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. (WCxKit)
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 this hypothetical scenario and how it should be correctly handled. While reading, keep in mind that, while this scenario looks overblown, in real life it actually can get much more complicated than this.
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 Employers Be Doing to Better Manage Leaves?
The takeaway from this example 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 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 firstname.lastname@example.org.
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