The Alphabet Soup of Leave Administration in the Workplace

Alphabet Soup
of Leave Administration
To download a copy of today’s presentation please visit:
www.alcottgroup.com/alphabet_soup
Presented by:
Dawn Davidson Drantch, Esq., In-House Counsel
&
Bob Chanin, Director of Human Resources
Date(s)
5/7/13 and 5/16/13

Disclaimer

The materials herein are for informational purposes only and
are not intended to be, nor are they, legal advice. Every
situation is different and you should consult with your own
legal counsel for answers to your specific questions.

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© 2013 Alcott HR Group LLC

About Alcott
• We are a Professional Employer Organization (PEO)
providing outsourced human resource services, support and
administration to small and mid-sized companies
• More than 25 years in business
• Accreditations:
• Employer Services Assurance Corp (ESAC)
• Certification Institute for Workers’
Compensation Risk Management
• Industry Leadership
• NAPEO/NYS Leadership Council
• ESAC
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What We Will Cover
• The ABCs of LOAs
•
•
•
•
•
•
•
•
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ADA
ADAAA
FMLA
MMFMLA
USERRA
WC
STD
FEP
Company Policies

• Best Practices
• Interplay of the Issues
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Alphabet Soup of Leave Administration

THE ABCs OF LOAs

ADA
(Americans with Disabilities Act)
• To be a covered employer under the act:
• Employer must have 15 or more employees

• The law prohibits employers from discriminating against a
qualified individual with a disability with regard to all
terms and conditions of employment
• Qualified individual with a disability = employee who can perform
the essential functions of a job with or without reasonable
accommodation

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ADA (cont’d)
• Individual with a disability is one who:
• Has a physical or mental impairment that substantially
limits one or more major life activities (walking,
speaking, breathing, seeing, hearing, working, etc.);
• Has a record of such an impairment; or
• Is regarded as having such an impairment

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ADA (cont’d)
• Requires reasonable accommodation for qualified individual
with a disability in order to perform the essential functions of
the job
• Exception for cases where accommodation poses undue hardship on
employer
• Reasonable accommodation= a modification or adjustment to a job,
the work environment, or the way things usually are done that enables
the qualified individual with a disability to enjoy an equal employment
opportunity

9


ADAAA
(Americans With Disabilities Act Amendments Act)
• Expands “major life activity”
• Caring for oneself, performing manual tasks, everyday activities such as
breathing, seeing, hearing, speaking, eating, sleeping, walking, standing,
lifting, bending, learning, reading, concentrating, thinking, communicating
and working

• Adds non-exclusive list of major bodily functions which constitute
“major life activities”
• Functions of the immune system; normal cell growth; and functions
involving the digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive systems

• Reduces mitigating measures standard
• More of an issue now of what kind of accommodation versus
whether employee is a disabled person under the act
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FMLA
(Family and Medical Leave Act)
• Employer must have a minimum of 50 employees on payroll in any 20
weeks of the current or preceding calendar year

• For the employee to be eligible to take leave:
• Employee must work at a site with 50 or more employees within 75
mile radius of the worksite
• Employee must be employed for a total of one year (can be over
multiple years up to 7)
• Employee must have worked 1250 hours during the 12 months prior to
the leave
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FMLA (cont’d)
• FMLA gives employees 12 weeks of unpaid job protected leave in a
12 month period with continuation of benefits for the following
reasons:
• Employee’s own serious health condition
• Serious health condition of family member (parent, spouse or child generally
under the age of 18)
– “Child” includes child of a same-sex partner but not recognized for
same-sex partner
• Birth, adoption, or placement of child in foster care

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MMFMLA
(Military Member FMLA)
• Same length of service and distance requirements as FMLA
• Two types:
• Covered Active Duty Leave
• Military Caregiver Leave

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MMFMLA (cont’d)
• Covered Active Duty Leave
• Employee may take if parent, spouse, child is on active duty, or called
to active duty, to a foreign country and employee needs to take care of
exigencies as defined in the regulations
• 12 weeks in 12 month period or up to 15 days if family member is on
authorized Rest and Recuperation Leave

