Transcript Presentation Title

Managing Employee
Absenteeism:
Outsourcing Solutions for
Leave Management
Susan Rider, CSFS,
CDHC
PPACA Certified
[email protected]
317-686-6459
Susan Rider is an Account Executive in the
Employee Benefits Department for Gregory &
Appel. Susan has 11 years of experience. Susan
is a national presenter as it relates to Healthcare
Reform and Employee Benefits Administration.
Susan was elected President of Indiana State
Association of Health Underwriters (ISAHU) for
2011, and received the Presidential Citation from
the National Association of Health Underwriters
(NAHU). Susan holds her PPACA Certification,
CSFS (Certified Self-Funding Specialist
Certification), CDHC Certification as well has her
Wellness Certification from NAHU.
© 2011, National Association of Health Underwriters • www.nahu.org
The presentation is intended as general
information only and does not carry the force
of legal opinion.
© 2011, National Association of Health Underwriters • www.nahu.org
Compliance and Chaos
FMLA in place for 20 years, and
is still being implemented
Why is this important? Why
bother out-sourcing?
© 2011, National Association of Health Underwriters • www.nahu.org
Objectives
• The Basics
• FMLA and Workers Compensation
• Record Keeping and Notification
Requirements
• Costs of Absences
• Consequences of Absences
• Managing Unplanned Absences
• Premiums for Benefits While on Leave
• Outsourcing Solutions for Leave
Management
© 2011, National Association of Health Underwriters • www.nahu.org
Introduction
Purpose:
• Balance work and family life
• Promote economic security of
families and serve national interest
in preserving family integrity
Shared Responsibilities:
• Communication is key
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA Works
The best available evidence suggests
that
adopting flexible practices in the
workplace
potentially boosts productivity, improves
morale, and benefits the economy
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA Works
• The Family and Medical Leave Act codified a
simple and fundamental principle: Workers
should not have to choose between the job
they need and the family members they love
and who need their care
• The significance of the FMLA is in its
recognition that workers aren't just
contributing to the success of a business, but
away from their jobs they are contributing to
the health and well-being of their families
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
ADA – Equal Employment
Opportunity Commission (EEOC)
FMLA – Department of Labor
(Wage and Hour Division)
Workers’ Compensation Laws –
State Workers’ Compensation
Commissions
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
These are the areas of interplay between the
ADA, FMLA, and Workers’ Compensation that
employers need to consider when managing
employee absenteeism.
NOTE: State laws may provide broader
protections that federal requirements.
1. Employer Coverage
• ADA – 15 or more employees for 20 weeks
during current or preceding calendar year
• FMLA – 50 or more employees within a 75-mile
radius for at least 20 weeks during current or
preceding calendar year
• Workers’ Compensation – Applies to most, even
small employers. State laws govern
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
WHAT EMPLOYERS ARE COVERED BY FMLA?
The FMLA applies to private employers with 50 or
more employees on each working day during each of
20 or more calendar workweeks in the current or
preceding calendar year. It is not necessary that an
employee actually performs work on each working
day or receives compensation for the week to be
counted as employed, so long as the employee’s
name appears on the employer’s payroll. Employees
on leave are counted as employed if the employer
has a reasonable expectation that they will return to
active employment.
• The FMLA applies to public agencies and to public as
well as private elementary and secondary schools,
regardless of the number of employees employed.
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
WHO IS ELIGIBLE FOR FMLA LEAVE?
• Employed by covered employer
• Worked at least 12 months
• Have at least 1,250 hours of service
during past 12 months before leave
begins
• Employed at a work site with 50
employees within a 75 mile radius
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
WHAT ARE QUALIFYING
REASONS FOR FMLA LEAVE?
12 weeks vs. 26 weeks
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
IS FMLA LEAVE PAID OR UNPAID?
• In general, FMLA leave is unpaid. However, an employee
may elect, or an employer may require an employee, to
substitute any accrued paid leave for FMLA leave. An
employee's ability to substitute accrued paid leave is
determined by the terms and conditions of the employer's
normal leave policy. When an employee chooses or an
employer requires substitution of accrued paid leave, the
employer must inform the employee that the employee must
satisfy any procedural requirements of the paid leave policy
only in connection with the receipt of such payment. If the
employee does not comply, the employee is not entitled to
substitute accrued paid leave.
•
If neither the employee nor the employer elects to substitute
paid leave for unpaid FMLA leave, the employee will remain
entitled to all the paid leave earned or accrued under the
terms of the employer’s plan.
