Out Front Ideas, the webinar series featuring industry veterans Kimberly George of Sedgwick and Mark Walls of Safety National, delved into the complex world of leave of absence regulations in its second webinar of 2019. The topic hit all sides of the issue, including the intersection of workers’ compensation transitional duty, Family and Medical Leave Act (FMLA) regulations, and job accommodations under the Americans with Disabilities Act (ADA).
Mark Walls helmed the webinar alone this time citing travel issues for George. The speakers were: Bryon Bass, Senior Vice President of Workforce Absence Solutions at Sedgwick; Jennifer Holland, Senior Manager of Leave Strategies at American Airlines; and Jeff Nowack, Labor and Employment Attorney with Littler in Chicago.
As paid family leave expands at the state level, Bass noted that the entire landscape is shifting for employers – seventy bills have been filed just this January at the state level that concern leave of absence. “The various leave of absence laws that exist today are state and municipal level, there’s also the federal leave of absence law AKA FMLA,” he explained. “The differences between the state and the federal laws generally come down to a couple of primary areas. One is the relationships for whom you can take time off, and the amount of time that you’re entitled to take. At the federal level it’s twelve weeks, and at the state level you could have several more weeks depending on the situation.”
According to Bass, variation among employers compounds the problem. “From a workers’ compensation perspective, any absences from a work injury will typically run concurrent with those state or federal laws, and what we typically see is that there is an inconsistent approach with some employers,” Bass said. “Some don’t run the leave entitlement concurrent with workers’ compensation, others do. And others don’t understand that there are components of workers’ compensation (such as taking time off to go to doctor’s appointments) that are considered intermittent leave covered under the various leave laws. One of the other things we need to be concerned with is return-to-work programs and their consistency. We have seen situations where the EEOC has sued employers because they had different practices for providing accommodation to injured workers versus employees with non-occupational injuries.
Holland, responding to Walls’ question on American Airlines’ challenges added that the impact assessments performed by the federal government sometimes fall short. “One of our biggest challenges is the lack of the regulation information being provided to us in a timely manner. We don’t have a lot of lead time.” Holland cited the Massachusetts paid family leave act, which expects employers to begin collecting the tax on employee paychecks by the July of this year, but which “requires a lot of programming from the employers perspective” including informing employees about the changes and what they mean.
At the intersection between the ADA, workers’ comp and FMLA, Nowack urged supervisor training, noting that many employers are unaware of their duty to provide accommodations not just when a employee asks for it, but also when there are “observable impacts.”
Following his lead, Bass zeroed in on the difference between transitional duty and permanent accommodation in workers’ comp. “It’s important to take a step back and realize that transitional duty programs are intended to be just that,” he explained. “The intent of a transitional duty program has always been that you move someone into an accommodated arrangement where they’re expected to resolve all of their restrictions.” Bass recommends a program with a maximum of 120 days, but said there’s a caveat – the EEOC looks at those situations. At the 120th day, the employer “has a trigger for an ADA assessment to determine next steps.”
All three speakers urged a close relationship with human resources and inside or outside counsel to stay compliant and ensure that regulations are being interpreted correctly before supervisor training takes it down to the frontline.
The next Out Front Ideas webinar will be on March 12th discussing the future of work.