FMLA and ADA: Reducing Absences and Administrative Burden Mike Garfield, SVP of Business Development

Transcription

1 FMLA and ADA: Reducing Absences and Administrative Burden Mike Garfield, SVP of Business Development

2 Agenda About the Speaker FMLA and ADA Trends Top Reasons for Absences Common Employer Difficulties Trends in Outsourcing Integration of Support Programs Q&A

3 About the Speaker Mike Garfield, SVP of Business Development at ComPsych FMLASource is part of ComPsych, a privately held company strongly rooted in employee well-being, offering employee assistance programs that help employees navigate stresses impacting work performance. Our leave management solution serves more than 2,300 organizations, covering 2.4 million employees overall for over 15 years. Leave types administered include: Federal FMLA State-related leaves Jury, bereavement, company medical and personal leave Military ADA leave accommodations Provincial (Canada) Offices in Chicago (HQ), Ft. Lauderdale, Las Vegas

4 FMLA and ADA Trends FMLA Health care systems have the largest percentage of employees on FMLA leave (39 percent) Health care system employees average 29.2 days off on FMLA per year Hospitality providers have the highest percentage of intermittent FMLA leave (56 percent) Manufacturers have the longest duration of continuous leaves (average 31.4 days) Most employers approve percent of leave requests in order to avoid potential risk

5 FMLA and ADA Trends ADA Industry Percentage of an organization s FMLA cases requiring ADA review that are being missed Retail 13.2% Health Services 10.9% Manufacturing 6.8% Public Administration 6.7% Trades 6.5% Professional Services 5.9% Source: ComPsych Report, The Risk of Non-compliance with ADA

6 FMLA and ADA Trends Employer Challenges: Confusing DOL regulations (Federal and State level) Defining serious health conditions Managing unforeseeable leaves Addressing staff and budget constraints Increasing pressure to comply Inconsistency in administration and staff expertise Lack of medical expertise Very time consuming Complexity of ADA leave accommodations under the EEOC Awareness!

7 FMLA Compliance Landscape Regulatory expertise is a requirement for administering leaves in today s complex and dynamic environment : The quiet years : Increasing regulatory activity : The most active regulatory years to date FMLA passed in 1993 DOL regulations became effective in 1995 First Supreme Court case in 2002 DOL publishes survey results (5/28) DOL new FMLA regulations become effective (1/2009) (762 pages) FY2010 National Defense Authorization Act (10/2008) Airline Flight Crew Act passes (12/2009) ADAAA passed (1/2009) DOL issues study on the FMLA DOL issues interpretation on definition of adult son/daughter (1/2013) California PDL regulations revised FMLA regulations (115 pages) issued and effective (3/8/2013) New proposed regulations on FMLA and same-sex marriage (4/2014) New state laws on pregnancy and reasonable accommodation and domestic violence Transformational guidance and court decisions on ADA leave Labor Department issues 75-page FMLA guide for employers EEOC issues fivepart Employer- Provided Leave and the Americans with Disabilities Act statement DOL polls employers about FMLA issues (12/2006-2/2007) National Defense Authorization Act FY2008 Qualifying Exigencies and Caregiver leaves (1/2008) *Dozens of bills related to leave are in various stages of state legislatures DOL issues guidance on definition of in loco parentis to a child (6/2010) Courts actively shaping FMLA interpretation (e.g., honest belief) Supreme Court DOMA ruling creates 52 different state definitions of marriage (6/26/2013) Colorado Family Care Act goes into effect (8/7/2013) DOL issues new regulations on definition of spouse Federal court (Texas) blocks new regulations for at least four states Significant state leave changes in Calif., Ill. and Mass. SCOTUS case on pregnancy accommodations decided More ADA inflexible leave enforcement Record-breaking EEOC activity regarding ADA New state jobprotected leave and paid family leave laws (Conn., Wis., IL, San Francisco)

