1 health & wellness and employee motivation: making the connection health and productivity...

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Health & Wellness and employee motivation: Making the connection

Health and Productivity Solutions

Kristin Tugman| August 27th 2013

www.UBAbenefits.com www.unum.com

This WisdomWorkplace webinar program is brought to you by United Benefit Advisors

in conjunction with Unum

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Angela A. RipperAssistant Vice President and Senior Counsel

July | 2014

FX-3358 (11-13)

Curbing FMLA abuse

Top 10 FMLA mistakes and suggested best practices

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Top 10 FMLA Employer Mistakes

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The following mistakes allow FMLA abuse and

can create liability for employers who are not

administering FMLA requests appropriately.

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1. Improperly determining eligibility

2. “Deeming” employees FMLA eligible

3. Failure to provide required notices

4. Using a calendar year 12-month period

5. Failure to calculate leave entitlement appropriately

Top 10 mistakes

6. Failure to properly designate FMLA time

7. Inappropriate use of medical certifications

8. Failure to request a new certification and redetermine eligibility in a new leave year

9. Improper use of recertifications

10. Failure to monitor intermittent leaves closely

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1. Improperly determining eligibility

Employee must:

Work for covered employer,

Have worked 1,250 hours and 12 months

Work at a worksite where there are 50 employees in a 75 mile radius.

Regulations (825.104; 825.105; 825.110; 825.111)

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1. Improperly determining eligibility (continued)

Include temp time in hours worked and tenure for any employee who worked for you as a temp.

Best practice:(825.104; 825.105; 825.110; 825.111)

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An employer cannot “deem” an employee eligible for FMLA if they are not eligible. An employer cannot deem an absence to be FMLA-covered if it is not.

2. “Deeming” employees eligible for FMLA

Do not count FMLA absences against an employee unless the employee is eligible and the absence is covered.

If you improperly deduct time from an employee’s FMLA bank, the employee may be entitled to an additional 12 or 26 weeks of FMLA leave.

Do not treat office locations as covered if there are not 50 employees within a 75 mile radius.

Grant a corporate leave if you wish to provide leave in circumstances that are not covered by FMLA (i.e. same sex marriages not recognized in the state or residence, domestic partners, grandparents, small offices, new employees).

Best practice:(825.104; 825.105; 825.110; 825.111)

Regulations (825.110(d); 825.120(a)(2); 825.121(a)(2); 825.207(c); 825.301; 825.701(a)(3))

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3. Failure to provide required notices

General rights under the FMLA

Send Within 5 days of request for leave

State at least one reason why if ineligible

Once eligible, employee remains eligible for remainder of the leave year for that leave reason (although may exhaust entitlement).

Provide at the same time as eligibility notice

Advise of method used for 12-month period

Use of paid leave & conditions

Must explain that if employee wants, can go unpaid

Within 5 business days of determining that leave qualifies as FMLA, send notice as to exactly how much time is designated

If not possible to determine time, provide every 30 days on request of employee if leave was taken within 30 day period

Must inform about Fit-for-duty requirements and essential job functions if those are to be addressed in Fit for Duty

Failure to designate –employer is liable only if employee can demonstrate harm

RIGHTS & RESPONSIBILITIES

NOTICE

GENERAL NOTICE

ELIGIBILITY NOTICE

DESIGNATION NOTICE

Regulations (825.300): Employers have to give 4 notices:

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Electronic general notice is sufficient but it must be accessible to employees and applicants.

If you have a handbook, general notice must be in the handbook.

If no handbook, must distribute upon hire.

3. Failure to provide required notices (continued)

Best practice:

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Employer can choose the method by which the applicable 12 month period during which employee is entitled to leave is measured (calendar, fixed year, measured forward or rolling backward).

4. Using a calendar year 12-month period

Rolling backward method provides that each time an employee takes leave, the employer looks backward 12 months to determine how much FMLA time the employee has taken.

Each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months

Rolling backward method prevents stacking of leave. The calendar method allows for stacking.

Under the calendar method, an employee can take 12 weeks of leave at the end of one calendar year and immediately take another 12 weeks at the beginning of the new calendar year.

Best practice:

Regulations (825.200(b))

Caution: You must use the measured forward method for leaves to care for an injured service member, regardless of the method chosen for other types of leave.

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5. Failure to calculate leave entitlement appropriately (continued)

Regulations (825.205(h))


Holidays within a full week of FMLA are counted as FMLA.If an employee is using FMLA leave in increments of less than one week, the holiday will not count as FMLA unless the employee was otherwise scheduled to work during the holiday.

If employer’s business activity has temporarily ceased for one or more weeks, the days the employer’s activities ceased do not count as FMLA.

The actual workweek is the basis of leave entitlement to determine how much FMLA leave time an employee is entitled to take. For example, a 40 hour/week employee is entitled to twelve 40 hour weeks of FMLA or 480 hours of FMLA.

A 20 hour/week employee is entitled to 240 hours of FMLA.

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Regulations (825.205(c))

If an employee’s schedule varies from week to week so that an employer is unable to determine with certainty how many hours the employee would have worked (but for the taking of FMLA leave):A weekly average of the hours scheduled over the 12 months prior to the beginning of the leave (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement.

If an employee would normally be required to work overtime but is unable to do so because of an FMLA-qualifying reason:The hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement but must also be factored into the employee’s entitlement.

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Take care to appropriately determine an employee’s FMLA bank, factoring in the employee’s normal schedule and any required overtime.

Review an employee’s FMLA usage to determine if a holiday falls within a full week of FMLA.

Best practice:

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6. Failure to properly designate and track FMLA time

Regulations (825.300)


Employers must:Designate FMLA time within 5 business days of determining that leave qualifies as FMLA.

