How to Solve the Riddle of Employee Leave LawHow to Solve the Riddle of Employee Leave Law

SpeakersSpeakers

Moderator Presenter

Becky RossMarketing Manager

303-228-8753

bross@kpaonline.com

John P. Boggs, Esq.Fine, Boggs & Perkins LLP

650-712-8908jboggs@employerlawyers.com

QuestionsQuestions

• If you have questions during the presentation, please submit them using the “Questions” feature

• Questions will be answered at the end of the webinar

• Workers’ Compensation Act

• Family and Medical Leave Act (FMLA)

• Americans with Disabilities Act (ADA)

• Consolidated Omnibus Budget Reconciliation Act (COBRA)

Workers’ Compensation emphasizes:1. What employees cannot do by focusing on the

nature and percentage of their disability... 2. . . . so as to provide suitable compensation for

lost earnings...3. . . . resulting from a work-related injury4. Prevent discrimination

FMLA is concerned with: 1. Providing a minimum level of unpaid, job-

protected leave to eligible employees;2. Covering those who suffer from a serious

health condition; and3. Protecting those employees from adverse

treatment because of the need for leave

The ADA attempts to eliminate workplace disability discrimination by:

1. Emphasizing what employee can do as opposed to focusing on an employee’s limitations;

2. Requiring employers to evaluate an individual's fitness to perform the essential functions of the job on a case by case basis; and

3. Considering any reasonable accommodation in the process

COBRA provides for continuation of fringe benefits to qualified employees and/or their dependents upon a qualifying event, by:

1.Defining which benefit plans are covered;

2.Defining a qualifying event;

3.Defining who is entitled to continuation of coverage;

4.Determining how long continuation lasts; and,

5.Establishing the notification requirements

• Whenever an employee is injured on the job, suffers an occupational disease, requires a medical leave of absence or indicates a medical problem preventing him/her from performing normal and customary job duties, you must learn how to solve the riddle of which law applies, when and for how long.

• Approximately 50% of all disability related claims are filed by current employees, as opposed to former employees who were terminated for allegedly discriminatory reasons. Most workers who assert work related disabilities allege back problems and mental stress.

• Any employee who suffers an injury during the course and scope of their employment

• A physical or mental injury which causes disability or need for medical treatment. Can be specific, cumulative, or occupational disease.

• An employer may not make pre-employment inquiries into an applicant's Workers' Compensation history, the existence of a disability, or the nature or severity of a disability, whether on application forms, in job interviews, or in background or reference checks.

• An employer may not make any medical inquiry or conduct any medical examination before making a conditional offer of employment.

• Firms hired to conduct background checks are agents of the employer. The employer is responsible for the actions of its agents and may not do anything through its agents that it could not itself do directly.

The Family and Medical Leave Act ("FMLA") entitles eligible employees to job-protected, unpaid leave:

1. For the birth of a child, to care for a newly-born child, or placement of a child with the employee for adoption or foster care;

2. To care for an immediate family member (spouse, child, or employee's parent) with a serious health condition; or

3. Because of the employee's serious health condition which makes the employee unable to perform the functions of the employee's job.

1. Are you a Covered Employer?– 50 employees in a 75 mile radius

• Integrated Employer• Joint Employer• Corporate lines don’t control

2. Is the employee a Covered Employee?– 1250 hours worked in the last 12 months– 12 months worked for the Employer

• Consecutive months or stints of employment not required

– Used less than 12 weeks of leave in the last 12 months

3. Is the condition a Covered Condition?– Serious Health Condition or Pregnancy/Child

Birth• For oneself or to care for an immediate family

member• To Bond with a new child (biological, adopted or

foster)

Q. How is 12 month period for determining whether employee has taken the permitted 12 weeks calculated if no written policy?

A. Calendar vs. Rolling 12-month period—whichever gives employee the most rights.

• Do you count vacation and sick time?• Period of employment through temp

agency?• Disciplinary suspension?

An illness, injury, impairment, or physical or mental condition that involves one or more of the following:

1. Hospital care;2. Absence plus treatment3. A permanent/long-term (chronic)

Condition requiring supervision;4. Multiple treatments for non-

Chronic conditions, or;5. Pregnancy

• Employee must specify?

• Multitude of unrelated illnesses combined?– Ear Infections?

– Respiratory Infections?

– Flu/Food Poisoning?

– Internal Bleeding?

– Ulcers?

• For the birth of a child, to care for a newly-born child, or placement of a child with the employee for adoption or foster care.

• To care for an immediate family member (spouse, child, or employee's parent) with a serious health condition.

• Under 18 years of age OR over 18 years of age and incapable of self-care

• Because of a mental or physical disability• Biological, adopted, foster child, stepchild,

legal ward, child of domestic partner, in loco parentis

Under FMLA, pregnancy is a serious health condition

Result is that a pregnant employee gets:

–Up to 12 weeks of leave under FMLA as pregnancy is a serious health condition

• Domestic partner?

• Legally separated?

• Putative spouse?

• The employee must have:

• worked for the employer for 12 months or 52 weeks.

