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@work
MARCH 2018 | VOL 10 NO 2
Official Publication of Disability Management Employer Coalition
Employment
Practices
Compliance
Inside This Issue:
• Interaction Between the FMLA
& California Leaves
• ADA Leave Compliance
Contents
MARCH 2018 | VOL 10 NO 2
Departments
5 The CEO’s Desk
Compliance: Possible
7 Final
Compliance Memos
ERISA Disability Claim Regulations In Force on Apr. 1
Tax Reform Provides Employer Tax Credit for Family Leaves
Are You Prepared for New York Paid Family Leave?
SPOTLIGHT Articles
Austin Passes Paid Sick Leave
43 DMEC News 18
Program Showcase:
Parental Leave Policy
7th Annual Employer Leave Management Survey by Jessica Hawley
Results Unveiled
Tribute to DMEC Supporters 21
RTW Case Study:
FMLA Evaluation Roadmap
John Garner and Pam Porter by Kristin Hostetter
Features 27 Compliance Makeover:
Surveillance Investigations
by Alyssa Coleman
30 Compliance Makeover:
9 Navigating the Interaction Between
the FMLA and California Leaves:
Paid Sick Leave Laws
by Michael Soltis
Proceed With Caution
by Kelly D. Gemelli, Of Counsel, Jackson Lewis
15 ADA Leave Compliance:
Are You Sure Your House Is In Order?
by Lori Welty, Compliance Attorney
Reed Group
Columns @work
Editorial Policy
32 Work/Life Squeeze: FMLA Caregiver Protections
by Marti Cardi
@Work magazine is the official publication of the Disability
Management Employer Coalition. Copyright 2018 by DMEC.
All rights reserved.
Beware of Traps in Employee Caregiver Leaves The goal of @Work is to present industry and Association
news, highlight member achievements, and promote the
exchange of specialized professional information. The
33 Integrated Absence Management
by Glenn Pransky and Kerry Brooks
statements and opinions expressed herein are those of the
individual authors and do not necessarily represent the views
of the Association, its staff, board of directors, or its editors.
Likewise, the appearance of advertisers does not constitute an
Early RTW Can Help Control Healthcare Costs endorsement of products or services featured in this, past, or
subsequent issues of this publication. DMEC makes no
representations, warranties, or assurances as to accuracy of
34 Absence Matters
by Bryon Bass
the information contained in the articles, and no content
herein is legal or tax advice. Consult appropriate professionals
for legal or tax advice.
What You Need to Know About Medical @Work welcomes submission of articles of interest to disability
and absence management professionals at all levels. Instruc-
Certifications and Recertifications tions for submission are published online at www.dmec.org/
work-magazine.
35 The Disabled Workforce
by Rachel Shaw
DMEC Membership
Individuals receive @Work as a DMEC member benefit.
Call 800.789.3632 or go online to www.dmec.org for
When a Fitness-for-Duty Examination Is the Appropriate Tool more information.
Contact DMEC
800.789.3632
36 Innovations Enhance Outcomes
by Michael Lacroix and Janîce Beeker
info@dmec.org
5173 Waring Road, Suite 134, San Diego, CA 92120-2705
Equal Treatment for All Parental Bonding Leaves
Editor Sponsors
38 Accommodations Best Practice Guide
by Roberta Etcheverry
Peter Mead, CPDM
editor@dmec.org
For all editorial questions
Diamond Sponsors
Liberty Mutual
MetLife
Layout & Production Sedgwick
Training Is the Key to Compliance Mark Jaquette
Platinum Sponsors
Editorial Review Panel
39
AbsenceSoft
Riding the Demographic Wave Linda J. Croushore, MEd, CRC
Steven M. Genduso, MA, CPDM
Broadspire
Cigna
by Matthew Bahl and Kristin Tugman Thomas P. LeRoy, PT, MSErg Lincoln Financial Group
Terri Morris, CEBS, CPDM Prudential
Boom and Burst: The Baby Boomer Fred Schott ReedGroup
Generation Bubble and Productive Aging Skip Simonds Spring Consulting Group
Sun Life Financial
DMEC National Board The Hartford
Marcia Carruthers
40
The Partners Group
6 Pillars of Leave Management Terri L. Rhodes
Michael Crowe
The Standard
Unum
by Geoffrey Simpson Kevin Curry
Debby Kweller Gold Sponsors
The Intersection of the FMLA and the ADA Kimberly Mashburn ClaimVantage
FINEOS
41
Genex
Aligning Workers' Compensation Matrix/Reliance Standard
Pacific Resources
by Gary Anderberg
Data Exchange to Align the FMLA with Workers' Compensation
2017 DMEC Employer Leave Management Survey White Paper
With information from over 1,203 employers, the newly-released 2017 white paper covers em- New
Release!
ployer methods, challenges, and successes in the administration of all types of leaves. This year’s
report also highlights trends and employer perspectives on paid leave, the ADA, and how technol-
ogy is being used. Download your copy today at www.dmec.org/leave-management-survey.
Four Generations. One Workforce. We’re MetLife and we’re for the workforce. Today, four generations are working together—all with different needs. So we partner with you to provide expertise, guidance, and employee benefit plans to make your business more attractive to the people who make it successful. Learn how to stay ahead at MetLife.com/Workforce 1701-765251 © 2017 Metropolitan Life Insurance Company, New York, NY 10166 L1216486311[exp0218][All States][DC,GU,MP,PR,VI]
The CEO's Desk MARCH 2018
Terri L. Rhodes
CCMP, CLMS, CPDM, MBA
President and CEO, DMEC
Compliance: Possible
Today’s workplace is unprecedented in its frag- able to them; and they need it all now.
mented landscape for managing employee time off. And yet, compliance is not impossible. This
• We have mandated leaves of absence, paid committed professional community of employers
family leave, and sick leave laws. and vendors is working tirelessly to ensure that
• We have company policies that augment compliance is, in fact, possible.
state and federal time off programs. The results of the 2017 DMEC Employer
• An estimated 60% of the U.S. workforce has Leave Management Survey, which includes infor-
access to Family and Medical Leave Act (FMLA) mation from over 1,200 employers of various
benefits, which are expanded by state, county, and sizes and industries, confirmed that paid leave
municipal laws, not to mention state and company and outsourcing remain front and center. Our
short-term disability policies. survey highlighted the increasing challenges we
• Paid sick leave laws have been enacted by face and found more employers are relying on
nine states and more than 40 counties and external resources and technology for compli-
municipalities. ance updates.
