FMLA

Paid Family Leave: What’s the Right Model?

When the Family and Medical Leave Act went into effect in 1993, advocates cheered. But they also lamented the fact that although eligible workers were now guaranteed leave from a job for having a child or other family events, that time would come without a paycheck.

Now, more than a quarter of a century later, the idea of paid parental or family leave in the U.S. appears to be gaining momentum. Both major political parties are stumping for proposals that would provide paid leave — though how the benefit would get paid for differs substantially—and several states and municipalities have already passed laws mandating it.

Paid leave benefits for new parents and other caregivers have also ticked up among the largest 20 U.S. companies in recent years, though benefits vary widely—granted sometimes just to birth mothers. Still, paid family leave of all types increased significantly between 2016 and 2018, according to a Society for Human Resource Management survey of 3,500 HR professionals.

That the U.S. would be last among developed countries to enshrine in law paid parental leave, and that it would happen now under a presidential administration seen by many as unfriendly to workers, strikes many as unlikely.

But several political, societal and business factors now coming together explain the new energy.

“I think what’s in the air is a larger conversation about gender inequality,” says Wharton management professor Stephanie Creary. “People are starting to see the issue of parental leave and gender bias as one and the same.”

In the last five years or so, the conversation about gender bias in the tech sector has ramped up, she notes, and in order to get more buy-in many companies have linked it to a conversation about parents. “That parent also is someone who is male,” Creary says. “It’s something that resonates with many people. By making gender inequality also about parents, it has allowed more people, including men, to champion this issue. You are seeing more men talking about parental leave, and that’s a new phenomenon.”

Three trends in particular are contributing to heightened attention around paid parental leave, says Wharton management professor Matthew Bidwell. “The first, of course, is that the nature of work has changed with the demise of the single-breadwinner model, and people are much more conscious of the disconnect between employment policies and the realities of daily life,” he says. “On top of that there has been this big shift toward parents spending more time with their children despite the fact that both parents are now more likely to be working.

“Also, there has been this enormous wave of anger around multiple aspects of the ways that women have been treated that is roiling the political system. Women currently bear the brunt of the tensions between bringing up a family and being at work,” says Bidwell. “So any politician who is paying attention is trying to figure out how to appeal to women voters. Parental leave is a really obvious issue.”

In the current crop of declared and near-declared candidates in the 2020 presidential race, “everybody has got to have an opinion about this,” says Stew Friedman, director of the Wharton Work/Life Integration Project and author of the book Total Leadership. Five years ago, paid parental leave was not a mainstream issue, and now it is, he says.

That the U.S. still does not have paid parental leave is a vestige of a former societal order, says Friedman. “We’re in transition as a society, and I think the traditional ideology remains. It’s weakening, but still too pervasive—this idea of the single-earner household where the primary income generator is the man who is always available for work and the woman is the caretaker of the home. We need more progressive social policy, favored by most Americans, that fits with the pressing realities of today’s working families and that truly invests in meeting their needs.”

Reaching Across the Aisle

It is perhaps adding momentum that one prominent figure advocating for federally mandated paid family leave is Ivanka Trump. “It’s encouraging to see members on both sides of the aisle putting forward paid family leave proposals,” said President Trump’s daughter in a statement provided to The Washington Post.

But the details on proposals from Democrats and Republicans differ greatly. Sen. Marco Rubio, R-Fla., announced a proposal in 2018 in which new parents could draw down on their Social Security benefits earlier in life, providing income for parental leave but forcing those workers to extend working years or face reduced retirement benefits later.

“It strikes me as a bad idea,” says Olivia S. Mitchell, Wharton professor of business economics and public policy and executive director of the Pension Research Council. For one thing, Social Security is already facing “enormous financial insolvency problems, and so anything that would stress the ability of the system to pay benefits troubles me a great deal.”

Current projections are that by 2034, in order to meet its obligations, Social Security will have to cut benefits by about 30% or raise taxes by 60%, she notes. “We need to face as a nation what Social Security needs in order to pay its benefits, but picking away at the edges by having it offer other benefits for other purposes doesn’t seem viable.”