Employers can: Track intermittent leave in

the smallest increment used to track other forms of leave, provided it is not more than 1 hour.

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Caution: You can only deduct FMLA in 1 hour increments if the employee was not allowed to work for the full hour.

For example, you cannot allow an employee to arrive 15 minutes late, begin work and still deduct 1 hour from their bank. Also, be careful of employees who leave less than 1 hour before the end of their shift due to medical reasons.

If you fail to provide timely designation, you can retroactively designate but you should ask the employee if she relied to her detriment on your failure to designate.

If employee can demonstrate harm, you should not retroactively designate.

If you have a problem with employees taking FMLA in small increments to excuse late arrivals or late return from lunch, adopt leave policies that require that employees take leave in 1 hour increments.

If employees want to take time for prescheduled appointments, they must take time off in 1 hour increments.

Generally, you cannot make an employee take more FMLA than needed. However, there are exceptions for physical impossibility, i.e. missed flights or trains, clean rooms, etc.

6. Failure to properly designate and track FMLA time (continued)

Best practice:

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Employer must provide employee written notice that a certification is incomplete or insufficient including:What additional information is necessary to make the certification complete and sufficient.

The employer must provide the employee seven (7) days to cure any deficiencies.

7. Failure to use detailed medical certifications/proper clarification and authentication


Best practice:

Use comprehensive medical certification forms.

New DOL forms are improved.

Return all incomplete and insufficient certifications to employee.

Contact medical provider to clarify any answers that you do not understand. Do not allow supervisor to contact HCP.

Authenticate all questionable certifications.

Employer can contact the Health Care Provider for clarification or authentication.

Contact can be made by a human resources professional, a leave administrator, or a management official.


Caution: The employee’s immediate supervisor cannot make contact.

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Once an employee is determined to be eligible for FMLA, (s)he remains eligible for one year for that leave reason.

8. Failure to request a new certification and redetermine eligibility in new leave year

Regulations (825.300(b)(2); DOL Opinion Letter 2005-3-A:

Best practice:

Establish the one year period of eligibility for each leave request/ reason. Do not redetermine eligibility prior to that time.

Re-evaluate eligibility upon the first absence in the new leave year. Employees with ongoing intermittent leaves for chronic conditions may become ineligible due to hours worked.

Request a new certification if the employee continues to be eligible.

Authenticate, clarify and request 2nd/3rd opinions on the new certification as warranted.

When the employee’s need for leave lasts beyond a single leave year, the employer may require the employee to provide a new medical certification in each subsequent leave year.

The new medical certification is subject to authentication/clarification and second and third opinions.

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Regulations (825.305(e)):

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Recertification cannot be requested more often than every 30 days unless:an extension is requested, an employer has reason to doubt the validity of the leave request, the circumstances of the leave have changed, or the minimum duration has expired.

9. Improper use of recertification

Regardless of the minimum duration of the condition, recertification can be requested every six months. The DOL clarified that this applies even to “unknown and indefinite” conditions.


Best practice:

Recertify at a minimum of every 6 months.

Recertify patterns of absence (i.e. Monday/Friday).

Recertify absences that exceed stated frequency and duration.

Recertify if you receive information that questions validity.

Utilize clinical resources to determine whether/when to recertify unknown or indefinite conditions.

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Check certifications carefully:

Require the Health Care Provider to certify that leave is medically necessary.

Require probable frequency and duration of episodes, if known.

Require estimated treatment schedules, including recovery, if known.

10. Failure to monitor intermittent leaves closely

Best practice:

Monitor absences:

Monitor whether absence is for treatment or episodes.

Watch for patterns of absence.

Consider requiring employees to take bonding/adoption leave in continuous block.

Request recertifications as often as possible.

Require employees to attempt to schedule planned medical treatment at less disruptive times.

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The FMLA regulations that became effective in 2009 provide employers with mechanisms by which we can better curb FMLA abuse.

However, there are also some traps employers can fall into if they do not review the regulations carefully and administer leave requests appropriately.

Employers should adopt leave policies that allow the employer to prevent abuse while maintaining compliance.

Always remember to consider state leave laws when evaluating employee leave requests.

Conclusion

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Insurance products are underwritten by the subsidiaries of Unum Group.

For broker and employer information.

unum.com

© 2013 Unum Group. All rights reserved. Unum is a registered trademark and marketing brand of Unum Group and its insuring subsidiaries.

FX-3358 (11-13)

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Health & Wellness and employee motivation: Making the connection

Health and Productivity Solutions

Kristin Tugman| August 27th 2013

This program has been submitted for 1.25 (General) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute.

Please note that the program ID number to apply for HRCI credit will be emailed to all attendees once we receive the approval from the HR Certification Institute.

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References Continued

13. Leiter, M.P., Jackson, N.J.,Shaughnessy, K., (2009). Contrasting burnout, turnover intention, control, value congruence, and knowledge sharing between baby boomers and generation X. Journal of Nursing Management, 17, 100-109.

14. Sommers, D. & Franklin, J.C., (2012). Employment outlook : 2010-2020: Overview of Projections to 2020. Monthly Labor Review, Bureau of Labor Statistics, 1-20.

15. James, J.B., Swanberg, J.E., & McKenchie, S.P. (2007). Generational differences in perceptions of older workers’ capabilities. The Center on Aging Work and Workplace Flexibiltity, 12, 1-10.

16. Golden, M. (2013). 7 ways generation X’ers differ from baby boomers. Retreived 2013, http://top7business.com/?Top-7-Ways-Generation-Xers-Differ-From-Boomers&id=1860

17. Boychuk-Duchscher, J.E., & Cowin, L. (2004). Multigenerational nurses in the workplace. JONA, 34(11), 493-501.

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