• Paid family leave laws have been enacted When employers explore solutions, they may
by California, New Jersey, Rhode Island, New find a one-stop shop fits their needs or that
York, Washington state, their leave management programs require more
and the District of than one solution. Either way, the marketplace
““DMEC
DMEC is developing a training resource Columbia. Large and continues to expand to meet the growing com-
for all managers and supervisors influential, California is pliance needs.
serving as a laboratory The survey also found that supervisors and
on the FMLA and the ADA."
ADA.
for complex state-federal other managers unfamiliar with the basics of leave
interactions. laws and regulations are a leading driver of govern-
• There are literally hundreds of other state, ment enforcement actions. Employers of all sizes
county, and municipal laws. Some of the required report difficulty training supervisors in this area.
time-off laws, such as voting, bereavement, school Educating managers is a known solution for
activities, bone and blood donor, victims of this problem. Respondents especially favor man-
domestic abuse/crime (just to name a few) require datory and online training, which is why DMEC
detailed management and oversight. is developing a training resource for all managers
Compliance in this current environment and supervisors on the FMLA and the ADA.
would be inconceivable using the manual tools And finally, you'll find timely solutions and best
and “sneaker net” communications we employed practices for your compliance challenges when the
in the early years. And if the trajectory continues, DMEC community convenes at the 2018 FMLA/
managing these “time away from work” programs ADA Employer Compliance Conference in Orlando,
will be even more complex a year from now. April 30-May 3 — the one gathering devoted exclu-
Employers today need solutions; they need sively to covering leave compliance mandates. Please
timely dissemination when new regulations join us for this must-attend conference!
impact their workforce; they need to under-
stand what their vendor partners’ capabilities Terri L. Rhodes
are; they need to know what resources are avail- DMEC CEO
www.dmec.org | 5
www.dmec.org | 6
Compliance Memos
CM #6 Final ERISA Disability Claim Regulations In Force on Apr. 1
New Employee Retirement Income Security Act (ERISA) conflict of interest, expanded benefit denial notification,
regulations governing disability claim administration take claimant right to review and respond, consequences for
effect on Apr. 1. This rule-making process began in the claim processing irregularities, non-English language notice,
Obama administration and had another review/comment and limitation periods to bringing suit for denial of benefits.
cycle due to Trump administration efforts to reduce regula- For more details, visit http://dmec.org/2018/02/09/changes-
tory burden. While many of these rules are parallel to provi- to-erisas-disability-claims-regulations-coming-apr-1/ and
sions in insurance or third-party administrator contracts, https://tinyurl.com/dol-ebsa-ERISA-regs4-1-18.
some may increase administrative burden. Compliance
action plans will be important for six critical provisions:
CM #7 Tax Reform Provides Employer Tax Credit for Family Leaves
The Tax Cuts and Jobs Act passed on Dec. 22, 2017, offers earned per month. The base tax credit is 12.5% of the leave pay,
employers a substantial tax credit for providing paid family with increments of 0.25% for each percentage point above 50%
and medical leave (FML) to employees. The new tax credit of the employee's regular wages (not to exceed a 25% credit).
sunsets at the end of 2019 unless Congress renews it. It has For example, if an employee earns $6,000 per month, one
several requirements: month of paid FML at 50% wage replacement would yield a tax
• Minimum qualifying leaves of two weeks, maximum of 12 credit of $375 (or 12.5% x $3,000), at 60% wage replacement the
• Employers must post a separate written FML benefit policy credit would be $540 (or 15% x $3,600), and at 100% wage
• The policy must include a pro rata FML benefit for part- replacement the credit would be $1,500 (or 25% x $6,000).
time employees, which yields a reduced tax credit for employers Every dollar of tax credit reduces an employer's tax obli-
• The full tax credit applies to qualifying full-time employees gation. This is a substantial credit that may incent some
• Pay is at least 50% of employees’ regular earnings employers to offer the FML benefit, if they do not already.
• The ceiling amount for calculating the tax credit is 100% For some employers that have concurrent use of multiple
pay replacement of up to $6,000 per month per employee benefits, the decision to pursue a paid FML benefit may
• The tax credit is not available when paid vacation, per- involve decisions about other benefits as well. Employers can
sonal, or sick leave are used concurrently with FML use a Paid Leave Tax Credit Calculator to estimate the poten-
• The credit is available to all employer sizes, with no tial tax savings their voluntary paid leave programs can gen-
minimum or maximum number of employees erate. To learn more, visit http://dmec.org/2018/02/23/
For employees earning more than $6,000 per month, the paid-leave-can-contribute-employers-bottom-line/.
credit applies only to the FML benefit paid on the first $6,000
CM #8 Are You Prepared for New York Paid Family Leave?
The New York Paid Family Leave law (NY PFL) took for the new law, which had been in the news for more than
effect on Jan. 1, 2018. Before the start date, employers were 12 months. Only 28% of participating employers were
invited to take a survey quiz to assess if they were prepared Compliance Memos continued on p. 45
www.dmec.org | 7
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WorkPartners.comFEATURE Employment
Practices Compliance
By
Kelly D. Gemelli, JD
Of Counsel
Navigating the Interaction Between
Jackson Lewis, San Diego
the FMLA and California Leaves:
Proceed with Caution
The federal Family and Medical Leave Act or more employees on the payroll. This includes
(FMLA) and the California Family Rights Act employees on the payroll who work part-time,
(CFRA) contain overlapping and sometimes on commission, interns, and employees who
conflicting employee rights and employer obli- are on leave of absence but are expected to
gations regarding California family leave. return to active employment.
