Leave Management Today

Transcription

1 Leave Management Today The FMLA, state laws, and changing demands for compliance Paul Kramer Director of Compliance WorkForce Software

2 About the Presenter Paul Kramer Director of Compliance & Practicing attorney for 30 years, more than two decades focused on employment law Expert in FMLA, FLSA and state-specific employment laws and regulations Frequent legal contributor to HR Magazine and presenter on employment law issues 2

3 Today s Presentation What We ll Discuss Family and Medical Leave Act (FMLA) Refresher The Latest Changes A Look at State Laws Common Pitfalls & Challenges Leave Management Best Practices Closing Thoughts / Q&A 3

4 Quick Facts Employees: 300+ Founded: 1999 Headquarters: Livonia, MI What We Do WorkForce Software delivers a complete workforce management platform for large enterprises. Its EmpCenter suite includes bestin-class solutions for time and attendance, scheduling, absence and leave management, labor analytics, and employee fatigue. Client Community 200+ Customers 40+ Countries 1 million users Core Products Time & Attendance Advanced Scheduling Absence Compliance Tracker Analytics Fatigue Management Corporate Headquarters: Seven Mile Road, Suite 300, Livonia, Michigan California: 2061 Business Center Drive, Suite 120, Irvine, CA United Kingdom: Atrium Court, The Ring, Bracknell, Berkshire, RG12 1BW WFORCE workforcesoftware.com info@workforcesoftware.com

5 Informational Disclaimer This presentation is designed for educational purposes only. It is meant to provide you with a general understanding of the law but it is not legal advice. There is no attorney-client relationship between you and the presenter or with WorkForce Software. Organizations should always retain a licensed attorney when dealing with issues pertaining to their particular circumstances. 5

6 FMLA Refresher Even the basics are complex 6

7 FMLA Overview A few points about the FMLA: One of the most complex and dynamic employment laws (more on this later) Intersects with numerous other personal rights and privacy protections (e.g. Genetic Information Nondiscrimination Act GINA ) Also overlaps with state laws, union policies, and organizational leave policies Significant source of concern for HR 7

8 Reasons for Leave under the FMLA Birth and care of a newborn Placement of a child for adoption or foster case To care for a spouse, child, or parent with a serious health condition A serious health condition that makes the employee unable to perform his/her job function(s) A qualifying exigency arising out of the fact that the employee s spouse, child, or parent is a covered military member on covered active duty To care for a covered spouse, child, or parent servicemember with a serious injury or illness 8

9 FMLA: Even the basics are complex An employer MUST adhere to FMLA if Employs 50 + workers Workers must be employed during each working day, during each of 20 or more calendar workweeks, in the current or preceding calendar year All public agencies, as well as public and private elementary and secondary schools are also required regardless of employee size To receive FMLA benefits, an employee MUST Have been employed by employer for at least 12 months (not necessarily consecutive) Employed for at least 1,250 hours during the 12 month period immediately preceding leave Employed at a worksite where 50 or more employees are employed within 75 miles of the worksite 9

10 The Latest Changes FMLA s recent and forthcoming expansions 10

11 Final Rule on FMLA amendments Background: Two recent laws necessitated changes to FMLA regulations: National Defense Authorization Act of 2010 (NDAA) Airline Flight Crew Technical Corrections Act Many of the changes immediately took effect; some required clarification / interpretation from the DOL Final Rule for implementation was published in February Officially took effect March 8 A new FMLA poster is available on the DOL website 11

12 Implementation of the Final Rule Clarifications & Revisions: Revising model FMLA forms. Establishing a more flexible definition of serious injury or illness of a covered veteran. Clarifying the calculation of intermittent and reduced schedule leave. Adjusting the way flight crew workers are deemed eligible for the worked hours requirement under the FMLA. 12

13 Implementation of the Final Rule Carried Out Amendments Made by NDAA: Extending military caregiver leave to care for: Covered veterans with serious injuries or illnesses. Pre-existing injuries or illnesses that were aggravated by the military service. Expanding qualifying exigency leave to: Family members of regular armed service members as long as they are being deployed to a foreign country. Increase leave relating to a service member s rest and recuperation leave from five to 15 days Creating a new qualifying exigency leave category to care for a service member s parent who is incapable of self-care. 13

14 DOMA & the FMLA Background: The Defense of Marriage Act (DOMA) was enacted in 1996 As written, DOMA prohibits federal recognition of same-sex marriages from any state It also excludes same-sex couples from the benefits offered to heterosexual marriages, including tax breaks DOMA has a mixed record of enforcement Multiple district and appeals courts have struck down its provisions The Obama administration no longer supports the law Seen as a bellwether for related cases E.g. rulings on state laws concerning marriage definitions and rights 14

15 DOMA & the FMLA What s Happening: Supreme Court reviewing cases related to the definition of marriage: A challenge to the Defense of Marriage Act (DOMA) An appeals court ruling on California s Proposition 8 Decision expected in June 2013 Several outcomes may hinge on these cases: Whether same-sex couples receive federal benefits Constitutionality of state bans on same-sex marriage Eligibility for FMLA leave 15

16 A Look at State Laws It s not just the FMLA 16

17 Ohio Ohio Military Family Leave Act Eligibility Requirements Employer must have 50 or more employees Employee must have been employed for at least 12 consecutive months and 1250 hours immediately preceding the leave Employee can only take leave if a parent, spouse, or person who has or had legal custody over member of armed services Member of armed services must have been called for active duty of period longer than 30 days, or have been injured while on duty Employee must provide 14 days notice of leave for active duty, and two days notice for leave due to injuries. Duration Up to 10 days or 80 hours, whichever is less Can only be used after all other forms of leave, except sick and disability, are exhausted 17

