Leave Management Today
The FMLA, state laws, and changing demands for compliance
Paul Kramer
Director of Compliance
WorkForce Software
About the Presenter
Paul Kramer
Director of Compliance & Attorney-at-Law
@WorkForce_Paul

Practicing attorney for 30 years, more than two decades
focused on employment law

Expert in FMLA, FLSA and state-specific employment laws
and regulations

Frequent legal contributor to HR Magazine and presenter on
employment law issues
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Today’s Presentation
What We’ll Discuss…
Family and Medical Leave Act (FMLA) Refresher
The Latest Changes
A Look at State Laws
Common Pitfalls & Challenges
Leave Management Best Practices
Closing Thoughts / Q&A
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Quick Facts
Employees: 300+
Founded: 1999
Headquarters: Livonia, MI
What We Do
WorkForce Software delivers a complete
workforce management platform for large
enterprises. Its EmpCenter suite includes bestin-class solutions for time and attendance,
scheduling, absence and leave management,
labor analytics, and employee fatigue.
Client Community
200+ Customers
40+ Countries
1 million users
Core Products
•
Time & Attendance
•
Advanced Scheduling
•
Absence Compliance Tracker
•
Analytics
•
Fatigue Management
Corporate Headquarters: 38705 Seven Mile Road, Suite 300, Livonia, Michigan 48152
California: 2061 Business Center Drive, Suite 120, Irvine, CA 92612
United Kingdom: Atrium Court, The Ring, Bracknell, Berkshire, RG12 1BW
877.4.WFORCE | workforcesoftware.com | info@workforcesoftware.com
Informational Disclaimer
This presentation is designed for educational purposes only. It is
meant to provide you with a general understanding of the law but it
is not legal advice. There is no attorney-client relationship between
you and the presenter or with WorkForce Software. Organizations
should always retain a licensed attorney when dealing with issues
pertaining to their particular circumstances.
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FMLA Refresher
Even the “basics” are complex…
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FMLA Overview
A few points about the FMLA:

One of the most complex and dynamic
employment laws (more on this later)

Intersects with numerous other personal rights and
privacy protections (e.g. Genetic Information
Nondiscrimination Act – “GINA”)

Also overlaps with state laws, union policies, and
organizational leave policies

Significant source of concern for HR
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Reasons for Leave under the FMLA



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Birth and care of a newborn
Placement of a child for adoption or foster case
To care for a spouse, child, or parent with a
serious health condition
A serious health condition that makes the
employee unable to perform his/her job
function(s)
A qualifying exigency arising out of the fact that
the employee’s spouse, child, or parent is a
covered military member on covered active duty
To care for a covered spouse, child, or parent
servicemember with a serious injury or illness
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FMLA: Even the basics are complex


An employer MUST adhere to FMLA if…

Employs 50 + workers

Workers must be employed during each working day, during each of 20 or
more calendar workweeks, in the current or preceding calendar year

All public agencies, as well as public and private elementary and secondary
schools are also required… regardless of employee size
To receive FMLA benefits, an employee MUST…

Have been employed by employer for at least 12 months
(not necessarily consecutive)

Employed for at least 1,250 hours during the 12 month period immediately
preceding leave

Employed at a worksite where 50 or more employees are employed within
75 miles of the worksite
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The Latest Changes
FMLA’s recent – and forthcoming – expansions
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Final Rule on FMLA amendments
Background:


Two recent laws necessitated changes to
FMLA regulations:

National Defense Authorization Act of 2010 (NDAA)

Airline Flight Crew Technical Corrections Act
Many of the changes immediately took effect; some required
clarification / interpretation from the DOL

Final Rule for implementation was published in February

Officially took effect March 8

A new FMLA poster is available on the DOL website
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Implementation of the Final Rule
Clarifications & Revisions:

Revising model FMLA forms.

Establishing a more flexible definition of
“serious injury or illness” of a covered veteran.

Clarifying the calculation of intermittent and
reduced schedule leave.

Adjusting the way flight crew workers are deemed eligible for the
worked hours requirement under the FMLA.
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Implementation of the Final Rule
Carried Out Amendments Made by NDAA:


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Extending military caregiver leave to care for:

Covered veterans with serious injuries or illnesses.

