Last week, we looked at the basics of FMLA. The law itself seems straight forward enough; so why is administering FMLA such a headache? Well, there are many different administrative aspects, many situations that don’t come up every time, many types of events that qualify, and other laws that overlap, so keeping track of how to do things right becomes a challenge. Let’s build on the basics by looking at some common questions.
Who qualifies for FMLA leave? When calculating whether someone has at least one year of service with your organization, understand that a person’s prior service does not have to have been consecutive. Keep in mind when rehiring former staff that you have to count prior service unless the person had more than a seven year break in service unless the break was to fulfill the employee’s National Guard or Reserve military obligations. Also, remember that to be covered, the employee needs to have worked at least at least 1250 hours during the past year.
How are the employee’s job and benefits protected? When an employee returns from FMLA leave, they must be given their original job back or one with equivalent pay, benefits and other terms and conditions of employment. You have to keep their health benefits intact while they are gone (they need to reimburse you for the employee portion of any premium) but you don’t have to give them a bonus based achieving certain results or hours worked while they were out on leave. If someone doesn’t return from leave, you may be able to get reimbursed for health premiums you paid on their behalf.
How does the employer designate the leave as FMLA? The employee is supposed to give you 30 days’ notice if the leave is foreseeable or as soon as practicable otherwise. They must provide sufficient information so you can determine whether the FMLA applies. If it does, you must notify the employee of whether or not (s)he is eligible and what his/her rights and responsibilities are under the law. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave will be counted as FMLA leave. Employers have the option to use forms Department of Labor (DOL) forms WH-381 and WH-382 to meet these notification requirements.
How do I know if the employee or family member truly has a serious medical condition? You may require that a request for leave due to the employee’s or family member’s serious health condition be supported with a certification from a health care provider. You may even require second or third medical opinions, at your expense, and periodic re-certification of an ongoing condition. The employee’s direct supervisor cannot be the one to authenticate or get clarification of the medical certification. It is normally done by HR but it could also be a leave administrator or another managerial figure. Employers have the option of using DOL forms WH-380-E and WH-380-F for medical certification.
How do other types of leave tie in with FMLA? If an employee takes workers’ compensation or disability leave, get the FMLA clock ticking as well! In other words whenever an employee’s leave involves their own serious illness or injury that prevents them from performing their job, immediately designate the leave concurrently as FMLA leave. If you don’t, employees can take consecutive leave periods that go well beyond their FMLA allotment.
When is intermittent leave permitted? When medically necessary or if due to a qualifying exigency, you must allow the employee to take their leave intermittently or on a reduced leave schedule. Likewise, the employee has to make reasonable efforts to schedule leave for planned medical treatments such that they don’t unduly disrupt your operations.
How does unpaid leave work for salaried, exempt staff? The use of unpaid FMLA leave, intermittent or otherwise, does not compromise an employee’s status as exempt under the Fair Labor Standards Act, even if they do not receive their full week’s salary. FMLA leave is one of the exceptions under the FLSA to the requirement that exempt employees be paid their full weekly salary regardless of the number of hours worked that week.
Can FMLA leave be paid? Yes, if your leave policy provides for it, the employee may choose or you may require the employee to use their accrued vacation or sick leave for some or all of their FMLA leave.
How do I keep up with the FMLA requirements related to the Military Family Leave addition to the law? This is an area of the law that has its own specific rules. When you encounter this situation, do your homework and start with DOL Fact Sheet 28-A. It covers just about everything you’ll need to know.
In our next blog, FMLA Administration – Part 3, we’ll take a look at some situations that are different enough to ignite some questions but not so rare that you’ll never run across them.
Of all the headaches HR professionals deal with, the Family and Medical Leave Act (FMLA) head throb is among the most frequent complaints. The law’s complexity is exacerbated by its overlap with a host of other laws: workers compensation, the Americans with Disabilities Act (ADA), similar state leave laws and the Uniformed Services Employment and Reemployment Rights Act (USERRA.) What’s the best approach to get a handle on the FMLA and its legal cohorts so you can feel confident about compliance? Start with a foundation of understanding the basics, add more complex features to your knowledge base from there, and, when you face an unusual or complicated scenario, do your homework thoroughly.
