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 —COMPETITIVELY SENSITIVE INFORMATION

CareWorks Absence Management CareWorks Absence Management Customers • National disability and leave 4% 4% administration organization 4% 26% 4% • Division of York Risk Services 8% • Our goal is to develop long-term relationships with our customers, building strong business partnerships 9% • Full suite of absence, disability, ADA and 21% return to work services 9% 11% • Depth and breadth of experience across all industries Healthcare Manufacturing Finance Public Entities Retail Services Transportation Education Technology Other 3 CareWorks Absence Management PROPRIETARY—COMPETITIVELY SENSITIVE INFORMATION

Agenda Relevance, differences, and similarities of Introduc4on the FMLA and ADA (ADAAA) Review of the most common FMLA pitfalls Part One that employers commit when processing FMLA leaves. Understanding the impact of the ADA and the Part Two amended ADA (ADAAA) on employment practices and the interaction with FMLA and Disability 4 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

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Relevance of the Family Medical Leave Act An eligible employee works for an employer with 50 What is FMLA and FMLA Impact? or more employees and has been 1) employer for 12 months, 2) has worked 1,250 hours in the past 12 The Family Medical Leave months, and 3) is employed at a worksite where 50 or Act allows eligible more employees are employed within 75 miles employees to take up to 12 work weeks of leave in a 12- 10.7% of the Average month period for: Signed into U.S. workforce duraHon of • The birth and care of a law in 1993 is on FMLA leave is 14.2 newborn child leave days • The placement of a child for adoption or foster care Top reason for FMLA leave is 100 million • To care for the employee’s employee’s own health spouse, child, or parent uses since condiHon with surgery as top who has a serious health enacted medical condiHon condition • Any qualifying exigency arising out of the fact that There were 1,419 enforcement complains the employee’s spouse, in 2015 alone with terminaHon of son, daughter, or parent is employment as the primary complaint a covered military member on “covered active duty” 6 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

Relevance of the Family Medical Leave Act • Should my client continue the internal administration of FMLA and/or ADA? • Should my client allow the disability carrier to manage the administration of FMLA and/or ADA? • Should my client carve-out absence management to a third party vendor that specializes in FMLA and/or ADA? 7 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

Risk of Non-Compliance Schultz v. Advocate Health and Lore v. Chase ManhaPan Mortgage Verizon Communica4ons Hospital Corp. Co. TelecommunicaHons giant Verizon Employee alleged his terminaHon Nicholas Lore requested leave for CommunicaHons paid $20 million was the result of being unfairly his own serious health condiHon. and provide significant equitable penalized for taking Hme off to care He was told a new manager would relief to resolve a naHonwide class for his aging parents under FMLA. be brought in temporarily to disability discriminaHon lawsuit replace him while on leave. A[er filed by the U.S. Equal Employment Over the period of intermiXent months of waiHng and no sign of a Opportunity Commission (EEOC). leave, the supervisor created new manager, Lore once again The suit, filed against 24 named unreachable performance inquired about his leave status. Less subsidiaries of Verizon standards and eventually than a month later he was CommunicaHons, said the company terminated the employee. terminated. unlawfully denied reasonable accommodaHons to hundreds of The result: A federal Jury awarded employees and disciplined and/or 11.65M to employee (10.75M The result: Plain4ff's verdict for fired them pursuant to Verizon’s “no fault” aXendance plans. against the employer and .9M $2.2 million. Once liquidated against the two supervisors). 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. 8 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

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Number 9 Miscalculating Hours Available for Employees: Work Schedule 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. 11 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

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Number 8 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 13 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

Number 8 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. __________________________________________________________________________ 14 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

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Number 7 Failing to follow appropriate notification requirements: Case Review: Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296 (4 th 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? 16 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

Number 7 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… 1. Required completion of Fitness for Duty 2. Exhaustion notices 17 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

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Number 6 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 – Foreseeable versus non-foreseeable • Enforce call in procedures – Review Changes with Managers Moonlighting – and Supervisors Fitness for duty certificate – Pay during leaves – 19 CareWorks Absence Management PROPRIETARY —COMPETITIVELY SENSITIVE INFORMATION

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