Pre-existing injuries or illnesses that were
aggravated by the military service.
Expanding qualifying exigency leave to:

Family members of regular armed service members as long as they are
being deployed to a foreign country.

Increase leave relating to a service member’s rest and recuperation leave
from five to 15 days
Creating a new qualifying exigency leave category to care for a
service member’s parent who is incapable of self-care.
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DOMA & the FMLA
Background:
The Defense of Marriage Act (DOMA) was enacted
in 1996
 As written, DOMA prohibits federal recognition of
same-sex marriages from any state



It also excludes same-sex couples from the benefits
offered to heterosexual marriages, including tax breaks
DOMA has a mixed record of enforcement

Multiple district and appeals courts have struck down its
provisions
 The Obama administration no longer supports the law

Seen as a bellwether for related cases

E.g. rulings on state laws concerning marriage definitions
and rights
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DOMA & the FMLA
What’s Happening:

Supreme Court reviewing cases related to the
definition of marriage:

A challenge to the Defense of Marriage Act (DOMA)

An appeals court ruling on California’s Proposition 8

Decision expected in June 2013

Several outcomes may hinge on these cases:

Whether same-sex couples receive federal benefits

Constitutionality of state bans on same-sex marriage

Eligibility for FMLA leave
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A Look at State Laws
It’s not just the FMLA…
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Ohio
Ohio Military Family Leave Act


Eligibility Requirements

Employer must have 50 or more employees

Employee must have been employed for at least 12 consecutive
months and 1250 hours immediately preceding the leave

Employee can only take leave if a parent, spouse, or person
who has or had legal custody over member of armed services

Member of armed services must have been called for active duty of period longer than 30
days, or have been injured while on duty

Employee must provide 14 days notice of leave for active duty, and two days notice for
leave due to injuries.
Duration

Up to 10 days or 80 hours, whichever is less

Can only be used after all other forms of leave, except sick and disability, are exhausted
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Illinois
Illinois Family Military Leave


Eligibility Requirements

Employee must be a spouse, parent, child, or grandparent of
a person called to military service lasting longer than 30 days
with the State of Illinois or the United States

Employee must have exhausted all accrued vacation and any
other leave granted to the employee, excluding sick leave
and disability leave
Duration

Employers with more than 50 employees must provide up to
30 days of unpaid leave

Employers with 15 to 50 employees must provide up to 15
days of unpaid leave
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State Laws also change


Illinois Family Leave update

Amended in 2010 with new law

Effective January 1, 2011
Impact

Coverage extended to grandparents and children
of service member
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Common Pitfalls
Challenges to recognize and address
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Common Problem Areas

Narrow Focus on FMLA
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Narrow Focus on FMLA
Take a holistic view of leave

Focusing on the FMLA is understandable…
but ignoring the others can be costly

Overlap can expose organization to litigation


Americans with Disabilities Act (ADA) ties-in


E.G. – FMLA & state maternity leave
Tighten up your ADA Amendments Act compliance
Clarify your organization’s “leave year”

Must be consistent with all employees

Changes must be communicated 60 days in advance
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Common Problem Areas

Narrow Focus on FMLA

Intermittent Leave
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Intermittent Leave
Top concern about leave management, per survey results:
Source: 2012 Workforce Management Trend Survey
800+ respondents
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Intermittent Leave – Recommendations



Reduced Schedule Leave

Another employee protection under the FMLA

Can be easier to predict and plan around than intermittent leave

Not an option for all health conditions

Consider transferring Employee to an alternative position
Be Mindful of Tracking Increments

Intermittent leaves cannot be tracked in spans >1 hour

If any other leave program (state, union, corporate) uses smaller
increments, the smallest must be extended to intermittent leave
Establish a “moonlighting” policy

Intermittent leaves can be exploited to do side jobs
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Common Problem Areas

