Leave Stacking:Managing Multiple Leave Entitlements

June 26-29, 2011Las Vegas, Nevada

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Managing Multiple Leave Entitlements

Linda Southard • June 28, 2011

SHRM 2011 Annual Conference & Exposition

• Overview / historical perspective of leave stacking

• Leave stacking process• Areas of consideration for employers• Practice scenarios

Agenda

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• Practice scenarios• Q&A

What is Leave Stacking?

• Combining and/or layering leaves• Historical perspective

> First use paid leave, then unpaid FMLA> W/C, STD, FMLA

• Most common was STD + FMLA

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• Most common was STD + FMLA

Changing Environment

• Multiple types of leave entitlements > W/C, STD, FMLA, Military FMLA, FLA, paid FLA, ADA

• Result potential stacking up to 5+ leave types• Explosion of intermittent FMLA

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• Explosion of intermittent FMLA• Practice codified in revised FMLA regs

Leave 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

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BEST PRACTICE :Employer should designate FMLA concurrent with

all paid leaves Don’t allow employees to choose

Process

1. Research / identify all possible leaves2. Determine which leaves employee is

entitled to3. Determine which run concurrently and

which run consecutively

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which run consecutively4. When leave exhausted, do “automatic”

ADAAA review

Areas To Consider

• Eligibility • Qualifying conditions• Medical info requirements• Timing• Tracking

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• Tracking• Early return-to-work

Eligibility

• Number of employees• Hours worked• Waiting periods• When leave begins• Jurisdiction

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• Jurisdiction

Disability driven by “where you work”FMLA driven by “where you report”

Qualifying Conditions

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

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Identify all possible entitlements+

Eligibility & qualifications for each

Use/manage “tighter” definition of disability

Medical Information

• STD> Company requirements> Mandated state requirements

• FMLA> Federal / DOL requirements

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> State FLA requirements

• ADA / ADAAA• GINA / HIPAA

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

compliantly!

Medical Information

• Possible scenarios> STD / FMLA

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

> FMLA / state FLA

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> FMLA / state FLA• Must use LEAST restrictive regulations

Timing

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

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• 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

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• 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

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• Permanent accommodation> “Automatic” ADAAA review after leave exhausted

Make sure all return-to-work accommodations are medically necessary

with defined time

Helpful Resources

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

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

• State FLA regulations

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• 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 1

• 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

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WI state FLA (12 mo / 1000 hrs)> Up to 10 wks in calendar year> 6 wks baby-bonding> 2 wks self> 2 wks caregiver

C-section 5/11/11

1st day OOW 4/21/11

Leave ends8/16/11

Scenario 1

RTW note dated 7/6/11

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WI state FLA - self

2 wks 1 wk 8 wks 1 wk 5 wks

WI state FLA- Baby bonding

FMLA – expires 7/13/11

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

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> 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 case1st day OOW:

1/1/11

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

Employee RTW

7/8/11

Scenario 2

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10 work days

FMLA remaining = 400 hrs

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

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

FMLA Time Used = 80 hrs

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

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> 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

RTW note for

3/30/11

2 wks

Wife RTW

4/13/11

8 wks 2 wks-wife 10 wks - husband

Spouse RTW

6/22/11

Scenario 3

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FMLA

STD – expires 3/29/11

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

Scenario 4

• NJ employee pregnant with 2 nd 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

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> NVD on 6/15/11

When 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

FMLA – expires 7/6/11

RTW note for 7/2711

9 wks

NJ FLA –baby bonding

3 wks 6 wks

RTW9/7/11

3 wks

7/6/11

Scenario 4

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STD expires 7/26/11

FMLA – expires 7/6/11 NJ FLA –baby bondingExpires 9/6/11

Scenario 5

CA 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

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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 2/8/111st day oow 1/5/11

FMLA – expires 3/29/11

RTW note for 3/22/11

5 wks 6 wks 11 wks

RTW 6/14/11

1 wk

3/29/11

Scenario 5

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FMLA – expires 3/29/11

CA CFRA expires 6/13/11CA PDL – ends 3/21/11

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

C-Section2/22/11

1st day oow 1/5/11

FMLA

RTW note for 4/19/11

7 wks

CA CFRA – ends 7/11/11

5 wks 6 wks

RTW 7/12/11

3 wks

3/29/11

6 wks

5/30/11

Scenario 5 – C-Section

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FMLA CA CFRA – ends 7/11/11

CA PDL – ends 4/18/11

State STD – ends 4/18/11 CA paid FLA ends 5/30/11

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

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> 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?

1st day Out-of-work 2/1/11

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

RTW8/2/11

12 wks

12 wks FMLA

14 wks

4/25/11

Scenario 6

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Company “FMLA” leave expires 8/1/11 – 26 wks 12 wks FMLA remaining

CA CFRA – ends 4/25/11

Questions

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Please contact WORK & WELL or SOUTHARD CONSULTING if you have additional

questions or comments

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92 East Main St.Suite 203

Somerville, NJ 08876908-429-5500 x4458

908-752-2153 cell Lsouthard@workandwell.com

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