• The 12 months or 52 weeks need not have been consecutive.

• Separate stints of employment will be counted, provided that a break-in-service does not exceed 7 years.

• Separate stints of employment will be counted for breaks in service of 7 years or longer if the break in service is due to National Guard or Reserve military obligation or written agreement reflecting an employer’s intention to rehire the employee after the break-in-service.

• A qualifying exigency arising out of the fact that your spouse, son daughter or parents on active duty or call to active duty status in support of a contingency operation as a member of the National Guard or Reserves.

• Qualifying exigency for FMLA leave may fall within these categories:

1. Short notice deployment (up to 7 days leave); 2. Military events and related activities;3. Childcare and school activities; 4. Financial and legal arrangements;5. Counseling;6. Rest and recuperation (up to 5 days leave per event); 7. Post-deployment activities; and 8. Additional activities not encompassed in the other

categories, but agreed to by the employer and employee.

• Employees requesting this type of FMLA leave must provide proof of the qualifying family member’s call-up or active military service before leave is granted.

• To care for a covered service member who is your spouse, son, daughter, parent or next of kin with a serious injury or illness incurred in the line of duty on active duty (up to 26 weeks of leave in a single 12 month period).

• This leave may extend to up to 26 weeks in a 12-month period for an employee whose spouse, son, daughter, parent or next-of-kin is injured or recovering from an injury suffered while on active military duty and who is unable to perform the duties of the service member’s office, grade, rank or rating. Next-of-kin is defined as the closest blood relative of the injured or recovering service member.

• Employees requesting this type of FMLA leave must provide certification of the family member or next-of-kin’s injury, recovery or need for care.

• This certification is not tied to a serious health condition as for other types of FMLA leave.

• This is the only type of FMLA leave that may extend an employee’s leave entitlement beyond 12 weeks to 26 weeks. Other types of FMLA leave are included with this type of leave totaling the 26 weeks.

Pretty much never.

KEY EMPLOYEE EXCEPTION• Top 10% of all wage earners• Must give leave anyway• Do not have to reinstate if would cause

substantial and grievance economic injury to reinstate– not to grant the leave.

• Reasonable period of time of not less than 15 days - what’s that?

• What action can you take against the employee?

– Deny the leave retroactively?• What happens to the leave?

– It becomes absence without approved leave.

Initial Compliance: Responding to a Leave Request or Absence

– Confirming Eligibility for and Availability of FMLA/CFRA Leave.

– Evaluating Qualification for FMLA/CFRA Leave.

– Designating FMLA /CFRA Leave.

• Failure to Designate? Could mean trouble.

During FMLA/CFRA Leave

• Cannot request re-certification during initial stint of leave.

When FMLA/CFRA Leave Ends

• Require a release to return to work– if applies to all types of leave– not just FMLA leave.

• Employee Eligibility

• Conditions Triggering Leave

• Duration of Leave

• Use of Accrued Paid Leave

• Maintenance of Health Benefits

• Job Restoration

• Notice and Medical Certification

• Failure to Return After FMLA/CFRA Leave

• Limited Nature of This Policy

• Reason for Leave• Type of Leave Requested• Intermittent Leave/Reduced Work Schedule• When will you return to work?• Certification

• Eligibility

• Designation of Leave

• Employee Requirements

• Key Employee Exception

• Can you ever retroactively designate the leave?

• Under what conditions?

Designation of Leave **

Leave of absence is:

(a) ____ not designated as FMLA leave.

(b) ____ designated as FMLA leave.

(c) ____ preliminarily designated as FMLA leave.

Eligibility Section:

1. Eligible for Family and Medical Leave Act (FMLA) Leave?*

____ Yes ____ No

2. Employee has FMLA leave available?

____ Yes ____ No

Employer completes items 2 and 3.

1. You have a right under FMLA for up to 12 workweeks of unpaid leave in a 12-month period. Your leave of absence will be counted against your FMLA entitlement.

2. Is medical certification of the serious health condition required?

____ Yes ____ No

If required, you must furnish certification before the leave begins, or if that is not possible, within 15 days of our request for the certification. If you fail to do so, we may: (a) delay the commencement of your leave;

or (b) withdraw any designation of FMLA leave, in which case your leave of absence would be unauthorized, subjecting you to discipline up to and including termination.

3. In accordance with the Company’s paid leave policies, you may choose or the Company will require you to use accrued paid leave during some or all of the leave as follows: _______________________________________________________________________________________________

4. Since FMLA requires the maintenance of your health benefits during leave, you need to continue paying your normal premium during the leave to avoid a lapse in coverage. Your payments are due at the same time they normally would be made by payroll deduction. If your payment is more than 30 days late, your group health insurance may be canceled, provided you receive 15 days written notice that coverage will lapse.

5. If the Company pays your portion of a premium payment for group health coverage or other benefits (e.g. life insurance, disability payments) during the leave, the Company reserves the right to recoup these expenses.