Because so many employers have operations in The FMLA and CFRA also apply to all pub-
California and because this overlap can gener- lic employers, regardless of the number of
ate significant additional obligations, California employees. To complicate things further, in
family leave laws have national impact. 2018, the California Parent Leave Act, S.B. 63,
In addition, California’s Fair extended CFRA coverage to employers of 20 or
Employment and Housing Act more employees and all public agencies for new
makes it a separate violation child bonding purposes. This new law signifi-
"Leave taken by an employee under CFRA typically
runs concurrently with FMLA leave except where
leave is taken under the FMLA for a disability due to
pregnancy, childbirth, or related medical conditions."
to fail to engage in the cantly expands CFRA, which previously only
interactive process once an applied to employers with 50 or more employ-
employee’s leave under the ees. Please note, however, that the new law only
FMLA/CFRA ends. If employers fail to expands CFRA’s bonding leave provision; it
engage in the interactive process, they cannot does not require employers with fewer than 50
rely on a number of affirmative defenses that employees to offer CFRA leave for other rea-
would preclude liability. sons, such as for the employee’s or a family
member’s serious health condition.
Basic Entitlement To be eligible for the FMLA or CFRA, an
CFRA aligns with the FMLA in many areas, employee must have worked for a covered
but there are significant exceptions. Both the employer for at least 12 months and must have
FMLA and CFRA apply to employers with 50 worked at least 1,250 hours in the 12 months
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The Broadspire® service model combines clinical
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973.439.6761 or michael.hoberman@choosebroadspire.com.
5335 Triangle Parkway | Peachtree Corners GA 30092 | www.choosebroadspire.com | eoepreceding the leave. Employees must
also work at a worksite where 50 or
more employees are employed by the
employer within 75 miles of that
worksite.1
The FMLA and CFRA require cov-
ered employers to provide up to 12
weeks of unpaid, job-protected leave
for an employee’s own serious health
condition; to care for a covered family
member with a serious health condi- PDL applies to employers with five insurance coverage for an employee on
tion; or to bond with a newborn, or more employees. If an employee is the same terms as if the employee con-
adopted, or foster child.2 In addition, disabled by pregnancy, childbirth, or a tinued to work.
FMLA (but not CFRA) allows for leave related medical condition, she may Another example: Gary is an
for a qualifying exigency relating to a qualify for up to four months of PDL. employee of ABC Corporation and has
close family member’s military ser- An employer may designate PDL as been employed for almost two years.
vice.3 The FMLA (but not CFRA) also FMLA leave, but as stated above, CFRA He has requested leave for medical dis-
allows eligible employees up to 26 specifically excludes pregnancy-related ability and has asked how much time
weeks of unpaid leave to care for a seri- leave from coverage.6 So when an he can take off. Gary will be eligible for
ously ill or injured service member or employee’s PDL/FMLA leave ends, she FMLA and CFRA coverage concur-
veteran.4 may then qualify for up to 12 weeks of rently, making him eligible for up to 12
CFRA bonding time leave, resulting in weeks of unpaid leave.
How the FMLA and CFRA Interact a potential total leave period of up to
Leave taken by an employee under seven months. Notification of Leave Entitlement
CFRA typically runs concurrently with For example, Betty, an employee of The clock starts running on
FMLA leave except where leave is taken ABC Corporation, has been employed employees’ FMLA or CFRA leave when
under the FMLA for a disability due to for nearly three years. ABC employs the employer designates it as FMLA or
pregnancy, childbirth, or related medi- over 50 employees. She requested leave CFRA leave and gives notice of the
cal conditions. Leave for pregnancy or for her pregnancy and asked how much designation to the employee. Be aware
pregnancy-related disability counts leave she is entitled to take. Generally, that an employee does not need to
only toward the employee’s FMLA an employee on pregnancy disability expressly assert rights under the FMLA
leave entitlement and not toward the will be disabled for 6 to 8 weeks follow- or CFRA or use any special terms. The
leave rights granted under CFRA. This ing delivery. During the disability employee must state, however, the rea-
is because CFRA has special provisions period, she will be on FMLA and PDL son the leave is needed, such as for
for leave taken for disability due to leave concurrently. Once the pregnancy medical treatment or the expected
pregnancy, childbirth, or a related seri- disability ends, she will be eligible for birth of a child.
ous medical condition as a serious CFRA leave for up to 12 weeks (any If the employer does not have suffi-
health condition of the employee. remaining FMLA leave will run con- cient information about the reason for
As a result, an employee who currently with CFRA). the employee’s use of leave, the
exhausts FMLA leave for a pregnancy- When FMLA or CFRA leave ends, employer should inquire further of the
related disability is still entitled to CFRA an employee has a general right to be employee to determine whether the
in order to bond with the newborn child. restored to the same or an equivalent need for leave is FMLA- or CFRA-
In the event an employee requests leave position, identical to the original in qualifying and to determine the
for her pregnancy, childbirth, or a related terms of pay, benefits, working condi- expected start date and duration. See
medical condition, employers also need tions, shift, schedule, and geographic Moore v. Regents of Univ. of Cal. [(2016)
to review the employee’s leave request location. Also, be aware that employers 248 CA4th 216, 249], which held that
under California’s Pregnancy Disability subject to the FMLA and CFRA are “an employer bears the burden under
Leave Law (PDL).5 required to maintain group health CFRA, to inquire further if an
www.dmec.org | 11Employee benefits solutions tailored to
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Absence Management I Disability I Life I Voluntary
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© 2017 Liberty Mutual Insurance. Insurance underwritten by Liberty Mutual Insurance Co., Boston, MA, or its affiliates or subsidiaries.
