Tips for Managing FMLA, ADA, Workers Compensation, and Paid Sick Leave

Transcription

1 Tips for Managing FMLA, ADA, Workers Compensation, and Paid Sick Leave Presented by Kristi Weierbach, Ph.D, SPHR, SHRM-SCP, FPC ext. 3006

2 Friendly Reminders -Survey -Questions

3 In today s session. Purpose Family Medical Leave Act (FMLA) American Disabilities Act (ADA) Worker s Compensation Paid Sick Leave

4 Poll Question #1 How comfortable are you with FMLA and ADA? Feel good Dazed and confused Not at all

5 ADA/FMLA are commonly systemic investigations, resulting after a discrimination claim. Blurred Lines Current illegal drug users not covered; however, former users are. Alcoholics are covered Pregnancy is covered by FMLA, not ADA. Complications from pregnancy are covered by ADA.

6 Navigating the Blurred Lines Eligibility, Responsibilities, Tracking, Notices..

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8 DOL Road Map to FMLA 1. Determine if covered employer 2. Display FMLA poster and provide General Notice 3. Employee requests FMLA (or employer learns of FMLA qualifying event) 4. Determine employee eligibility 5. Provide notice of eligibility, rights and responsibilities 6. Request Certification if required 7. Determine if FMLA request qualifies. 8. Provide designation notice and grant leave 9. Maintain Health Benefits 10. Restore employee at end of leave 11. Maintain proper records

9 Family Medical Leave Act (FMLA) Unpaid, job-protected leave to eligible employees for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. 12 workweeks of leave in a 12-month period: Birth of child and to care for the newborn child within one year of birth; Placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; Care for the employee s spouse, child, or parent who has a serious health condition; Serious health condition that makes the employee unable to perform the essential functions of his or her job; Qualifying exigency arising out of the fact that the employee s spouse, son, daughter, or parent is a covered military member on covered active duty; OR 26 workweeks of leave during a single 12-month period to care for a covered service-member with a serious injury or illness if the eligible employee is the service-member s spouse, son, daughter, parent, or next of kin (military caregiver leave).

10 FMLA - Covered Employers Private Sector 50 or more employees in 20 or more workweeks in current or previous calendar year. Public Agency covered regardless of employee count. Schools local educational agencies covered regardless of employee count including public school boards, public elementary/secondary schools, and private elementary/secondary schools.

11 FMLA - Covered Employees Eligibility determined by an individual who: Works for a covered employer Work for said employer for at least 12 months Worked at least 1,250 hours of service for said employer during the 12 month period immediately preceding the leave. Works at a location where the employer has at least 50 employees within 75 miles.

12 FMLA - Employer Responsibilities Send out required notices timely. Restore eligible employee to his or her original job or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Example: Architect Track time off consecutive vs. intermittent. Maternity Leave vs. Serious Illness

13 FMLA Notices - Employer FMLA Notice of Rights and Responsibilities - WH-381 Certification of Health Care Provider Employee Serious Health Condition WH-380-E Family Member s Serious Health Condition WH-380-F Military-related Certifications Certification of Qualifying Exigency for Military Family Leave WH-384 Certification of Serious Injury or Illness of Covered Servicemember for Military Family Leave WH-385 Certification of Serious Injury or Illness of a Veteran for Military Caregiver Leave WH-385-V

14 FMLA & Group Health Insurance Coverage Must continue for duration of FMLA. Employer must still contribute as did when actively working

15 FMLA Tracking Awareness Implement a reliable system spreadsheet, online solution etc. Consistency Milestones

16 Poll Question #2 Do you currently have an FMLA policy? Yes No Not sure

17 SHRM s Top 11 Employer FMLA Mistakes 1. No FMLA Policy 2. Counting Light-Duty Work as FMLA Leave 3. Silent Managers 4. Untrained Supervisors 5. Missed Notices 6. Overly Broad Coverage 7. Incomplete Certifications 8. No Exact Count of Use of FMLA Leave 9. No Adjustment to Sales Expectations 10. Being Lax About FMLA Abuse 11. Overlooking the ADA

18 ADA COBRA HIPAA PDA USERRA WC FMLA Crossover

19 American Disability Act (ADA) Intent Prevent discrimination in pre-employment, hiring, firing, promoting, and training people. In 2015, 37% of lawsuits filed by EEOC were related to ADA Ensure disrespect Employees are NOT marginalized, isolated, and treated with Office of Disability Rights Federal

20 Disability is not just physical Disability is defined as a physical or mental impairment that substantially limits one or more major life activities including, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. ( Examples Anxiety Depression Post-traumatic stress disorder (PTSD)

21 Hiring Do s/don t Pre-Job Offer do NOT ask questions about disability or use medical examinations. Post-Job Offer may ask disability-related questions and conduct medical examinations so long as done for everyone in the same job category.

22 Poll Question #3 Is changing a person s supervisor a reasonable accommodation request under the ADA? Yes No Not sure

23 Reasonable Accommodation any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities ( ADA handbook for small businesses

24 Reasonable Accommodation Interactive Process The process designed to enable the employer to obtain relevant information to determine the feasibility of providing the leave as a reasonable accommodation without causing an undue hardship ( Understand Job Purpose and Essential Functions Consult with employee about limitations and nature of his/her disability May request health care provider to elaborate or confirm Intermittent or consecutive leave Duration of leave Accommodations

25 Examples of Reasonable Accommodation Job restricting Time off Change in schedule, equipment etc. Change of workplace policy Working at home

26 Reasonable Accommodation is not Medication Monitoring Lowering production standard Provision of personal use items (hearing aids, wheelchairs_ Change in supervisor

27 Re-assignment Must place employee in vacant position for which he is qualified, without requiring the employee to complete with other applicants for open positions. Exception exists if another more senior person is eligible for the position (under a uniformly-applied seniority system). Does not include promotion

28 Undue Hardship According to the DOL, an undue hardship exists when it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work..may also be shown if the request for an accommodation violates the terms of a collective bargaining agreement or job rights established through a seniority system ( Undue hardship can be hard to defend. Seek guidance from an attorney

29 Employer Top ADA Mistakes Require employee to be 100% healed Fail to consider reassignment as an option. Terminate an employee who needs unpaid leave due to a disability (e.g. needs leave prior to becoming eligible for PTO). Don t extend available leave to accommodate disability. Using a third-party provider for STD, LTD etc. that does not use proper ADA verbiage.

30 EEOC Complaints Preventing a complaint Follow the law Keep Documentation When a complaint is filed Don t panic, a complaint does not mean it is true. Contact your attorney Cooperate!

31 Federal Tax Incentives Small Business Tax Credit Work Opportunity Tax Credit Architectural/Transportation Tax Deduction Contact Tom Moul to learn more.

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33 What happens when a worker s compensation incident turns into a disability?

34 Safety First! Encourage Reporting Injuries Partner w/ Insurance Company

35 Action Steps Stay calm, remain neutral Execute emergency response plan if applicable Investigate thoroughly and document Do not retaliate Discipline if necessary What lessons can be learned? Preventative measures

36 Paid Sick Leave Mandatory in some states and cities. Sometimes can be included as an all-in-one.i.e. PTO. Stay current with legislative updates Implement a reliable tracking system spreadsheet, online solution etc.

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