FMLA,CFMLA,WC & STD – AN OVERVIEW OF HOW THEY INTERACT

June 18, 2015

OBJECTIVES

The goal for this session is to provide you with an overview of the Family Medical Leave Act (FMLA), CT Family Medical Leave Act (CFMLA), Workers’ Compensation (WC) leave as it relates to FMLA and typical Short Term Disability (STD) policy benefits.

This overview will provide you with general information on how these leaves interact, when they run concurrently, how employees get paid while on leave, as well as benefits coverage while on leave, and why an employer should even bother administering these leaves at all.

The format of this presentation provides general information only. It does not constitute legal advice or cover all aspects of the subject.

FMLA/CFMLA/WC/STD

It is important to recognize and understand how these interact because:

1.The majority of absences, unscheduled and scheduled, are related to the illness of employees or their family members.

2. Violations of leave laws may result in lost wages, back pay, reinstatement, retroactive benefits, compensatory damages, and punitive damages.

3.Employers have a responsibility to assure that employees receive the benefits and protections they are entitled to.

FMLA/CFMLA/WC/STD

The FMLA sets minimum leave standards for employees for the birth and newborn care of a child, placement of a child for adoption or foster care, to care for an immediate family member with a serious health condition, and for the employee’s serious health condition. The Federal Department of Labor (Wage and Hour Division) has enforcement authority for the FMLA.

The CFMLA sets minimum leave standards for employees for the birth and newborn care of a child, placement of a child for adoption or foster care, to care for an immediate family member with a serious health condition, and for the employee’s serious health condition. The Connecticut Department of Labor (Wage and Hour Division) has enforcement authority for the CFMLA.

Workers’ Compensation laws provide for payment of compensation and rehabilitation for workplace injuries and minimize employer liability. The State Workers’ Compensation Commission has enforcement authority for Workers’ Compensation.

Short Term Disability Policies are insurance policies that provide wage replacement while an employee is unable to work due to non-work related illness or injury. The State Department of Insurance has jurisdiction for Short Term Disability.

FMLA OVERVIEW -ROLES AND RESPONSIBILITIES

EMPLOYEE • Must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call-in procedures.

• Must provide sufficient and timely documentation for the employer to determine if the leave qualifies for FMLA protection and the anticipated timing and duration of the leave.

• Informs supervisor when absence is due to FMLA-related condition.

• Upon return from leave, must provide Return to Work Certification.

FMLA OVERVIEW -ROLES AND RESPONSIBILITIES

EMPLOYER • Provides FMLA paperwork to employee within 5 business days of leave request or acquiring knowledge of leave.

• Must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employee’s rights and responsibilities. If not eligible, the employer must provide a reason for the ineligibility.

• Must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA-protected, the employer must notify the employee.

FMLA OVERVIEW

•FMLA was established in 1993 to allow “eligible” employees to take job-protected, unpaid leave or to substitute appropriate paid leave if the employee has accrued it, for up to 12 work weeks in any 12 months for Medical Leave, Family Care, and Child Bonding.

•On January 28, 2008 the FMLA was amended by the National Defense Authorization Act to provide up to 26 weeks of job-protected family leave to care for injured members of the Armed Forces and up to 12 weeks of leave because of a qualifying exigency arising out of an employee’s parent, spouse or child’s active duty or call to active duty.

•On December 21, 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act the Family and Medical Leave Act (FMLA). This amendment to the FMLA establishes a special hours of service eligibility requirement for airline flight attendants and flight crew members.

FMLA OVERVIEW

FMLA is a Federal leave law that pertains to employers with 50 or more employees.

Eligibility Requirements • An employee must have at least 12 months of service to qualify for FMLA. The service does not need to be 12 consecutive months and it includes all time worked at the Company.

• Additionally, the employee must have worked 1250 hours in the consecutive 12 months immediately preceding the leave.

• Count actual hours worked (regular and overtime hours). Do NOT count vacation, sick leave, or holiday hours.

• An employee can take leave for a FMLA-qualifying reason when not yet eligible for FMLA, but may become eligible during the leave. The portion of the leave that occurs after the employee becomes eligible is counted as FMLA.

