Parental Bereavement Act of 2011 Would Amend FMLA

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The Parental Bereavement Act of 2011 was introduced on July 13 by Sen. John Tester of Montana. This bill would allow parents grieving from the death of their child to receive up to 12 weeks of job-protected time off under the Family Medical Leave Act.

Under 2011 FMLA regulations, parents are eligible for extended, unpaid time off to care for newborn babies, adopted children and family members with serious health conditions.

Tester’s Parental Bereavement Act of 2011 ensured that the death of a child is treated like other life-altering events, allowing parents time to grieve.

“Allowing time off to mourn the death of a child should have happened a long time ago because it’s simply the right thing to do for any parent,” said Tester. “When the unthinkable happens to parents, the last thing they should be worrying about is whether they’ll lose their jobs as they deal with life-changing loss.”

Businesses with fewer than 50 employees would not be affected by this bill.

For additional information on the Parent Bereavement Act of 2011, please visit: http://www.govtrack.us/congress/bill.xpd?bill=s112-1358

For more information on CareWorks, contact Scott Vaka

Phone: 614-760-3536
Email: scott.vaka@careworks.com
Website: www.careworksabsence.com

Court: Employers Have Right to Enforce Leave Policies

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Nearly half of all HR professionals say they’ve approved FMLA leave requests even though they believed the requests weren’t legitimate, according to a Society for Human Resource Management (SHRM) survey.

If you think employees are violating your policies, what can you do? One court ruled in May 2011 that you can fire such an employee - but first make sure you have the right policies in place.

The corporate office for the Communications Workers of America (CWA), the country’s largest telecom union, distributes a policy manual to employees that includes a sickness and absenteeism policy. CWA requires employees who accept wage replacement benefits while on medical leave to remain in the immediate vicinity of their homes.

In the case Pellegrino v. CWA, Denise Pellegrino spent two weeks at home, post-operatively and was on concurrent FMLA and paid sick leave - that was before she left home to go to Cancun, Mexico. According to CWA's sick leave policy, employees on leave may not leave their local area without written permission from the company unless seeking medical treatment or conducting "ordinary or necessary activities directly related to personal or family needs."

When CWA officials learned about Pellegrino's trip, they terminated her. She sued, claiming the termination interfered with her right to FMLA leave.

Although the court agreed Pellegrino's leave was protected, it found CWA had a right to enforce its leave policies.

CareWorksUSAsuggests the following to employers:

  • Have a clear sickness and absenteeism policy. CWA would not have been able to terminate this employee without a clearly written policy.
  • Distribute the policy to each employee. In this case, the court noted the employee in this case had received the policy.
  • Consistently enforce the policy. Consistently enforce the policy across your workforce.

(Pellegrino v. CWA, W.D. Pa., 5/19/11)

For more information, contact: 

Scott Vaka
Phone: 614-760-3536
Email: scott.vaka@careworks.com
Website: www.careworksabsence.com

15 Steps to Controlling FMLA Claims

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CareWorks USA has outlined 15 action steps employers can take that will help them control intermittent claims and control costs associated with intermittent absences.

  1. Clearly spell out your FMLA policy in the employee handbook.
  2. Clearly spell out your policy on intermittent leave for bonding after birth or placement (yes, the employer has a choice whether to allow this.)
  3. Run your FMLA concurrent with other applicable benefits.
  4. Check Eligibility every new 12 month period.
  5. Require Certification & Ensure the Certification is complete and legible.
  6. Conduct a thorough review of the medical information ~ a medical professional such as a nurse can be critical in understanding the medical jargon written on the certification.
  7. Include medical clarification in your review as necessary.
  8. Require a Frequency & Duration on Certification.
  9. DOL has given Employers the right to require employees to submit certification every 6 months - Certify claims for 6 months.
  10. Make employees accountable - Require them to report every FMLA occurrence.
  11. Ask your employee questions about his or her leave – every occurrence if necessary.
  12. Temporarily transfer the employee to an alternate duty position while on leave.
  13. Seek Fitness for duty - Employers can now conduct fitness for duty on intermittent cases (in association with an absence.)
  14. Utilize 2nd & 3rd opinions when appropriate.
  15. Partner with a vendor like CareWorks USA to help with administration, tracking and medical clarification.

Visit http://www.careworksabsence.com/leave-administration/ for more information on Family and Medical Leave Act.

Steps for plan sponsors in anticipation of 408(b)(2)

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Aiming to curb confusion, misunderstandings and lack of disclosure related to the fees associated with retirement plans, the Department of Labor has enacted a new regulation, Section 408(b)(2), effective Jan. 1, 2012.

