FMLA Compliance Seminar

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FMLA Compliance Seminar

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TASC Confidentiality

• This Seminar and all materials presented are the
  property of TASC. No part of this seminar or any
  of the materials provided may be reproduced or
  transmitted in any form or by any means,
  electronic, mechanical, photocopying, recording,
  or otherwise, without prior written permission
  from TASC. To the extent allowed by law, TASC
  intends to recoup any value lost by an
  unauthorized use or disclosure including the TASC
  profits that may have been lost or the profits
  made by the disclosing party.  
• IRS Circular 230 disclosure To ensure compliance
  with requirements imposed by the IRS, we inform
  you that if any advice concerning one or more
  U.S. Federal tax issues is contained in this
  seminar material or is provided by a speaker at
  the seminar, such advice is not intended or
  written to be used, and cannot be used, for the
  purpose of (i) avoiding penalties under the
  Internal Revenue Code or (ii) promoting,
  marketing, or recommending to another party any
  transaction or matter addressed herein, and you
  should seek advice based on your particular
  circumstances from an independent tax advisor.

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FMLA Topics

• FMLA Defined
• FMLA Eligibility
• FMLA Qualifying Events
• Understanding FMLA
• Employer Rights
• Types of Leave
• Continued Benefits
• Notification Requirements
• Records and Storage

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FMLA Defined

• Family Medical Leave Act of 1993 (FMLA)
• Enacted by Congress in 1993, the Family Medical
  Leave Act was a Federal Law intended to help
  employees better balance the demands of the
  workplace with the demands of their family and
  health. It has since been expanded to include
  Military caregiver leave, and leave for Military
  families during times of deployment to a foreign
  country.

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What is FMLA?

• Federal law applying to
• all public employers, elementary and secondary
  schools regardless of the number of employees
  and
• all private employers with over 50 employees on
  20 or more weeks the previous or current
  calendar's year payroll
• Requires employers to have a written policy
• Requires employers have posted signage in a
  common area
• 110.00 per day fine possible for willful
  violations
• Illegal to interfere, deny, or retaliate against
  an employee for utilizing FMLA rights.

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FMLA Requirements

• Employees have to give notice of an event to an
  employer
• Employees dont have to know what FMLA is, or use
  the words FMLA
• Employers have 5 days from the date of notice to
  respond with
• Notice of Rights and Responsibilities
• Notice of Eligibility
• Request for Medical Certification
• Outline Return to Work Requirements

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FMLA Requirements

• Employee has 15 days to provide medical
  certification
• Employer has 5 days from the date medical is
  received to send Designation notice to the
  employee
• Employers must have record of what days and times
  are FMLA protected and retain these records for 3
  years

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Record Retention

• DOL and FMLA regulations require that the
  following records be stored for 3 years
• Basic payroll and identifying employee data,
  including name, address, occupation, rate of pay,
  terms of compensation, daily hours worked,
  deductions from wages and total compensation paid
• Dates FMLA leave is taken by FMLA eligible
  employees
• Hours of the leaves if not full days
• Copies of all notices
• Any documents describing employee benefits or
  employer policies regarding the taking of paid or
  unpaid leave

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FMLA Employee Eligibility

• Employee must have 12 months of service, and also
  needs 1250 hours worked in the 12 months
  preceding their need for Leave.
• 12 months does not have to be consecutive, 1250
  hours does have to be in past 12 months.
• Work at a location where there are 50 employees
  of the employer within a 75 mile radius
• Former employees are also covered and are able to
  bring lawsuits (not re-hired due to past record)
  up to seven years.

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FMLA Qualifying Events

• Serious health condition for employee
• Serious health condition has its own definition
  under the FMLA regulations
• Birth of a child
• Also covers Fathers for paternity leave
• Placement of a child for Adoption or foster care
• Serious health condition of a family member
• Family Member is defined as only parents,
  spouses, and children under 18. Children over 18
  have to meet additional requirements
• Qualified Exigency
• For employees with deployed family members
• Caring for Military Personnel
• 26 week events

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Definition Serious Health Condition

1. Conditions requiring an overnight stay in a
   hospital or other medical care facility or
2. Conditions that incapacitate employee or family
   member (for example, unable to work or attend
   school) for more than 3 consecutive days and have
   ongoing medical treatment (either multiple
   appointments with a health care provider, or a
   single appointment and follow-up care such as
   prescription medication) or
3. Chronic conditions that cause occasional periods
   for employee or family member are incapacitated
   and require treatment by a health care provider
   at least twice a year or
4. Pregnancy (including prenatal medical
   appointments, incapacity due to morning sickness,
   and medically required bed rest).