FMLA OVERVIEW

Medical Leave • Employee’s own serious health condition

Family Care • Care for the employee’s parent, spouse, or child that has a serious health condition

Child Bonding • Birth, adoption or foster care placement

FMLA OVERVIEW

Qualifying Exigency Leave • Because of a qualifying exigency arising out of the fact that employee’s spouse, domestic partner, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty in support of a contingency operation).

Military Caregiver Leave • To care for covered service member with a serious injury or illness if service member is employee’s parent, spouse, domestic partner, son, daughter, or next of kin.

FMLA OVERVIEW

Family Care • The term “parent” does not include “in-law.” It means biological or person responsible for care and financial support. It also includes adoptive, foster, stepparent or legal guardian.

• Child includes step-child, adopted, foster or legal ward. The care of a child over 18 is not covered unless the child is physically or mentally incapable of self-care because of a physical or mental disability as defined by the Americans with Disabilities Act (ADA).

• For purposes of Qualifying Exigency Leave or injured service member leave, a parent may seek leave to care for a child at any age.

FMLA OVERVIEW

An illness, injury, impairment or physical/mental condition that involves:

1. Inpatient care; 2. Continuing treatment by a health care provider (HCP) for a condition that causes more than

3 full consecutive calendar days of incapacity.

Inpatient care is defined as: • An overnight stay at a hospital, hospice or residential care facility. It also includes any period of incapacity or subsequent treatment in connection with such inpatient care.

Continuing treatment is defined as: • Absence plus treatment

• Two or more treatments within 30 days of the first day of incapacity by HCP; or • Treatment by HCP on one occasion that results in a regimen of continuing treatment under supervision of HCP.

FMLA OVERVIEW

Continuing treatment (cont.)

Pregnancy- any period of incapacity due to pregnancy or prenatal care.

Chronic conditions requiring treatment, i.e. asthma, diabetes, epilepsy .

Permanent/long term conditions, i.e. Alzheimer’s, terminal stages of disease.

Multiple treatments/non-chronic conditions, i.e. chemotherapy, radiation, dialysis.

FMLA OVERVIEW

• The initial visit to the health care provider (HCP) must occur within seven days of incapacity. The HCP must be seen in person, although subsequent treatment can be a regimen of continuing treatment (i.e. prescription medication). Taking over-the-counter medication and bed-rest do not count as “treatment.”

• Treatment includes examinations to determine if a serious health condition exists and evaluation of the condition. (Does not include routine physical, eye, or dental examinations).

• Treatment for allergies, stress or substance abuse may qualify as a serious health condition.

• For substance abuse, FMLA may only be taken for treatment. Absence due to the use of the substance does not qualify.

FMLA OVERVIEW

The following medical conditions* do not qualify for FMLA:• Common cold • Common flu • Earaches • Upset stomach • Headaches (other than migraines) • Routine dental treatment

*Unless complications arise

FMLA OVERVIEW

Health Care Providers include:• Physician; Physician Assistant; Surgeon; • Nurse Practitioner; Nurse Midwife;• Clinical Social Worker; Podiatrist; Dentist; • Optometrist; Clinical Psychologist; Chiropractor ;• Other health care professionals licensed to practice in their state and who are performing within the scope of their practice as defined by that state’s law; and

• A health care provider who practices in a country other than the U.S., is authorized to practice in accordance with the law of that country, and is performing within the scope of their practice as defined under that country’s law.

FMLA OVERVIEW

Leaves may be taken: • Consecutively • Intermittently • Up to 12 weeks in a 12 month period • Military Caregiver Leave up to 26 weeks

FMLA OVERVIEW

Employers must provide the following notices: •Eligibility Notice; •Rights and Responsibilities Notice; and •Designation Notice.

DOL Fact Sheet #28D – Employer Notification Requirements under the FMLAhttp://www.dol.gov/whd/regs/compliance/whdfs28d.pdf

FMLA OVERVIEW

Employers should:

• Accurately record leave taken.

• An employer may properly dock an exempt employee for hours missed as a result of intermittent leave.

• Inform employee of their responsibility to notify supervisor when absence is due to FMLA.

CONNECTICUT FMLA (CFMLA)CFMLA is a State leave law that pertains to employers with 75 or more employees.