To maintain compliance with this new regulation, there are several steps for sponsors to take:

  • Document your review and decision-making process.
  • Assess service providers’ competence by reviewing their references and credentials.
  • Compare providers’ services and compensation with offerings made to plans comparable to yours in terms of size and other characteristics.
  • Analyze vendors’ conflicts of interest.
  • Document the basis for the selection of the service providers.
  • Monitor the service providers.

Information provided by Oswald Financial.

 

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/.  

DOL enacts Section 408(b)(2) for retirement plan fiduciaries

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Section 408(b)(2), a 2011 regulation from the Department of Labor, requireed retirement plan fiduciaries, including plan sponsors and investment committees, to understand all fees and expenses associated with their retirement plan. Plan sponsors must also be able to determine if their fees are competitive, or “reasonable” in relation to the services they receive. 

The new regulation required:

  • The contract or arrangement must be in writing and reasonable.
  • The services being performed are necessary to establish or operate a qualified plan.
  • No more than reasonable compensation is paid for the services performed.

The DOL required compliance with the regulation on or before Jan. 1, 2012.

Source: Oswald Financial

FMLA Best Practices

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Not surprisingly, employee medical leave requests can spike in the summertime. If your organization is challenged with managing medical leave in the workplace, here are several best practices for administering the Family Medical Leave Act (FMLA).

1.    Update and communicate your policy. Make sure your organization has an updated policy and communicates this policy to employees and supervisors. Your policy should be detailed and conform to the latest Department of Labor (DOL) regulations.

2.    Request advanced notice. The simplest way to limit FMLA’s impact on your business is to request notice of leave at least 30 days in advance, which will allow you to make other staffing arrangements and coordinate the proper paperwork. 

3.    Use medical certification and recertification forms filled out by an employee’s doctor instead of doctor’s notes. If there is incomplete or insufficient information on the form, follow-up with the employee and request additional information by a certain time, or directly contact his/her doctor (with the employee’s permission). Frequency and duration are typically areas where you may need to ask for additional clarification.

4.    Don’t be afraid to ask for more information or a second or third medical opinion if you aren’t able to determine whether the health condition or situation qualifies. Also, don’t be afraid to deny an employee’s request if it doesn’t meet the standards of a serious health condition or if he or she doesn’t comply with your policy.

5.    Assess if ADA applies. If you determine that an employee does not qualify for FMLA for their health or medical condition, the American Disabilities Act (ADA) may still apply, in which you will need to accommodate. ADA may apply for approved FMLA as well.

6.    Meet one-on-one with employees. Meet with employees one-on-one to review the FMLA process. Create a checklist or process outline for them that details which forms they need to submit, by what deadlines, how payroll/benefit deductions will be dealt with during their leave, points of contact for changes in their leave, and other important information.

7.    Treat all FMLA-related occurrences equally and be consistent with your requirements. For instance, if you request a return to work form from one employee, make sure all employees fill out this form as well. If you require one employee to use PTO concurrently, make sure all employees are required to do the same.

8.    Train and update supervisors. Ensure that supervisors are well-trained on their role in the FMLA process and when they need to direct their employees to HR. You should also communicate to supervisors details about the employee’s leave, specifically schedule changes.

9.    Limit disruptions to your operations. Intermittent leave can often be more disruptive to a business’s operations, depending on an employee’s role. Request that employees schedule their treatment or appointments in ways that are least disruptive, or consider transferring the employee to a different job (although be aware that there are certain legal guidelines for transfers when FMLA applies).

10.  Use rolling 12 month periods instead of a calendar year, fixed 12-month leave year (such as by an employee’s employment anniversary), or 12 month period based on the date that an employee’s FMLA leave begins. Using rolling periods helps prevent stacking of leave and is favored over other methods.

11.  Require concurrent use of other paid time. Many employers require employees to use paid leave concurrently, such as PTO. This can help reduce abuse of FMLA. But also be aware, that some progressive employers do not require this, and even offer other additional paid leaves to supplement FMLA and support their employees.

12.  Offer flexible schedules. A variety of flexible schedules (compressed work weeks, part-time options, flexible start and end times, allowing employees to make up time, etc.) can help limit use of intermittent FMLA, by providing an employee with the flexibility to manage their schedule versus requesting leave for intermittent situations. 