The other math problem that would come with the proposal, she said, is that proponents of the idea assume that people will eventually pay more into the system by virtue of the fact that they will work longer to make up for the money they took out as young parents. “But it’s a very big assumption we’re making here,” Mitchell said.

“Why would you require people to hurt their long-term financial security to take care of their kids when there are other alternatives? And this would hurt people at the bottom end of the economy more than at the top end,” says Friedman. “A healthy society is one that cares for its young without forsaking the needs of elderly people, and this tradeoff that’s being imposed in the Rubio plan I think is misguided.”

Democrats are floating their own proposals. In February, presidential candidate Sen. Kirsten Gillibrand, D-N.Y., and Rep. Rosa DeLauro, D-Conn., reintroduced the Family Act, which would give eligible workers up to 12 weeks of pay at two-thirds of their monthly wages—for new parents as well as caregivers dealing with serious health issues of a parent, spouse or domestic partner or child. It would be funded jointly by employer and employee payroll deductions of two cents per $10 in wages.

In perhaps the most promising sign of progress, a bi-partisan proposal from the Senate is emerging. Republican Sen. Bill Cassidy (La.) and Democratic Sen. Kyrsten Sinema (Ariz.) are crafting a paid family leave proposal, though the details on how it would be funded and what it would provide are unclear. As discussed right now, its benefit term would be, in the eyes of many, inadequate. “Six to eight weeks is maybe not as long as some would like, but is something we could afford,” Cassidy recently told Bloomberg.

But what is clear is the disconnect between the 17% of American workers who get paid parental leave and the 84% who say they would like to see paid family leave for all workers, according to a 2018 survey published by the National Partnership for Women & Families.

It’s easy to see why the idea has become popular. The financial burdens created by taking unpaid leave are substantial, according to a Pew survey published in 2017. That snapshot found that 78% of respondents who received no pay or only part of their regular pay when they took leave from work had to cut back on spending to make up for the lost income. About half said they ate into savings, 40% said they cut their leave time, nearly 40% took out debt, a third said they delayed paying bills, about a quarter reported borrowing money from friends or family, and 17% went on public assistance.

The numbers cut even deeper for households making $30,000 or less, with half of those on family leave without full pay tapping public assistance.

Various Models for Benefits and Funding

Whatever federal proposal for paid family leave ends up prevailing, current programs at other levels of government and in other countries offer some guidance.

“I don’t think we have a good handle on the ‘optimal’ system yet, but there are some good arguments for expanding parental leave in the U.S., which is currently an outlier relative to other developed countries,” says Benjamin B. Lockwood, Wharton professor of business economics and public policy. “We already have many public policies devoted to investing in children and providing support for working parents—from the Earned Income Tax Credit to the Child Tax Credit to our public education system. Given that commitment, it makes sense to me that we would want to provide support during the crucial formative first months of a child’s life.”

The system in Iceland is worth considering, he says. “It has a relatively generous parental leave policy, but it is a bit distinctive in that it has substantial non-transferable (‘use it or lose it’) paid leave for fathers as well as mothers. That helps even out childcare roles between parents.” Moreover, one concern about generous leave policies is they could have the unintended consequence of employers passing over qualified female job applicants in favor of men who are less likely to take parental leave. “A policy like Iceland’s reduces the asymmetry between men and women in that respect, and so may create more equal hiring treatment,” Lockwood adds.

One concern is on the part of small businesses, says Andrea Zuniga, vice president of legislative affairs for Paid Leave for the United States, a three-year-old advocacy and lobbying group. “On the ground when we are talking to small business owners, they say, ‘I’d love to pay this benefit but I don’t have the means to do it.’”

But Zuniga points to systems being used in states that use an insurance model to fund paid-leave programs. In Rhode Island, for instance, workers pay a 1.2% tax on the first $68,100 in earnings, she said. Benefits come to about 60% of an employee’s weekly wage, up to a maximum weekly benefit of $817.