employee presents the employer with a an illness, injury, impairment, or physi- benefits, and other monetary losses;
CFRA-qualifying reason for requesting cal or mental condition that involves emotional distress, punitive damages,
leave.” The employee has a duty to inpatient care or continuing treatment reinstatement, and back pay, as well as
respond to an employer’s questions if by a medical provider.8 Typically, unless significant exposure for attorneys’ fees.
they are designed to determine whether complications arise, minor ailments —
an absence is potentially FMLA- or such as the common cold, upset stom- Interaction with the ADA and FEHA
CFRA-qualifying. Failure to do so may ach, minor ulcers, headaches, routine Many employers believe that if an
result in the denial of the leave request. dental work, earaches, and so forth — employee exhausts the FMLA/CFRA-
Please note, however, that medical do not qualify as serious health conditions. mandated leave and still cannot return
privacy laws in California limit the type Family and medical leave laws also to work, their job is no longer protected.
of information an employer may require prohibit discrimination or retaliation This is a big mistake. Even if the employ-
on the certification. CFRA regulations against an employee for exercising rights ee’s leave is no longer covered by the
prohibit employers from asking for cer- under the FMLA/CFRA or for giving FMLA/CFRA or was not covered in the
tain specific medical information, information or testimony about alleged first place, other protections may apply,
including the diagnosis, symptoms, or violation of California or federal family including those created by the Ameri-
serious health condition involved.7 If an and medical leave laws. Violating fam- cans with Disabilities Act (ADA) and
employee’s leave request is protected by ily, medical, parental, and pregnancy California’s Fair Employment and
both the FMLA and CFRA, the greater leave laws exposes an employer to a civil Housing Act (FEHA).
protections of CFRA apply. lawsuit or an administrative proceeding, Both the ADA and FEHA obligate
A common mistake is not under- and personal liability may fall on corpo- employers to provide a “reasonable
standing the difference between a “seri- rate officers, managers, and supervisors. accommodation” to a qualified indi-
ous health condition” and a common Remedies available include financial vidual with a disability if that is
ailment. A “serious health condition” is awards to compensate for lost wages, needed to perform the essential func-
12 | www.dmec.orgtions of the job as long as it does not impose an undue
hardship on the employer.9 Unlike PDL or FMLA/CFRA
leave, leave as a reasonable accommodation under the ADA LEAVE LAWS CAN
BE DIFFICULT TO
or FEHA does not have any statutorily set time limit.
Rather, as with other types of reasonable accommodations,
an employer’s obligation to provide leave ends at the point
at which the leave becomes an undue hardship for the NAVIGATE
employer. Neither the ADA nor FEHA requires employers Become a Certified Specialist with
to accommodate disabled employees by granting them DMEC’s Leave Management Training!
indefinite or unlimited leave.
Conclusion
Each of the leave laws must be analyzed separately to
determine an employee’s leave rights. Where employees are
requesting pregnancy-related disability leave, the interaction
of the FMLA, CFRA, and California PDL may result in
extended leave times. When an employee requests time off
for a reason related to or even possibly related to a disability,
the employer must determine the employee’s rights under all
of the relevant laws. The request should be treated as an
ADA/FEHA reasonable accommodation request as well as a
FMLA/CFRA leave request. This means that an employer As state and federal leave laws continue to expand,
should initiate an interactive process with the employee to more and more companies are finding the need for
determine their limitations and identify potential reasonable professional leave management specialists. DMEC’s
accommodations. In the event you have an employee Certified Leave Management Specialist (CLMS)
Program is the answer!
requesting leave as an accommodation, proceed with cau-
tion, and consult with legal counsel before taking adverse Exclusively offered by DMEC, this unique online
employment actions. training course and designation provides an
interactive and in-depth overview of leave laws and
References requirements that impact your company’s leave
1. See 29 USC §2611(4)(A)(i) for FMLA, and 2 Cal. Code Regs §11087(d)(1) management programs.
for CFRA.
2. See 29 USC §2612(a) for FMLA, and Govt Code §12945.2(a) for CFRA.
3. See 29 USC §2612(a)(1)(E) for FMLA.
4. See 29 USC §2612(a)(3) for FMLA.
THE DESIGNATION WILL COVER:
5. See Govt Code §12945 and 2 Cal Code Regs §11042(a) for California 3 Federal and state leave laws including ADA
PDL Law.
6. See Govt Code §12945.2(c)(3)(C) and 2 Cal Code Regs §11093(b) for 3 Impact on employee benefit programs
CFRA.
3 Privacy and ethics in leave management
7. See 2 Cal Code Regs §11087(a)(1) for CFRA.
8. See 29 CFR §825.113(a) and 2 Cal Code Regs §11087(q) for CFRA. 3 Employer toolkits and resources
9. See 42 USC §12112(b)(5)(A) for FMLA and Govt Code
3 And more!
§12940(m)(1) for FEHA
The online course and exam start at just $599
for DMEC members!
$899 for nonmembers. Group discounts available
www.dmec.org/CLMS
www.dmec.org | 13YOUR BEST PARTNER IN A
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BRAD-6104a SLPC 27572 07/16 (exp. 12/18)FEATURE Employment
Practices Compliance
ADA Leave Compliance:
By
Lori Welty, JD
Compliance Attorney
Are You Sure Your House Is in Order?