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
WHO IS A HEALTH CARE PROVIDER UNDER THE FMLA?
•
Health care providers include: state authorized doctors of
medicine or osteopathy; podiatrists; dentists; clinical
psychologists; optometrists; chiropractors in limited
circumstances; nurse practitioners; nurse-midwives; clinical
social workers; physician assistants; and Christian Science
practitioners.
•
The FMLA also recognizes any health care provider from
whom an employer or the employer's group health plan's
benefits manager will accept certification of the existence of
a serious health condition to substantiate a claim for
benefits. Finally, the FMLA recognizes a health care
provider listed above who practices and is authorized to
practice in a country other than the United States.
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
WHAT ARE UNLAWFUL ACTS UNDER THE FMLA?
•
It is unlawful for any employer to interfere with, restrain or deny the
exercise of any right provided by the FMLA. It is also unlawful for an
employer to discharge or discriminate against any individual for
opposing or complaining about any illegal practice, or because of the
employee’s involvement in any proceeding related to the FMLA.
Additionally, an employer is prohibited from discriminating against an
employee or prospective employee who has used FMLA leave.
Employees cannot waive and employers cannot induce employees to
waive their prospective rights under the FMLA. This does not prevent
the voluntary settlement or release of FMLA claims by employees based
on past employer conduct.
•
Receiving notice of FMLA complaints pending against a covered
predecessor employer may be relevant in determining a successor
employer’s liability for the predecessor’s FMLA violations.
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
HOW DOES THE FMLA AFFECT OTHER LAWS OR
AGREEMENTS?
•
The FMLA does not affect any other federal or state law
which prohibits discrimination. It does not supersede any
state or local law which provides greater family or medical
leave protection, and it does not affect an employer’s
obligation to provide greater leave rights under a collective
bargaining agreement or employee benefit plan. The FMLA
also encourages employers to provide more generous leave
rights.
•
Salaried executive, administrative, professional or computer
employees of covered employers who meet the Fair Labor
Standards Act (FLSA) criteria for exemption from minimum
wage and overtime under federal regulations, 29 CFR Part
541, do not lose their FLSA-exempt status by using any
unpaid FMLA leave.
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
WHAT DOES NEXT OF KIN MEAN?
• Next of kin means the nearest blood relative of a covered
servicemember other than the servicemember's spouse,
parent, son or daughter, in the following order of priority:
•
Blood relatives who have been granted legal custody of the
covered servicemember by court decree or statutory
provisions;
•
Brothers and sisters;
•
Grandparents;
•
Aunts and uncles; and
•
First cousins.
© 2011, National Association of Health Underwriters • www.nahu.org
The Basics of FMLA
WHO IS A COVERED SERVICEMEMBER?
• A covered servicemember is:
– A member of the Armed Forces, including a
member of the National Guard or Reserves, who
is undergoing medical treatment, recuperation or
therapy, is otherwise in outpatient status or is
otherwise on the temporary disability retired list,
for a serious injury or illness; or
– A veteran who is undergoing medical treatment,
recuperation or therapy for a serious injury or
illness and who was a member of the Armed
Forces, including a member of the National Guard
or Reserves, at any time during the period of five
years preceding the date on which the veteran
undergoes that medical treatment, recuperation or
therapy.
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
CASE STUDY
• Alice, assembly line
worker
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
CASE STUDY
Using the areas of interactions between the
ADA, FMLA, and Workers Compensation
laws, here is an analysis of Alice’s absence.
1. Employer Coverage – XYZ Manufacturing is
covered under and must comply with the ADA,
FMLA and the state Workers Compensation
Laws.
2. Employee Eligibility – Alice may be eligible for
protection under the ADA and FMLA, depending
on the severity of her condition. A workers’
compensation claim must be filed, processed,
and a determination made as to coverage under
Workers’ Compensation.
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
CASE STUDY
3. Length of Leave – Leave as a reasonable
accommodation under the ADA is not an issue at this
point as Alice’s absence, with proper medical
certification, will be designated as FMLA leave.
Should her absence exceed 12 weeks, additional
leave of absence may be a reasonable ADA
accommodation. If the condition is determined to be
work-related, workers’ compensation leave will run
concurrently with the FMLA leave.
4. Medical Documentation – Under the ADA, no
medical documentation is yet required. FMLA medical
certification is required. Medical documentation will
be required by the workers’ compensation insurer.
