Webinar Wednesdays LEAVES OF ABSENCE Anna Elento-Sneed May 2017

Potential problem areas Management tips DISCUSSION TOPICS Types of Leave Legal requirements Potential problem areas Management tips Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 11, 2018

TYPES OF LEAVE Required by Law Employer’s Choice FMLA Hawaii Family Leave Leave for pregnancy ADA “reasonable accommodation” USERRA Leave for jury duty Victim’s Leave Miscellaneous (voting, parent-teacher conferences, disaster relief, blood/stem cell/organ donation, etc.) Employer’s Choice Vacation Sick leave Bereavement Personal leaves of absence (with or without pay) Sabbaticals

TYPES OF LEAVE Contractual Leaves “Mythical” Leaves Collective bargaining obligations Statutory Non-statutory (including leave for union business) Obligations under individual employment contracts “Mythical” Leaves Workers’ compensation Temporary disability

FMLA Coverage: Employers w/ 50 or more employees within 75-mile radius Eligibility: Employees w/ 12 months’ service and 1,250 hours worked

FMLA Qualifying Events: Birth of child and to care for newborn Adoption or foster care of child Serious health condition of spouse, child, or parent Serious health condition of self Service member family leave (for parent, spouse, child or next of kin to care for service member seriously injured or ill in the line of duty) Exigency leave (parent, spouse or child of service member called to active duty for a contingency operation)

FMLA Leave: Requests: Benefits: Seniority: Unpaid leave up to max. of 12 weeks per year (employer defines year) For service member family leave, unpaid leave up to 26 weeks in a year (can be combined with other qualifying events) Requests: 30 days for foreseeable leaves, as soon as practicable for others Benefits: Health insurance continues, other benefits at employers discretion Seniority: Employer’s discretion

FMLA Reinstatement: Other Provisions: Guaranteed to same position w/ equivalent status, pay and benefits Other Provisions: Intermittent & reduced schedule obligations Coordinating leaves of employee-couples for birth or adoption of children (aggregate time) Substitution of other leaves Posting and notice requirements Specific forms required by DOL

HAWAII FAMILY LEAVE Coverage: Eligibility: Qualifying Events: Employers with 100 or more employees Eligibility: All employees w/ 6 months service Qualifying Events: Birth of child Placement of child for adoption Serious health condition of spouse, child, parent, grandparent (natural, step & in-laws)

HAWAII FAMILY LEAVE Leave: Requests: Benefits: Seniority: Unpaid leave up to max. of 4 weeks per year Regulations: employer defines year Requests: Reasonable & practicable notice for foreseeable leaves, may require certificate for birth or adoption Benefits: No loss of accrued benefits Regulations: benefit = any benefit Seniority: Employer’s discretion

HAWAII FAMILY LEAVE Reinstatement: Other Provisions: Guaranteed to same position or equivalent position w/ equivalent pay, benefits & terms Other Provisions: Intermittent leave Employee-couples each get 4 weeks Substitution of other leaves May use up to 10 days of sick leave per year for family illness

PREGNANCY LEAVE Coverage: Eligibility: Qualifying Events: Leave: All employers Eligibility: All employees (no waiting period or minimum hours requirement) Qualifying Events: Pregnancy Childbirth Related medical conditions Leave: Unpaid leave for reasonable period (for as long as the doctor disables her)

PREGNANCY LEAVE Requests: Benefits: Seniority: Reinstatement: No time period specified, can request medical certification Benefits: Continued during leave Seniority: Reinstatement: Guaranteed to the original position or similar position w/ comparable status, pay & benefits Other Provisions: Duty to provide “reasonable accommodation,” but not defined

LEAVE FOR DISABILITIES Coverage: All employers Eligibility: All “disabled” employees per ADAAA or state law Expanded definition of “major life activity” List of bodily functions (e.g. immune, circulatory, respiratory, neurological, endocrine, reproductive systems, etc.) List of activities (e.g. walking, seeing, hearing, speaking, breathing, thinking, learning, working, etc.) No longer take “mitigating measures” into consideration in determining disability (exception for eye glasses and contact lenses) Need not provide accommodations to individuals protected under “regarded as” category