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Definition Serious Health Condition- Adult
Child over 18

• On January 14, 2013 the Department of Labor
  issued additional guidance clarifying the
  criterion for a child over age 18 to qualify for
  care under FMLA.
• This clarification is in response to the
  Americans with Disability Act (ADA) being amended
  by the ADAAA (Americans with Disability Act
  Amendments Act of 2008) to expand the definition
  of disability.
• Children over the age of 18 must be
• Disabled according to ADAAA
• Have a serious health condition
• Incapable of self-care
• Need care for that condition
• Age the child became disabled doesnt matter for
  FMLA
• Service member leave doesnt limit an employees
  leave entitlement to care for a child up to age
  27

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FMLA Regulatory Changes Effective March 8, 2013

• Changes to Military Family Leave (a partial
  listing)
• Expanding caregiver leave to include care for
  veterans discharged within the past five years.
• Allowing caregiver leave for a pre-existing
  injury or illness that was aggravated in the line
  of duty.
• Extending exigency leave to family members of
  those serving in the Regular Armed Forces.
• Requiring that service members be deployed to a
  foreign country in order for their family members
  to qualify for exigency leave.
• Extending from 5 to 15 days employee leave during
  a military family members rest and
  recuperation period.
• Additional Changes (a partial listing)
• Enforcement of using lowest payroll method for
  FMLA calculations.
• Revisions regarding (a) the physical
  impossibility of a return to work in the middle
  of a shift (FY), (b) 2010 National Defense
  Authorization Act (NDAA) amendments, and (c) the
  Airline Flight Crew Technical Corrections Act
  (AFCTCA).

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FMLA Regulatory Changes Effective March 8, 2013
(contd)

• What do Employers Need to do?
• Update applicable posters. Updated versions of
  the Federal poster can be located here
  http//www.dol.gov/whd/regs/compliance/posters/fml
  aen.pdf
• Update written policies to include the changes to
  the NDAA and AFCTCA amendments. A Frequently
  Asked Questions listing can be found here
  http//www.dol.gov/whd/fm
  la/2013rule/militaryFR_FAQs.htm
• Educate managers to ensure they understand the
  additional FMLA qualifying events related to the
  expanded definitions.

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Types of Leave

• Continuous Taken in one block of time
• Intermittent Taken in separate blocks of time as
  needed
• Can take in smallest increment of time used by
  payroll.
• May have incapacitations lasting up to a month.
• May be a reduction of hours, such as no OT or
  reduced schedule.
• Special rules apply to employees of local
  education agencies.
• Generally, these rules apply to intermittent
  leave or when leave near the end of a school term.

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Special Rules for School Instructional Employees

• Leave taken for a period that ends with the
  school year and begins the next semester is leave
  taken consecutively rather than intermittently.
• The period during the summer vacation when the
  employee would not have been required to report
  for duty is not counted against the employee's
  FMLA leave entitlement.
• An instructional employee who is on FMLA leave at
  the end of the school year must be provided with
  any benefits over the summer vacation that
  employees would normally receive if they had been
  working at the end of the school year.
• Rules apply only to a leave involving more than
  20 percent of the working days during the period
  over which the leave extends.
• Employees taking leave which constitutes 20
  percent or less of the working days during the
  leave period would not be subject to transfer to
  an alternative position.

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Understanding FMLA

• Employer Defined ...any person who acts,
  directly or indirectly, in the interest of an
  employer to any of the employees of such
  employer... 20 U.S.C. 2611(4)(ii). An
  employer also includes any public agency.
• So what does that mean?
• Supervisors can be personally liable for
  violations of FMLA.
• A recent Chicago verdict set a record 11.65
  Million dollar verdict, with 400,000.00 levied
  against two supervisors individually

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ERISA Violations - Related to FMLA

