insurance community university 1 family medical leave act 1 the webinar will begin shortly. there...

Insurance Community University

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Family Medical Leave Act

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Disclaimer

Insurance forms and endorsements vary based on insurance company; changes in edition dates; regulations; court decisions;

and state jurisdiction. This instructional materials provided by Insight is intended as a general guideline and any interpretations

provided by Insight do not modify or revise insurance policy language. The authors of these materials, Insight Insurance

Consultants is a division of Insight Consulting and Management Inc. In providing these materials, Insight assumes neither liability nor responsibility to any person or business with respect to any loss that is alleged to be caused directly or indirectly as a result

of the instructional materials provided. Copyright 2010 – 2012 All Rights Reserved

www.insurancecommunitycenter.comLaurie: 714.803.5830 [email protected]

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Your Instructor Today

Diana Henderson ARM, CPDM, WCCP, WCCAPresident – The Henderson Group

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Workshop Goals & Objectives

• Learn about the various components of the Family & Medical Leave Act and apply them to a case study

• Discuss some recent cases and the Court’s interpretations of the FMLA

• Consider some proactive recommendations for employers


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Family Medical and Leave Act

• Signed into law on February 5, 1993• Went into effect on August 5, 1993• Does not supersede laws or

employment policies that offer greater family and medical leave rights to employees


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Put Simply . . .

• The FMLA allows workers to take up to 12 weeks of unpaid, job-protected leave to care for newborns, newly adopted and foster children and seriously ill family members, or to recover from their own illness.


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Some Interesting Facts

• Over 50 million workers have taken job-protected leave under the FMLA since its passage in 1993.

• 52% take leave for their own serious illness.• 31% take leave to care for a seriously ill

family member.• 18% take leave to care for a new child.• 42% of leave-takers are men. 58% are

women.


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States with Expanded Family and Medical Leave Laws

• California • Connecticut • District of Columbia • Hawaii• Illinois• Kentucky• Louisiana• Maine• Massachusetts

• Minnesota• Nevada• New Jersey• North Carolina• Oregon• Rhode Island• Vermont• Washington• Wisconsin


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States with Paid Family Leave Programs

CaliforniaNew Jersey


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Paid Family Leave in California

• Signed into law on 09-23-02 and effective July 1, 2004, California’s PFL was the first of its kind in the country. – Provides up to six weeks of leave with wage

replacement at approximately 55% of the average weekly wage of the worker, up to a maximum of $1,011 per week in 2012.

– Since its inception, 1.4 million claims have been processed and paid.

– In the year 2010-11, over 194,000 claims paid with an average weekly benefit of $488.


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More on the California Paid Family Leave

• All employers with one or more employees (and who participate in State Disability Insurance)

• Bond with child or domestic partner’s child, bond with child placed for adoption or foster care, care for seriously ill child, parent, spouse or domestic partner

• Taken concurrently with FMLA• Claim filed with the Employment Development Department

including certification from family member’s medical physician• Amount of leave

– 7 day waiting period– Employer may require the use of up to two weeks of earned vacation

prior to the initial receipt of benefits– Benefits limited to six weeks in a 12-month period– Can be taken intermittently


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Family Leave Insurance Program in New Jersey

• New Jersey’s FLI program was signed into law on May 2, 2008 and became effective July 1, 2009.

• Covers all workers who are covered by unemployment insurance, including part-time workers.

• Up to six weeks of leave, with replacement at 2/3 of the average weekly wage, up to $572 per week in 2012.

• Since its inception, the program has processed 75,000 claims.


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State of Washington

• Passed a paid parental leave law in 2007. • Benefits would be for up to five weeks and up to

$250 per week for employees who work at least 35 hours per week. Those who work fewer hours would receive a prorated amount.

• Scheduled to go into effect in October 2009 but then was postponed to 2012 and then again until 2015.

• No funding mechanism in place to permit implementation.


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District of ColumbiaPaid Sick and Safe Leave

• Paid leave for time off numerous reasons. • The amount of leave is dependent on how

many employees the company has.• Employees who have worked for at least

one year for the employer without a break, and at least 1,000 hours in the past 12 months, are entitled to paid leave.


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Alice and Mom’s Bakery Case Study

Alice is a 45-year old mixer who has worked at Mom’s Bakery off and on for a total of 5 years. She is a regular full-time employee who earns $3,600 per month. Alice’s job involves reviewing instructions regarding ingredients, weighing and combining ingredients into a large vat, and setting and adjusting the machinery used to mix the ingredients. While weighing and combining ingredients, Alice is frequently required to lift items between 30 and 50 pounds. While on vacation, Alice is injured while playing tennis. The injury is to her low back and she seeks medical treatment. Alice is diagnosed with a herniated disc and has surgery. As a result of her injury and subsequent surgery, Alice immediately begins losing time from work. She is off work a total of seven months before finally returning back to her regular job at Mom’s Bakery.


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Basic Protection . . .

• “Family leave” refers to time off to care for another person

• “Medical leave” refers to time off to seek medical treatment or to recover from your own serious health condition.

• Job protection law• Twelve weeks of unpaid

leave in a 12-month period


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In Alice’s Case . . .

• We need to know if Alice’s work location meets the requisite criteria.


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Employer Size . . .

• Private employer– The work location must have at

least 50 employees working for the same employer within a 75-mile radius.

– The 50 or more employees must have been on the payroll for 20 work weeks during the current or preceding calendar year.

– Those employees out on leave and working part-time are also counted in the 50.