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
CASE STUDY #1
5. Restricted or Light Duty – Not required at the
present time as Alice is unable to work in any capacity
until further notice. When she is able to return to work
and if she has medical restrictions, light duty, if
available, must be offered as a reasonable
accommodation under the ADA unless this creates an
undue hardship on the employer. Light Duty cannot
be required if FMLA leave is still available. Light duty
should be offered under Workers’ Compensation.
6. Fitness-to-Return-to-Work Certification - Not
required at the present time as Alice is unable to work
in any capacity until further notice. When she is able
to return to work, depending on any restrictions, she
may be required to provide this certification under the
ADA, FMLA, and Workers’ Compensation.
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
CASE STUDY
7. Benefits While on Leave – Not required under the
ADA. Under FMLA, Alice’s health benefits will be
continued at the same level as prior to her leave and
she will receive other benefit continuation given for
employees on similar non-FMLA leave. No additional
benefit continuation under Workers’ Compensation is
required.
8. Reinstatement – Alice must be reinstated to her
previous job under the ADA unless doing so would
create an undue hardship on her employer. If she
can return before her 12 weeks of FMLA leave have
been exhausted, she will be reinstated in her previous
or a similar position. Workers Compensation does
not provide for reinstatement under most state laws,
except for retaliatory discharge.
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA and Worker’s
Compensation
Does FMLA leave run
concurrently with a workers’
compensation absence?
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA and Worker’s
Compensation Cont.
Can an employer require an
employee to substitute accrued
paid leave if the employee is
concurrently on workers’
compensation and FMLA
leave?
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA and Worker’s
Compensation Cont.
What benefits is an employee
entitled to while on concurrent
workers’ compensation and
FMLA leave?
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA and Worker’s
Compensation Cont.
How may an employee on
concurrent workers’
compensation and FMLA leave
pay for group health coverage?
For other non-health benefits?
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA and Worker’s
Compensation Cont.
What may an employer do if it
questions the adequacy of a
medical certification?
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA and Worker’s
Compensation Cont.
Is an employee required to return
to a “light duty” job when it is
not the same job or is not
equivalent to the job the
employee left?
© 2011, National Association of Health Underwriters • www.nahu.org
FMLA and Worker’s
Compensation Cont.
What happens to an employee
on concurrent workers’
compensation and FMLA leave
once the FMLA leave
entitlement has run out?
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
Employers don’t have to offer
double leave for the birth of a
child
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
Employers must notify
employees in writing that their
leave will be counted as FMLA
© 2011, National Association of Health Underwriters • www.nahu.org
Employer Records
• Records must be made and kept
by a covered employer pertaining
to its obligations under the FMLA.
These records must be preserved
for a minimum of three years.
© 2011, National Association of Health Underwriters • www.nahu.org
Maintaining FMLA Related
Medical Records
• Employee FMLA records relating to medical
certifications, recertifications or medical
histories of employees or their family
members must be maintained as confidential
medical records in separate files from
employee personnel files. However,
individuals such as managers, safety
personnel or government officials
investigating compliance may be informed of
relevant FMLA medical information as
necessary.
© 2011, National Association of Health Underwriters • www.nahu.org
Notifcation Requirments
General Notice
• Covered employers must prominently post a
general FMLA notice approved by the
Department of Labor (DOL), where it can be
readily seen by employees and applicants
for employment. The general notice explains
an employee’s rights and responsibilities
under the FMLA and provides information
concerning the procedures for filing
complaints of violations. The DOL has
developed a model general notice for
employers to use.
© 2011, National Association of Health Underwriters • www.nahu.org
Notifcation Requirments
General Notice Cont.
•
Covered employers must post this general notice even if no
employees are eligible for FMLA leave. Electronic posting is
sufficient to meet this posting requirement. An employer that
willfully violates this posting requirement may be subject to
a fine of up to $110 for each separate offense.
•
In addition, covered employers that have any eligible
employees must provide this general notice to each
employee by:
–
–
•
Including the notice in any written guidance to employees, such as an
employee handbook, that explains other employee benefits or leave
rights, if such written guidance exists; or
Distributing a copy of the general notice to each new employee upon
hiring.
In either case, this may be done electronically.
