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

#Exp360

Agenda

About the Speaker

FMLA and ADA Trends

Top Reasons for Absences

Common Employer Difficulties

Trends in Outsourcing

Integration of Support Programs

Q&A

#Exp360

About the Speaker

Mike Garfield, SVP of Business Development at ComPsychFMLASource 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

#Exp360

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 99-100 percent of leave requests in order to avoid potential risk

#Exp360

FMLA and ADA Trends

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

ADA

#Exp360

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!

#Exp360

FMLA Compliance Landscape

Regulatory expertise is a requirement for administering leaves in today’s complex and dynamic environment.

1993 – 2005: The quiet years 2006 – 2012: Increasing regulatory activity 2013 – 2016: The most active

regulatory years to date

1993 –2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

• FMLA passed in 1993• DOL regulations became

effective in 1995• First Supreme Court

case in 2002

• DOL polls employers about FMLA issues (12/2006-2/2007)

• DOL publishes survey results (5/28)

• National Defense Authorization Act FY2008

• Qualifying Exigencies and Caregiver leaves (1/2008)

• 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 guidance on definition of in loco parentis to a child (6/2010)

• DOL issues study on the FMLA

• 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 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

• 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

• Labor Department issues 75-page FMLA guide for employers

• EEOC issues five-part “Employer-Provided Leave and the Americans with Disabilities Act” statement

• Record-breaking EEOC activity regarding ADA

• New state job-protected leave and paid family leave laws (Conn., Wis., IL, San Francisco)*Dozens of bills related to leave are

in various stages of state legislatures

#Exp360

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

#Exp360

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

#Exp360

Top Reasons for FMLA Absences

Source: FMLASource report

#Exp360

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

#Exp360

Common Employer Difficulties

FMLA Activities Ranked as Difficult / Extremely Difficult

Source: 2016 DMEC Employer Leave Management Survey

30%

35%

30%

29%

26%

35%

31%

28%

29%

24%

Tracking intermittent time previouslytaken

Tracking intermittent time duringleave

Interacting with ADA and ADAAA

Transferring employess to alternativepositions

Denying leave requests

2016 2015

#Exp360

Common Employer Difficulties

Leave and Absence Management Activities Ranked as Difficult / Extremely Difficult

Source: 2016 DMEC Employer Leave Management Survey

30%

24%

20%

19%

15%

26%

25%

13%

14%

9%

Understanding the impact of the ADAand the amended ADA (ADAAA) and

the impact of employee practices

Interacting with ADA and ADAAAwhen administering FMLA

Managing workers' compensationconcurrently with FMLA

Managing disability concurrently withFMLA

Coordinating leaves (includingFMLA) with attendance policies

2016 2015

#Exp360

Outsourcing Trends

Percentage of FMLA Leave Outsourced

Source: 2016 DMEC Employer Leave Management Survey

2014 2015 2016

50+ ees 21% 25% 34%

1,000+ ees 35% 35% 45%

#Exp360

Outsourcing Trends

According to DMEC:

Source: 2016 DMEC Employer Leave Management Survey

#Exp360

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?

#Exp360

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?

#Exp360

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

#Exp360

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

#Exp360

Q&A

Mike GarfieldSVP of Business Development

mgarfield@compsych.com

312.595.4006