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MMFMLA (cont’d)
• The following are activities eligible for Covered Active Duty Leave:
• Short-notice deployment
• Attending official ceremonies or programs and related activities where the
participation of the family member is requested by the military
• Making arrangements for child care, school activities or elder care
• Making financial or legal arrangements to address the military member’s
absence
• Attending counseling
• Post deployment activities
• Rest and recuperation
• To care for a military member’s parent who is incapable of self-care when the
care is necessitated by the military member’s covered active duty
• Other events may qualify in the worksite employer’s sole discretion

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MMFMLA (cont’d)
•

Military Caregiver Leave
• Employee may be spouse, son, daughter, parent or next of kin of a
military member or covered veteran who is recovering from a serious
illness injury sustained or aggravated in the line of active duty, as defined
in the relevant regulations
– “Next of kin” is defined as “the nearest blood relative” of the
military member
– “Covered veteran” is generally defined as an individual who was
discharged or released under conditions other than dishonorable at
any time during the five (5) year period prior to the first date of
leave taken under military member FMLA leave
• Up to 26 workweeks of leave, either continuously or intermittently,
during a single 12-month period to care for the military member or
covered veteran (including members of the Reserves and National
Guard) who is undergoing medical treatment, recuperation or therapy
for a serious injury or illness at any time during the five years preceding
the date of treatment, recuperation or therapy

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FMLA and MMFMLA
• Benefits (e.g., health, dental, vision) continue during periods of
covered FMLA leave as if employee still active
• Employee responsible for his/her share of premium

• Notification and certification requirements with strict time periods
• Upon timely return employee placed in the same position with the
same pay rate , benefits, schedule and location
• Certain “key” employees not guaranteed reinstatement to their positions

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USERRA
(Uniformed Services Employment and
Re-employment Rights Act)
• USERRA applies to virtually all U.S. employers regardless of size

• A covered employee is one who:
• Ensures that the employer receives advance written or verbal notice
of service
• Has five years or less of cumulative service in uniformed services while
with that particular employer
• Returns to work or applies for reemployment in timely manner after
conclusion of service
• Has not been separated from service with a disqualifying discharge or
under other than honorable conditions

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USERRA (cont’d)
•
•
•
•

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Provides re-employment rights depending length of service leave
Anti-retaliation provisions
Reasonable accommodation provisions
COBRA-like benefits


WC (Workers’ Compensation)
• Virtually all employers in New York State must provide
workers' compensation coverage for their employees
• Workers that generally must be covered:
• If working for for-profit employers (workers include part-time
employees, borrowed employees, leased employees, family members
and volunteers)
• All corporate officers if corporation has more than two officers and/or
two stockholders
• Most workers compensated by nonprofit organization

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STD
(State Short Term Disability Insurance(NY))
• Employers with one or more employees are subject to
provisions of New York State Disability Benefits Law
• All employees must be covered with few exceptions

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FEP
(State and local fair employment practice laws)
• Prohibit discrimination on basis of disability
• May require leave as reasonable accommodation

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Company Policies
•
•
•
•
•

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Personal Leave
Medical leave otherwise not covered by FMLA
Sabbaticals
Salary continuation policies
Paid time off policies



BEST PRACTICES

Best Practices
• Company Policies
•
•
•
•

Most important aspect of controlling leaves
Included in policy manual
Policies should be concise and up to date
Should cover:
–
–
–
–
–

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Eligibility requirements
Documentation requirements
Maximum time permitted (in accordance with applicable law)
Ongoing communication requirements
Return to work requirements


Best Practices
• Initial analysis
• Company on notice that event occurred
– Notification directly from employee
– Indirect notice

• Is employee qualified and eligible for leave?
• Notification and approval process
• Is the leave requested concurrently applied with other
type of leave?
• How will position be treated while employee is on leave?