• ANCHORAGE, Alaska 2-2013 The U.S. Department of
  Labor and ASRC Energy Services Alaska Inc. have
  agreed to a consent judgment in federal court
  that will result in the payment of 43,000 in
  back wages for an employee who was allegedly
  terminated in violation of the Family and Medical
  Leave Act. The judgment also permanently enjoins
  the defendants from future violations of the
  FMLA.
• The judgment and order resolve a lawsuit filed by
  the department in the U.S. District Court of the
  District of Alaska after an investigation by the
  Seattle District Office of the departments Wage
  and Hour Division. The investigation found that
  the employee was terminated while he was on leave
  for a serious health condition, in violation of
  the FMLA.
• For more than two decades, the FMLAs
  job-protected leave entitlements have served as a
  critical safety net for our nations workers and
  families. This law continues to help achieve a
  healthy, productive balance between the demands
  of work and family life, said Donna Hart,
  director of the Wage and Hour Divisions Seattle
  District Office. This judgment demonstrates the
  departments commitment to ensuring employees
  receive all of the protections to which they are
  entitled under the FMLA, and to helping employers
  understand and comply with the law.
• The division found that the employer incorrectly
  counted against the employees FMLA leave
  entitlement weeks that he was not scheduled to be
  at work and terminated him for exceeding the
  approved amount of leave. If an employee is not
  scheduled to report for work, that time period is
  not leave and, therefore, may not count against
  the employees 12-week FMLA leave entitlement.
  Investigators determined that the employer failed
  to comply with this requirement.

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ERISA Violations - Related to FMLA (2)

• Recent Violations Houston, TX
• December 11, 2013 -Houston Ear, Nose Throat
  Clinic required to pay more than 17,000 in back
  wages following US Labor Department investigation
  .
• The investigation found that the company violated
  the FMLA when an eligible employee returning to
  work, after taking FMLA leave, was not placed in
  the same full-time position held prior to using
  the job-protected leave. Instead, the employee
  was placed in a part-time position which resulted
  in fewer working hours and without the same
  benefits held before taking FMLA leave. Under the
  FMLA, an employee returning to work from FMLA
  leave is entitled to job restoration to the same
  or an equivalent position with the same pay,
  benefits and other employment terms and
  conditions. This violation resulted in 17,390 in
  back wages, medical expenses and unpaid monetary
  benefits due to the employee.
• No employee should have to worry about their job
  when facing a serious health condition, said
  Cynthia Watson, regional administrator for the
  Wage and Hour Division in the Southwest. Coming
  back to work with the same seniority and benefits
  following an FMLA-related absence is not an
  option, it is the law. This employees
  reinstatement and subsequent collection of back
  wages should send a clear message to other
  employers that compliance with the FMLA is
  critical.
• The employer was charged with several additional
  FMLA violations, including failing to provide the
  employee with the required notice designating the
  leave as FMLA failing to keep the proper records
  required by FMLA and failing to have a current
  FMLA policy reflecting the most recent provisions
  of the law. The employer agreed to reinstate the
  employee to the previously held full-time
  position with the same pay rate and benefits pay
  all the back wages due ensure that all eligible
  employees taking FMLA leave are properly provided
  with the required notices maintain the necessary
  records update its written FMLA policy and
  conduct FMLA training with its managers.

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ERISA Violations - Related to FMLA (2)

• Knoxville, TN October 8, 2013 - Motel 6 agrees
  to pay nearly 52,000 in back wages and to comply
  with the FMLA following US Department of Labor
  investigation
• A typical violation in the hotel and motel
  industry is the failure to pay required overtime
  premiums, said Nettie Lewis, district director
  of the Wage and Hour Divisions Nashville
  District Office. These employees have worked
  long hours. As a result of our investigation,
  they are being paid the wages they have earned
  and now know the benefits and protections of the
  FMLA. We encourage other hotel and motel
  employers to learn from this case, review their
  practices and make a diligent effort to limit
  future liability by complying with the FLSA and
  FMLA.
• An investigation conducted by the Divisions
  Nashville District Office disclosed that
  employees regularly worked more than 40 hours a
  week, but were only paid straight-time wages for
  all hours worked. The FLSA requires that workers
  be paid time and one-half their regular rates of
  pay for all overtime hours worked. The employer
  failed to post required FMLA posters in an area
  visible to workers and did not provide
  information about the FMLA in the companys
  handbook, in violation of FMLA requirements.
• The Wage and Hour Division has noticed the
  noncompliance in this industry and is
  concentrating its resources on investigating and
  remedying violations, informing workers of their
  rights and providing compliance assistance to
  employers. Since 2009, the division has concluded
  nearly 5,000 cases involving hotel and motel
  employers, resulting in more than 15.1 million
  in back wages and FMLA violations for more than
  28,000 workers nationwide.