13.  Research suspicious behavior or patterns. If you have honest suspicions or reasons to believe that an employee is improperly using FMLA, you are entitled to research these situations or patterns of behavior. For example, if you suspect that an employee is abusing FMLA (such as infamously taking off on Mondays and/or Fridays), research the issue or ask the employee’s health care provider if the patterns of time off are consistent with the employee’s condition or course of treatment.

14.  Reduce manual tracking and administration. Manual methods (i.e. spreadsheets) are prone to error especially when tracking intermittent leave and other leave concurrently with FMLA. Frequently, employers may miscalculate hours which costs their organization time and money. Using a system specifically designed for FMLA tracking or an HRIS can be beneficial in reducing error and yield excellent ROI.  

15.  Conduct due-diligence when applying discipline and terminating an employee on FMLA or for excessive absence. Review employees’ absences to make sure that they were not FMLA-qualifying. In addition, make sure that you are able to prove that you would have laid off or fired the employee regardless of them being on FMLA leave.

As a final thought, the best advice we can offer relative to administering FMLA is to talk with employees. Make sure they understand the process, and openly discuss any questions you have with them about their leave and the certification process. Also, when in doubt, we always recommend that employers consult the DOL regulations pertaining to FMLA. These regulations provide a great deal of information about how to execute and administer leave.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. 

 

 Additional Resources

HR Essentials
This course gives a broad overview of the human resource function, and is designed for anyone involved with human resources. It gives attendees the skills necessary to face difficult HR situations and compliance issues, and is appropriate for HR Specialists, Administrative Assistances, Controllers, Office Managers, Recruiters, HR Generalists and Executive Assistants. Topics to be covered in the session include FMLA and other labor laws/employee relations issues.

CareWorks USA
Our new preferred partner CareWorks USA provides a variety of FMLA administrative services including leave tracking, reporting, communication with employees, compliance, and much more. ERC Members receive a 5% discount off per employee per month fee or a $500 discount off Initial Set-up Fee.

 

What You Don't Know

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Ignorance may be bliss, but it won’t keep you out of court. Here are a few scenarios in which what you don’t know could truly hurt your organization.

Scenario 1: Till adverse employment action do us part

Here’s what you know. Joe and Mary are husband and wife. They both work for your organization. Joe’s performance and attendance is poor. Despite multiple meetings, warnings and disciplinary actions, he consistently doesn’t show up and even when he does, he doesn’t get much accomplished. As a result, you plan to let Joe go later this week.

Here’s what you don’t know. For the last three months, Mary’s new supervisor has been harassing her. The conditions have gotten so bad that she just filed a sex discrimination charge with the EEOC.

Here’s how this could hurt you. If you fire Joe, you may also get sued for retaliation – and lose. In early 2011, the U.S. Supreme Court ruled that an employer unlawfully retaliated against an employee after his fiancée filed a sex discrimination charge with the EEOC and it then fired him three weeks later. As a result of this ruling, employers must be mindful of the relationships between employees when taking any adverse employment actions that could be construed as retaliatory in nature, even if the potential third-party “person aggrieved” wasn’t engaged in any protected activity.

Scenario 2: It’s in the details

Here’s what you know. Emily works for your organization. She recently applied for a new position in the organization that would give her a promotion and an increase in pay. While considering Emily for the promotion, you note that she has displayed a consistent pattern of clerical errors and a lack of attention to detail in her work. You tell Emily that you believe she may lack the concentration or mental capacity to handle the additional responsibilities of the new position, and as a result, you deny Emily the promotion.

Here’s what you don’t know. Emily was recently diagnosed with a learning disability.

Here’s how this could hurt you. Based on the final rules for the Americans with Disabilities Amendments Act of 2008, taking an adverse employment action because an employee is “regarded as” having a disability is a no-no, and the definition of “disability” has been greatly expanded. In this scenario, Emily could file a claim with the EEOC that you regarded her as having a mental impairment or learning disability, and as a result, discriminated against her by denying her a promotion.

Scenario 3: Unemployed need-not apply

Here’s what you know. You have a job opening for a production manager at a facility in New Jersey. You’ve had a lot of turnover at this position, which your management team at your headquarters in Canton, Ohio, believes is the result of a lack of qualified job candidates. As a result, two weeks ago they ordered that you change your online job ad to include “must be currently employed” as a requirement of the position. You made the change at the beginning of the month, and have already started interviewing candidates this week.

Here’s what you don’t know. This week an unemployed former production manager filed a discrimination charge against your company with the Commissioner of Labor and Workforce Development in New Jersey.