NEW ADA GUIDELINES ON LEAVES Clarifies “equal access” to leaves of absence You can establish pre-requisites for leave policies, but the pre-requisites must apply to all employees – disabled and nondisabled Unpaid leaves are a form of “reasonable accommodation” above and beyond any statutory or paid leaves There is no requirement to provide paid leave as a reasonable accommodation Must provide unpaid leave even if: (1) the employer doesn’t offer leave as a benefit; (2) the employee is not eligible for leave under company policies; and (3) the employee has exhausted leave provided by federal or state law, workers compensation programs or company policies Can refuse if granting the unpaid leave creates an “undue hardship” operationally or financially

NEW ADA GUIDELINES ON LEAVES Communication with employees requesting leave Individual with a disability must inform employer of the need for leave as a “reasonable accommodation” If leave can be addressed under existing program, then employer must grant leave request If leave cannot be addressed by existing program, then go through interactive process With employee’s permission, employer may request the following information from employee’s health care provider: Specific reason(s) for the leave; Whether the leave will be a block of time or intermittent; and When the need for leave will end Communication during leave and prior to return to work If employee provided fixed return date, may not ask employee for periodic updates (but may reach out to check on employee’s progress) If employee did not specify return date, or if employee requires additional leave beyond original date, then employer may continue the interactive process

NEW ADA GUIDELINES ON LEAVES Maximum leave policies adopted by employer Employers may adopt such policies (i.e. FMLA policies, no fault policies, etc.) BUT. if an employee requires more leave as a “reasonable accommodation,” then the employer must make an exception Letters to employees who are about to exceed the “maximum” must be modified: Must inform employees that if they need additional unpaid leave, they may request it as a “reasonable accommodation” If employer uses third party provider to handle leave programs, must ensure that third party’s form letters comply with employer’s obligations under ADA Third party contractor must be instructed to forward “reasonable accommodation” requests to employer’s HR department in a timely manner and to refrain from terminating the employee until HR has had opportunity to engage in interactive accommodation process HR must contact the employee ASAP to explain interactive process All communications on interactive process should be handled by HR HR may request employee’s health care provider provide information (see above)

NEW ADA GUIDELINES ON LEAVES Return to Work and Reasonable Accommodations Upon Return Employers may not require employee to be 100% healed Employer may not refuse reinstatement based on safety risk absent medical proof that employee poses “direct threat” If employee has restrictions, employer may: Ask the employee and doctor to specify the accommodation(s) required; Ask why the restrictions are required; Ask how long the reasonable accommodation may be needed; Explore with employee and doctor possible accommodations that will enable employee to perform essential job functions consistent with doctor’s recommended limitation; and Explore whether any of the accommodations will impose an “undue hardship.”

NEW ADA GUIDELINES ON LEAVES Reassignments If reassignment is required, employer must place employee in vacant position for which he/she is qualified, without competing for position Reassignment does not include promotion Do not have to place employee into position for which another employee is entitled under uniformly-applied seniority system

NEW ADA GUIDELINES ON LEAVES Considerations for “undue hardship” defense Specific factors considered in applying the defense: Amount or length of leave required Frequency of the leave Whether there is any flexibility with respect to the days on which leave is taken Whether the need for intermittent leave is predictable or unpredictable The impact of the employee’s absence on coworkers and on whether the specific job duties are being performed in an appropriate and timely manner The impact on the employer’s operation and its ability to serve customers/clients appropriately and in a timely matter (taking into account the size of the employer) Undue hardship is evaluated case-by-case Indefinite leave (i.e. employee cannot say whether or when he/she will return to work) constitutes “undue hardship” In assessing undue hardship, may take into account the leave already taken Leave includes right to return to the employee’s original position, but if employer determines holding the job open will cause undue hardship, then you look at alternatives to allow the employee to: (1) complete the leave; and (2) return to work (i.e. assignment to vacant positions)

USERRA Coverage: Leave: All employers Eligibility: Employees in the Armed Services, National Guard, Reserves, or Public Health Corps Leave: Unpaid leave for as long as they are on active duty up to maximum of 5 yrs. Initial training Annual training Active service