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WHD Budget 2014
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WHD Budget 2015
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WHD investigations

• Last year, the WHD received more than 2,100
  complaints alleging violations of the Family and
  Medical Leave Act (FMLA), and its investigations
  concluded that violations occurred in about half
  of those cases. The most common violations
  involved employers refusing to grant FMLA leave,
  illegally terminating employees who requested
  leave, and discriminating against employees who
  requested leave.

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Employer Rights

• Expect 30-day notice for planned absences and
  notice within 2 days of an unplanned event.
• May require certification of condition from
  employee as frequently as every 30 days.
• May insist on a second opinion.
• May choose to require that paid time be used
  before unpaid time off is granted.
• Employer is not liable for FMLA violation if the
  employee is not providing notice of the need for
  leave. Employee does not have to use the term
  FMLA for the employer to be obligated to
  recognize the event as a qualifying event under
  FMLA.

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Continued Benefits

• Employees accrued benefits are retained while on
  Leave
• Health insurance - mandatory
• Life insurance - if accrued
• Disability - if accrued
• Sick leave - if accrued
• Pensions - if accrued
• Benefits must be in force while Leave commences.
• Employee responsible premiums may still be
  requested while on Leave.
• May recover employer share of premiums if
  employee does not return from Leave.

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FMLA Cost Association

• Productivity
• Leaves disrupt work routines and may cause
  confusion and distraction. Replacement workers
  and overtime wages may be required.
• Extensive supervisor training is necessary.
• Managers must consider FMLA absences separately
  from other performance issues.
• Legal
• State Leave laws are numerous and change often,
  requiring constant monitoring.
• Managers can be held personally responsible for
  violations.
• Litigation can cost 100K - 200K per claim, not
  including settlement costs.
• Tracking Administration
• Records maintenance and storage, supplies, staff
  time may duplicate management of other benefits
  such as disability and workers compensation.
• HR is diverted from more strategic
  responsibilities.

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Why Outsource FMLA?

• Outsourced FMLA Administration is
• Consistent
• Efficient and accurate
• Compliant a reduction in your company liability
  and manger and supervisor liability
• Centralized
• Positive Work Culture
• Greater employee attraction and retention
• Reduces workload for HR professionals
• Monitors potential FMLA abuse by employees
• Increasing employee comfort related to FMLA
  requests by removing PHI from HR staff

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Outsourcing Advantage

• Limit your risk
• Reduce your workload
• Distance your company from the personal aspect
  of FMLA administration
• Increase your Bottom Line Peace of Mind!

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FMLA Employee Employer Responsibilities
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Compliance Solutions

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Why FMLAMatters?

• Consultative session to review LOA policies
• 24/7 online FMLA activity reports
• Provides all FMLA notices
• Documentation of all communications
• Provides storage and processing of medical
  certification for FMLA
• Hold-harmless language installed in our service
  agreement
• Health and legal professionals on retainer
• Toll-free and online Leave request options
• Staff trained on Federal and State Leave laws
• Provides policy review to ensure compliance
• Provides management and supervisory training in
  event identification and reporting
• Account management team for superior service

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Service Features

• Complete compliance with FMLA state and federal
  regulations.
• Complete tracking of employee Leave.
• Fair application of FMLA regulations and
  policies.
• Eligibility determination available.
• Centralized and accurate record keeping.
• Access to experienced employee benefits
  professionals.
• Training for supervisors and managers on company
  procedures and FMLA state and federal
  regulations.
• Full review of FMLA eligibility and entitlement.
• FMLAMatters Administrative Manual.
• FMLA activity reports.
• Immediate denial notification.

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Administrative Services

• Multiple methods to report an FMLA event
• Telephone
• Employer On-line
• Employee On-line (when eligibility is determined
  with TASC)
• FMLAMatters assumes the responsibility and
  liability associated with FMLA Leave request by
• Training management on recognition and process
• Determinations Eligibility and Entitlement
• Performing day-to-day administration and support

We deliver company compliance with a
hold-harmless guarantee.
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Thank You!