Know the Laws

When an employer places its FML program with a carrier or if it changes carriers, the employer should be given options on how it wants to handle the transfer of historical and current leave data:

• Clean Slate administration means no information is accepted regarding any leave time taken by the employee in the 12 months prior to the effective date with the new carrier. That means prior leave taken or open at the time of the transition will not count against leave entitlement. 
   
• Takeover Only without historical information means that the new carrier will take over management of any open leaves as of the transition date, as well as any new leaves that were reported in advance and that are scheduled to begin on or after the effective date of the transition. 
   
• History & Takeover—the process considered to be a best practice — means at least 12 months of historical (closed) and open leave data (some states require longer) is moved to the new carrier and counted against the employee’s leave entitlement. The new carrier picks up where the prior administrator left off, preventing employees from taking more time than the law allows. Complete leave data must be available to ensure that all employees are treated consistently in the transition, and there should be a process in place to ensure that employees on leave are notified of the change in the carrier. The decision about whether to transition leave data to the new carrier is a big one, and this is a big part of what makes FML implementations complex. Employers need to carefully consider all their options and should look for a carrier with a well-defined process that provides consultative support through the implementation.

Having dedicated resources assigned to work with clients ensures strong relationships and allows the carrier to really learn about the company and its culture. In addition, due to the complexity of managing FML, it’s important that carriers have the right experts and talent on the team:

• Case managers trained as nurses to help with clarification and verification of complex medical issues related to leave.
   
• Compliance experts to monitor the regulatory environment, help ensure that processes and notifications are compliant, and provide guidance in the review of complex medical certifications and leave scenarios.
   
• Fraud prevention specialists to monitor and watch for red flags to help ensure that leaves are valid and that compliance is maintained.
   
• Trainers to work with managers and staff to help ensure that they are up to speed on the ever-changing regulatory environment. 

FML implementations are complex, so it’s always best if your carrier has a dedicated team in place that is experienced in managing these unique leaves—and knows the laws.

This is a must-have. Managers and supervisors are the people closest to your employees, so it’s critical that they understand how the carrier works and its role in the leave management process, as well as the carrier's responsibilities under the law.

Carriers should consider the communication needs of the client and who needs to receive leave information. Ideally, the carrier will provide a personalized program that defines which roles receive which notifications, and when; robust online reporting; and the ability to share data electronically.

To help ensure compliance with FML and short-term disability (STD) plan obligations and simplify the experience for employees, FML should be run concurrently with STD and not require separate medical certification unless necessary.

Nearly all of the states and Washington, D.C., have their own FML laws that interact differently with the federal Family and Medical Leave Act (FMLA). It is critical that carriers be knowledgeable and able to integrate and manage state leaves in conjunction with the federal FMLA.

Workers' compensation absences are likely also qualifying "serious health conditions" under the FML laws. Employers often fail to provide a FML designation in work-related absence situations. Look for a carrier that can partner with this process to ensure a holistic approach.

Carriers should clearly define eligibility and certification requirements for all the different leave types to help ensure that the program is administered fairly, consistently and in compliance with federal and state laws.

Under the law, employers are entitled to an estimated frequency and duration of expected absences to help plan their business needs. When evaluating a reported absence, employers should have a way to compare the certification information to determine it the absence is FML-qualifying, if the reason for time off has been correctly certified, and if the time is being tracked correctly.

Carriers will want to—and should be encouraged to—do so in order to identify FML requests that can also qualify as Americans with Disabilities Act (ADA) events. Here’s why:

Under the ADA Amendments Act (ADAAA), employers are prohibited from having inflexible leave policies that call for automatic termination at some point in the leave of absence—such as exhaustion of FML or other job-protected leave, expiration of a set period of time, or expiration of short-term disability benefits—without first engaging in an interactive process to determine if a reasonable accommodation would allow the employee to return to work and perform their essential job functions.

The law also requires that employers focus on whether a "reasonable accommodation" can be provided, which can often include unpaid leave, versus determining whether or not a disability exists.

