A New FMLA Mandate: Written Leave Policies to Manage Employee Absences
By PAMELA CAGGIANELLI, RN, CCM, CDMS, COHN-S, LNCC, a past chair and past commissioner of the Certification of Disability Management Specialists Commission and the manager/corporate health for Bausch & Lomb Inc. in Rochester, N.Y.; and DEBBIE L. CROMWELL,
CDMS, CPDM, CCMP, commissioner of the CDMSC and principal with Integrated Impact Management, based in the Dallas/Fort Worth area
Recent changes in the federal Family and Medical Leave Act and new or revised state laws impact paid and unpaid leaves in the workplace--including some benefits and coverage that run concurrently. For companies that have employees in several states, the task of staying current with the latest laws can be a challenge. Plus, new regulatory changes are likely to continue in the future.
"Employers have to become cognizant of changes in leave regulations over time, particularly if they have operations in a number of states. Employers need to be very clear about the legal differences from state to state," observed An Brunelle, a disability management and human resources professional in California, who has more than 20 years of experience working for large employers and as a consultant.
In addition to changes in federal and state regulations, employers also need to monitor court cases that clarify interpretations, particularly of FMLA rules, and which may signal areas of potential problems, such as an employer's failure to provide adequate notification to employees.
While challenging, regulatory changes are an impetus for employers to establish or revise their leave policies. All employers, large and small, should have written leave policies in place and communicated throughout the workplace.
Policies need to state, for example, if FMLA will run concurrently with other leaves. This is common practice when employees are off work on short-term disability. Some employers, however, may not be aware that FMLA can also run concurrently with workers' compensation.
When other leave types and paid leave are mutually applied, employers may gain some control over the amount of time that employees can be off in a 12-month period; for example, where substituted pay by workers' compensation or disability benefits may be used. At other times, the law is designed to allow one leave conceivably to extend into another leave for other qualifying reasons and circumstances.
Consider the example of a pregnancy covered under disability. Typically, employees are eligible for four to eight weeks of paid disability leave in some states. FMLA, however, provides for 12 weeks of unpaid leave to cover, among other issues, the birth of a child or to bond with an adopted child. If the two leaves run concurrently, then the employee would be covered for four to eight weeks under disability, and then eight to four additional weeks of unpaid leave under FMLA.
If the leaves do not run concurrently in some states, the employee could take six to eight weeks of paid leave and then up to an additional twelve weeks of unpaid time off covered by FMLA. For some employers, particularly those with a smaller workforce or perhaps with a large percentage of employees of child-bearing age, this could be a significant hardship.
COMMUNICATING WITH EMPLOYEES
When an employer establishes or amends its leave policy, it must be communicated to all employees. Companies can't wait until an employee requests leave or, even more crucial, is already off the job. Once a disability leave is approved, for example, a company cannot decide after the fact that it wants to also cover the absence with FMLA.
"Employers must inform employees up front that they have a leave policy, and what employees have to do in terms of notification when they are going to be absent," Brunelle added.
(For more information about employee notification and other FMLA issues, see the Department of Labor's fact sheet on FMLA.)
A full analysis of the changes in federal and state laws covering paid and unpaid leave is beyond the scope of this article. Even a small sampling of new and updated regulations, however, does show the breadth and variation of laws on the books.
Federal FMLA, amended January 2008: Among the biggest changes in FMLA is incorporation of provisions of the National Defense Authorization Act. The new FMLA law provides:
--Up to six months of unpaid leave--with job and benefits protection--for employees to care for family members who have been injured while on active military duty.
--Up to 12 weeks of leave when a family member is on active duty or has been called up to serve in the military.
--The leave provisions of the National Defense Authorization Act were incorporated into FMLA so that all FMLA requirements and job and benefits protections would apply. FMLA requires that employees must have worked for an employer for at least 12 months and performed 1,250 hours of services during the 12 months immediately prior to the leave. Upon returning, employees must be returned to the same or an equivalent position. During the leave, health coverage must be maintained.
In addition, several states have enacted laws covering paid and unpaid leave, examples of which include:
--In New Jersey, a new paid family leave bill provides employees up to six weeks of partial wage replacement to care for newborn or newly adopted children, or to care for a sick child.
--California also offers eligible employees with six weeks of partial pay to leave work to care for a seriously ill parent, spouse, child or domestic partner, or to bond with a new baby, foster child or adopted child. California also requires employers with 25 or more employees to give qualified employees as many as 10 unpaid days off when a spouse is on leave from military deployment.
--Washington offers partial pay for up to five weeks for eligible employees to care for a newborn or newly adopted child or for a family emergency such as caring for a seriously ill family member.
--In Massachusetts, employees are eligible to take 24 hours of unpaid leave in any 12-month period--in addition to leave available under the federal law--to participate in school activities with a son or daughter, accompany a son or daughter to routine medical or dental appointments, or accompany an elderly relative to routine medical or dental appointments or other professional services related to elder care.
--In Oregon, family leave legislation expanded its definition of "family member" in family leave legislation to also include grandparent or grandchild of the employee.
--In New York, paid family leave bills have been proposed; however, the legislature is still in session as of this writing. State family and medical leaves currently can be taken for things such as blood donations, bone marrow transplants and disaster relief.
As even these brief highlights show, regulatory changes continue to affect employers and their leave policies, particularly companies with workforces spread across several states.
DECIDING WHO RESPONDS
Establishing policies and coordinating coverage when employees are out on leave may involve any number of people inside and outside the company. For example, FMLA may be handled by human resources or benefits administration, while short-term disability and workers' compensation may involve disability management. Companies may have consultants who help manage disability, FMLA or other types of cases.
With concurrent leaves, the question becomes: Who is responsible for keeping track of the absence? For example, what happens when short-term disability is overseen by the disability manager and FMLA is the responsibility of human resources?
Conversely, in smaller companies (federal FMLA applies to firms with as few as 50 full-time employees; state leaves may have fewer requirements), all benefits may be directed by a human resources manager. The job of managing concurrent leaves--particularly with new state laws covering so-called "small necessities" such as school functions for working parents--can be confusing.
Luckily there are tools available, including software programs that can track leaves and eligibility across state laws. Some programs may generate notices and letters to employees with the correct notification information, based upon the applicable state regulation.
PUT IT IN WRITING
As companies sort through the details of the new leave regulations, it is the perfect opportunity to evaluate leave policies. For employers that have a more informal system that has relied on verbal notice, it is time to put policies and procedures in writing and to communicate them across the workforce. The old adage, "If it isn't in writing, it isn't!" seems to apply especially to coordinating and managing leaves.
"If you don't have leave policies in writing, you are opening the doors to a litigious environment. You not only need to have documented policies, but also your processes by which you are administering those policies need to be documented as well," explained Bryon E. Bass, vice president, absence management practice leader, for Sedgwick CMS.
"Documentation is important because if the Department of Labor or a state agency wants to conduct an audit, or in the unfortunate event of a lawsuit being filed against the employer, you can demonstrate that you treat all people alike," he said.
Further, with written policies and clearly established and communicated procedures, when an employee applies for a leave, there will be no question as to the steps to follow or the benefits that apply. Then, as the law allows, individuals will be able to take the necessary time off with the job protection that they need--while giving employers a way to manage absences.
October 1, 2008
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