Reed Group
Disability accommodations required under process to evaluate each accommodation for
the Americans with Disabilities Act (ADA) compliance.
include a broad array of adjustments, ranging
from alterations to a workspace to the ability to Keeping It in Order: An Employer Checklist
work from home. Another type of accommo- Employers are recommended to use repeat-
dation has received more attention in the able standards to determine whether an accom-
absence management industry lately: leave as modation is reasonable and required under the
an accommodation, a period of time off work ADA. There are three recommended tests to
designed to enable a disabled employee to assess an accommodation request:
return to work. 1. Is a leave of absence accommodation rea-
Employers can find themselves at substan- sonable (plausible or feasible)?
tial litigation risk if they do not carefully con- 2. Is a leave of absence accommodation
sider leave as an accommodation prior to effective? Will the time off enable the employee
terminating an employee who cannot return to to return to work and perform the essential
work following an absence. To protect functions of the job?
themselves, leave managers need 3. Does a leave of absence accommodation
to exhaust the interactive pro- impose an undue hardship on the employer?
cess by conducting a com- The answers to these three questions can
"Determining whether a leave is a reasonable
accommodation can be subjective... both the
EEOC and court opinions emphasize that a
case-by-case analysis is necessary."
plete evaluation of guide employers in determining whether time
requested accommodations. away from work is appropriate.
Employers have recently been
hit with hefty judgments and Test One: Is This Leave a “Reasonable”
Equal Employment Opportunity Accommodation?
Commission (EEOC) consent decrees, proving An employer must engage in the interactive
that a one-size-fits-all approach can cost a process upon any request for an accommoda-
company millions. It is in all parties’ best inter- tion, even after job-protected absence is
ests to establish and utilize a comprehensive exhausted, to determine if additional leave can
www.dmec.org | 15YOUR BUSINESS, YOUR BENEFITS, YOUR WAY
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6882b NS 02/18 © 2018 The Hartford Financial Services Group, Inc. All rights reserved.
and/or must be offered as a reasonable return-to-work (RTW) date. Without Test Two: Is This Leave an “Effective”
accommodation. an expected end date, an employer is Accommodation?
Determining whether a leave is a not expected to be able to determine After assessing whether an accommo-
reasonable accommodation can be sub- whether leave is a reasonable accom- dation is reasonable, we must consider
jective and may involve factors such as modation. whether it will be effective. This means
length and frequency of absences, • The leave request must confirm to that the accommodation must enable the
potential unpredictability of intermit- an employer that an employee can per- employee to perform the essential func-
tent absences, and establishing how form the essential functions of his or tions of the job. Employers can use the
long the leave can last and still be con- her position in the “near future.” following criteria to determine whether a
sidered reasonable. Employers largely Because near future is not defined, leave is effective in supporting this goal:
have to rely on their own judgment and employers are advised to use the three • The nature of the employee’s dis-
analysis of each individual circum- accommodation tests to help determine ability and limitations
stance. There are few hard and fast whether the leave is reasonable, effec- • The anticipated duration of the
rules when it comes to whether leave is tive, and not an undue hardship on the leave
a reasonable accommodation. In fact, employer. • The employee’s position, including
both the EEOC and court opinions While the EEOC doesn’t expect essential and marginal functions
emphasize that a case-by-case analysis employers to offer paid leave as a rea- • How the leave will enable the
is necessary. Nonetheless, there are a sonable accommodation, employers employee to return to work to perform
few guidelines that can help provide must treat all employees equally in this essential job functions
direction to shape an employer’s regard. If paid leave is offered to simi- • The likelihood (not necessarily a
approach: larly situated employees, it must be certainty) that the employee will be
• An employer can expect an offered to disabled employees. able to perform essential job functions
employee to provide an estimated at the end of the leave
16 | www.dmec.orgDMEC 2017 Quarter Page Color Ad.pdf 1 1/3/17 3:55 PM
• The success or failure of past accom-
modations attempted for the employee WHO or WHAT is Missing From Your
• Whether other accommodations Workforce Management Puzzle?
(such as ergonomic adjustments, sched- Whether your company is small or large, using internal resources or relying
ule changes, work from home, reason- on vendor expertise, Spring can help piece it all together and measure your
able changes to job descriptions such as
C
performance against your peers.
avoiding heavy lifting, etc.) could M
Our customized solutions integrate benefits, create process efficiencies and
achieve a satisfactory result Y
consistently reduce costs across disability, workers’ compensation, FMLA,
CM
health management and other initiatives.
Test Three: Would Leave Impose an MY
Learn How Our Solutions Can Help
Undue Hardship on the Employer? CY
Total Absence Management
Even if leave as an accommodation CMY
Integrated Disability Management
is reasonable and effective and other K Health & Productivity Management
accommodations would not achieve a Research & Benchmarking
satisfactory result, one more criteria
Creating next generation solutions that maximize health, wealth and productivity
must be met. An employer is not
www.SpringGroup.com 617-589-0930
required to provide leave as an accom-
modation if it will cause undue hard-
ship on the employer’s business.
The EEOC’s criteria for undue dations as a hardship but should con- Resources Agency, No. 17-5355 (Dec. 22,
hardship include: sider consulting with legal counsel 2017). These cases shift the focus from
• Financial difficulty: This may be before rejecting a requested accommo- whether a leave of absence accommo-
difficult to prove, especially for large dation and making adverse employ- dation is reasonable to whether the
employers. To determine if an accom- ment actions. The legal definition of employee can be considered a “quali-
modation presents a financial hardship hardship is sufficiently complex that fied individual with a disability.”
to the employer, the EEOC may relate what is an undue hardship for one In Severson, recognizing that a qual-
the cost to the budget of the entire cor- employer may not be for another. ified individual with a disability is one
poration or business unit (depending on
several factors); at that scale, the cost of “For employers considering adverse
an accommodation may look relatively employment action when employees
small. Also, before employers claim
request leave as an accommodation,
financial hardship, the EEOC expects
them to explore third parties and outside it is essential to engage in a rigorous
resources to support the cost of a leave, interactive process...”
such as state funding or tax credits.
