Leave Stacking: Managing Multiple Leave Entitlements...– Company has generous “in-house FMLA”/leave benefit of up to 26 wks, which includes care of domestic partner with SHC

Leave Stacking: Managing Multiple Leave

Entitlements Presented by: Linda Southard

Agenda

• Overview / historical perspective of leave stacking

• Leave stacking process• Common areas of difference• Practice scenarios• Q&A

What is Leave Stacking• Combining and/or layering leaves

– Historical perspective

• Changing environment– Explosion of types of leaves – Increased # taking intermittent leaves

• Codified in revised regsLeave 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

BEST PRACTICE:Employer should designate FMLA

concurrent with all paid leaves Don’t allow employees to choose

Process1. Research / identify all possible leaves2. Determine which leaves employee is entitled to3. Determine which run concurrently and which run

consecutively4. When leave exhausted, do “automatic” ADAAA

review

Common Areas of Difference• Eligibility • Qualifying conditions• Medical info requirements• Timing• Tracking• Early return-to-work

Eligibility• Number of employees• Hours worked• Covered employee• Waiting periods / when leave begins

Disability driven by where you workFMLA driven by where you report

Qualifying Conditions• What conditions qualify? • Different definitions of “disability”• Different definitions of “SHC”

Identify all possible entitlements+

Eligibility & qualifications for eachUse/manage “tighter” definition of disability

Medical Information• STD

– Company requirements– Mandated state requirements

• FMLA– Federal / DOL requirements– State FLA requirements

• ADA / ADAAA• GINA / HIPAA

Always get the most medical information you can, but treat information with caution and compliantly!

Possible Scenarios• STD / FMLA

– Is paid company benefit running concurrently?– Approve unpaid / Deny paid

• FMLA / state FLA– Must use LEAST restrictive regulations

Timing• Look-back period for state leaves• “Year” calculation (WI)• Length of entitlement (FMLA/Military caregiver)• 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

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– “Automatic” ADAAA review after leave exhausted

Make sure all return-to-work accommodations are medically necessary with defined time

• FMLA regulationshttp://www.dol.gov/whd/fmla/index.htm

• Mandated state disability regulationshttp://www.vpaweb.com/about/pdf/SDI.pdf

• 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 1a• PA employee is pregnant

– Estimated due date (EDD) 5/18/11– MD disables employee as 4/21/11– C-section on 5/11/11

PA does not have any state FLAOnly FMLA (federal) applies

C-section 5/11/111st day OOW

4/21/11

3 wks 1 wk 7 wks

1.14 wks (8 days)

Leave ends7/13/11

Scenario 1

FMLA – expires 7/13/11

RTW note dated 7/6/11

Scenario 1a

EDD 5/18/11

FMLA for self ends 7/5/11 FMLA – baby bonding

Scenario 1b• 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

WI state FLA (12 mo / 1000 hrs)– Up to 10 wks in calendar year– Begins when employee no longer disabled– 6 wks baby-bonding; 2 wks for self; 2 wks for caregiver

C-section 5/11/11

1st day OOW 4/21/11

WI state FLA - self

2 wks 1 wk 8 wks 1 wk 5 wks

WI state FLA- Baby bonding

Leave ends8/16/11

Scenario 1


RTW note dated 7/6/11

Scenario 1b

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 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 case

1st day OOW: 1/1/11

10 work days

FMLA remaining = 400 hrs

14 wks = 98 days = 784 hrs (7 days/wk) Intermittent self case

Employee RTW 7/8/11

Scenario 2

CT State FLA – 70 days = recalc 5d/wk = 560 hrs CT FLA 10 days = 80 hr

FMLA Time Used = 80 hrs

Scenario 2

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– 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

FMLASTD – expires 3/29/11

RTW note for 3/30/11

2 wks

Wife RTW4/13/11

FMLA FMLA–baby bonding - 12 wks Wife baby bonding ends 4/12Spouse baby bonding ends 6/21/11

8 wks 2 wks-wife 10 wks - husband

Spouse RTW6/22/11

Scenario 3Scenario 3

Scenario 4• NJ employee pregnant with 2nd 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– NVD on 6/15/11When 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

STD expires 7/26/11FMLA – expires 7/6/11

RTW note for 7/2711

9 wks

NJ FLA –baby bondingExpires 9/6/11

3 wks 6 wks

RTW9/7/11

3 wks

7/6/11


Scenario 5CA 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– 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 2/8/11

1st day oow 1/5/11



5 wks

CA CFRA expires 6/13/11

6 wks 11 wks

RTW 6/14/11

1 wk

CA PDL – ends 3/21/11

3/29/11

State STD – ends 3/21/11 CA paid FLA–6 wks


C-Section2/22/11

1st day oow 1/5/11

FMLA


7 wks

CA CFRA – ends 7/11/11

5 wks 6 wks

RTW 7/12/11

3 wks

3/29/11

CA PDL – ends 4/18/11State STD – ends 4/18/11 CA paid FLA ends

5/30/11

6 wks

5/30/11

Scenario 5 – C-SectionScenario 5a

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– 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?


Company “FMLA” leave expires 8/1/11 – 26 wks

RTW8/2/11

12 wks

12 wks FMLA remaining

14 wks

4/25/11

CA CFRA – ends 4/25/11


Scenario 7• PA employee requests STD and FMLA for self

illness– No state FLA– Out of work from 6/1/11 thru 7/4/11 – Plant shutdown from 7/1/11 thru 7/10/11– Employee released to return-to-work 7/5/11


RTW7/11/11

4.29 wks or 30 days


Company STD thru 7/4/11

RTW note 7/5/11

FMLA – ends 6/30/11

Plant shutdown7/1/11

or 7/10/11

Questions

Please contact WORK & WELL or SOUTHARD CONSULTING if you have

additional questions or comments. Thank you

92 East Main St.Suite 203

Somerville, NJ 08876908-429-5500 x4458

908-752-2153 cell [email protected]

Documents

Leave Stacking: Managing Multiple Leave Entitlements...– Company has generous “in-house FMLA”/leave benefit of up to 26 wks, which includes care of domestic partner with SHC