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FMLA and ADA Leaves How Can I Manage this Situation???. John Wooden, legendary UCLA basketball coach. “Don’t let what you cannot do interfere with what you can do.”. When it Comes to FMLA Do You Think of This?. FMLA Intermittent Leave Statistics.
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FMLA and ADA Leaves How Can I Manage this Situation??? John Wooden, legendary UCLA basketball coach “Don’t let what you cannot do interfere with what you can do.”
FMLA Intermittent Leave Statistics • Currently, there are 377 employees on intermittent FMLA leave • That is 2% of the employee population • In 2012, 3% of employees were on an intermittent FMLA leave • AHS—20% of employees in all three call centers are on intermittent FMLA leave • Memphis AHS Call Center—25% on intermittent leave • Iowa AHS Call Center—16% on intermittent leave • Lagrange AHS Call Center—16% on intermittent leave • Terminix—11% of employees in all three call centers on intermittent FMLA leave • Dallas TMX Call Center—15% on intermittent leave • Memphis TMX Call Center—8% on intermittent leave • Norcross TMX Call Center—7% on intermittent leave
TRUE or FALSE? Associates who have been approved for FMLA leave are aware of all obligations, including call-in and advanced notice, associated with their leave? FALSE Hewitt provides approval letters and notices required by law or policy, but does not provide all of the specific details about employee obligations that exist pursuant to company policy.
1. Have an “Opening” Conference with Associate When Intermittent FMLA Leave is Approved • Explain How Leave Works • Describe Acceptable Use of Leave (only for the timing and reason certified) • Stress That Leave is to be Taken Outside of Work Hours if Possible and in a Manner to Cause the Least Disruption to Business Practices • Remind Associate Advanced Notice is Required When Possible • Discuss Call-In Procedures • Inform Associate Leave Must be Reported No Later Than 5 Days After Use—NEW CHANGE BEGINNING APRIL 1, 2013 • Remind Associate PTO can be used to supplement unpaid leave time
Monica has called out three days in the last two weeks for FMLA leave. After a few weeks have passed, you realize you have not received any SBRC notifications for her FMLA time • You should remind Monica of her obligation to report the time to Hewitt and inform her failure to report the time to Hewitt could result in corrective action for attendance if applicable • You should not say anything to Monica because it could be construed as harassment or retaliation for taking leave • You should not say anything to Monica because she already reported the time as FMLA leave to her manager and we can assume the time is approved FMLA leave • You should not say anything to Monica because she has 30 days to report the time taken to Hewitt
2. Remind Supervisors and Managers to Track Leave Usage and Frequently Compare Reported Usage to AonHewitt Reports From:servicemaster.cm@aonhewitt.com Sent: Tuesday, February 12, 2013 2:34PM To: Manager; HRM Subject: Intermittent Leave Usage Submitted for EMPLOYEE, Case # 000000000; HRID 00000000 We were notified on February 12, 2013 that EMPLOYEE used leave of absence hours on February 11, 2013. The following hours were reported and will be recorded in the Absence Management Tool: Plan Start Date End Date Hours Used Date Entered FEDERAL-FMLA 2/11/13 2/11/13 8.0 2013-02-12 2:34:00 FEDERAL-FMLA 2/11/13 2/11/13 8.0 2013-02-12 2:34:00 If this associate's leave has not been approved and the leave is later denied, the hours recorded will not be considered time approved under ServiceMaster's leave of absence policies and may be subject to ServiceMaster's attendance policies. We will contact you if we have any questions about the submitted leave usage. If the hours reported do not match your attendance records for this associate, please contact the myHR Service Center toll-free at 877-282-6372 and choose the Leaves and Disability prompt from the main menu. Claim Managers are available between 8 a.m. and 6 p.m. Central Standard Time, Monday through Friday.
