TOTAL ABSENCE MANAGEMENT April 19, 2018 The CareWorks Team Scott - - PowerPoint PPT Presentation
A fresh start to TOTAL ABSENCE MANAGEMENT April 19, 2018 The CareWorks Team Scott Vaka Chief Sales Officer CareWorks Absence Management (614) 760-3536 Scott.Vaka@ CareWorks.com 2 CareWorks Absence Management PROPRIETARY
A fresh start to
April 19, 2018
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Chief Sales Officer
CareWorks Absence Management
(614) 760-3536 Scott.Vaka@ CareWorks.com
Scott Vaka
CareWorks Absence Management
administration organization
relationships with our customers, building strong business partnerships
return to work services
across all industries
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3 26% 21% 11% 9% 9% 8% 4% 4% 4% 4%
CareWorks Absence Management Customers
Healthcare Manufacturing Finance Public Entities Retail Services Transportation Education Technology Other
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Understanding the impact of the ADA and the amended ADA (ADAAA) on employment practices and the interaction with FMLA and Disability Review of the most common FMLA pitfalls that employers commit when processing FMLA leaves.
Relevance, differences, and similarities of the FMLA and ADA (ADAAA)
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The Family Medical Leave Act allows eligible employees to take up to 12 work weeks of leave in a 12- month period for:
newborn child
for adoption or foster care
spouse, child, or parent who has a serious health condition
arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member
What is FMLA and FMLA Impact?
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An eligible employee works for an employer with 50
months, 2) has worked 1,250 hours in the past 12 months, and 3) is employed at a worksite where 50 or more employees are employed within 75 miles
There were 1,419 enforcement complains in 2015 alone with terminaHon of employment as the primary complaint
Top reason for FMLA leave is employee’s own health condiHon with surgery as top medical condiHon
Signed into law in 1993 10.7% of the U.S. workforce is on FMLA leave
100 million uses since enacted
Average duraHon of leave is 14.2 days
CareWorks Absence Management
administration of FMLA and/or ADA?
carrier to manage the administration
management to a third party vendor that specializes in FMLA and/or ADA?
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Schultz v. Advocate Health and Hospital Corp. Employee alleged his terminaHon was the result of being unfairly penalized for taking Hme off to care for his aging parents under FMLA. Over the period of intermiXent leave, the supervisor created unreachable performance standards and eventually terminated the employee. The result: A federal Jury awarded 11.65M to employee (10.75M against the employer and .9M against the two supervisors). Lore v. Chase ManhaPan Mortgage Co. Nicholas Lore requested leave for his own serious health condiHon. He was told a new manager would be brought in temporarily to replace him while on leave. A[er months of waiHng and no sign of a new manager, Lore once again inquired about his leave status. Less than a month later he was terminated. The result: Plain4ff's verdict for $2.2 million. Once liquidated damages equal to the amount of the verdict as well as prejudgment interest are added in -- both are mandated under the FMLA -- the former employee's recovery could fall somewhere between $6.2 million and $7.6 million. Verizon Communica4ons TelecommunicaHons giant Verizon CommunicaHons paid $20 million and provide significant equitable relief to resolve a naHonwide class disability discriminaHon lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The suit, filed against 24 named subsidiaries of Verizon CommunicaHons, said the company unlawfully denied reasonable accommodaHons to hundreds of employees and disciplined and/or fired them pursuant to Verizon’s “no fault” aXendance plans.
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Miscalculating Hours Available for Employees:
– First - Standard Shift Schedules – Second – Varying Shift Schedules
Regulations – “If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise 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 period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement. 29 CFR 825.205(b)(3)”
Case Review: Brotherhood of Locomotive Engineers v. Union Pacific Ry. Co.
Best Practice Recommendation:
– When employees initiate a request for leave, have a process to verify average hours worked per week. – Use the varying shift schedule method sparingly, since most employers have the ability to calculate how many hours an employee is scheduled in any given week. Work Schedule
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Waving Rights to FMLA
Regulations – “Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. 29 CFR 825.220(d)” …Or can they?
Case Review: Escriba v. Foster Poultry Farms Inc. & Amstutz v. Ohio Liberty Center Board Of Education
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Waving Rights to FMLA (continued) – What should an employer do when an employee refuses to use FMLA leave?
Employer options:
1. Deny FMLA Leave 2. Designate the absence as FMLA
Best Practice Recommendation: 1. _________________________________________________________________________ 2. _________________________________________________________________________ 3. __________________________________________________________________________
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Failing to follow appropriate notification requirements:
Case Review: Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296 (4th Cir. 2016) – Plaintiff employed as a project construction manager when he began to have issues with performance and attendance – Diagnosed with depression and completed paperwork for one month of leave – Leave approved and the employee returned prior to the one month end date – Plaintiff continued to have performance issues and was terminated – Employee sues and what happens?
