Leave Stacking:Managing Multiple Leave Entitlements
June 26-29, 2011Las Vegas, Nevada
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Managing Multiple Leave Entitlements
Linda Southard • June 28, 2011
SHRM 2011 Annual Conference & Exposition
• Overview / historical perspective of leave stacking
• Leave stacking process• Areas of consideration for employers• Practice scenarios
Agenda
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• Practice scenarios• Q&A
What is Leave Stacking?
• Combining and/or layering leaves• Historical perspective
> First use paid leave, then unpaid FMLA> W/C, STD, FMLA
• Most common was STD + FMLA
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• Most common was STD + FMLA
Changing Environment
• Multiple types of leave entitlements > W/C, STD, FMLA, Military FMLA, FLA, paid FLA, ADA
• Result potential stacking up to 5+ leave types• Explosion of intermittent FMLA
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• Explosion of intermittent FMLA• Practice codified in revised FMLA regs
Leave stacking used to be UNDESIRABLE ; now UNAVOIDABLE
Why Important ?
• Employee receives correct entitlement• Employer gives correct entitlement
> Compliance with regulations > Explosion of FMLA interference claims
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BEST PRACTICE :Employer should designate FMLA concurrent with
all paid leaves Don’t allow employees to choose
Process
1. Research / identify all possible leaves2. Determine which leaves employee is
entitled to3. Determine which run concurrently and
which run consecutively
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which run consecutively4. When leave exhausted, do “automatic”
ADAAA review
Areas To Consider
• Eligibility • Qualifying conditions• Medical info requirements• Timing• Tracking
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• Tracking• Early return-to-work
Eligibility
• Number of employees• Hours worked• Waiting periods• When leave begins• Jurisdiction
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• Jurisdiction
Disability driven by “where you work”FMLA driven by “where you report”
Qualifying Conditions
• What conditions qualify? • Different definitions of “disability”• Different definitions of “SHC”
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Identify all possible entitlements+
Eligibility & qualifications for each
Use/manage “tighter” definition of disability
Medical Information
• STD> Company requirements> Mandated state requirements
• FMLA> Federal / DOL requirements
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> State FLA requirements
• ADA / ADAAA• GINA / HIPAA
Always get the most medical information you can, but treat information with caution and
compliantly!
Medical Information
• Possible scenarios> STD / FMLA
• Is paid company benefit running concurrently?• Approve unpaid / Deny paid
> FMLA / state FLA
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> FMLA / state FLA• Must use LEAST restrictive regulations
Timing
• Eligibility• Look-back period for state leaves• “Year” calculation (WI)• Length of entitlement (FMLA/Military caregiver)• Can leaves run concurrently
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• Can leaves run concurrently
Make sure company P&Ps are in sync with federal/state regulations
Tracking
• Track each leave entitlement separately• Tracking intermittent and straight leaves
Straight: 7 d/wk = 84 days = 672 hrs.Intermittent: 5 d/wk = 60 days = 480 hrs.
• Mandatory OT
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• Mandatory OT
Use visual calendar and color coding to track multiple leaves
Return-To-Work
• Reduced schedule• Temporary accommodation (Light duty)
> Time-limited – 60 day maximum> Special FMLA treatment
• Permanent accommodation
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• Permanent accommodation> “Automatic” ADAAA review after leave exhausted
Make sure all return-to-work accommodations are medically necessary
with defined time
Helpful Resources
• FMLA regulationshttp://www.dol.gov/whd/fmla/index.htm
• Mandated state disability regulationshttp://www.vpaweb.com/about/pdf/SDI.pdf
• State FLA regulations
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• State FLA regulationshttp://www.dol.gov/whd/state/fmla/index.htm
• ADAAAhttp://www.ada.gov/?topic_id=1370100&library=PublicWeb
• GINAhttp://www.eeoc.gov/laws/types/genetic.cfmshrm.org
Scenario 1
• WI employee is pregnant> Estimated due date (EDD) 5/18/11> 1st day out-of-work 4/21/11> C-section on 5/11/11
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WI state FLA (12 mo / 1000 hrs)> Up to 10 wks in calendar year> 6 wks baby-bonding> 2 wks self> 2 wks caregiver