The most important cornerstone in your foundation of leave law compliance is applicability. You must first know whether the laws apply to you as an employer; and, if so, which employees are covered, what must be provided and under what circumstances. If you operate in any of the eleven states (plus District of Columbia) that have a law similar to the FMLA, get to know those requirements because state law is likely to be broader: cover smaller employers, have more qualifying situations, provide for more types of leave and benefit protections. Where both federal and state laws apply, you must provide what is most advantageous to the employee.
FMLA applies to private employers who meet a threshold of 50 or more employees within a 75 mile radius as well as to all governmental agencies and elementary and secondary schools, no matter how few their employees. Also, there are special FMLA regulations that apply to schools and to airline flight crews with information available on the DOL website.
Employees, to be eligible for FMLA, must have worked at least 12 months (not consecutively) for the employer and have put in at least 1250 hours during the past year. Keep in mind that, under USERRA, hours that an employee would have worked but for his or her military service are credited toward the 1,250 hours. Similarly, such time must be counted in determining whether the employee has been employed at least 12 months.
The FMLA requires that you provide eligible employees with job-protected, unpaid leave for up to 12 weeks during a 12 month period if they have a qualifying reason. Events that qualify include:
• the birth of a son or daughter, and to care for the newborn child;
• the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
• caring for an immediate family member (spouse, child, or parent — but not parent-in-law) with a serious health condition; and
• when the employee is unable to work because of a serious health condition.
There are also currently two qualifying situations related to military families:
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered service member on active duty (or has been notified of an impending call to active duty).
• To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.
In the case of the latter bullet, up to 26 weeks of military caregiver leave may be taken within a 12 month period. If you encounter either situation, review the DOL’s Fact Sheet #28A. It should also be noted that an expansion of FMLA related to military service is currently under consideration.
Some employers don’t realize that they should define their 12-month leave year. If you don’t designate which of the four types of allowable leave years your organization uses, a court could decide for you and their decision is likely to reflect whichever is most favorable for the employee. You may change your choice but only with 60 days’ notice to employees and then only if no employee is harmed by the change. The four methods permitted are:
the calendar year;
any fixed 12 month period, such as fiscal year or anniversary date;
“forward year” method looking forward 12 months from the first date leave is used; and
“rolling year” method looking backward 12 months from the date leave is used;
The first two are the most straight forward and easiest to administer using a set 12 months as the leave year period but allow for the possibility of 24 weeks of leave in a row: 12 at the end of one year and 12 more at the beginning of the next. Under #3, the forward year method, the 12-month period begins on the first day of the employee’s leave and the employee receives up to 12 weeks for all qualifying events which occur during that upcoming year. Number 4, the rolling method is more complicated to administer but is viewed as the best method to limit the amount of leave employees can take. Under this option, each time an employee takes FMLA leave, the remaining entitlement equals any balance of the 12 weeks they haven’t used during the preceding 12 months. An example makes this clearer:
Suppose an employee uses four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1. That’s 12 weeks and they won’t be able to take any more FMLA leave until February 1 of the next year. However, at that point the employee will only be entitled to four weeks of leave, with an additional four becoming available on June 1 and four more on December 1.
So those are some keystones in your foundation of FMLA compliance knowledge. In Part 2, we’ll discuss some situations that get more detailed and complicated so you can build upon these basics. Stay tuned.
The preliminary March deadline for new and finalized PPACA requirements has been pushed to September 23, 2012. PPACA is the abbreviation for the Patient Protection and Affordability Care Act, known more succinctly as health care reform.
Last week, final regulations were issued by the Department of Health and Human Services, the Department of Labor (DOL), and the Department of the Treasury. The regulations provide clarification and guidance along with the later deadline. Foremost among those requirements, you’ll need to be sure your employees are provided with a Summary of Benefits and Coverage (SBC.) The SBC is a readable, plain English summary of important health insurance coverage components. It must also include a uniform glossary of such common terms as copayment and deductible. The goal of the SBC is to help individuals more easily understand and compare their health insurance coverage and options.
