Your Tracking Nightmare —Multiple Stacking Leaves

What’s Happened in Leave Land?

The first challenge is the multiplicity of types of leave entitlements—workers’ compensation, short-term disability, FMLA, Military FMLA, state family leave, paid family leave, and the ADA. The result? Potential stacking of up to 5 or more types of leave, says Southard.

The second big factor, she adds, is the explosion of intermittent FMLA. People are taking more leave time, and it’s not that unusual for people to have two or three intermittent leaves open at the same time.

Southard is founder of leave management firm Work & Well and is principal of Southard Consulting in Somerville, NJ. Her remarks came at SHRM’s Annual Conference & Exposition, held recently in Las Vegas.

Why Is Leave Management Important?

Of course you want the employee to receive his or her correct entitlement, says Southard, but you also want to manage leave for three other reasons:  First, to achieve compliance with the regulations, second, to be prepared to defend against the explosion of FMLA interference claims, and third, to avoid giving employees additional time to which they are not entitled.

What’s the Best Process to Follow?

Southard suggests that managers take the following four steps to organize for managing leave tracking:

1. Research and identify all possible leaves. What is the universe of leaves applicable to your organization? Get a copy of the actual regulations, Southard says. An FAQ is not enough. Also, she recommends, get a state contact. States are staffing up for this, but sometimes the staffers are not “well-trained.” (You can tell, she adds.)
2. Determine which leaves an employee is entitled to
3. Determine which leaves run concurrently and which run consecutively

When leave is exhausted, do an “automatic” ADA review

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What Must You Consider?

To establish your policies and practices, Southard says, there are a number of factors to consider, including eligibility, qualifying conditions, medical information requirements, timing, tracking, and early return-to-work.

Eligibility

For eligibility, make a grid of all the laws, and their requirements, says Southard. Chart requirements or rules for:

• Number of employees
• Hours worked
• Waiting periods
• When leave begins
• Jurisdiction (Is coverage based on where you work or where you report?)

Qualifying Conditions

• What conditions qualify?
• Different definitions of “disability”
• Different definitions of serious health condition (“SHC”)

Medical Information

Always get the most medical information you can, but treat information with caution and compliantly, says Southard. Sometimes you can’t get information for one type of leave but you are able to get the information through another type of leave.

You should consider the following potential sets of rules that may govern treatment of medical information:

• STD (Both company requirements and mandated state requirements)
• FMLA (Both federal requirements and state family leave act requirements)
• ADA and the ADA Amendments Act (“ADAAA“)
• GINA (the Genetic Information Nondiscrimination Act)
• HIPAA (the Health Insurance Portability and Accountability Act)

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Timing

There are several elements to consider under timing, says Southard.

• Eligibility
• Look-back period for state leaves
• “Year” calculation (federal and state)
• Length of entitlement (FMLA/Military caregiver/state)
• Whether leaves can run concurrently

Tracking

Track each leave entitlement separately, Southard advises. Pay special attention to:

• Intermittent and straight leave
• Counting mandatory overtime hours

Return to Work

Make sure that all return-to-work accommodations are medically necessary with a defined time limit, says Southard. And pay attention to the following:

• Reduced schedule (when employee can accomplish all essential functions but with reduced hours)
• Temporary accommodation (light duty). Make this time-limited with a 60 day maximum, and remember that light duty gets special FMLA treatment, Southard says.
• Permanent accommodation (Make an “automatic” ADA review after leave is exhausted)

Helpful Resources

Southard recommends the following sites for help in interpreting and complying with leave laws:

• FMLA regulations
• Mandated state disability regulations
  
• State FLA regulations
• ADAAA
  
• GINA
  

In tomorrow’s Advisor, two graphic FMLA tracking scenarios plus an introduction to the book some call “The FMLA Bible.”