Workers Compensation and FMLA - Are You Confused?

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FMLA

The Family and Medical Leave Act of 1993 provides job protection benefits to eligible employees who need time away from work for their own serious health condition or to care for covered family members with a serious health condition. The law applies to employers with 50 or more employees and allows an eligible employee to take up to 12 weeks of unpaid leave in a 12 month period of time.

WORKERS COMPENSATION

Almost every state has a workers compensation law which guarantees income or wage replacement to an employee who is injured on the job.  In Ohio lost wages can come from a self insured employer, or the Ohio Bureau of Workers’ Compensation.  Ohio is monopolistic state fund which provides the injured worker who has lost eight or more days of work to be compensated for their lost wages as a percentage of their actual wages with limitations.

The Relationship between the Two… 

So how does workers compensation interact with FMLA, since workers’ compensation is not necessarily considered a leave law?    For FMLA purposes employers must remember injuries occurring on the job or which are considered ‘workers compensation claims’ are not precluded as being serious health conditions under FMLA.  On the job injuries requiring inpatient or ongoing treatment and/or determined to be a “serious health condition” under the DOL FMLA regulations should be considered as FMLA.   The circumstances and medical information for each case must be carefully reviewed to determine if the definition of serious health condition is met under the DOL guidelines. 

If the definition of serious health condition is met, it is imperative the employer check the employee’s eligibility for FMLA.  To be eligible for FMLA, the employee must have worked 1250 hours in the 12 months from the date preceding the leave; AND worked at least 12 months with the employer in past 7 years; AND have available FMLA hours.  If the employee meets the eligibility criteria the employer is required to notify the employee in writing the leave will be designated as FMLA and will be counted toward the employee’s 12 week FMLA entitlement.

One of the most common mistakes employers make is failing to run the workers’ compensation and FMLA concurrently. 

Visit http://www.careworksabsence.com/ for questions or additional information.

Is Your FMLA Program putting you at Risk?

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Employers are increasingly faced with significant challenges in effectively managing FML and state leave related absences. Inappropriate administration and mismanagement of absences can cost an employer millions of dollars in revenue, production and legal fees. Today’s employees are becoming more knowledgeable on the use of FML and state leave benefits. As their knowledge and use of these benefits increase, so too will your associated administrative and personnel costs. To combat increasing costs associated with employee absences, it is both financially and administratively critical to have a solid, well governed absence management program in place.

FMLA Non-Compliance Costs of 2011

  • According to the Society for Human Resource Management, the average cost to defend a FMLA lawsuit is $78,000 , regardless of the outcome.
  • Employees who successfully sued for wrongful termination based on FMLA Absence received on average between $87,500 - $450,000 in damages (Source: EEOC.)
  • According to the U.S. Department of Labor, managers and supervisors can be sued directly and held personally liable for paying damages (Shultz v. Advocate Health & Hospitals Corp.)

Are you in Violation?

Among the most frequent FMLA violations is the failure on the part of the employer to notify the employee of his or her FMLA rights.  Failure to notify the employee that the leave counted toward the employee’s 12-week entitlement is the second most common violation.   Violations like these can be cost employers significant dollars in litigation alone. Other common violations include:

  • Taking disciplinary action against an employee for using FMLA
  • Failure to grant leave to provide physical care or psychological comfort to a seriously ill parent or child
  • Failure to reinstate employees to the same or an equivalent position, including same shift
  • Terminating an employee during or at the conclusion of FMLA leave
  • Failure to grant FMLA leave because of misunderstanding of what qualifies as a serious health condition
  • Failure to request medical certification in writing and not giving an employee at least 15 days to obtain medical certification

(Source: United States Department of Labor)

Contact CareWorks USA at myfmla@careworks.com for assistance with FMLA or visit http://www.careworksabsence.com/.  

ERC partners with CareWorks USA to offer FMLA Administration

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ERC has partnered with CareWorks USA, a national leader in FMLA administration and absence management, to offer its members specialized pricing on CareWorks USA’s administrative services. ERC members will receive a five percent discount per employee per month, or $500 off their setup fees.

CareWorks USA’s services are designed to take the day-to-day administration of FMLA off of an organization’s hands and allow them to focus on the core nature and priorities of their business. Their FMLA administration services include:

  • 24/7 absence reporting
  • Employee and worksite education
  • Dedicated leave of absence teams: Experienced Leave Administration Specialists & Nurse Case Managers 
  • 24/7 web-based claim access
  • And many more!

 “FMLA is a hot topic with our members,” said Pat Perry, president of ERC. “The expertise and resources that CareWorks USA brings to the table is going to be a great benefit to our membership.”

About CareWorks USA 

CareWorks USA is one of the nation’s fastest growing providers of FMLA Administration and Absence Management Services. Their outcome based programs are customized to ensure your FMLA and Absence Management programs are administered according to your organization’s values, philosophies and policies. They offer a streamlined, cost effective approach to ensure consistent claims handling and regulatory compliance both on a state and federal level. Through their technologically advanced software and their administrative and medical expertise, CareWorks USA’s Family Medical Leave administration services provide a comprehensive package of services for employers.