Another concern is how businesses deal with covering the work of parents or caregivers on leave. Larger firms can redistribute the work, and the change creates minimal ripples. But what about in smaller workplaces or on teams? If a worker disappears for six weeks or six months, temps must be brought in.

“It is quite common for a temp to be hired for several months to cover somebody on parental leave,” says Bidwell, adding that it’s “obviously not a painless process.”

Still, short-term pain might be a good investment in the long-term gain. Friedman says some of the best evidence for why paid parental leave is a good idea comes from California and other states that have already enacted forms of Family Temporary Disability Insurance programs.

“The California model has employers and employees pitching in a tiny amount, two-tenths of a percent of payroll contributions, that funds a program that has resulted in better retention of women in companies and without the anticipated, but not observed, fears of loss of productivity. That model seems to be working,” says Friedman. “You get to hold onto talented and experienced people and reduce the likelihood of all of the indirect costs of employees having to find support to take care of their children and the elderly, especially when unexpected problems come up. It’s a win for everybody.”

But legal provisions for paid parental leave are one thing; how it plays out in reality another. Given how competitive the workplace has become, some workers may hesitate to take time off, especially where there is a certain kind of corporate culture.

Unfortunately, there is still career stigma attached to taking leave, says Creary. “In order for the fear of missing out at work to lessen, the culture of workplaces would need to change more broadly to value taking time off. So the stigma is that someone is taking time off at all—not that they’re just taking time off for parental leave.”

Taking time off means working extra hard when you get back, says Bidwell, “reactivating your social network, catching up on what you’ve missed, that sort of thing. Obviously if you are just coming back from parental leave you are already massively stretched. Ultimately, there is a basic tension between extremely competitive careers that reward those who work hardest, and having a rich, fulfilling family life, and those can be difficult of tensions to reconcile.”

It is possible that the more common parental leave becomes, the less serious of a concern this will be. “It’s a bit of a chicken and egg problem,” Bidwell says.

In fact, many feel it may not be a problem much longer. Says Friedman: “Change is finally here.”

Originally posted on Human Resource Executive

Get Back to Work! | North Carolina Employee Benefits

Managing the Intersection of Workers’ Compensation with Other Leave Regulations

You’re ready when the call comes in. Your client’s employee was seriously injured on the job. You reassure the client that your team has them covered, and you outline their workers’ compensation policy provisions, administrative claim filing process, and accident site investigation protocols.

You check in later in the week. As a result of the accident site investigation, the employer’s worksite processes are updated, equipment is modified, and employees are being trained to prevent future accidents like this one. Employee training records are updated, the OSHA injury/illness logs are completed, and the safety team is monitoring the new processes and systems.

The employee is not back to work, but is progressing well with medical treatment and is receiving wage replacement provided by the policy. Everything is well documented so that the client is ready in the event of an OSHA or state safety audit/inspection.

The client appreciates the extra service and professional advice you’ve given to make the best of the unfortunate accident. You’re satisfied that this situation is under control and make a note to follow up with them in the next few weeks. Your job on this claim is done … or is it?

Important Leave Details Cannot be Overlooked

Your goal is to advise your clients of all risks affecting their business, and it’s likely you haven’t spent much time thinking about the impact of uninsurable HR-related business risks or opportunities to mitigate them. In this situation with an injured worker, there are other employment laws and benefits considerations besides state workers’ compensation rules that your client should factor in when managing time off and return to work.

Although workers’ compensation eligibility, coverage, and benefits rules vary from state to state, most employees are covered when the occurrence is job-related. Depending upon the employer size and type of injury or illness suffered by the employee, the employee also may be entitled to medical and/or disability-related protections under two federal laws: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). To make things even more complicated, some states have enacted their own disability and family and medical leave laws, some of which provide greater amounts of leave and benefits than the federal rules. Failure to look at the entire situation and take these laws into consideration can prove costly to your client.

Counsel your client to consider the following:

  • If the employee has a serious health situation requiring time off the job, then FMLA may apply.

  • If the employee is disabled, the ADA may apply.