© 2011, National Association of Health Underwriters • www.nahu.org
Notifcation Requirments
Rights and Responsibilities
•
•
•
A statement that the leave may be
designated and counted against the
employee’s annual FMLA leave entitlement
and the applicable 12-month period for
FMLA entitlement;
Any requirements for the employee to
furnish certification of a serious health
condition, serious injury or illness or
qualifying exigency arising out of covered
active duty and the consequences of failing
to do so;
A description of the employee’s right to
substitute paid leave and whether the
employer will require it and the employee’s
entitlement to take unpaid FMLA leave if the
employee does not meet the conditions for
paid leave;
•
Any requirement for the employee to make
any premium payments to maintain health
benefits and related information;
•
The employee’s status as a “key” employee
and related issues of reinstatement;
•
The employee’s rights to maintenance of
benefits during the FMLA leave and
restoration to the same or equivalent job
upon return from FMLA leave;
•
The employee’s potential liability for
employer payment of health insurance
premiums if the employee fails to return to
work; and
•
Other information as appropriate.
© 2011, National Association of Health Underwriters • www.nahu.org
Notifcation Requirments
Designation Notice
•
The employer is responsible in all circumstances for
designating leave as FMLA-qualifying and for giving written
notice of the designation to the employee within five
business days of receiving sufficient information to grant or
deny FMLA leave.
•
If possible, the notice must include the number of days,
hours or weeks that will be counted against the employee’s
annual allotment of FMLA leave, and must address whether
paid leave will be substituted for any portion of unpaid
FMLA leave. The notice must notify the employee if a
fitness-for-duty exam will be required prior to the
employee’s return to work as well as a list of essential
functions so the health care provider can address these
duties in the fitness-for-duty certification. The DOL has
provided a sample designation notice for employers to use.
© 2011, National Association of Health Underwriters • www.nahu.org
Notifcation Requirments
Designation Notice Cont.
•
If the information provided by such notice changes, the
employer must, within five business days of receipt of the
employee’s first notice of need for leave following any
change, provide written notice of the change.
•
If the leave is not designated as FMLA leave because it
does not meet the requirements of the FMLA, the notice to
the employee that the leave is not designated as FMLA
leave may be in the form of a simple written statement.
© 2011, National Association of Health Underwriters • www.nahu.org
Consequences of Failing to
Provide FMLA Notice
• Failure by an employer to follow the notice
requirements of the FMLA regulations may
constitute an interference with, restraint or
denial of the exercise of an employee's
FMLA rights. An employer may be liable for
compensation and benefits lost by reason of
the violation, of other actual monetary losses
sustained as a direct result of the violation
and for appropriate equitable or other relief,
including employment, reinstatement,
promotion or any other relief tailored to the
harm suffered.
© 2011, National Association of Health Underwriters • www.nahu.org
Employees Should Be Notified
When…
•
Employees should give employers as much notice as possible
when requesting leave under the FMLA. While not required to use
the term "FMLA" when seeking leave, the employee must provide
sufficient information for the employer to determine if the leave
qualifies for FMLA protection. When an employee seeks leave due
to an FMLA-qualifying reason for which the employer has
previously provided FMLA-protected leave, the employee must
specifically reference the qualifying reason for leave in notifying the
employer.
© 2011, National Association of Health Underwriters • www.nahu.org
Employees Should Be Notified
When…
•
If leave is foreseeable for the birth of a child, to adopt or place a
foster child, for planned medical treatment of a serious health
condition of the employee or family member, or for the planned
medical treatment for a serious injury or illness of a covered
servicemember, employees must provide the employer with at least
30 days’ advance notice before the leave begins. If 30 days’
advance notice is not provided, the employer has the right to delay
the taking of FMLA until 30 days' notice is provided. When leave
will begin in less than 30 days, employees must give notice to an
employer as soon as practicable.
© 2011, National Association of Health Underwriters • www.nahu.org
Employer’s Responsibilities
Sample Notice of Eligibility
© 2011, National Association of Health Underwriters • www.nahu.org
Employees Should Be Notified
When…
•
For foreseeable qualifying exigency leave, notice must be provided as soon
as practicable, regardless of how fair in advance the leave is foreseeable.
•
When the approximate timing of the need for leave is not foreseeable, an
employee must provide notice to the employer as soon as practicable under
the facts and circumstances of the particular situation.
•
In some cases, verbal notice is sufficient to inform employers of leave. Notice
may be given by the employee’s spokesperson (for example, spouse or adult
family member) if the employee is unable to do so personally.
•
An employee taking leave for planned medical treatment for a serious health
condition or a serious injury or illness must also make a reasonable effort to
schedule treatments so an employer’s operations are not unduly disrupted.
•
An employer may require an employee to comply with the employer's usual
and customary notice and procedural requirements for requesting leave,
absent unusual circumstances (for example, no one answers the call-in
number and the voicemail box is full). Where an employee does not comply
with the employer's usual procedure, and no unusual circumstances justify
that failure, the employer may properly delay or deny FMLA leave.