USERRA Benefits: Seniority: Reinstatement: Continues up to a maximum of 90 days COBRA coverage for 24 mos. Seniority: Continues to accrue during leave Reinstatement: Guaranteed to original positions w/ seniority, status, pay & vacation they would have earned Deadlines for employee asking for reinstatement; can be extended for disabled employees Other Provisions: Just cause termination protection

LEAVE FOR JURY DUTY Coverage: Eligibility: Leave: Benefits: All employers Eligibility: Employees summoned for jury duty in federal or state courts Leave: For as long as they are on duty (can be paid or unpaid) Benefits: Unstated, probably continue Reinstatement: Unstated, probably guaranteed to original position

VICTIM’S LEAVE Coverage: Eligibility: Qualifying Events: All employers Employees with 6 or months of continuous service, who are victims of domestic or sexual violence Qualifying Events: Seek medical attention for employee or minor child Obtain services from victim service organization Obtain psychological or other counseling Temporarily or permanently relocate Take legal action, including participating in criminal or civil proceeding

VICTIM’S LEAVE Leave: Benefits: Reinstatement: Paid or unpaid Employers with 1-49 employees = 5 days/year Employers with 50 or more employees = 30 days/year Benefits: Benefits and service credits continue during leave Reinstatement: Guaranteed to original job or position of comparable status, pay and benefits

PROBLEM AREAS Overlapping leaves: Medical coverage: Pregnancy leave: Reconciling FMLA, HFLL, Pregnancy, ADA, etc. Medical coverage: Prepaid Health Care Act requirements v. FMLA requirement Pregnancy leave: Provides “comparator” for disability leave situations Substitution of leaves: Concurrent v. consecutive leave periods Mandatory use of sick leave v. employee’s option Controlling absences Cannot count periods covered by statutory leaves

PROBLEM: BERMUDA TRIANGLE Workers’ Compensation ADA FMLA

MANAGEMENT TIPS Analyze Current Leave Policies Develop a comprehensive system for processing and monitoring leaves of absence Requests for leave Tracking leaves Return to duty Reconcile the differences between types of leaves Determine whether employees will be required to substitute paid leaves for FMLA or HFLL Set up standard procedure for notifying employees of leave options

MANAGEMENT TIPS Prepare Written Summaries State law requires notice for vacations & sick leave FMLA requires extensive written notice Poster Written summary of provisions (check regulations) Memo to employees reminding them of their rights upon request for FMLA leave Use of standardized forms Consider using a common forms & procedure for requesting all leaves

MANAGEMENT TIPS Monitor utilization of leaves on a regular basis Simple charts are best for tracking individuals Database programs are good for tracking trends Develop checklists or process maps for common scenarios Worker’s compensation Pregnancy Other non-work related disabilities

MANAGEMENT TIPS: WORKER’S COMP WC claim filed Start FMLA Exhaust paid leaves Medical plan coverage continues FMLA Ends If Employee exhausts leave, send letter leave options & start interactive process No return date, terminate Start COBRA Employee keeps renewing leave Doctor’s note on return to work date Cannot require return Can do “undue hardship” analysis

MANAGEMENT TIPS: PREGNANCY Employee requests leave Start pregnancy & FMLA Start TDI Medical plan coverage continues Disability ends, leave continues Run FMLA & HFLL TDI ends; exhaust paid leaves Start COBRA after 3 months FMLA & HFLL end Return to work or no guaranteed reinstatement

MANAGEMENT TIPS: OTHER DISABILITIES Employee requests leave Start FMLA leave Exhaust paid leaves, then start TDI Medical plan coverage continues FMLA ends If Employee exhausts leave, send letter leave options & start interactive process No return date, terminate Start COBRA after 3 months Employee requests more leave Doctor’s note on return to work date Cannot require return Can do “undue hardship” analysis

FINAL SUGGESTIONS Get organized & create your comprehensive program Make policy decisions Map processes Distribute written summaries Track leave usage Monitor legislation Make changes as needed

ANY QUESTIONS?