Whether employees are absent for their own health reasons, or a family member’s, it will likely be a stressful and difficult time in their lives. Providing an employee assistance program (EAP) and well-being support to help employees cope and recover while they are out, as well as vocational assistance when they are able to get back to work, can help employees return to their full potential safely and quickly, and prevent future absences. Check to see what programs the carrier offers.

Carriers should provide ongoing communication of changes in laws and regulations. Just because an employer has outsourced its leave program does not mean it is exempt from changes when leave laws change, such as posting updated FML poster materials. Employers need as much advance notice of changes as possible in order to stay compliant with the laws and avoid costly violations and fines.

Since FML is not a paid benefit (it is an entitlement to leave), there is no fiduciary relationship. Carriers should, however, be willing to provide indemnification should there be negligence in providing administration services.

Fraudulent leaves are a costly drain on company productivity. To help identify and prevent potential fraud, carriers should have conversations at the time of a leave request to gather information about the absence and determine if it is FML-qualifying. When absences taken don’t line up with the certification, stories are inconsistent, or other fraud indicators arise, carriers should be ready to help resolve issues.

The regulations permit an employer to recertify leaves when certain circumstances occur, such as a change to the need for leave. It is a best practice to recertify leaves whenever possible to ensure that the most current information is available about the need for time off from work.

Clinical reviews, handled by a case manager trained as a nurse, add value to the process for clarifying leave needs for complex conditions and discussing whether patterns identified in an absence may be medically appropriate and also to determine when a second opinion may be warranted.

There is no requirement that FMLA notices be sent via certified mail. Visit the Department of Labor FMLA: Applicable Laws and Regulations webpage Reg. 825.300 for more details.

Yes, depending on the circumstances, intermittent leave may be a reasonable accommodation under the ADA.

 While the amount of unpaid leave that an employee may take depends on the facts and circumstances, indefinite leave is not considered a reasonable accommodation. 

Visit the U.S. Equal Employment Opportunity Commission Guidance Index and search for OLC Control Number EEOC-NVTA-2016-1 for more information.

In circumstances in which an employee or a family member is visiting another country, or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification from a health-care provider who practices in that country. Where a certification by a foreign health-care provider is in a language other than English, the employee must provide the employer with a written translation of the certification at the employer’s request. Visit the Department of Labor FMLA: Applicable Laws and Regulations webpage Reg 825.307 (f) for more details.

When administering FML leave, an employer should ensure that it complies with the ADA (as well as state laws) that provide employees with rights in addition to the FMLA. If an employee’s FMLA serious health condition also qualifies as a disability under the ADA, the employee may be entitled to reasonable accommodation, which, depending on the circumstances, could include additional unpaid leave after FMLA leave has been exhausted. The amount of leave depends on the circumstances. Visit the U.S. Equal Employment Opportunity Commission Guidance Index and search for OLC Control Number EEOC-NVTA-2016-1.

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense. Pending receipt of the second (or third) medical opinion, the employee is provisionally entitled to FMLA leave. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the leave shall not be designated as FMLA leave and may be treated as paid or unpaid leave under the employer’s established leave policies. Second (or third) opinions are not permitted when recertifying a leave. Visit the Department of Labor FMLA: Applicable Laws and Regulations webpage Reg 825.307 (b) & (c) for more details.

An employer may retroactively designate leave as FMLA leave with appropriate notice to an employee as required by the FMLA regulations, provided that the employer’s failure to designate leave in a timely manner does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave. Visit the Department of Labor FMLA: Applicable Laws and Regulations webpage Reg 825.301(d) for more details. 

The ADA regulations do not provide a specific amount of time for an employee to engage in the interactive process. That being said, the employer and employee should engage in the process in good faith. An employer should give an employee a reasonable amount of time to engage in the interactive process.

Parents may be entitled to take FMLA leave to care for a child 18 years of age or older if all of the following are met: (1) the child has a disability as defined under the ADA; (2) the child is incapable of self-care due to that disability; and (3) the child is in need of care for a serious health condition. Different rules apply to FMLA leave to care for a child who is an injured military service member. However, to qualify, the child must have a serious injury or illness relating to his or her military service. Visit the Department of Labor’s Questions and Answers concerning the use of FMLA leave to care for a son or daughter age 18 or older webpage for more information.