The bottom line is that when employees need time off because of a medical or disability-related issue, it is important to remember that they may have rights under all of these laws at the same (or different) times for the same illness or injury. Each situation needs to be reviewed very carefully, so that the right amounts of time off to manage the condition are provided, and that benefits, compensation, notifications, and other protections are managed.

Avoidable Mistake #1

The most common mistake that employers make with work-related employee injuries/illnesses: Not considering and/or designating FMLA leave concurrently with a workers’ compensation claim. This can result in legal claims for failure to provide benefits, as well as additional costs to the business.

For the claim you just handled, let’s say that the injured employee is off work on temporary total disability for 16 weeks. His doctor then releases him to return to light-duty work, and your client offers him a light-duty job. If they had not properly designated that employee’s time off as FMLA leave, the employee may be able to reject the offer of light-duty work and then be entitled to up to 12 additional weeks of unpaid FMLA leave. Additionally, your client would also be required to keep the employee on their health insurance through those 12 additional weeks of unpaid leave and return him to his former job when he finally returns to full-duty work.

If the client had designated the leave concurrently at the time of the injury, the FMLA job and benefits protections would terminate after the first 12 weeks, while the employee was still on temporary total disability. The employee would then have four more weeks of workers compensation temporary disability, without FMLA protections for additional time off or benefits continuation beyond the wage replacement and benefits provided under workers compensation.

Here’s why: FMLA is a federal law that provides employees up to 12 weeks of unpaid leave per year for specific reasons, including a serious health condition due to a work-related injury or illness. FMLA applies to:

  • Private employers with 50 or more employees working within 75 miles of the employee’s worksite; and

  • All public agencies and private and public elementary and secondary schools, regardless of the number of employees.

Employees are eligible to take FMLA leave if they have:

  • Worked for their employer for at least 12 months;

  • Worked for at least 1,250 hours over the 12 months immediately prior to the leave; and

  • There are at least 50 employees working within 75 miles of the employee’s worksite.

Note: The 12 months of employment do not need to be consecutive, which means that any time previously worked for the same employer can be used to meet the requirement unless the break in service lasted seven years or more. Some exceptions apply.

Within the context of a work-related injury or illness, the most common serious health conditions that qualify for FMLA leave are:

  • Conditions requiring an overnight stay in a hospital or other medical care facility; and

  • Conditions that incapacitate the employee for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a healthcare provider, or a single appointment and follow-up care such as prescription medication).

Generally, basic first aid and routine medical care are not included unless hospitalization or other complications arise.

Employers must also consider compliance with state “mini-FMLA” laws that cover an employee’s serious health condition. California, Connecticut, Maine, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia have enacted medical leave laws impacting private employers. Massachusetts medical leave law provides for leave benefits beginning January 2021, with proposed regulations to be published in March 2019. Other states are considering similar laws.

Avoidable Mistake #2

The second common mistake that employers make with work-related employee injuries/illnesses: Not considering the ADA requirements for entering into an interactive process for reasonably accommodating an employee’s return to work.

The ADA is a federal law that prohibits covered employers from discriminating against people with disabilities in the full range of employment-related activities. Title I of the ADA applies to employers (including state or local governments) with 15 or more employees and to employment agencies, labor organizations, and joint labor-management committees with any number of employees.

The ADA protects individuals with a disability who are qualified for the job, meaning they have the skills and qualifications to carry out the essential functions of the job, with or without accommodations. An individual with a disability is defined as a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;

  • Has a record of such an impairment; or

  • Is regarded as having such an impairment.

The ADA does not set out an exhaustive list of conditions covered by the law, making it more difficult for employers to determine with certainty what conditions actually are considered a disability. These conditions require medical interpretation of the severity of the condition by the employee’s healthcare provider, and it is always a best practice to work with medical and legal experts when in doubt. A good rule of thumb to use in reviewing ADA issues is to look at the medical condition in its entirety. Generally, conditions that last for only a few days or weeks and are not substantially limiting with no long-term effect on an individual’s health — such as basic first aid, broken bones, and sprains — are not considered disabilities under the Act.

