Think workers comp is hard to manage? Try FMLA, state and other leaves of absence.
These overlapping and ever-changing leave laws are so complicated many employers either grant too much leave in fear of being out of compliance, or refuse leave that legitimately should be granted, exposing the employer to risk of lawsuits.
How employers (and/or their TPAs) manage FMLA can have a big impact on costs, productivity, employee morale and, perhaps most important, reduce the risk of legal action for claims of noncompliance. Quite simply, it pays to devote the resources to make sure it is done right.
To give you an idea of how complicated managing these leaves can be, consider three hypothetical scenarios and how they should be correctly handled. While reading, keep in mind that, while these scenarios look overblown, in real life they actually can get much more complicated than this.
1. Pregnant Employee With Multiple Births
This scenario illustrates the interaction of FMLA and state leaves for an employee with a complicated pregnancy.
Judy in Massachusetts is employed by a company that is covered by both the FMLA and the Massachusetts Maternity Leave Act (MMLA). She becomes pregnant with multiple fetuses with a due date of October 15 and is put on bed rest by her OB effective April 15. On August 30 she delivers eight babies, all of which survive.
How much job-protected leave does Judy get, and under which statutes?
April 15 – July 8
1. The MMLA covers only the birth or adoption of a child or children, not pre-birth pregnancy-related disabilities. Therefore, the MMLA does not cover any of her pre-birth time off.
2. The FMLA does cover pregnancy-related disabilities, so this provides job protection for Judy for up to 12 weeks during her period of bed rest.
3. After 12 weeks, Judy exhausts her FMLA on July 8 (assuming she has not taken any other FMLA time in the prior 12 months).
July 9 – August 14
1. Judy is out of FMLA and the MMLA has not yet come into effect. She is likely still protected, however, under the Americans with Disabilities Act (as amended by the ADA Amendments Act effective January 2009) and under the Massachusetts equivalent nondiscrimination law.
2. Judy also may be protected by both federal and Massachusetts sex or pregnancy discrimination laws if her employer allows leaves of absence to employees for non-pregnancy-related temporary disabilities.
3. Her employer would be wise to provide an extended leave of absence due to her pregnancy and/or pregnancy disability to cover the period from FMLA exhaustion until the MMLA provides the employee with parental/bonding leave.
August 15 –
Once Judy has given birth, the MMLA allows eight weeks of job-protected leave per birth or adoption. So, for having eight babies, she is entitled to 64 weeks of leave, eight for each baby.
2. California Family Rights Act and FMLA
This scenario about how FMLA and state laws interact in a domestic partnership with multiple illnesses shows how the timing of multiple leaves can have a huge impact.
Marie and her registered domestic partner Susan live together with Susan’s 10-year-old child, Thomas. Thomas is diagnosed with a serious health condition and needs physical care at home. Both Marie and Susan work for California employers that are covered by both the California Family Rights Act (CFRA) and the FMLA.
Can Marie and Susan take time off to care for Thomas?
1. Both FMLA AND CFRA provide 12 weeks of job-protected leave within one leave year to care for certain family members as defined by the statutes. As Thomas’s mother, Susan is entitled to take up to 12 weeks of job-protected leave under both FMLA and CFRA to care for him. Her leave under each act runs concurrently. After 12 weeks she has exhausted her FMLA and CFRA entitlements for her employer’s defined leave year.
2. After Susan has exhausted her leave rights, Marie takes time off to care for Thomas. Marie also is entitled to 12 weeks off under each leave act. CFRA provides time off to care for a child with a serious health condition under two conditions. (1) If the child is the child of the employee’s domestic partner and/or (2) a child with whom the employee stands “in loco parentis” (in the place of a parent or like a parent, providing care and/ or support).
3. The FMLA does not provide leave to care for the child of a domestic partner, but does provide time off to care for a child with a serious health condition if the employee is in loco parentis to the child. Because Marie, Susan, and Thomas all live together and Marie helps provide financial support and parenting care for Thomas, she qualifies for this leave and in caring for Thomas, exhausts both her FMLA and CFRA rights for the leave year.
Note that the result would be the same if Marie and Susan work for the same employer. Neither FMLA nor CFRA require parents employed by the same employer to share time off to care for a child with a serious health condition.
To understand the complexity of these laws, suppose that before Thomas’s illness, Susan had experienced her own serious health condition. Marie stayed home from work for 12 weeks to provide Susan with physical care during her injury and recovery. This leave is covered by CFRA, which provides leave rights to care for a registered domestic partner with a serious health condition. Susan has exhausted her CFRA time for the leave year, but, her time off does not count toward her FMLA leave rights, as the FMLA does not provide job-protected leave to care for a domestic partner with a serious health condition.