Hewitt has informed you that Bryan is approved for intermittent FMLA leave in amounts of 1-2 days per week for up to 8 hours per day. Bryan provides no advanced notice of his need to be out on Monday but calls before his shift that day and leaves a message saying he is using an FMLA day. • Bryan is in compliance because he has been approved for 1-2 per week • No additional information is needed because Bryan called in and said he was using FMLA time • The manager should require a doctor’s note for the absence • The manager should ask Bryan follow-up questions about the reason he was out
3. Remind Supervisors and Managers to Ask Questions About Unplanned Intermittent FMLA Usage • Wait until Associate returns from leave • Ask why the Associate was out • This should be an open-ended question and should not mention FMLA, disability, or any perception about cause for leave • Ask if Associate had advanced notice of the need to be out • If leave was for a planned event, such as a doctor’s appointment, ask when the Associate scheduled the appointment • Remind Associate he is required to provide advanced notice of need for leave when possible • Remind Associate he is required to try to schedule leave so as not to unduly interfere with business operations
Erica is Vice President of Operations. She is out sick for four days one week. When she returns, she states that she is pregnant with twins and is having some complications. You remind her that FMLA leave is available but she says she has too much work to do to take leave and she is just going to work from home when she is not feeling well and for a couple of weeks after having the baby. • Since Erica is a Vice President, different rules apply regarding FMLA leave • Since Erica plans to work while she is out, there is no need to have her apply for FMLA leave • You should remind Erica that leaves not certified as FMLA could be held against her attendance or performance and that company policy requires the business to determine if a leave qualifies as FMLA leave. You should encourage her to apply for FMLA by contacting Hewitt and should contact Hewitt yourself to have the leave paperwork sent to Erica if she refuses to do so herself. • Erica probably has a lot of PTO available and, besides, exempt employees have flexibility regarding when and where they perform their work
4. Treat All Employees Consistently • FMLA laws and procedures apply equally to all employees (except “key employees” as it relates to job restoration) • Track FMLA usage immediately for all employees, including executives, managers, supervisors, outside sales employees, technicians, call center hourly employees, and HR team members • Do not assume exempt employees will or can just make up the time at some other point • No employee, including exempt personnel, should be working while on FMLA leave
James is approved for intermittent FMLA leave. Hewitt indicates he is approved to be absent 1-2 days per month for up to 8 hours each time. In January he is absent 3 days and reports them all as FMLA absences. • This is probably acceptable but should be monitored • This is a clear violation of his FMLA approval • You should treat the 3rd absence as unapproved and count it against him for attendance purposes • Since Hewitt tracks FMLA usage, you are sure they will handle it if the extra day was unacceptable
5. Raise Issues Regarding Patterns or Suspected Misuse of FMLA • Monday and Friday use • Use beyond approved limits • Reports of Associate engaging in contradictory activities while on leave (e.g. bowling while on leave for a back injury) • Repeated use for short periods of time at the start of a shift • Use of FMLA leave on a day previously denied as a vacation, holiday, or personal day
In December, Keith is issued a written warning for excessive unapproved absences. In early January, Keith submits an FMLA application, which is approved, and he takes four days off work, which he reports to Hewitt as FMLA leave. In late January, Keith is issued a corrective action for poor performance. On February 28, his supervisor receives an email from Hewitt indicating the leave Keith reported as FMLA in January has been denied. • The supervisor should promptly issue Keith a corrective action for the 4 days he was out in early January • The supervisor cannot issue corrective action for the days absent in January because Keith genuinely believed they would qualify as FMLA leave • The supervisor cannot issue a corrective action for the days absent in January because Keith has been issued a corrective action since that time for poor performance • Too much time has passed to issue Keith a corrective action for the days missed in January
6. Issue All Legitimate Corrective Actions • Associates on leave should be treated the same as all other employees and held to the same level of performance • At times, adjustment of certain attendance or financial goals is necessary while an associate is on FMLA leave • If AonHewitt denies absences reported by the Associate as FMLA leave, track the absences in accordance with company policy • If the absences violate the attendance policy and warrant corrective action, issue corrective action • The time that has lapsed between the absence and the corrective action does not eliminate the need to issue corrective action • Corrective action that was issued prior to the denial can be revised to address denied absences
TRUE or FALSE? There is no such thing as ADA intermittent leave. FALSE!
7. Treat ADA Accommodation Intermittent Leave Exactly as You Would FMLA Intermittent Leave • Discuss Associate obligations when you present the ADA Offer Form to the Associate for signature • Ensure managers and supervisors are tracking the usage of ADA intermittent leave • Discuss discrepancies or suspected abuse of leave usage with the Associate and the ADA Manager • Do not ask for a doctor’s note for ADA absences unless you would do so for FMLA absences or pursuant to company policy • The only difference is that approval and subsequent issues are handled by the ADA Manager instead of Hewitt
Marsha has exhausted all available FMLA leave and is about to exhaust all available personal medical leave. • If Marsha does not come back to work on her return date, she must be terminated because she has no leave available to her • Marsha may be entitled to additional leave time under the Americans with Disabilities Act • Marsha should be terminated because she clearly does not want to work • Marsha has had enough time off and she should be forced to come back to work
8. Allow the ADA Accommodation Process to Work For You • Associates cannot be terminated simply because their FMLA or personal medical leave has been exhausted • Information is sent to the Associate 30 and 15 days before their leave is exhausted and the associate can initiate the accommodation request process • Evaluating ADA leave requests is not only the right thing to do, it is the lawful thing to do
ADA Leave Facts Appendix A
Average ADA Time • On average, it takes 11 days to approve or deny an ADA accommodation request • On average, ADA leave accommodations extended other leaves by 56.5 days • On average, associates on ADA leaves not extending other leaves were out for 68.5 days • Of the 63 associates approved for ADA leave, 43 eventually were terminated for not returning to work and 9 are still on leave