ERC Preferred Partner CareWorks provides Absence Management and FMLA Administration. ERC Members save 5% off per EE per month fee or a $500 discount off Initial Set-up Fee

8 Resources Every HR Professional Should Know About

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We’ve compiled a collection of eight (8) of our favorite HR resources – free comprehensive tools and information that many of our members find valuable for common tasks like staying compliant, administering FMLA, or finding and supporting employees.

1. Staying Legally Compliant

The Department of Labor (DOL) offers a variety of e-law Advisors, interactive tools that provide information about a number of federal employment laws. Employers typically find these tools very helpful in providing greater understanding of compliance and employment law information. Specific e-law Advisors include FLSA, H1-B, Health Benefits Advisor, OSHA, Drug Free Workplace, Contractor Compliance, and more. Similarly, the DOL also provides an Employment Law Guide that helps employers create policies for their handbook.

2. Accommodating Employees

Employers frequently need to support employees through difficult conditions and circumstances. Whether you’re accommodating employees to be compliant or to better support employees as you create a great place to work, the Job Accommodation Network (JAN) is an ideal resource that provides ideas and examples on what level of accommodations and flexibility are appropriate for different situations. It also helps employers better understand a variety of disabilities and psychological/medical conditions that impact their workforce.

3. Administering FMLA

Leave administration, particularly FMLA, is one of employers’ greatest responsibilities and challenges. Employers are frequently looking for resources surrounding administration of this law to help them administer it. This site is one of our members’ favorites as it highlights all of the most common forms, fact sheets, and general guidance for administering family medical leave required by the law.

4. Creating and Updating Job Descriptions

O*Net is a comprehensive, free resource for job analysis and job description information. It provides detailed information including a summary of a job, alternate job titles, tasks, tools and technology used, knowledge, skills, abilities, work activities, and work context. It even contains information on interests, work styles, work values, wages and employment trends, and education/training requirements relevant to a specific job. The tool is useful for employers that are creating job descriptions and supports a range of other HR functions like hiring and performance management. The Dictionary of Occupational Job Titles is also another ideal resource for job related information, included within O*Net.

5. Developing Employees

Career One-Stop has all the components of a comprehensive career development service (without the cost). Employees can explore careers, assess themselves, write job descriptions, evaluate and profile their skills, and find developmental programs and resources. This tool, as well as the Ohio Workforce Informer, Riley Guide, and BLS Career Guide to Industries, are other valuable career development tools for employees to utilize when developing themselves and can complement employers’ career development programs.

6. Staffing and Workforce Planning

Employers often seek information about local employment trends that impact their business for staffing and workforce planning purposes. While the Bureau of Labor Statistics (www.bls.gov) provides ideal national information for this purpose, most organizations don’t realize that the state of Ohio provides a labor market website that details information about local employment trends and projections, current employment statistics, supply and demand, and skills/training. In addition, Ohio Means Jobs is a free website to search for candidates and post jobs that also helps employers recruit and staff.

7. Auditing Wage & Hour Practices

FLSA compliance is one of ERC’s most common questions and an area where many employers may find themselves non-compliant. In the event of a Wage & Hour audit, the DOL provides a checklist of items requested. This checklist is not only ideal for organizations being audited by the DOL, but also for those that want to prepare for an audit. You can download this checklist here.

8. Posting Requirements

The DOL makes posting requirements available to employers including information about what organizations must post, citations and penalties, and other information. Click here to view these requirements. Employers can also download PDF posters on this site.

In conclusion, the Department of Labor and other governmental agencies can offer free resources and support for your organization. With vast amounts of information, online tools, free training and webinars, and access to experts, they can be very helpful for employers and particularly HR departments – often in ways that many organizations don’t anticipate.

Additional Resources

HR Training
Gain even more crucial skills and resources to be successful in your HR role through various ERC HR training courses. For more information on these informative training courses which cover all aspects of HR including employment law, compensation, benefits, performance management, orientation, communication, please click here. To view other upcoming HR programs, click here.

HR Help Desk
ERC’s Help Desk staff is exceptional at working with governmental agencies to answer employers’ questions, resolve problems, and locate information, resources, and forms to meet your needs – especially when you don’t have time to do the research yourself. Just e-mail hrhelp@yourerc.com for assistance.

HR Practices
Benchmark how your HR practices compare to other Northeast Ohio employers by participating in our Policies and Benefits Survey. This survey covers benefits, compensation, recruiting, hiring, communication, training, development, and safety practices. Click here to participate.

Other HR Resources
In addition to resources discussed in this article, ERC members enjoy an array of additional resources related to compensation, benefits, and policy information; HR Help Desk service, sample forms, job descriptions, and policies; cost-savings (and free services provided by some of our Preferred Partners); and more. Click here to find out more about the benefits of being an ERC member.