking leave for planned medical treatment for a serious health condition or a serious injury or illness must also make a reasonable effort to schedule treatments so an employer’s operations are not unduly disrupted. • An employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances (for example, no one answers the call-in number and the voicemail box is full). Where an employee does not comply with the employer's usual procedure, and no unusual circumstances justify that failure, the employer may properly delay or deny FMLA leave.

  46. Certification Required? Employers may require employees who wish to use FMLA leave to provide the following: • Medical certification supporting the need for leave due to a serious health condition affecting the employee or an immediate family member (or the next of kin regarding a leave taken to care for a covered service member for a serious injury or illness), second or third medical opinions (at the employer’s expense), annual medical certifications and a periodic recertification; • Periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and • A certification in the event a leave is requested because of any qualifying exigency arising out of a family member's covered active duty or call to covered active duty in the Armed Forces.

  47. SeriousHealth Condition Certification • The name, address, telephone number and fax number of the health care provider and type of medical practice/specialization; • The approximate date on which the serious health condition began and the probable duration of the condition; • A statement or description of appropriate medical facts regarding the patient's health condition. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment or any other regimen of continuing treatment; • Whether the employee will need leave intermittently or will need to work a reduced schedule, information sufficient to establish the medical necessity for such leave and an estimate of the dates and duration of such treatments and any periods of recovery; • If the employee is the patient, information sufficient to establish that the employee cannot perform the essential functions of the employee's job as well as the nature of any other work restrictions and the likely duration of such inability; and • If the leave involves an employee’s family member, the care to be provided and the estimated time period required. Unless an employer’s own policy requires less information, the certification may generally include the following:

  48. ServiceMember Certification • The name, address and appropriate contact information of the health care provider, the type of medical practice, the medical specialty and what type of military health care provider it is (for example, DOD, VA, DOD or TRICARE); • Whether the covered servicemember's injury or illness was incurred in the line of duty on active duty; • The approximate date on which the serious injury or illness commenced and its probable duration; • A statement/description of appropriate medical facts regarding the covered servicemember's health condition; • Information sufficient to establish that the covered servicemember is in need of care and whether the covered servicemember will need care for a single continuous period of time and an estimate as to the beginning and ending dates for this period of time; • If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment, appointments for the same and an estimate of the frequency and duration of the periodic care; and • Other information from the employee regarding the employee's relationship with the covered servicemember and the covered servicemember's military status. An employer may request that the health care provider provide the following information:

  49. Qualifying Exigency • A statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency; • The approximate date on which the qualifying exigency commenced or will commence; • If an employee requests leave because of a qualifying exigency for a single, continuous period of time, the beginning and end dates for such absence; • If an employee requests leave because of a qualifying exigency on an intermittent or reduced schedule basis, an estimate of the frequency and duration of the qualifying exigency; and • If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting and a brief description of the purpose of the meeting. In addition, an employer may require that leave for any qualifying exigency be supported by a certification from the employee that sets forth the following information:

  50. Case Study An assembly worker in a Honda plant