The ADA does not specifically require employers to provide medical or disability-related leave. However, it does require employers to make reasonable accommodations for qualified employees with disabilities if necessary to perform essential job functions or to benefit from the same opportunities and rights afforded employees without disabilities. Accommodations can include modifications to work schedules, such as leave. There is no set leave period mandated because accommodations depend on individual circumstances and should generally be granted unless doing so would result in “undue hardship” to the employer.

One of the most common questions — and one of the most difficult to answer — is the definition of what is considered a reasonable accommodation.

In the real world, the definition of what is a reasonable accommodation varies and is based on several factors. Examples include: making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; or reassignment to a vacant position. Determining what is reasonable and does not cause undue hardship to the business can be difficult, so be sure to consult with experts and provide documentation regarding why an accommodation would be unreasonable for the business.

The Department of Labor (DOL) suggests that every request for reasonable accommodation under the ADA should be evaluated separately to determine if it would impose an undue hardship, taking into account:

  • The nature and cost of the accommodation needed;

  • The overall financial resources of the company, the number of employees, and the effect on expenses and resources of the business; and

  • The overall impact of the accommodation on the business.

There are two issues that arise with returns to work that are risky for employers: (1) 100 percent healed policies and (2) light-duty rules.

Regarding 100 percent healed policies, employers cannot require an employee to be completely healed before returning to work because those rules violate the ADA’s requirements to allow workers to use their right to an accommodation. Even if the employee is not 100 percent healed, he or she could possibly still work effectively with an accommodation.

Employers may create light-duty positions as a reasonable accommodation under the ADA or as part of the return-to-work plan from workers compensation. The goal is to get employees back to work at 100 percent of the productivity that they had before the injury, and there are times when a light-duty position might be the next step, with lighter physical requirements and reduced productivity expectations.

Caution your clients to design the light-duty position to meet the physical requirements of the partially healed worker, so that there will be no physical reason for the employee to refuse the light-duty position.

Under most workers compensation plans, an employee’s refusal to return to work in a light-duty position that meets his or her medical restrictions can result in termination of workers compensation benefits. Additionally, the ADA does not allow an employee to refuse work that meets the physical requirements of the accommodation.

Without that careful look at the duties of the position as they pertain to the employee’s medical needs, however, the employee can refuse the position and continue to collect benefits until he or she is able to perform the requirements of the position.

Steps for Success

While these laws have different goals, medical circumstances create overlaps between them. It is important to understand the rules and benefits in order to manage them correctly and avoid the risk of legal challenges and more expensive or longer leaves.

Advise your clients to:

  • Designate FMLA leave for eligible employees concurrently with the workers compensation claim.

  • Keep in touch with injured or ill employees throughout their leave.

  • Manage pay and benefits according to each situation.

  • Carefully evaluate requests for intermittent time off, light duty, or other modified work.

  • Consult with your legal advisors and insurance carriers regarding special situations.

  • Handle returns to work and reinstatement of benefits in accordance with the laws.

This article originally appeared on ThinkHR.com.

Ask the Experts: Flu and FMLA

WomanSneezing.jpg

Question: Is the common flu considered a serious health condition under the Family and Medical Leave Act (FMLA)?

Answer: Most cases of the common flu do not meet the definition of “serious health condition” and would not be eligible for Family and Medical Leave Act (FMLA) leave.

Some cases of the flu, however, are severe or result in complications, and these have the potential to meet the FMLA definition of “serious health condition.” This is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Continuing treatment means:

  • The employee has been incapacitated for a period of more than three full days; and

  • Consults with a doctor two or more times within 30 days, or

  • Has one consult with a doctor and a regimen of continuing treatment.

If an employee is out sick with the flu for more than three days, consider whether the need for FMLA leave may exist. This doesn’t mean that you need to go through the whole FMLA process to determine eligibility for each flu absence; just that you shouldn’t automatically reject FMLA requests for the flu either.

Review each case based on the facts, keep the “serious health condition” definition in mind, and if the illness is severe, ask the employee to submit certification from a health care provider to support the their need for leave protection under the FMLA.

This post originally appeared on ThinkHR.com.