Here’s how this could hurt you. As of June 1, 2011, employers in New Jersey are prohibited from knowingly or purposefully publishing a job posting in print or on the Internet that states, among other things, that current employment is a job requirement. In this case, your organization could be fined $1,000 for its first violation – up to $10,000 for a third (or subsequent) violation.

New Jersey is the first state to enact a law protecting unemployed workers from employment discrimination. New York has adopted the same legislation.

6 Ways to Manage New ADA & Legal Changes

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The final 2011 ADA regulations had important implications for HR and managers when managing employees’ medical conditions and impairments. Here are six ways we gave to strategically manage this issue in particular and other legal changes that may affect your business in the future.

Meet with your HR and management team. When any new employment law or regulation is implemented, as a strategic measure, it’s important for your HR team and organization to determine how this law will impact your organizational objectives. Meet with your management and HR teams to discuss how the law or regulation will influence your HR operations, affect your ability to attract and retain key talent, and prompt new liabilities or risks that could affect your bottom line or operations. From there, you’ll need to determine what tactical issues need to be addressed, such as implementing training to your management staff, revising and communicating policies, adjusting HR processes, and incorporating new risk management processes.

Revise policies. In the case of the final regulations pertaining to ADA (as well as other laws and regulations), it’s important that you review your policies and employee handbook to ensure that language is adjusted to meet the changing definition of disability and is consistent with the language within the regulation. Remember, the definition of disability has become much broader, so your policies should reflect this change.

Review and adjust accommodation process. No longer is focusing on the question of whether an illness or condition is a disability the focus of the ADA law, as many conditions will now fall under this definition. Rather, the changes to ADA emphasize developing accommodations for employees with impairment. Key questions you should ask are how is your accommodation process administered? Is an HR representative in charge of this process or are line managers? With the new regulations, it’s recommended that HR:

  • Lead and manage the accommodation process consistently throughout the organization versus managers. This ensures that the process is run the same throughout the organization, reducing potential liabilities.
  • Approach the ADA process like FMLA and use standard forms and processes instead of un-standardized doctors’ notes and evaluations. Consider your approaches during the pre-employment process with applicants as well as when current employees develop an illness or condition while they are employed.
  • Create a standard internal form for employees to use which provides a checklist of possible conditions or ability to write the condition or impairment and summarizes alternative accommodations that apply to the condition, or a guide for a discussion of these accommodations. The form may also include a doctor’s signature if necessary versus using doctor’s notes.

Review job descriptions. Ensure that job descriptions specify the essential job functions of each job – and also be sure that these essential functions are actually essential. The courts have been critical of how essential functions are defined. Also, be cautious of defining too many tasks as essential. A good rule of thumb is using a job analysis to rate or rank how important and critical certain tasks are to a job and how frequently they are conducted, and to account for job incumbent and supervisory perspectives.

Train and communicate. When a policy or process is revised, be sure to communicate the changes as soon as possible to managers who are in charge of implementing and executing them. With ADA, front-line managers will likely be the first to know about an employee’s illness or condition and need to understand how to handle requests for accommodations such as:

  • Job modifications
  • Schedule changes
  • Environmental issues (temperature, work setting, stress, exertion, etc.)
  • Motor or cognitive impairments
  • Mental issues (depression, anxiety, etc.)

Managers need to know how to respond, act, and when to refer to HR – and how negative or inappropriate reactions to these requests or even knowledge of a medical condition can cause liability or risk to the organization. They also need to be trained on how to effectively manage employees with mental or physical impairments in terms of scheduling, direction, support, and even modification of interpersonal interactions.

Last but not least, stay ahead of the curve. In HR, we unfortunately tend to react to a problem, a new law or regulation, or a new fad (i.e. what every other employer is doing) versus staying ahead of trends and upcoming legal agendas and issues that will affect our business. This often results in poorly executed tactics, lawsuits, and other issues that could have been avoided had we been more strategic. By being proactive and staying on top of changes emerging in the market, we can help our business manage its risk, legal, and HR issues more effectively, and become a more strategic partner within our management team.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. 

Additional Resources

ERC provides a number of resources to help you stay updated on important legal and HR trends and issues, as well as training for your managers on employment law and employee relations.

ERC Training
To visit our ERC Training Program and Courses page: click here.

Supervisor & Management Training
We offer several courses for supervisors and managers on topics like employment law, workplace bullying, and general employee relations topics like communication, interpersonal skills, and more. To learn more, click here.

HR Project Support
From employee handbook and policy updates to job description revisions, we offer assistance with HR projects to help your organization stay compliant. For more information, please contact consulting@yourerc.com.