• Operational difficulty: This Additional Considerations: Impact of who, with or without reasonable
includes whether an accommodation is the Recent 7th Circuit Court Decision accommodation, can perform the
unduly extensive, substantial, disrup- The 7th Circuit Court of Appeals, essential functions of the job, the court
tive, or would alter the fundamental in Severson v. Heartland Woodcraft, held that the term reasonable accom-
nature of the business operation. Inc., 872 F.3d 476 (7th Cir., September modation is limited to those measures
When claiming hardship, employ- 2017), recently disrupted the settled that will enable the employee to work.
ers should meticulously collect and understanding of an employer’s obliga- The court went on to conclude that an
document facts and evidence. Employ- tion to provide leave as an accommo- employee who needs long-term medical
ers should be cautious before denying dation. Subsequent decisions have leave cannot work and thus is not a
any accommodation based on undue embraced Severson’s approach, includ- "qualified individual” under the ADA.
hardship, including a leave. An ing a case in the 6th Circuit Court of
employer may regard many accommo- Appeals, Cooley v. E. Tenn. Human Leave Compliance continued on p. 29
www.dmec.org | 17SPO
SP TLIGHT
OTLIGHT
O Program Showcase:
Parental Leave Policy
It's All In a Name: Is Your Parental Leave
Policy Inclusive?
By ulation is an important consideration the basis of sex, race, color, national
Jessica Hawley, CLMS if you are hoping to recruit and retain origin, and religion; it is enforced by
Manager, Accommodations & Leaves
top talent of both Millennials and the Equal Employment Opportunity
RBC (Royal Bank of Canada, U.S. Operations)
women. Equality and generous leave Commission (EEOC). To ensure that
Implementing a new leave plan or policies are important to most employ- pregnancy and birth-related leaves
policy can be difficult and complex, ees but especially to Millennials. comply with Title VII, an employer
especially with parental/bonding leaves Studies show that Millennials want should differentiate leaves related to
in which overlapping legal and cultural their workplace to be aligned with pregnancy disability from those related
issues may generate powerful emotions. their values. Also, recent generations to bonding time with a new family
The main factors to consider when consist largely of two-career couples, member. For example, an employer
implementing a parental leave plan are: and many expect both parents to work should have a disability-related preg-
1 Your company’s employee popu- and parent equally. nancy leave and a separate bonding
lation (size, age, gender composition) Another consideration is the type leave that allows equal time for the
2. The duration of the leave of industry and the number of birth mother and nonbirth parent,
3. Current legislation employees at each location. Perhaps male or female.
4. The name of the plan the type of your business or your The final factor to consider when
5. Your company’s values and culture small employee population will make implementing a parental leave policy
At RBC Capital Markets (RBC), we it hard to offer a longer duration of is often overlooked: what to name the
have two main U.S. business segments parental leave. policy. In my over 10-year career in
with two different employee popula- Whether you choose 2, 6, 12, or 20 leave management, I have seen many
tions, business personalities, and mar- weeks of paid leave, it is important policy names for bonding leave pur-
ket competition. One of the businesses that each parent is offered an equal poses. The wrong name can reinforce
has many locations across the country amount of bonding time, as required stereotypes and negate the goodwill
with very few employees at each site, under Title VII of the Civil Rights an employer seeks to create by provid-
which makes it challenging to offer Act. Your company can offer a period ing paid leave. By using terms such as
longer paid leaves. The other business of paid time for pregnancy-related “paternity leave” or “primary and sec-
prioritizes maintaining a competitive medical leave for pregnancy and ondary leaves,” employers expose
edge with other companies in the childbirth as part of the disability themselves to public relations issues
industry. Since our two main divi- leave, but each parent, regardless of and/or legal liability.
sions are different in their populations gender, should be offered an equal Paternity refers only to a male
and needs, we needed two separate amount of bonding time. It would vio- father of a child, which excludes
parental leave plans. Both businesses late Title VII if an employer provided same-sex female relationships.
offer 100% paid leave for new parents; more bonding time to the birth Primary- and secondary-caregiver
however, the duration of the leaves mother than the nonbirth parent. leaves typically only offer the primary
differs for the two businesses. Title VII prohibits employers from caregiver leave to the birth mother,
Composition of your employee pop- discriminating against employees on offering the nonbirth parent (second-
18 | www.dmec.orgGet the view from every angle.
360° view Smooth integration Advanced leave
of employee of absence and management
absences disability services technology and tools
Contact your Lincoln benefits expert to learn how Lincoln disability and absence management
services can help manage the impact of employee absence on your business.
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York, nor is it licensed to do so. In New York, insurance products (policy series GL111, GL3001) are issued by Lincoln Life & Annuity Company of New York (Syracuse,
NY). Both are Lincoln Financial Group® companies. Product availability and/or features may vary by state. Limitations and exclusions apply. Lincoln Financial Group is
the marketing name for Lincoln National Corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations.
©2016 Lincoln National Corporation
ary caregiver) a shorter duration of Litigation Trends caring for the child.
leave. Using the terms primary and There has been an increase in In August 2017, the EEOC sued Estee
secondary caregiver in your policy EEOC sex discrimination cases Lauder for sex discrimination. The
assumes that families will have one against companies whose parental charge claims that Estee Lauder violated
primary caregiver who is supported by leaves don’t offer the same bonding federal law when it implemented and
a partner with fewer caretaking time benefits to the birth mother and administered a paid parental leave pro-
responsibilities. nonbirth parent. gram that automatically provides less
It also requires employers to ask In 2015, a discrimination charge parental leave to new fathers than to
employees about caregiving loads. Not was settled against CNN and Turner new mothers. The suit also claims that
only can this be invasive and adminis- Broadcasting for providing 10 weeks Estee Lauder provided flexible return-
tratively burdensome, but this paren- of paid leave to mothers but only two to-work opportunities to new mothers
tal leave model is usually not weeks to the other parent. In 2017, JP that were not offered to new fathers.