8 Regulatory Leaves Vary Greatly by State We administer 207 different types of leave across the United States 3 federal leaves: FMLA USERRA ADA* (leave as an accommodation) 204 state/leave combinations: State FMLA Leave State Pregnancy Disability Leave (PDL) State Disability Insurance With Job Protection Leave FMLA for care of a same-sex spouse as required by state definition of marriage State Domestic Violence Leave State Family Military Leave State Bone Marrow or Organ Donation Leave State Civic Volunteer Leave State School Visitation Leave State Crime Victim/Court Witness Leave

9 ADA Leave Confusing & High Risk Recent developments include broadening of disability definition and increased scrutiny of ADA leave requests Employers without flexible, individualized analysis are being investigated by EEOC $37 million in ADA leave settlements in past three years ADA leaves are one of the most problematic issues that employers are seeing. Corrie Conway, of counsel at Morgan, Lewis and Bockius. Bloomberg BNA, June 25, 2013

10 Top Reasons for FMLA Absences Source: FMLASource report

11 Common Employer Difficulties Trouble interpreting ambiguous FMLA language to determine if an employee s situation qualifies for FMLA, even if the employee doesn t ask for FMLA leave Failure to demonstrate fair and equal treatment of all employees for FMLA while giving individualized analysis for ADA Tracking and reporting leaves correctly, which can be challenging because employees can take full, reduced schedule or intermittent leaves Failing to recognize an ADA-eligible situation

12 Common Employer Difficulties FMLA Activities Ranked as Difficult / Extremely Difficult Tracking intermittent time previously taken 30% 35% Tracking intermittent time during leave 31% 35% Interacting with ADA and ADAAA 30% 28% Transferring employess to alternative positions 29% 29% Denying leave requests 26% 24% Source: 2016 DMEC Employer Leave Management Survey

13 Common Employer Difficulties Leave and Absence Management Activities Ranked as Difficult / Extremely Difficult Understanding the impact of the ADA and the amended ADA (ADAAA) and the impact of employee practices 26% 30% Interacting with ADA and ADAAA when administering FMLA 24% 25% Managing workers' compensation concurrently with FMLA 13% 20% Managing disability concurrently with FMLA 14% 19% Coordinating leaves (including FMLA) with attendance policies 9% 15% Source: 2016 DMEC Employer Leave Management Survey

14 Outsourcing Trends Percentage of FMLA Leave Outsourced ees 21% 25% 34% 1,000+ ees 35% 35% 45% Source: 2016 DMEC Employer Leave Management Survey

15 Outsourcing Trends According to DMEC: Source: 2016 DMEC Employer Leave Management Survey

16 Is Outsourcing Right for You? Points to consider: What is your rate of approval for leave? What percentage of employees are on leave at any given time? How much are absences costing your organization (overtime, lost production, administrative time)? Are you a multi-state employer? Do you have multiple decision makers? Is your HR staff up to speed on case law? Does HR have enough resources to make individualized analyses on ADA accommodation?

17 Is Outsourcing Right for You? Key questions to ask vendor: Does the vendor coordinate with disability? Is ADA support provided? Is manager training provided? Is EAP / work-life integration offered, to resolve issues and reduce length of absences?

18 Integration of Support Programs Employers are increasingly enhancing their EAP and absence management programs by integrating them Type of leave Percentage routinely referred to EAP Increase over three-year period Psychiatric disability 44% referrals 157% Medical disability 26% referrals 152% All FMLA leaves 25% referrals 156% 75% of employees who finish ComPsych EAP Services report that their issues are resolved. Challenge: Connecting need for leave with getting clinical and work-life assistance

19 Key Takeaways FMLA and ADA continue to increase in complexity, with absences on the rise Employers continue to get in hot water with DOL and EEOC Outsourcing is becoming more popular as employers seek expertise, compliance and reduced impact of leave upon their organization Consider doing a study on the full cost of absence in your organization, including overtime and lost production The top reasons for leave medical conditions (self) and caring for a family member can be mitigated through integration of support services like EAP and work-life with absence management

20 Q&A Mike Garfield SVP of Business Development