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Best Practices
• Documentation
• No employee should ever be out on a leave that is not
supported by documentation
– Required paperwork
– Suggested paperwork

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Best Practices
• Communication
• Documentation
• Interactive process
• Keep communication lines open throughout duration of
leave
– BEWARE! “No Fault” or “Automatic Termination” policies run
afoul of ADA or and state reasonable accommodation rules
– Indefinite Leaves

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Best Practices
• Terminating employees on leave
• Determination of undue hardship
• Key position
• Company precedent and consistent treatment
–
–
–
–
–

Policy applied uniformly for all employees ?
Treatment consistent with employee’s previous leave(s)? ( if any)
Is termination close in time to employee’s expected return?
How has work been covered while employee on leave?
Replacing employee?

• Inform of ability to re-apply when ready to return

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Best Practices
• Develop and update job descriptions
• Defines essential functions
• useful for accommodation, FMLA certifications and fitness for
duty certifications

• Update forms and use in all cases

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INTERPLAY OF THE ISSUES

Interplay of the Issues
If an employee returns from FMLA leave with light-duty
restrictions, what are the company’s obligations?
• Employer not required to create new position to accommodate
need for light duty under FMLA, ADA(AA), DBL, WC
• Do not confuse with intermittent or reduced schedule leave which
may be required under FMLA or ADA accommodation
• Not required to offer light duty under FMLA, but may be required
under ADA and WC
• If light duty offered under WC and employee refuses, employee
may be disqualified for WC benefits

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If an employee returns from active duty and in the same
twelve month period needs FMLA, how does the
employer count the hours of service for FMLA eligibility
purposes?
• All time spent on active duty leave is counted as time
worked for FMLA eligibility determinations

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If we are not covered by the FMLA and an employee
goes out on an extended leave, for how long do we
have to cover his health benefits?
• An employee out on non-FMLA covered leave may
be offered COBRA as soon as the employer’s policy
and practice permits

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What happens if an employee is out on FMLA
beyond twelve weeks and the company receives a
doctor’s note that she needs two more weeks of
leave?
• Leave is considered an accommodation under
ADA(AA) and most state FEP laws unless undue
hardship
Can a company terminate the employee because the
leave is now going beyond twelve weeks?
• No “drop-dead dates”
• Each case is fact specific
• Workers compensation rules may require company
to keep employee employed
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What happens if an employee is out beyond the
date stated on the doctor’s note ?
• Contact the employee to let them know that they
were due back to work by X date and give them a
date by which either to return or give the
company updated medical documentation
If we do that and the employee fails to show or give
us updated documentation can we terminate the
employee?
• Generally, if you have followed the outlined steps
then yes

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If an employee has childcare issues can he take
FMLA intermittently to deal with the problem?
• Generally not covered by FMLA unless it is within
the first year of child’s birth (or adoption or
placement for foster care) and can be intermittent
if employer agrees

37


We received an unemployment claim for an
employee who was out on medical leave. Can we
terminate her?
• No. The company should respond to the
unemployment office that the employee is still
employed, but on medical leave

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What is the difference between the reasonable
accommodation requirements of the ADA and
USERRA?
• USERRA requires that employers make reasonable
efforts to assist veterans returning to employment
in becoming qualified for a job
• Employer must help veteran become qualified to
perform duties of position whether or not veteran
has service-connected disability or even a
disability as defined under the ADA

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If an employee is on workers compensation can he
also be on FMLA?
• Yes. In fact company policies should always
indicate that such leaves run concurrently
If the company is not covered by FMLA, do we have
to hold the employee’s job open until he comes back
from workers compensation or disability leave?
• Not necessarily, but you must do the “employee
termination” analysis. Remember that leave is
considered an accommodation under the ADA and
state fair employment practice laws
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If an employee is called up to active duty, does that qualify as
FMLA under the new FMLA Military Leave rules?
• No, as the rules do not apply to the military member
him/herself, but rather a family member of the person
called to duty
If an employee’s spouse has been called up to active duty,
does that qualify for FMLA if the spouse is an employee and
wants to take leave?
• Possibly, if it qualifies as a military exigency under the rules

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If you would like additional information about Alcott HR, or are looking for an HR
solution for your business, please call 1-888-4ALCOTT or email:
marketing@alcottgroup.com


The Alphabet Soup of Leave Administration in the Workplace

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