CFMLA was established in 1990 to allow “eligible” employees to take job-protected, unpaid leave or to substitute appropriate paid leave if the employee has accrued it, for up to 16 work weeks in any 24 months for Medical Leave, Family Care, and Child Bonding

CONNECTICUT FMLA (CFMLA) Eligibility Requirements

• An employee must have at least 12 months of service to qualify for FMLA. The service does not need to be 12 consecutive months and it includes all time worked at the Company.

• Additionally, the employee must have worked 1000 hours in the consecutive 12 months immediately preceding the leave.

• Count actual hours worked (regular and overtime hours). Do NOT count vacation, sick leave, or holiday hours.

• An employee can take leave for a FMLA-qualifying reason when not yet eligible for FMLA, but may become eligible during the leave. The portion of the leave that occurs after the employee becomes eligible is counted as FMLA.

For more information on CFMLA and a more comprehensive review of the differences between FMLA & CFMLA please refer to the CT DOL website: http://www.ctdol.state.ct.us/wgwkstnd/fmla.htm

FMLA OVERVIEW

Why Provide FMLA/CFMLA ????• It’s the law! • Managers may be held personally liable for failing to provide legal entitlements.

• To protect employees from having absences counted against them. • To help ensure all employees are treated the same. • To establish that the Company has complied with its notice obligation. • To ensure that the employee gets the benefits and protections of the law. • To make sure the Company is not obligated to give additional time in that leave year because it failed to properly designate original leave.

WORKERS’ COMPENSATION (WC)•A state-mandated insurance program that provides compensation and rehabilitation to employees who suffer job-related injuries and illnesses.

•Each state has its own laws and programs for workers' compensation.

•Generally an employee with a work-related illness or injury can get workers' compensation benefits regardless of who was at fault -- the employee, the employer, a coworker, a customer, or some other third party. In exchange for these guaranteed benefits.

•Employees usually do not have the right to sue the employer in court for damages for those injuries.

WC & FMLA

WC & FMLA can run concurrently.

An employer can count an employee's time out on workers' compensation as FMLA as long as the employee is out for a reason that meets the FMLA requirements.

Both the state and federal FMLAs specify in regulation that either the employer or the employee may choose to have the employee's FMLA leave run concurrently with a workers' compensation absence when the injury is one that meets the “serious health condition” criteria of FMLA.

WC & FMLA

Concurrently being on family and medical leave has advantages for the injured employee, such as maintaining health benefits. Under federal FMLA, the employer must keep an employee who is out on workers' compensation covered under any company-provided health insurance plan. Under federal and state workers' compensation law, private-sector employers are not required to continue such coverage for an employee on workers' compensation.

FMLA provides more job protection than workers' compensation law. Under the FMLA, the employer must give the employee his job back when he returns from leave.

WC & FMLA

An employer may, however, give this right away.  The FMLA permits an employer to provide more generous leave rights than the minimum required by the FMLA.  Sometimes employers provide more generous leave rights as part of a collective bargaining agreement, past practice, or in the terms of a company handbook or manual.  In that case, the employer would be prohibited from charging an employee's workers' compensation absence as FMLA leave.   

Employers and labor organizations should carefully check applicable leave policies and practices to ensure that FMLA can be run concurrent with a workers' compensation absence.

SHORT TERM DISABILITY (STD)•A type of insurance policy that provides for payment of wages during an absence from work for non-work related injury, illness or maternity.

•Provides wage replacement for some period of time. • If an employee is eligible for STD benefits and you are an FMLA eligible employer FMLA & STD should be run concurrently. It's not an “either or “ situation.

•STD benefits are insurance benefits and will vary based on the specific policy.

SHORT TERM DISABILITY (STD)Group vs. Voluntary IndividualGroup OfferingEmployer must administrate the planUsually employer funded (benefits would be taxable to employee) Available to every employee whether you need it or notSubject to frequent rate increasesNot customizable

Voluntary Individual OfferingInsurance provider administrates the planUsually paid by the employees individually or shared with employerCompletely portable to the employeeRates are more stableCan be customized to the individual

S

2013 U.S. DISABILITY STATISTICS•Just over 1 in 4 of today's 20 year-olds will become disabled before they retire.

•Over 37 million Americans are classified as disabled; about 12% of the total population. More than 50% of those disabled Americans are in their working years, from 18-64.