© 2011, National Association of Health Underwriters • www.nahu.org
Certification Required?
Employers may require employees who wish to use FMLA leave to provide the
following:
•
Medical certification supporting the need for leave due to a serious health
condition affecting the employee or an immediate family member (or the next
of kin regarding a leave taken to care for a covered service member for a
serious injury or illness), second or third medical opinions (at the employer’s
expense), annual medical certifications and a periodic recertification;
•
Periodic reports during FMLA leave regarding the employee’s status and
intent to return to work; and
•
A certification in the event a leave is requested because of any qualifying
exigency arising out of a family member's covered active duty or call to
covered active duty in the Armed Forces.
© 2011, National Association of Health Underwriters • www.nahu.org
Serious Health
Condition Certification
Unless an employer’s
own policy requires less
information, the
certification may
generally include the
following:
•
The name, address, telephone number and fax number of the
health care provider and type of medical practice/specialization;
•
The approximate date on which the serious health condition began
and the probable duration of the condition;
•
A statement or description of appropriate medical facts regarding
the patient's health condition. The medical facts must be sufficient
to support the need for leave. Such medical facts may include
information on symptoms, diagnosis, hospitalization, doctor visits,
whether medication has been prescribed, any referrals for
evaluation or treatment or any other regimen of continuing
treatment;
•
Whether the employee will need leave intermittently or will need to
work a reduced schedule, information sufficient to establish the
medical necessity for such leave and an estimate of the dates and
duration of such treatments and any periods of recovery;
•
If the employee is the patient, information sufficient to establish that
the employee cannot perform the essential functions of the
employee's job as well as the nature of any other work restrictions
and the likely duration of such inability; and
•
If the leave involves an employee’s family member, the care to be
provided and the estimated time period required.
© 2011, National Association of Health Underwriters • www.nahu.org
ServiceMember
Certification
An employer may
request that the health
care provider provide the
following information:
•
The name, address and appropriate contact information of the
health care provider, the type of medical practice, the medical
specialty and what type of military health care provider it is (for
example, DOD, VA, DOD or TRICARE);
•
Whether the covered servicemember's injury or illness was incurred
in the line of duty on active duty;
•
The approximate date on which the serious injury or illness
commenced and its probable duration;
•
A statement/description of appropriate medical facts regarding the
covered servicemember's health condition;
•
Information sufficient to establish that the covered servicemember is
in need of care and whether the covered servicemember will need
care for a single continuous period of time and an estimate as to the
beginning and ending dates for this period of time;
•
If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment, appointments for the
same and an estimate of the frequency and duration of the periodic
care; and
•
Other information from the employee regarding the employee's
relationship with the covered servicemember and the covered
servicemember's military status.
© 2011, National Association of Health Underwriters • www.nahu.org
Qualifying Exigency
In addition, an employer
may require that leave for
any qualifying exigency be
supported by a certification
from the employee that sets
forth the following
information:
•
A statement or description, signed by the employee, of
appropriate facts regarding the qualifying exigency;
•
The approximate date on which the qualifying exigency
commenced or will commence;
•
If an employee requests leave because of a qualifying
exigency for a single, continuous period of time, the
beginning and end dates for such absence;
•
If an employee requests leave because of a qualifying
exigency on an intermittent or reduced schedule basis, an
estimate of the frequency and duration of the qualifying
exigency; and
•
If the qualifying exigency involves meeting with a third
party, appropriate contact information for the individual or
entity with whom the employee is meeting and a brief
description of the purpose of the meeting.
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
An assembly worker in a
Honda plant
© 2011, National Association of Health Underwriters • www.nahu.org
Case Study
An assembly worker in a
Honda plant
© 2011, National Association of Health Underwriters • www.nahu.org
So what have we learned…
Yes, it is Compliance and Chaos
Yes, FMLA has been in place for
20 years, and is still being
implemented
© 2011, National Association of Health Underwriters • www.nahu.org
More Information
Contact Information:
Susan Rider, CSFS, CDHC
Account Executive
Gregory & Appel Insurance
1402 N. Capitol #400
Indianapolis, IN 46202
317-686-6459 (direct)
[email protected]
More information from the DOL on the FMLA, including sample
FMLA forms, is available at:
www.dol.gov/whd/fmla/index.htm.
© 2011, National Association of Health Underwriters • www.nahu.org