18 Illinois Illinois Family Military Leave Eligibility Requirements Employee must be a spouse, parent, child, or grandparent of a person called to military service lasting longer than 30 days with the State of Illinois or the United States Employee must have exhausted all accrued vacation and any other leave granted to the employee, excluding sick leave and disability leave Duration Employers with more than 50 employees must provide up to 30 days of unpaid leave Employers with 15 to 50 employees must provide up to 15 days of unpaid leave 18

19 State Laws also change Illinois Family Leave update Amended in 2010 with new law Effective January 1, 2011 Impact Coverage extended to grandparents and children of service member 19

20 Common Pitfalls Challenges to recognize and address 20

21 Common Problem Areas Narrow Focus on FMLA 21

22 Narrow Focus on FMLA Take a holistic view of leave Focusing on the FMLA is understandable but ignoring the others can be costly Overlap can expose organization to litigation E.G. FMLA & state maternity leave Americans with Disabilities Act (ADA) ties-in Tighten up your ADA Amendments Act compliance Clarify your organization s leave year Must be consistent with all employees Changes must be communicated 60 days in advance 22

23 Common Problem Areas Narrow Focus on FMLA Intermittent Leave 23

24 Intermittent Leave Top concern about leave management, per survey results: Source: 2012 Workforce Management Trend Survey 800+ respondents 24

25 Intermittent Leave Recommendations Reduced Schedule Leave Another employee protection under the FMLA Can be easier to predict and plan around than intermittent leave Not an option for all health conditions Consider transferring Employee to an alternative position Be Mindful of Tracking Increments Intermittent leaves cannot be tracked in spans >1 hour If any other leave program (state, union, corporate) uses smaller increments, the smallest must be extended to intermittent leave Establish a moonlighting policy Intermittent leaves can be exploited to do side jobs 25

26 Common Problem Areas Narrow Focus on FMLA Intermittent Leave Record Keeping 26

27 Sound Record Keeping Practices 1. Require employees to fill out written requests for leave. 2. Require employees to comply with usual and customary notice and procedural requirements for requesting leave. 3. Certify, recertify, second and third opinions. 4. Maintain FMLA records for at least 3 years 27

28 Common Problem Areas Narrow Focus on FMLA Intermittent Leave Record Keeping Employer Responsibilities 28

29 Employer Responsibilities Leave type determination is the responsibility of the employer Employees do not need to expressly state the type of leave they re seeking Based upon the request, the employer must:» Determine leave type (or types)» Inform the employee» Follow all relevant processes & procedures especially use of medical forms Once leave type has been determined, it must be documented and tracked Ensures employees do not receive more leave than entitled Mitigates leave abuse 29

30 Common Problem Areas Narrow Focus on FMLA Intermittent Leave Record Keeping Employer Responsibilities Return from Leave 30

31 Returning from Leave Upon returning from leave Employee is entitled to be reinstated to:» same position or an equivalent position» equivalent pay, benefits & other terms and conditions of employment Must be careful if position is eliminated, project has been completed, etc. If an employee cannot be returned to his previous position, you should provide a position that is virtually identical in terms of benefits, pay, & other conditions Returning employee to same position is the best practice 31

32 Leave Management Best Practices Tips to improve efficiency and simplify compliance 32

33 Tip #1: Communicate, Train & Verify Ensure cross-functional, cross-organizational awareness Executives, managers, supervisors, HR team members, etc. Train for the entire leave process Ensure consistent treatment of all employees at all times Consistent handling of leave from request intake and leave type determination through return to work programs Provide paper trail indicating this has taken place Handbooks, threads, etc. 33

34 Tip #2: Keep Pace With Changing Regulations FMLA & other Federal- and state-specific policies are in flux Proactively monitor, interpret and apply all relevant changes Document what changed, who changed it & how it is reflected Be mindful of other policy changes as well Corporate policies & how they relate to Federal/state policies Union policies, military leave, etc. should also be considered Keep abreast of adjacent regulations as well E.G. the safe harbor statements regarding requests for medical information to remain in compliance with the Genetic Information Non- Discrimination Act (GINA) 34

35 Tip #3: Monitor Laws & Court Proceedings Employee leave violations are HEAVILY litigated Stronger enforcement by DOL DOL s FY 2014 budget calls for more resources dedicated to FMLA enforcement Different courts (or circuits) have different interpretations Great way to identify potential areas of concern BEFORE your organization is exposed to unnecessary risk Make changes to internal processes to mitigate risk 35

36 Tip #4: Standardize via Automation Enables proactive approach Helps HR identify patterns of leave requests across the organization Six Sigma: Can t control what you don t see Provides one source of the truth for executives and HR Eliminates costs of uncertainty Managers often err on side of granting leave when not clear on law» Creates schedule challenges that can result in additional labor costs (e.g. O/T)» Emboldens employees abusing leave to continue requests Levels playing field Gives managers access to same information across locations Standardizes leave determinations and treatment 36

37 Tip #5: Safeguard Against Retaliation Claims Be very cautious when terminating low-performers or abusers make sure you ve been diligent about documenting Entries of job performance issues Specific information = better protection e.g. dates, conversation notes, etc. Formal reviews, performance improvement letters, etc. Paper trail complete with dated documents provides evidence of previous and persistent issues Always consult your attorney before terminating an employee who recently returned from leave 37

38 Closing Thoughts Takeaways for your business 38

39 Today s Leave Landscape The new equation: Continued tinkering with FMLA + More expansive protections, from all sources Federal laws (FMLA, ADA, etc) State leave regulations Court rulings Increased need for centralized and welldesigned leave management 39

40 Thank you! Questions? WFORCE workforcesoftware.com ENTERPRISE WORKFORCE MANAGEMENT Time & Attendance Scheduling Absence & Leave Labor Analytics Fatigue Management 40