Then when Thomas becomes ill with a serious health condition and needs physical care at home. Marie can take another 12 weeks of leave during the leave year to care for Thomas because she stands in loco parentis to him, and her FMLA rights were not exhausted during her time off to care for Susan.
Note that if Susan’s and Thomas’s serious health conditions occurred in reverse order, Susan’s CFRA and FMLA rights both would have been exhausted in caring for Thomas first, and she would not have had any job-protected time left under CFRA to care for Susan.
3. Caring for an Injured Military Service Member
This scenario illustrates how caring for someone injured in the line of duty differs and interacts with caring for an injured civilian.
Henry is an employee of a company covered by FMLA. When his son, Josh, a serviceman in the US Navy, is injured on an aircraft carrier during an engagement and is sent home, can Henry take time off to care for Josh?
An employee may take up to 26 weeks of job-protected leave in one 12-month period in order to care for a son, daughter, spouse, or parent who has been injured in the line of duty on active duty, or if the employee is designated by the injured service member as his or her “next of kin” per the regulations.
The 12-month period is measured forward from the first date of leave for this reason, regardless of the method used by the employer to calculate an employee’s leave entitlement for other FMLA reasons (e.g., rolling back, calendar year, or other fixed year).
The 26 weeks includes the employee’s 12 weeks of leave for other FMLA-qualifying reasons, but the military caregiver leave must be applied first, so that if the employee does not use the full 26 weeks for caregiver leave, he or she still has the remainder of the 26 weeks, up to 12 weeks maximum, to use for other FMLA reasons.
Assume Henry’s employer uses the 12-month rolling backward method of calculating employee FMLA leave entitlements.
1. Henry has taken no previous FMLA leave since he became eligible, and may take up to 26 weeks to care for Josh.
2. Josh recovers and Henry is no longer needed to care for him after 8 weeks. Henry returns to work and under the regulations forfeits the remaining 18 weeks of military caregiver leave as a result.
3. A month after returning to work Henry requests FMLA time off to care for his wife, who has a serious health condition. His employer is required to apply the military caregiver leave first, up to the 26 weeks. Because Henry used less than 14 weeks of the caregiver leave entitlement, he still has up to 12 weeks of FMLA entitlement for other reasons.
4. Suppose, however, that five months before Josh’s military injury, Henry had taken leave because he adopted a child and took 12 weeks of FMLA leave to bond with the adopted child. When Josh is injured, Michael is still entitled to 26 weeks of leave to care for him, because the 12-month period for this leave reason is always measured forward from the first date of the leave. If his care is needed that long, he can take up to the full 26 weeks despite having taken 12 weeks within the past year, measured rolling backward.
5. Fortunately, Josh recovers within eight weeks, no longer needs Henry’s care, and Henry returns to work. Henry then forfeits the remainder of the 26 weeks of military caregiver leave.
6. A month after returning to work Henry requests FMLA time off to care for his wife, who has a serious health condition. Although Henry has only taken a total of 20 weeks, he no longer has any FMLA time available to use for his wife’s care. Looking back 12 months in accordance with his employer’s rolling back method, Henry has already taken 12 weeks of leave for reasons not related to the military caregiver leave (the adoption and bonding time). Thus, he has no regular FMLA time left to care for his wife.
What Should You Be Doing to Better Manage Leaves?
The takeaway from these examples is that leave laws form a complex web that continually has to be untangled for each case. In addition, these laws are constantly being amended and updated as challenges are decided on in court. (WCxKit)
Every employer should:
1. Make sure supervisors are aware that leave laws are complex and that they should not try to handle leave requests without help from their HR, benefits, or legal department.
2. Make sure supervisors are aware their attitude is important, and that if they respond negatively to requests for leave, it could be construed as FMLA interference and expose the employer to potential legal action.
3. Understand that employers do not have to grant every leave request just to avoid the risk of noncompliance. With proper understanding of leave laws, there are many ways that employers can reduce the burden of unnecessary leaves while still giving employees the leaves to which they are entitled.
Up-to-Date Leave Law Information is the Key.
No human being can be expected to hold this kind of complexity in his or her head, and researching leaves on various government databases is both time consuming and increases the risk of missing any important change or guidance on a gray area. Be sure you have the most current information on FMLA, state and other leave laws available in a format that is easy to search, complete and always up-to-date. If you encounter any “gray areas” in leave laws, be sure to seek expert advice to minimize the risk of legal challenges.
Martha J. Cardi J.D. is Chief Compliance Officer for Reed Group and Chief Editor of Reed Group’s Leave of Absence Advisor, a web-based resource for administering FMLA, state and other leave laws. More info at www.reedgroup.com. Contact at [email protected].
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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