Top 6 Avoidable Leave of Absence Mistakes

Transcription

1 Top 6 Avoidable Leave of Absence Mistakes

2 Overview» A copy of this slide deck is located in the handout widget on your webinar console.» This webinar is being recorded. You will receive a link via .» Use the question box for any questions or logistical issues.» HRCI and SHRM continuing education credits will be provided at the end of the webinar.» Please take our short survey at the end of the webinar we value your feedback.

3 Presented by: Christina McShane, Sr. Hotline Advisor ThinkHR PHR, SHRM-CP Laura Kerekes, Chief Knowledge Officer ThinkHR SPHR, SHRM-SCP

4 Agenda Today we re going to examine common FMLA mistakes including: 1. Failing to properly notify employees of FMLA eligibility 2. Misunderstanding FMLA qualifications 3. Not integrating the company s FMLA policy with other leave policies 4. Misunderstanding the counting method for FMLA leave time 5. Not allowing an employee s return to work when light or accommodated work duties are necessary 6. Failing to properly reinstate employees returning from leave 7. Common myths and misconceptions

5 Family and Medical Leave Act (FMLA) Summary FMLA is designed to provide leave for:» Childbirth and care for a newborn child» Placement of a child for adoption or foster care» To care for a child, spouse, or parent with a serious health condition» Serious health conditions of the employee» Any qualifying exigency arising from a covered military servicemember family member» To provide care to a servicemember or veteran family member with a serious injury or illness

6 FMLA Covered Employers The FMLA applies to:» Private employers with 50 or more employees» All public agencies and private and public elementary and secondary schools, regardless of the number of employees

7 FMLA Covered Employees Employees are eligible to take FMLA leave if they have:» Worked for their employer for at least 12 months» Worked for at least 1,250 hours over the 12 months immediately prior to the leave; and» There are at least 50 employees working within 75 miles of the employee's worksite

8 1400 FMLA LAWSUITS

9 MISTAKE 1: Failing to Meet the FMLA Notice Requirements

10 Eligibility Notice» Must be provided within 5 business days of an employee s request for leave or an employer s knowledge of the need for the leave» The clock doesn t start until the eligibility process is started

11 Failure to Provide Notice DeCesare v. Niles City School District Board of Education (Ohio 2003)» Denied employee reduced schedule» Failed to provide notice of rights FMLA Notice of Rights

12 FMLA Penalties/Sanctions Failure to timely designate leave that causes an employee to suffer harm could result in the following penalties:» Compensation and benefits lost» Actual monetary losses sustained» Any appropriate relief including: Employment Reinstatement Promotion

13 Don t make the mistake of assuming because the employee did not request FMLA that notice need not be provided. The responsibility is on the employer to recognize notice needs to be provided.

14 MISTAKE 2 Misunderstanding What Qualifies as a Serious Health Condition

15 Serious Health Conditions Illness, injury, impairment, or physical or mental condition that involves:» Inpatient care» Continuing treatment by a health care provider

16 What Treatment Applies Does not apply:» Routine physical exams» Eye exams» Dental exams Does apply:» Course of prescription medication» Therapy requiring special treatment» Addiction treatment

17 Assuming FMLA Does Not Apply Is Dangerous» Let the employee s physician make the judgement call» Employers may request additional information

18 MYTH: Only M.D.s may Write the Note In general, the FMLA defines a health care provider as:» A doctor of medicine or osteopathy authorized by the state» Anyone determined by the Secretary of Labor to be capable of providing health care services» Others capable of providing health care services include: Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors Nurse practitioners, nurse midwives, clinical social workers, and physician assistants Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts Any health care provider whom an employer will accept certification of a serious health condition from

19 MISTAKE 3 Failing to Integrate the Company s FMLA Policy with Other Leave Policies

20 Types of Leaves to Review in Conjunction to FMLA» Paid Sick Leave» Vacation or PTO» Personal Leave» Holiday Leave» Short Term Disability (STD)» Long Term Disability (LTD)» Paid Parental Leave» Paid Adoption Leave» Worker s Compensation» Americans with Disabilities Act (ADA) Accommodation Leave» Pregnancy Leave» Other Paid Leave Benefits

21 Perez (US Department of Labor) v. Staples, Inc. and Staples Contract and Commercial, Inc.» Mr. Angstadt took time off to care for his wife» Changed positions» Placed on a Performance Improvement Plan» Termination» = $275,000

22 Lessons Learned:» Use the Notices» Seek out more information and get the Notice of Rights out within five business days of the request» Review other company policies

23 MISTAKE 4 Misunderstanding How to Structure and Count FMLA Leave Time

24 FMLA Leave Tips» There are three very important things to remember about administering FMLA leaves: Know your company s method for calculating eligibility, Keep a spreadsheet, and Always have a calendar handy!

25 FMLA After the First 12 Months Have Ended» The calendar year» Any fixed 12-month period» The 12-month period measured forward from the date any employee s first FMLA leave begins» A rolling 12-month period measured backward from the date an employee uses any FMLA leave

26 Intermittent and Reduced Schedule Leave Set the right expectations: 1. Notifying both the employee and his or her manager that FMLA time may be taken in smallest increment of time measured by employer 2. Reminding the employee to notify manager of absences under normal call-off procedures 3. Employee must notify the manager when the time off is FMLA 4. Ensure the employee s manager properly tracks that FMLA time 5. Remind the manager to contact HR if additional time is being taken

27 Myth: An Employee Can Have More Than 12 Weeks FMLA Leave in 12 Months» An employee is only entitled to 12 weeks of FMLA covered leave in each 12 month period» ADA may provide additional leave as a reasonable accommodation for employee s disability» Check state laws for additional leaves or requirements

28 MISTAKE 5 Mismanaging an Employee s Return When Light Duty is Needed

29 Mismanaging an Employee s Return When Light Duty is Needed Under the ADA, employers must (unless there is undue hardship):» Restructure a position» Provide modified scheduling» Reassign to an equivalent existing vacancy for which he or she is qualified

30 MISTAKE 6 Failing to Properly Reinstate an Employee Returning from FMLA Leave

31 Reinstatement Rules» Must be restored to the same or equivalent position» Same benefits, pay and other terms of employment» Any temporary replacements should be displaced NOT the returning employee

32 Things to Remember» Be compliant but remember to be compassion and respectful, too» Put everything in writing» Always Be Consistent, Document Everything (ABCDE)» Check in when appropriate

33 Myth: It Is OK/Not OK to Check in» OK to call, and/or send a letter when necessary» Be compassionate but not nosy!

34 FMLA Tips to Remember 1. Be proactive in identifying potential FMLA situations 2. Follow up with the proper notifications and designations 3. Ask for medical certification and be sure that it is complete 4. Consider other federal or state leave laws that may intersect with FMLA leave 5. Track leaves carefully 6. Put details in writing to your affected employee 7. Stay in touch with your employee show you care through compassion as well as by respecting the employee s right to leave and privacy

35 Continuing Education» SHRM: 16-9VNJW» HRCI:

36 Maximize Your ThinkHR Subscription Welcome to the ThinkHR Workplace Sign in to Workplace at:» Your broker s custom URL or» Thinkhr.com

37 Employee Leave Toolkit

38 Employee Leave Toolkit» DOL model and required forms» Sample communication letters» Additional guidance» And much more!

39 Title Thank you!