Narrow Focus on FMLA

Intermittent Leave

Record Keeping
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Sound Record Keeping Practices
1.
Require employees to fill out written requests for
leave.
2.
Require employees to comply with usual and
customary notice and procedural requirements for
requesting leave.
3.
Certify, recertify, second and third opinions.
4.
Maintain FMLA records for at least 3 years
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Common Problem Areas

Narrow Focus on FMLA

Intermittent Leave

Record Keeping

Employer Responsibilities
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Employer Responsibilities


Leave type determination is the responsibility of the employer

Employees do not need to expressly state the type of leave they’re seeking

Based upon the request, the employer must:
»
Determine leave type (or types)
»
Inform the employee
»
Follow all relevant processes & procedures… especially use of medical forms
Once leave type has been determined, it must be documented
and tracked

Ensures employees do not receive more leave than entitled

Mitigates leave abuse
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Common Problem Areas

Narrow Focus on FMLA

Intermittent Leave

Record Keeping

Employer Responsibilities

Return from Leave
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Returning from Leave

Upon returning from leave

Employee is entitled to be reinstated to:
»
same position or an equivalent position
»
equivalent pay, benefits & other terms and conditions of employment

Must be careful if position is eliminated, project has been completed, etc.

If an employee cannot be returned to his previous position, you should
provide a position that is virtually identical in terms of benefits, pay, &
other conditions

Returning employee to same position is the best practice
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Leave Management Best Practices
Tips to improve efficiency and simplify compliance
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Tip #1: Communicate, Train & Verify

Ensure cross-functional, cross-organizational awareness



Executives, managers, supervisors, HR team members, etc.
Train for the entire leave process

Ensure consistent treatment of all employees at all times

Consistent handling of leave from request intake and leave type
determination through “return to work” programs
Provide paper trail indicating this has taken place

Handbooks, e-mail threads, etc.
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Tip #2: Keep Pace With Changing Regulations


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FMLA & other Federal- and state-specific policies are in flux

Proactively monitor, interpret and apply all relevant changes

Document what changed, who changed it & how it is reflected
Be mindful of other policy changes as well

Corporate policies & how they relate to Federal/state policies

Union policies, military leave, etc. should also be considered
Keep abreast of adjacent regulations as well

E.G. the “safe harbor” statements regarding requests for medical
information to remain in compliance with the Genetic Information NonDiscrimination Act (GINA)
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Tip #3: Monitor Laws & Court Proceedings

Employee leave violations are HEAVILY litigated

Stronger enforcement by DOL

DOL’s FY 2014 budget calls for more resources dedicated to FMLA
enforcement

Different courts (or circuits) have different interpretations

Great way to identify potential areas of concern BEFORE your
organization is exposed to unnecessary risk

Make changes to internal processes to mitigate risk
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Tip #4: Standardize via Automation


Enables proactive approach

Helps HR identify patterns of leave requests across the organization

Six Sigma: Can’t control what you don’t see

Provides “one source of the truth” for executives and HR
Eliminates costs of uncertainty


Managers often err on side of granting leave when not clear on law
»
Creates schedule challenges that can result in additional labor costs (e.g. O/T)
»
Emboldens employees abusing leave to continue requests
Levels playing field

Gives managers access to same information across locations

Standardizes leave determinations and treatment
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Tip #5: Safeguard Against ‘Retaliation’ Claims

Be very cautious when terminating low-performers or abusers…
make sure you’ve been diligent about documenting

Entries of job performance issues

Specific information = better protection
e.g. – dates, conversation notes, etc.

Formal reviews, performance improvement letters, etc.

Paper trail – complete with dated documents – provides
evidence of previous and persistent issues

Always consult your attorney before terminating an employee
who recently returned from leave
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Closing Thoughts
Takeaways for your business
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Today’s Leave Landscape
The new equation:
Continued tinkering with FMLA
+
More expansive protections, from all
sources

Federal laws (FMLA, ADA, etc)

State leave regulations

Court rulings
Increased need for centralized and welldesigned leave management
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Thank you! Questions?
877.4.WFORCE
workforcesoftware.com
info@workforcesoftware.com
ENTERPRISE WORKFORCE MANAGEMENT
Time & Attendance • Scheduling • Absence & Leave • Labor Analytics • Fatigue Management
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