gender-neutral. This model enforces Morgan Chase was charged with sex With many corporate benefit pro-
old stereotypes that raising children is discrimination because of a policy grams are still using terms such as
a women’s responsibility and men are that provided “primary caregivers” 16 paternity and primary and secondary
secondary caregivers. It also indicates weeks of paid leave and “non-primary caregivers, we may see more sex dis-
an assumed role of the birth mother caregivers” only two weeks of paid crimination charges against employers
having to do most of the initial par- leave. JP Morgan Chase did not allow that do not treat all parents equally.
enting work. The homemaker/bread- fathers or nonbirth parents to utilize Employers should also avoid terms
winner family structure is antiquated. the primary caregiver leave unless such as mothers and fathers in their
All parents, regardless of gender or they could prove that their spouse or policies. Keep in mind that not all fam-
family role, should be provided equal domestic partner had returned to ilies consist of a mother and a father.
paid leave to bond with their children. work or was medically incapable of Program Showcase continued on p. 23
www.dmec.org | 19Introducing FINEOS Absence
Simplify the Complex
Absence from work costs employers around 22% of total payroll, but with over 100 reasons to be
absent from work and an ever-changing regulatory landscape (federal, state, municipal regulations,
including FMLA, Paid Family Leave, and Disability Benefits Law) managing absence can be a very
complex problem to solve.
Enter FINEOS Absence. With a simple 5-step process designed to help insurers, employers, and
employees easily navigate the absence claim from registration to close, this solution brings clarity and
peace of mind to anyone involved in managing absence.
Step 1 Step 2 Step 3 Step 4 Step 5
Manage
Registration Adjudication Leave & Completion Close
Payments
To learn more about FINEOS Absence, visit
https://www.fineos.com/products/fineos-absence/
or visit us at our booth at the DMEC Compliance
Conference and DMEC Annual Conference.SPO
SP TLIGHT
OTLIGHT
O RTW Case Study:
FMLA Evaluation Roadmap
The FMLA Evaluation Roadmap:
How to Navigate Complex FMLA Requests
By start of the leave. A parent is:
Kristin Hostetter, CPDM • The employee must work at a • a biological, adoptive, step-, or
Leave Administration Product Manager
location where at least 50 employees foster parent — for FMLA purposes, a
Lincoln Financial Group
are employed. parent does not include in-laws;
We’ve all experienced those chal- • someone who stood in loco paren-
lenging Family and Medical Leave Act 2. Determine Applicability tis to the employee or someone for
(FMLA) requests. Perhaps an employee Is the leave reason qualified? Is the whom the employee stands in loco
asks for time off to care for their relationship qualified? parentis.
32-year-old child or to undergo cosme- Once you’ve determined that your
tic surgery. Any number of situations employee is eligible for leave, you can A spouse is:
can make you scratch your chin and evaluate whether the leave reason and • a husband or wife as defined or
think — is that really covered under relationship are qualified. Qualifying recognized in the state where the indi-
the FMLA? leave reasons include: vidual was married, including indivi-
The best way to handle each unique • an employee’s own serious health duals in a common-law marriage;
leave situation with confidence is by condition; • a husband or wife in a marriage
relying on a three-step roadmap and • absence to care for a family validly entered outside the country, if
consistently applying it to every situa- member with a serious health condi- the marriage could have been entered
tion. This goes beyond FMLA leaves to tion (spouse, child, or parent); into in at least one U.S. state.
include state- and company-specific • the birth or care of a newborn
leaves that may apply to a request. This child within a year of the child’s birth A son or daughter is:
approach helps break down the com- (called “bonding” leave); • a biological, adopted, foster child,
plexities of a leave and lead you to the • placement of a child with the stepchild, legal ward, or a child to
correct outcome. employee for adoption or foster care whom the employee stands in loco
(bonding); parentis who is under 18 years of age;
Three Steps of the Roadmap • qualifying exigency for the • a child who is 18 years of age or
1. Determine Eligibility employee’s parent, child, or spouse older and incapable of self-care because
To evaluate the employee’s eligibi- called to active military duty; and of a mental or physical disability at the
lity for FMLA leave, consider three • care for an injured service- time that FMLA leave begins; if the
factors: member. leave is to care for a son or daughter
• The employee must have worked If your employee is requesting who is an injured service member, age
for the employer for a minimum of 12 leave to care for a family member, you is not a factor.
months (these need not be consecu- need to ensure it involves a qualified
tive) before the start of the leave. family member, which could include 3. Certify
• The employee must have worked parents, spouses, sons, and daughters. Is the certification complete and
for the employer for at least 1,250 does it support the leave request?
hours in the 12 months preceding the The next and last step on the road-
www.dmec.org | 21map is certification. The FMLA allows
an employer to require an employee to
supply a certification supporting the
leave request. You must give your
employee notice that a certification is
required, and it is a best practice to be
consistent about the situations for
which you do or do not require a certi-
fication.