•Accidents are NOT usually the culprit. Back injuries, cancer, heart disease and other illnesses cause the majority of long-term absences.

•Less than 5% of disabling accidents and illnesses are work related. The other 95% are not, meaning Workers' Compensation doesn't cover them.

•65% of working Americans say they could not cover normal living expenses even for a year if their employment income was lost; 38% could not pay their bills for more than 3 months.

•The average individual disability claim lasts 31.6 months.

•One in eight workers will be disabled for five years or more during their working careers.

•Medical problems contributed to half of all home foreclosure filings in 2006.

•65% of initial SSDI claim applications were denied in 2012. Source: Council For Disability Awareness http://www.disabilitycanhappen.org/chances_disability/disability_stats.asp

You are the HR Manager of a:

•Connecticut Manufacturing Facility – 1 location •110 Employees •Benefits offered include:

•Health Insurance •Dental Insurance •Vision Insurance •Life Insurance •STD/LTD•Tuition Reimbursement

EMPLOYEE 1

•40 Yr. Old Male Full- Time Employee – Good condition, no prior heart, cholesterol or blood pressure issues, non-smoker, non-drinker of alcohol, no street drugs

•Married, two children, sole provider for a family of four•Hired June 5, 2006 – On March 14, 2015 minor heart attack followed by a major heart attack March 16, 2015 while in hospital – surgery required

•10 Days in ICU and another 14 days in the hospital•8 days accrued PTO•Required to pay $456/mo to maintain health insurance

EMPLOYEE 2

•40 Yr. Old Male Full- Time Employee•Single parent, three dependent children, sole provider•Hired January 7, 2013– On November 19, 2014 – fell off ladder at work - TBI, still unable to work as of June 18,, 2015

•3 days in the hospital, continuing Dr.’s visits, PT & OT •15 days accrued PTO•Required to pay $375/mo to maintain health insurance

EMPLOYEE 3

•45 Yr. Old Female Part –Time Employee (20 hrs./week)•Unmarried, no children•Hired February 6, 2014 on February 9, 2015 had a non – work related car accident, ran into a pole - no other cars involved – broken ankle & 3 broken ribs

•Emergency room visit followed by weekly visits to ortho•No PTO for Part –time employees •Returned to work part-time on June 1,2015•No Health Insurance for part –time employees

EMPLOYEE 4

•34 Yr. Old Female Full Time Employee – Pregnant •Married, 1 child •Hired August 1, 2011 – in work Friday Oct. 9, 2011, gives birth on Sunday Oct.11, 2014

•1 day in hospital •20 days accrued vacation •Medical Ok to return to work November 21, 2014•Decides to take balance of available FMLA for child bonding •Required to pay $208/mo to maintain health insurance

EMPLOYEE 5

•60 Yr. Old Female Part –Time Employee (30 hrs./week)•Widowed, no dependent children•Hired February 6, 2012 on March 10, 2015 had gall bladder surgery•Outpatient surgery, several follow-up visits with surgeon & primary care doctors, prescribed antibiotics & painkillers

•No PTO for Part –time employees •Returned to work part-time on June 2,2015•Required to pay $218/mo to maintain health insurance•Employees who were eligible for health insurance were enrolled in Group STD

EMPLOYEE 6

•44 Yr. Old Female Full Time Employee •Married, 1 child, 2 stepchildren – 1 with special needs •Hired August 22, 2011 – takes leave on January 19, 2015 to stay with husband while in hospice. Husband dies February 8, 2015. Returns to work February 16, 2015.

•0 days accrued vacation. •Was on husband’s health insurance.

SOME THINGS TO CONSIDER

Is your Company an eligible employer for FMLA &/or CFMLA?

Does your Company put your employees on WC on FMLA/CFMLA?

Does your Company administer your FMLA consistently?

Do you have STD/LTD – do you know your policies:• Eligibility; • Waiting period; and • Duration.

Do you know how your paid leave policies interact with your unpaid leave policies (FMLA/CFMLA) and your STD/LTD insurance policies?

THANK-YOU

Carolyn R. Ahern

GreenTree Risk Management

68 National Drive, Suite 2

Glastonbury, Connecticut 06033

860.430.3285 - office

203.560.5225 - cell

If you have any questions please feel free to contact me.