In addition to the final regulations, helpful materials have been published on the DOL’s Employee Benefits Security Administration’s (EBSA) website. Included are: compliance guidance, an SBC template (with instructions) and a uniform glossary of coverage and medical terms.
So add the September 23 deadline to your task list and become familiar now with the specifics of what information employees must receive. Your health insurance provider is likely on top of this as well so they should be able to provide you with any additional help that you need.
Sexual harassment in the workplace seems to be a never ending problem. Previously, we looked at the issue with an eye toward preventative steps that can reduce your risk of claims. Considered to be a form of sex discrimination, it’s helpful to remember that sexual harassment can occur among individuals of any combination of gender. Regular training and a good anti-harassment policy are among the best practices you should follow.
Best practices reduce but don’t necessarily eliminate your risk. Simply put, stuff happens. So what should you do if you get a complaint of sexual harassment? How about if you become aware of a potential situation and there’s no formal complaint? What if an employee complains and then wants to take it back? The legal standard is whether you “knew or should have known” about a situation. So embark on an investigation whenever you realize a case of sexual harassment might exist.
An important rule of thumb is never procrastinate. In order to follow Equal Employment Opportunity Commission (EEOC) guidelines and demonstrate that you take such complaints seriously, respond to any allegation promptly. Unless the claim is truly harmless and minor or the harasser admits right away to the offense, you’ll need to investigate thoroughly. Here are some important steps to help you set up an effective investigation process:
1. Decide who the investigator should be. A trained HR professional is a wise choice. But if there is a close personal connection to either party or some other issue or reporting relationship that compromises impartiality, the investigation should be conducted by another trained individual or by outside legal counsel.
2. Never jump to conclusions. If an individual’s allegation initially sounds far-fetched, push aside any instinct to judge right away. Conversely, don’t condemn the accused either; it’s vital to remain objective and treat all parties with respect.
3. Assure the individuals involved that you will provide confidentiality and protect their privacy as much as possible; don’t make any guarantees, however, and let them know that information will be have to be shared on a need-to-know basis.
4. Consider the immediate pressure the alleged victim may be feeling and help alleviate it; but create a solution that does not create harm. For instance, separating the individuals by changing the alleged victim’s location or shift may be detrimental to him or her. Even when unintentional, such harm could result in a claim of retaliation. Instead, focus your solution on the alleged harasser; consider placing him or her on administrative leave.
5. Plan the investigation carefully. Develop a list of witnesses and other relevant sources of information including electronic evidence such as emails, letters, cards, phone records or computer history. These may be added to as you glean further information throughout the process.
6. Prepare questions in advance. Keep them open ended and try to frame them in a way that does not reveal confidential information, if possible. Interview the complainant, alleged harasser and witnesses. Your questions should cover: who, what, when, where, why and how. An excellent list of suggested questions for each type of interviewee, along with additional guidance, can be found on the EEOC website.
7. During all interviews, take careful notes. Never make promises or offer your opinion. Look for inconsistencies as well as further evidence and additional potential witnesses. It can be helpful to ask that the individual to put his or her version of what occurred in writing or at least sign off on your notes. A disparity between what the person says and what he or she is willing to put into writing could be a red flag and may help you assess credibility.
8. Interview individuals again if new information warrants.
9. Make your best determination of what happened and the appropriate action to take based on an assessment of credibility and review of all the evidence. Create a confidential, written report that documents your methods, all evidence and information gathered, conclusions drawn, and, if warranted, recommendations for appropriate remedial action. Any remedy should fit the situation and need not always be as serious as discipline or termination. Other actions might include counseling, training, changes to procedures or improvements in complaint mechanisms.
10. Stay in touch with both parties throughout the investigation. Let them know when it’s been completed and what your findings are. To protect privacy, you likely won’t reveal to the complainant the specifics of any disciplinary action. However, you should let him or her know if some action is being taken. Encourage the complainant to report any further instances of misconduct and regularly check in with him or her to follow up and make sure there are no further problems.