6. You may be required to reimburse us for our share of group health insurance premiums if you do not return to work following FMLA leave for a reason other than: (a) a serious health condition which would entitle you to FMLA leave; or (b) other circumstances beyond your control.

7. You will be required to present a fitness-for-duty certificate before we restore you to employment if you took leave for your own serious health condition (this does not apply to intermittent leave).

8. Upon returning from FMLA leave, you will normally be restored to your original job, or to an equivalent job with equivalent pay, benefits, and other employment terms and conditions.

For employers who plan to assert the “key employee” exception, complete the following:

9. You are a “key employee” under the FMLA definition. _____ Yes _____ No

• If you are a key employee, restoration to employment may be denied following FMLA leave on the grounds that such restoration will cause substantial and grievous economic injury to the company.

• At this time, we _____ have or _____ have not determined that restoring you to employment at the conclusion of FMLA leave will cause substantial and grievous economic injury to us.

• Employee/Patient Condition• Health Care Provider Information• Additional Employee Information

• A qualified individual with a disability who, with or without reasonable accommodation, can perform the essential elements of the employee’s job

• A physical or mental impairment that substantially limits one or more of the employee’s major life activities. A record of such an impairment. Or being regarded as having such an impairment.

ADA –Disability is not always FMLA serious health condition.

FMLA – A serious health condition is not always ADA disability.

Employees on Workers’ Comp Disability may not be covered by ADA or FMLA.

Temporary impairments are not covered by the ADA.

• Employees injured on the job under the Worker’s Compensation provisions may still be eligible for FMLA leave.

• Employees on Workers’ Comp must be put on FMLA leave -- just as if they were on a non-work related injury medical leave

• Employees on FMLA leave are entitled to have their health insurance covered for the first 12 weeks of Workers’ Comp, then they should be put on COBRA if your Health Plan is governed by ERISA.

• An available light duty position must be considered as a form of reasonable accommodation under the ADA.

• Workers' Compensation gives employers the option of providing light duty, but it is not required. The system encourages employers to provide light duty by financially penalizing those who do not.

• Yet FMLA prohibits employers from requiring employees to return to light duty positions during their 12-week protected period.

The number one reason injured employees seek an attorney is out of fear that they will lose their job.

• Therefore, employees often file both ADA and Workers' Compensation claims.

• Under both areas, back injuries are the most common source of claims.

The ADA and Workers' Compensation systems treat the concept of "disability" differently.

• This conflict can lead to ADA claims.• Do not assume that an individual who is

permanently disabled under the system is not entitled to additional protection under the ADA.

• On the other hand, the disability may preclude them from performing the job's essential functions — even with reasonable accommodation — so as to render them unqualified.

• FMLA and Workers’ Comp may run concurrently

• Avoid tacking leaves

• Make sure the employee has received written notice re: FMLA designation

• Rely on medical opinions

• Make sure FMLA poster is displayed

COBRA provides for continuation of fringe benefits to qualified employees and/or their dependents upon a qualifying event, by:

1. Defining which benefit plans are covered;

2. Defining a qualifying event;

3. Defining who is entitled to continuation of coverage;

4. Determining how long continuation lasts; and,

5. Establishing the notification requirements.

Premiums for the continued health-plan coverage are paid by those who are covered. Plans are limited in the amount that they can charge, generally no more than 102% of the regular group premium and 150% in the case of an 11 month disability extension.

Which benefit plans are covered?Virtually all private and nonpublic employers who maintain group health plans are covered by COBRA’s continuation requirements.

The definition of employer includes “successor” employer, in the case of merger or acquisition.

How long does continuation of health benefits last?

Under COBRA, employers with 20 or more employees must allow employees and their covered dependents who have lost employer-sponsored group health coverage (medical, dental, vision, flexible spending, prescription, EAP, and Health Reimbursement Arrangement (HRA) to continue such coverage for up to 18 months (29 months for disabled persons and related dependents).

How long does continuation of health benefits last?

COBRA also allows for coverage for up to 36 months for surviving spouses, divorced spouses, spouses of Medicare-entitled employees, and certain dependent children.

What is a qualifying event?– Loses coverage due to “qualifying event”

of termination or resignation unless loss of job due to gross misconduct

– Reduction of hours that makes employee or dependents ineligible for benefit plan

– Death of the covered employee.– Divorce or legal separation from covered

spouse– Dependent ceases to be a dependent– Bankruptcy of an employer where retiree

Who is entitled to continuation of coverage?– Covered employees on the day before the

qualifying event– Qualified beneficiaries: includes a spouse and

covered dependents that had coverage as of the day before the qualifying COBRA event, except for birth or adoption of a child.

What are the Notification Requirements?– A new employee becomes eligible.

– An employee or qualified beneficiary experiences a qualifying event.

– COBRA coverage is unavailable or denied.

– Coverage will end before end of maximum period

Employer must notify Plan Administrator within 30 days of qualifying event.

What are the Penalties for Non-Compliance?

– Financial Penalties (Fines)

– Interim Coverage Expenses

Contact UsContact Uswww.kpaonline.com

Becky Ross

bross@kpaonline.com

303-228-8753

74

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