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Failing to follow appropriate notification requirements:
Notification Requirements:
1. FMLA General Notice must be displayed in a common area 2. Provide employees with a general notice about the FMLA 3. Notify employees concerning their eligibility status and rights and responsibilities under the FMLA 4. Notify employees whether specific leave is designated as FMLA leave and the amount of time that will count against their allotment – Make sure your rights and responsibility notice and designation contain information on restoration rights under the guidelines
Alternative notices to consider…
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Not updating your FMLA policy on a regular basis
Case Review: Illinois Department of Corrections Essential elements for review : – Eligibility requirements – Calculation method – Leave requests, certification and designation requirements – Notification requirements
– Enforce call in procedures – Moonlighting – Fitness for duty certificate – Pay during leaves
Review Changes with Managers and Supervisors
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Best Practice – Requiring a completed certification form You can require certification for:
– Employee’s serious health condition – Family member’s serious health condition
Note: no certification can be required for leave to care for healthy newborn/adoption/foster child. However, if there are absences related to complications with pregnancy or adoption/foster process, than you may require documentation. *Employees must receive at least 15 calendar days to return the certification forms.*
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Seeking clarification on medical certification forms:
When seeking clarification on forms: 1. Inform employee in writing additional information is needed
– Consequences of failing to provide information – Date in which revisions are due – Note specifically what needs addressed in CHCP
2. The employee has 7 calendar days to obtain necessary information
3. If no additional information is received, the leave may be delayed or denied
Missing informa4on
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When can an employer contact the healthcare provider directly? Authentication & Clarification on the CHCP
authorized information on the form.
― The employees direct supervisor is prohibited from contacting the healthcare provider ― In order for an employee’s HIPAA-covered health care provider to provide an employer with individually-identifiable health information, the employee will need to provide the health care provider with a written authorization. ― Employers may not ask the health care provider for additional information beyond that contained on the medical certification form. ― Employers cannot insist that an employee submit an entirely new medical certification when only clarification is needed.
Practice Tip Create a standard Medical Authorization to Release Information template
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Failing to recertify claims appropriately:
Best Practices for Managing the Recertification Process – 30-Day Rule – More than 30 Days – Less than 30 Days if:
– Employees have 15 calendar days to return medical – Employers may authenticate and seek clarification on supplied medical
– Recertification requested by the employer is at the employee’s expense
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As part of the information allowed to be obtained on recertification, you may provide the health care provider with a record of the employee’s absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern.
Practice Tip When sending patterns to HCP, ask the doctor if the absence patter is consistent with the employees use of leave, and if so, why?
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What should you be documenting as part of your absence management process:
– FMLA records must be maintained for a minimum of three years – It is best practice to keep files separate from employee personal records and in a safe confidential location – What documents must be retained?
day increments
Practice Tip The absolute best way to fight a DOL or EEOC charge is to have detailed documentation
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Medical Review - How many a claims a year do you deny for medical not supporting a qualifying reason under FMLA?
Best Practice – Requiring a completed certification form
You can require certification for:
– Employee’s serious health condition – Family member’s serious health condition
Note: no certification can be required for leave to care for healthy newborn/ adoption/foster child. However, if there are absences related to complications with pregnancy or adoption/foster process, than you may require documentation.
*Employees must receive at least 15 calendar days to return the certification forms.*
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Medical Review (con’t)
What should you be looking for on your certification?
– Approximate date when the condition began – Probable duration of the condition – Description of appropriate medical facts supporting need for leave – If intermittent, en estimate of frequency and duration
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Medical Review (con’t)
What should you be looking for on your certification?
– Employee’s own serious health condition
– Family member’s serious health conditions
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Manager and Supervisor Training
Sample Training Agenda:
– Note: If union, pay attention to your Collective Bargaining Agreement
why an employee is on leave and when he or she is coming back
employees who use intermittent FMLA leave only on Fridays or around company holidays).
Case Review: Stewart v. Wells Fargo & Holtrey v. Collier County Bd. of Commissioners
Practice Tip Manager and Supervisor training should
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Understanding the impact of the ADA and the amended ADA (ADAAA) on employment practices and the interaction with FMLA.
CareWorks Absence Management
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“Employers need to get this message: Inflexible, strictly enforced leave policies can violate federal law… As an employer, make sure you have excep4ons for people with disabili4es and assess each situa4on individually”
Source: EEOC http://www1.eeoc.gov/eeoc/newsroom/release/11-5-15a.cfm
reasonable leave accommodations to return to work
accommodation
accommodation
Does an ADA approved leave qualify for disability insurance? Maybe.
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Cover Entities:
employment agencies, labor organizations, and joint labor - management committees. Qualified Employees:
the individual satisfies the skill, experience, education, and other job-related requirements of the position sought or held, and can perform the essential job functions of the position, with or without reasonable accommodation. Who has a disability under ADAAAA?
– Has a physical or mental impairment which substantially limits one or more major life activities – Has a record of such an impairment – Is regarded as having such an impairment
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Interactive Dialogue:
between employer and employee to determine what reasonable accommodation(s) will allow the employee to perform the essential functions of his/her job
employee
Practice Tip If you believe that an employee’s performance is suffering because of an undisclosed disability, approach the employee and address the performance problem—not the disability. Directly addressing an undisclosed disability may lead to a claim of “regarding” an employee as disabled.
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The ADA requires that employers provide reasonable accommodation, unless to do so would impose an undue hardship on the operation of the employer’s business
Examples
Leave as a reasonable accommodation
to work within a reasonable time
EEOC
reasonable
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For accommodations denied due to undue hardships, do you document the significant difficulty or expense resulting in hardship?
– Cost vs. employer resources – Nature of work – Nature of supervision required – Impact of technology – Impact on other workers – Impact on clients/customers
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– Have an ADA(AA) Procedural Plan in place – Perform an individual assessment for each case – Not sure? Error on the side of caution and process the request – Gather medical documentation & compare the disabilities limitations to the employees functional job description – Engage in an open dialogue with employee requesting an accommodation – Train supervisors and managers on ADAAA and what to look out for with their staff – Document every step in the ADAAA process – Act in a timely fashion, delays in the interactive process can be viewed as discriminatory
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