1. Webinar Wednesdays
LEAVES OF ABSENCE
Anna Elento-Sneed
May 2017

2. 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

3. 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

4. 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

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

6. 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)

7. 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

8. 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

9. 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)

10. 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

11. 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

12. 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)

13. 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

14. 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

15. 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

16. 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

17. 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)

18. 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.”

19. 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

20. 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)

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. PROBLEM: BERMUDA TRIANGLE
Workers’ Compensation
ADA
FMLA

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. ANY QUESTIONS?