With a veritable alphabet soup of employee benefits regulation directly or indirectly affecting leaves of absence, employers are trying to keep from drowning in paperwork. Industry observers can't help but notice interesting new convergences between the Family and Medical Leave Act, which this year marked its 20th anniversary, and the Affordable Care Act, Americans with Disabilities Act and Defense of Marriage Act.

Question is, will the effort to comply with this regulatory trend sink or swim?

If anyone is qualified to weigh in on the matter, it's Cindy Matern. The associate vice president in human resources/career and employment services at the University of Puget Sound in Tacoma, Wash., began her career as an attorney. She also lives in a state with extremely liberal leave entitlements and works for an institute of higher learning that uses generous paid leave and intermittent leave to help draw top-tier national talent for a competitive edge.

Between those two factors, Matern is virtually unfazed by mandates at the federal level - saying they turn FMLA into a mere notice requirement or tiny line on an Excel spreadsheet for tracking leaves of absence because it's unpaid.

What's much more of a worry for her these days is ADA, under which it's increasingly harder to make a reasonable accommodation than FMLA. For example, an employer could suggest having someone with the energy-draining condition of fibromyalgia come into work at 10 a.m. rather than with everyone else at 8 a.m. "Now I don't have to give them intermittent FMLA for the rest of their tenure with the university and say, 'you can take two hours five days a week, or you can change your schedule,'" Matern says. "But I might have to do that under the ADA."

Since a leave of absence is now considered a reasonable accommodation under ADA, employers must deal with a whole new set of issues once the FMLA entitlement is exhausted, according to Charlie Fox, the San Diego-based CEO and president of the Disability Management Employer Coalition.

"At least with the FMLA," he explains, "you knew you had 12 weeks of leave in a 12-month period, and it was a definitive. But under the reasonable accommodation of leave under the ADA, there are no black-and-white limits or parameters. So I think employers are going to have a lot of difficulty trying to implement this ADA requirement."

 

Implications of health care reform

Irv Geslewitz, a principal in the labor and employment group of Much Shelist PC in Chicago, believes that FMLA compliance could be significantly affected by the enormous amount of attention now being devoting to ACA.

That could change the benefits outsourcing landscape. For example, he says it may make more sense for employers to seek expert assistance on the ACA because it's such a new and sweeping law that requires "a tremendous amount of planning and paperwork," whereas they're already somewhat familiar with FMLA.

There are also logistical implications. Fox fears an unintended consequence associated with the ACA. He suspects that injecting millions more Americans into a health care system that probably isn't equipped to accommodate them all in 2014 (and beyond) will cause delays in medical treatment. The unfortunate result could be extending the duration of employee absences and slowing their return to work.

"People who are out of work on disability or FMLA won't be able to get appointments to see their doctors as quickly as they otherwise would," he cautions.

Still, Fox foresees a continuing trend toward larger companies outsourcing FMLA, particularly because of intermittent leave tracking, while smaller companies are more likely to do internal tracking.

He says another factor to consider when deciding whether to seek outside expertise is "the advent of other state and local lead laws that have to be layered on top of the FMLA are making it increasingly difficult for companies to really deal with this situation." The tricky part is that it's a constantly changing landscape with more than 100 bills that various state legislatures and local city councils introduce each year requiring paid or unpaid leave, Fox notes.

There's also the possibility of a convergence between FMLA and DOMA's ban on federal benefits for same-sex married couples, which many observers believe the U.S. Supreme Court could overturn this month.

If that happens, then gay couples who marry will be entitled to the same protections under FMLA as heterosexual couples, according to Geslewitz. But it would depend, of course, on where they live. "If the state recognizes the marriage, then they will, and if the state doesn't recognize the marriage, then they probably do not have to recognize it either for FMLA or any other purpose," he says. "Because there isn't any federal law that recognizes the marriage, it's a matter of respecting what the state does."

Be that as it may, Geslewitz believes FMLA protections already have been informally extended to domestic partnerships by many employers, especially in larger metropolitan areas. So if DOMA is overturned, he says "it's going to be more of official sanction that you have to do this if the state is going to recognize the marriage."

Matern notes that the state of Washington had a registered domestic partner benefit in place before voters made it one of 11 states that now recognize gay marriage (with Minnesota poised to join that group).

 

Tracking intermittent leave

Another recent noteworthy development with FMLA concerns the U.S. Department of Labor helping employers ease the calculation of intermittent leave, long the bane of FMLA compliance. As part of that effort, the DOL earlier in the year declined to institute new tracking requirements for small amounts of time. It was cause for celebration among employers, who still do not have to track unscheduled intermittent leave. Other key moves included a reorganization of the FMLA section pertaining to intermittent leave and removal of required forms.

"Now they're saying if you work 40 hours a week and it's normally a 48-hour week, you do 40/48ths to decide how much you get for that week," Geslewitz explains. In other words, it's "the percentage of hours that you are working compared to what you normally would work." In cases involving workweeks that are somewhat of a moving target, he says employers can simply calculate an average percentage.

He says a reduced leave schedule for employees who suffer recurring migraine headaches or require kidney dialysis treatments would work much better than intermittent leave because at least these absences can be planned.

"It's almost like you have a permanent part-time employee," he quips. "That's the problem with the FMLA. It's hard to plan for intermittent leave because they're asking for part-time off or days off, and you don't even know from week to week when it is that they're going to need to be off."

Research from the Disability Management Employer Coalition has identified intermittent tracking as the No. 1 compliance headache for employers for the past two years. Fox predicts that despite the DOL clarification, this issue will continue to be a challenge "by virtue of the fact that it is difficult to keep records, especially since most employers don't have the information technology systems that do a good job of keeping track of this stuff."

There are other, more basic concerns about FMLA that persist, even two decades after its enactment. For example, the Employers Resource Association has suggested that employers are still stumped about who is covered under FMLA and what is deemed a serious health condition.

 

It's always sunny in Puget Sound

FMLA is so relevant to the University of Puget Sound that Matern has a full-time HR staffer who manages these tasks. She estimates that nearly a dozen faculty members were pregnant either at the end of the university's most recent semester or the beginning of the next semester. The school also has academic breaks and many full-timers off in the summer. "What does that mean?" she asks. "Does that count toward the 12 weeks if you have your baby during the summer and you're not working, or do you get your 12 weeks when you come back to school?"

In spite of all these questions, there are larger strategic objectives to meet in terms of recruitment and retention. "These are people we spent a lot of money on and are very pleased they accepted positions here," Matern says. "We're going to give them what they need to be able to successfully navigate" their work and life responsibilities.

But she worries about small businesses with 50 to 200 employees that seriously struggle when key employees are absent. Her recommendations for fellow benefit professionals, regardless of their organization's size, include setting expectations upfront so that employees know how to request FMLA, as well as when it applies and when it doesn't.

They also "need to understand the medical certification and recertification requests, and if the medical certification supports the request," she says, noting how doctor notes are often too vague. "It has to be clear and document why intermittent leave is being requested. The medical certification has to support the request, and it has to set a timeline for when it ends. It can't be intermittent leave for the rest of your life. That's not fair to the employers."

Bruce Shutan is a Los Angeles-based freelance writer and a former Managing Editor with EBN.

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