C-section 5/11/11
1st day OOW 4/21/11
Leave ends8/16/11
Scenario 1
RTW note dated 7/6/11
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WI state FLA - self
2 wks 1 wk 8 wks 1 wk 5 wks
WI state FLA- Baby bonding
FMLA – expires 7/13/11
Scenario 2
• CT employee> Employee works normal 5 d/w; 8 h/d> Opens intermittent FMLA case for self as of 1/1/11
• Approved 1 year
> Takes 10 days intermittent for self> Opens new straight case for care of mother-in-law on 4/1/11
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> Opens new straight case for care of mother-in-law on 4/1/11
How much CT state FLA time can she take?How much FMLA time does she have remaining?CT FLA (12 mo / 1000 hrs)> 16 wks in 24 mos. / runs concurrent w/ FMLA > For self and caregiver, including parent-in-law
Care of mother-in-lawContinuous leave 1st day OOW:
4/1/11Intermittent self case1st day OOW:
1/1/11
10 work days 14 wks = 98 days = 784 hrs (7 days/wk) Intermittent self case
Employee RTW
7/8/11
Scenario 2
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10 work days
FMLA remaining = 400 hrs
14 wks = 98 days = 784 hrs (7 days/wk) Intermittent self case
CT State FLA – 70 days = recalc 5d/wk = 560 hrs CT FLA 10 days = 80 hr
FMLA Time Used = 80 hrs
Scenario 3
• Employee in non-STD mandated/no state FLA is pregnant> Employee and husband work for same employer> Company has 26 wk. STD plan> Company preg policy is 4 wks prior and 8 wks for C-section
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> Company preg policy is 4 wks prior and 8 wks for C-section> EDD = 2/15/11> 1st day out-of-work = 1/19/11> C-section date = 2/2/11
C-section 2/2/11
1st day out-of work1/19/11
RTW note for
3/30/11
2 wks
Wife RTW
4/13/11
8 wks 2 wks-wife 10 wks - husband
Spouse RTW
6/22/11
Scenario 3
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FMLA
STD – expires 3/29/11
FMLA FMLA–baby bonding - 12 wks Wife baby bonding ends 4/12Spouse baby bonding ends 6/21/11
Scenario 4
• NJ employee pregnant with 2 nd child> EDD = 5/11/11> Employee used 6 wks. FLA for 1st child from 11/20/09-12/31/09> Company has 26 wk. STD plan> 1st day out-of-work = 4/14/11
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> NVD on 6/15/11
When does FLA expire?NJ FLA (12 mo. / 1000 hrs)> 12 wks in 24 mo. for caregiver/baby-bonding> NJ FLA starts when employee is no longer disabled
NVD6/15/11
1st day Out-of-work 4/14/11
FMLA – expires 7/6/11
RTW note for 7/2711
9 wks
NJ FLA –baby bonding
3 wks 6 wks
RTW9/7/11
3 wks
7/6/11
Scenario 4
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STD expires 7/26/11
FMLA – expires 7/6/11 NJ FLA –baby bondingExpires 9/6/11
Scenario 5
CA employee is pregnant > No employer provided disability > EDD = 2/1/11> 1st day out-of-work = 1/5/11> NVD on 2/8/11. No employer provided disability
CA PDL
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CA PDL> 16 wks in 12 mo. for pregnancy> Begins 1st day oow; ends when employee is not disabled
CFRA (12 mo / 1250 hrs)> baby-bonding / care-giving> 12 wks in 12 mo.
CA State disabilityPaid FLA
NVD 2/8/111st day oow 1/5/11
FMLA – expires 3/29/11
RTW note for 3/22/11
5 wks 6 wks 11 wks
RTW 6/14/11
1 wk
3/29/11
Scenario 5
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FMLA – expires 3/29/11
CA CFRA expires 6/13/11CA PDL – ends 3/21/11
State STD – ends 3/21/11 CA paid FLA–6 wks
C-Section2/22/11
1st day oow 1/5/11
FMLA
RTW note for 4/19/11
7 wks
CA CFRA – ends 7/11/11
5 wks 6 wks
RTW 7/12/11
3 wks
3/29/11
6 wks
5/30/11
Scenario 5 – C-Section
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FMLA CA CFRA – ends 7/11/11
CA PDL – ends 4/18/11
State STD – ends 4/18/11 CA paid FLA ends 5/30/11
Scenario 6
• Employee of CA-based company > Company has generous “in-house FMLA”/leave benefit of up to 26
wks, which includes care of domestic partner with SHC> Company has 26 wk paid STD plan> Employee takes leave to care for domestic partner
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> 1st day out-of-work is 2/1/11; return-to-work is 8/2/11. > Employee re-applies for FMLA leave on 12/1/11 for self
Assuming employee has met all requirements, how much FMLA time does employee have?
1st day Out-of-work 2/1/11
Company “FMLA” leave expires 8/1/11 – 26 wks
RTW8/2/11
12 wks
12 wks FMLA
14 wks
4/25/11
Scenario 6
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Company “FMLA” leave expires 8/1/11 – 26 wks 12 wks FMLA remaining
CA CFRA – ends 4/25/11
Questions
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Please contact WORK & WELL or SOUTHARD CONSULTING if you have additional
questions or comments
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