The concept of retaliation is a potential danger when dealing with complaints of sexual harassment or complaints of any workplace misconduct for that matter. Retaliation is any action that punishes an employee who engages in legally protected workplace activity. Employees who complain sometimes find they’re treated differently afterward, either by the alleged wrongdoer or others. Hostile treatment, including being ignored or shut out, can be considered a form of retaliation. Remind everyone involved in the situation that retaliation against any party or witness is strictly prohibited. Continue to follow up during the ensuing months or year to make sure it’s not happening in your workplace.
Some consider Valentine’s Day an annual headache promoted by florists, greeting card companies and jewelers while others enjoy the opportunity to offer caring gestures to friends and loved ones. My preference is to acknowledge the holiday but eschew the price gouging by making cards and assembling simple gifts such as chocolate dipped strawberries. In the workplace, Valentine’s Day can be a fun, mid-winter excuse to share treats or a themed pot luck meal; a healthy way for co-workers to socialize and coalesce as a team, right?
But what of sexual attraction and dating when they occur at work? And what of the darker side when things go awry? Sometimes power masquerades as love. Or one person wants to end a romantic relationship and the other pressures the person not to. Favoritism at work can result from a sexual relationship involving a supervisor. And one sided attention, not to mention unwelcome sexual advances, can create discomfort or even major stress for employees directly and even indirectly involved. Romance in the workplace can engender a claim of sexual harassment in all sorts of ways.
What role does human resources have? Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act and similar state laws. Perpetrators and victims can be of either gender and harassment can occur within the same gender regardless of sexual preference. A harasser can be a direct supervisor, supervisor in another department, co-worker or even a non-employee such as a vendor or client. It is vital for human resources to take steps toward prevention before a complaint ever happens:
1. Adopt a sexual harassment policy – make sure your policy defines sexual harassment, provides examples of behaviors, states that sexual harassment will not be tolerated and that wrongdoers will be disciplined (up to and including termination), provides a clear complaint procedure that identifies more than one individual to complain to (in case one of them is the harasser), indicates that all complaints will be thoroughly investigated, and that you will not tolerate retaliation against any employee who makes a complaint.
2. Disseminate the policy far and wide. Make sure all levels of employees receive a copy in writing; it’s not a bad idea to have them sign a form acknowledging they received it. Use other communications channels as well: post a hard copy, post it on your intranet, include it in your employee handbook and provide a copy to all new employees.
3. Coordinate policies. Since sexual harassment can be computer- or internet- based, preclude sexual harassment in other relevant policies such as your email, internet or smart phone usage policies.
4. Provide regular training. Training sessions for all employees should define sexual harassment, indicate employees’ right to a workplace free of sexual harassment, cover your complaint procedure and encourage employees to use it. Educate managers and supervisors about sexual harassment in a separate session that includes their role in complaint handling and addressing inappropriate conduct.
5. Monitor the work environment. Talk to employees about the work environment, look for offensive photos or posters, nip inappropriate behavior in the bud.
Best efforts aside, people are people, humans are complex, and stuff happens. What if an employee complains of sexual harassment? First of all, do not procrastinate; make the complaint a top priority and take appropriate actions right away:
Let the employee know that you take the complaint seriously. Listen attentively and respectfully, even if the complaint initially appears unlikely. While acknowledging that it may be difficult, ask the employee to explain who did what to whom, when, where, why and how;
Investigate thoroughly. In addition to the complainant, speak with the alleged harasser and any witnesses;
Gather any other relevant evidence such as emails or phone records;
Maintain confidentiality. To the greatest extent possible, do not share information unless someone has a need to know;
Explain to the complainant that no one is allowed to retaliate against him or her for lodging the complaint; that if such retaliation occurs (s)he should report it immediately;
Be professional and don’t pre-judge guilt or innocence;
Document the investigation and actions taken;
If a complaint is determined to be valid, respond swiftly and take appropriate disciplinary action. Make sure your actions (such as shift or location changes) do not inadvertently punish the victim.
Conducting a thorough and unbiased investigation is one of the most valuable skills HR can offer when an employer is faced with a complaint of sexual harassment. Stay tuned to our next blog for tips and guidance on how to conduct an investigation most wisely and effectively. In the meantime, may Valentine’s Day at your workplace be healthy, happy and harassment free!