When you decide to require certifi-
cation, you must give your employee 15
calendar days to supply it. You can
then evaluate whether the certification YOU CAN FOCUS Learn about our:
Fully integrated leave
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ON YOUR PEOPLE management software
Outsourced and co-sourced solutions
FMLA/ADA compliance
The Roadmap in Real-world WE’LL FOCUS ON THEIR
Situations LEAVE ADMINISTRATION. reedgroup.com
Situation 1: Time Off “As Needed”
Tom works full time for a small Tom’s employer decided to ask for 3. Does the certification support the
firm with 150 employees located in clarification, which was provided. Tom leave time? Yes; however, additional
Denver, CO. He’s been employed for needs to be out for a period of six validation should be considered when
eight years and requests time off to weeks following his surgery. Following Sally’s daughter turns 18.
undergo knee surgery. His provider that, Tom may return to work but Sally’s leave request should be
certifies time off “as needed,” rather could require physical therapy every approved for all time supported by the
than a finite period of time. few days lasting up to two hours per certification before her daughter’s
Should Tom’s leave be certified? session. Given the clarification, Tom’s eighteenth birthday. As of her daugh-
Let’s follow the roadmap. leave can be accurately certified. ter’s eighteenth birthday, additional
1. Is he eligible? Yes, Tom satisfies validation is needed and includes
the 12 months of service and 1,250 Situation 2: The Adult Child confirming Amy had a mental or phy-
hours requirement, and his employer is Sally has worked full time for a sical disability at the time the leave
subject to the FMLA. large multi-state employer for the past commenced, is incapable of self-care,
2. Is the leave reason qualified? Yes, five years. Her 17-year-old daughter and has a serious health condition, and
Tom is requesting time off for a serious Amy was recently diagnosed with can- needs care because of it. If validation is
health condition. cer and will be treated with chemothe- provided, time following her eighteenth
3. Does the certification support the rapy. The treatment will stretch over birthday should also be approved.
leave time? Typically, the provider the course of several weeks and span Evaluating whether an adult child is
would certify a finite period of time for her daughter’s eighteenth birthday. Can incapable of self-care should include
a routine surgery. Tom’s certification is Sally take FMLA leave before Amy’s determining whether there are at least
considered open-ended and may eighteenth birthday? How about after three activities of daily living (e.g.
require additional information. that birthday? bathing, dressing) for which the child
Some absence certifications allow 1. Is she eligible? Yes, Sally satisfies requires assistance.
for absence “as needed” or on an “unli- the 12 months of service and 1,250
mited” basis, and those may not align hours requirement and works at a loca- Situation 3: Schedule
with a medical condition that appears tion with several hundred employees. Accommodations
finite. In these situations, the employer 2. Is the leave reason qualified? Yes, Monique works in a call center. Call
can ask the provider for clarification Sally is requesting time to care for a volume on Mondays is significantly
on the initial certification or pursue a qualifying family member due to a higher than it is the rest of the week.
second opinion. serious health condition. Monique has been out on an approved
22 | www.dmec.orgT:4.75”
FMLA leave for four weeks due to
PRUDENTIAL GROUP INSURANCE
shoulder surgery. She is ready to return
to work but will have physical therapy LET’S PLAN FOR WHATEVER
twice per week for the next few mon- THE FUTURE MIGHT BRING.
ths. She has requested reduced sche-
dule leave so that she can attend Solutions to provide protection when it matters most.
physical therapy on Monday and Today, many people aren’t prepared for the real financial impact an illness, injury,
Thursday afternoons. or premature death could create.
Her supervisor is concerned about Improving financial wellness is a big challenge. But it’s one Prudential Group
T:3.5”
Insurance is meeting, with solutions, services, and employee education and
not having enough coverage on Mon- engagement programs that deliver a better benefits experience for everyone.
days. What options does she have? Learn more at prudential.com/experience
1. Is Monique eligible? We know
Monique has been out on an approved LIFE | DISABILITY | CRITICAL ILLNESS | ACCIDENT | AD&D
FMLA leave for this condition, so yes,
she is. Group Insurance coverages are issued by The Prudential Insurance Company of America, a Prudential Financial company,
2. Is the leave reason qualified? Yes, 751 Broad Street, Newark, NJ 07102.
© 2015 Prudential, the Prudential logo, the Rock symbol, and Bring Your Challenges are service marks of Prudential
we know that Monique’s absence for Financial, Inc. and its related entities, registered in many jurisdictions worldwide.
her condition plus the following treat- 0280344-00001-00
ment (physical therapy) is a qualified GI_LetsPlan_4.75x3.5_BW.indd 1 2/9/16 1:36 PM
reason.
3. Does the certification support the Program Showcase continued from p. 19
leave time? The certification that was Does the future hold a state or feder- ent severe challenges, as each state
submitted indicates that Monique ally funded parental leave similar to would be required to implement its
needs to attend physical therapy twice paid parental leaves offered in other own paid leave program.
per week. However, it does not indicate countries? The Trump administration
that the treatment must be on Monday has discussed a six-week paid parental Conclusion
and Thursday. leave, but this underwhelming proposal Using the terms birth mother and
The FMLA requires that an was inadequate from the start. The orig- nonbirth parent makes corporate pol-
employee make a reasonable effort to inal proposal excluded fathers, adoptive icy much more inclusive and would
schedule the treatment so as not to dis- parents, and all parents who didn’t cover every family situation — as long
rupt the employer's operations. In this physically give birth. This was widely as the birth mother and nonbirth par-
situation, the employer spoke with criticized by parents and policymakers ent are offered an equal amount of
Monique, and they determined that for its ignorance of the realities of the paid time to bond with their newborn
physical therapy was also available on modern American family structure. baby or adopted child.
Tuesdays and Fridays. The leave was Trump’s proposal now includes all par-
approved using this schedule. ents, but its budget and structure pres-
Conclusion
Consistently applying this roadmap
will help ensure that your employees’
FMLA requests are addressed in a Do you A New Way of Seeing Employee Benefits
compliant manner and should begin to know what
break down complex scenarios into disability
Pacific Resources is able to ask the
manageable steps with predictable out- tough questions,
related
comes. We regard this roadmap as a because we're not afraid of any of the
due-diligence tool for managing FMLA absence
pacresbenefits.com
claims, whether for vendors or is co$ting
Disability Benefits Private
860-986-4870
employers managing claims in-house.
& Leave Administration Exchange Life & Voluntary Absence Global Executive
your company? Management Consulting Consulting Accident Benefits Management Benefits Benefits Dental Vision
www.dmec.org | 23You can also read