• For a public entity, it only takes ONE!!


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What is a 75 Mile Radius?

• 75 miles is measured by surface miles and NOT “as the crow flies”.

• Issue decided in 2006 by the Tenth Circuit Court in Oklahoma (Hackworth v. Progressive Casualty Insurance Co., No. 05-6198, 2006 U.S. App. LEXIS 28179 (10th Cir. Nov. 14, 2006)).

• Supported the Department of Labor’s FMLA regulations.


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In Alice’s Case . . .

• We now need to know if Alice is covered by the FMLA – Length of employment– Hours of employment– Reasons for leave


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Length of EmploymentMonths and Hours

• Must have worked for the employer at least 12 months.*

AND

• Worked at least 1,250 hours during the last 12 months.

*The FMLA regulations updated on 10-28-09 state: While the 12 months of employment need not be consecutive, employment periods prior to a break in service of seven years or more need not be counted unless the break is occasioned by the employee’s fulfillment of his or her National Guard or Reserve military obligation (as protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA)), or a written agreement, including a collective bargaining agreement, exists concerning the employer’s intention to rehire the employee after the break in service.


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Back to Alice . . .

• What is Alice’s need for FMLA leave?


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Notice

• Advance notice of the need for leave (such as a new child or for a planned medical treatment) requires 30 days’ advance notice.

• If advance notice impossible, notice must be given as soon as practicable.

• Notice shall be provided at least verbally.• Employers may choose to delay (but not deny)

leave if the employee fails to give 30 days’ notice with no reasonable excuse for the delay.


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Polling Question #2

• Alice’s back injury came on very suddenly and treatment had to begin immediately. Due to the urgency of the situation she was not able to provide the thirty day notice. Will she still be eligible for benefits?


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Certification

• An employer may request a certification by a physician or other health care provider. Employers are not mandated to require any medical certification.

• The certificate must include:– A description of the serious health condition– The date that the condition began or treatment became necessary; and– The expected duration of the condition or treatment.

• With the exception of pregnancy, an employer is not entitled to a medical diagnosis naming the employee’s serious health condition. The DOL-approved WH-380 form is recommended.

• If a certificate is requested but not provided, the absence will not be protected by the FMLA.


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Health Care Provider Defined

• Doctor of medicine or osteopathy• Others determined by the Secretary of

Labor including– Podiatrists, dentists, clinical psychologists,

optometrists, chiropractors, nurse practitioners, midwives, Christian Science practitioners


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Serious Health Condition

• Illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing care

• Incapacitated for more than three consecutive days,

• Has treated with a physician or other health care provider at least once, and

• Is under a regimen of continuing treatment by a health care provider.


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Length of Job Protection

• Entitled to a total of 12 weeks in a 12 month period (or 26 weeks to care for a wounded service member)

• The leave can be consecutive or intermittent• An employer is required to post notices (or

specify in handbooks) the manner in which the 12 month period is counted

• Calendar year or other fixed leave year (i.e., fiscal year)

• Rolling back method or rolling forward method


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Health Insurance

• An employer must continue to pay for an employee’s group health insurance coverage during a FMLA leave as normally paid.

• Employee contributions may be required to be made while out on the leave.

• A “group health plan” is not limited to “major medical plans”. It can include a group dental plan per a 2006 US DOL opinion.


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Polling Question #2

• If Mom’s Bakery is a covered employer, Alice is an eligible employee who has given proper notice and certification, and has not already used 12 weeks of leave in the past 12 months, can Mom’s Bakery deny Alice her FMLA leave?


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Pay During the Leave

• Employees may choose to substitute paid leave for an unpaid FMLA leave.

• If qualified, both leaves will run concurrently.

• Let me give you an example. . .


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Designation of the Leave

• An employer is responsible for designating the leave as FMLA

• Notices must be provided by the employer to the employee– Leave will count against annual entitlement– Requirements for medical certification and the

consequences– Requirements or rights to substitute paid leave– Requirements for premium payments and arrangements for

making those payments.– Rights regarding restoration upon return from the leave

• The impact of Ragsdale v. Wolverine Worldwide case.


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Reinstatement

• An employer must either give an employee the same job as he/she had before taking the leave,

OR• A position that has equivalent benefits, pay, working conditions,

and seniority.

• If the job would have been eliminated or downgraded, or the employee would have been laid off if the leave had not been taken, then the employee would not be entitled to the same or an equivalent position when the leave is over.


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Fitness for Duty Certification

• If an employer has a uniformly applied policy or procedure, employees may be required to provide a certification that addresses the employee’s ability to perform the essential functions of the job.

• Failure to provide such a certificate may delay job restoration. If the employee never provides it, reinstatement may be denied altogether.


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Serious Health Condition of a Family Member

• Family member defined• What does “loco parentis” mean?• “The aunt who raised me”• Over 18 and still a dependent


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Polling Question #3

• With regard to Alice, if her hours were reduced last year to 30 hours per week due to the economy, would she still be eligible for job protection under FMLA?


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Employer Record Keeping and Posting

• Employers shall retain records for no less than three years– Payroll records– Dates of FMLA leave– Intermittent leave periods– Copies of leave notices

• Prominent posters• Employee handbooks


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Final Thoughts

• Posters raise more questions than answers – employers should be encouraged to draft and maintain a comprehensive FMLA policy.

• Use notices and form appropriately by providing Notices of Eligibility and medical certification forms.

• Ask probative questions to be able to determine if a leave request triggers the FMLA.

• Enforce usual and customary call-in procedures.


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