by Ann Kuzee, MA, JD

Dedicated HR and business professionals  are frequently searching for ways to ensure that all relevant legal and compliance requirements are met, employee satisfaction and engagement are maintained or increased, and the organization’s culture fosters innovation, and underscores respect and compassion. One way to accomplish all these desired goals is to design an Integrated Disability Absence Management program.

An Integrated Disability Absence Management program involves the administration of all absence and disability related programs in a centralized and integrated structure. It is a well thought out program that is employer specific, and once designed and implemented, creates a very efficient, effective, and coordinated business structure that addresses a variety of business needs such as risk management; employee health and wellbeing; policy coordination; safety initiatives; financials; return to work/stay at work (RTW/SAW) programs; absence, disability, and claims’ management; etc.

Top 3 Reasons You Need It

1. Compliance with FMLA

Compliance with FMLA can be very challenging for any covered employer, but it is a regulation that must be managed well to avoid legal consequences. The regulation has been in place since 1993, and whether liked or not, it appears rooted. In fact, over the past couple of years, at the U.S. Congressional level, there has been considerable discussion about enhancing it with paid FMLA. At this time, those discussions have stalled, but in the meantime, employers need to effectively manage FMLA according to the regulation.

As many organizations have learned, just trying to manage FMLA paperwork within the regulatory requirements can create legal issues for an employer. This can occur when an employer simply does not issue proper paperwork timely or not at all, and there you have it, an employer is in violation of the FMLA regulation. What are a few of those paperwork and timeline requirements?

The FMLA regulation requires that “When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.” §825.300(b)(1) This triggers an employer to send a Notice of Eligibility.

The FMLA regulation also requires that “When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.” §825.300(d)(1). This triggers an employer to send a Designation Notice.

These regulatory requirements alone place heavy legal responsibilities on an employer, and by doing so, necessitate action by the employer to ensure that these responsibilities are being completed with accuracy and that legal compliance is being met. Additionally, like any other business process, an employer must ensure that people are being managed properly, and to determine this, an employer must ask plenty of questions.

Who is managing these FMLA paperwork processes in your employer’s workplace? How is FMLA paperwork being managed? Is leave management insourced, co-sourced, or outsourced? Are policies up-to-date and aligned with the FMLA? Do employees know who to go to or where they go  if they have a need for leave? Are management teams well trained on FMLA processes and procedures? Does your employer have leadership oversight for the management of FMLA?

Having a well-designed, integrated disability absence management program will address these questions. For example, as part of your program, having a centralized leave reporting system and identified staff or vendor that manages your FMLA paperwork will increase the likelihood of successful compliance with FMLA, but this is just part of the integration. To become fully integrated, you need to look at your workers’ compensation program, RTW/SAW program, short and long-term disability plans, pay policies, and so much more.

2. Compliance with State Leave Laws

In addition to FMLA, we can’t forget about the ever changing and growing number of state leave laws. The trend most noticed and followed are state leave laws in the area of paid family and medical leave, but did you know there are over 400 leaves collectively across the United States that employers must manage! These leaves range from paid and unpaid family and medical leave but also include leaves related to jury duty, voting, crime victims, blood donation, bereavement, court attendance, personal protected leave, volunteer firefighters, earned sick leave, etc. The list goes on, and it is not stopping.

As of September 2022, 8 states (California, New Jersey, New York, Rhode Island, Hawaii, Washington, Massachusetts, and Connecticut) and the District of Columbia have some form of paid leave benefits applicable to private employers. These programs frequently run concurrently with FMLA or other state leave laws that provide job protection making the challenges of ensuring legal compliance even more challenging.

Brace yourself, though, because the state leave law list is growing. More states have already passed laws providing employees with Paid Family Medical leave.

Oregon PFML begins 1/1/23
Colorado PFML begins 1/1/24
Maryland PFML begins 1/1/25
Delaware PFML begins 1/1/26

The question for employers is how are they going to manage these leaves? How are leave requests going to be properly captured? Do they have the systems to track and manage these leaves? Have they identified the state leaves that run concurrently with FMLA? What paperwork will be required for these leaves? Who internally will lead the coordination of these leaves? What happens if an employee also qualifies for a short-term disability policy or is covered under workers’ compensation? What if an employee appeals a decision? How do your employer’s internal policies coordinate with state leave laws? Have all applicable state leave law policies been developed and made available to employees? How do employees get paid? Do employers contribute to the state to help pay for their employee’s benefit? What about ADA?

There is a lot here, and when employers really dig deep into the well of leave laws, it quickly becomes apparent that a centralized and integrated structure is necessary to effectively manage them, achieve reliable employee communications, ensure employee satisfaction and retention, maintain positive morale for all employees, keep productivity high throughout the organization, and help ensure all legal and compliance requirements are being met. States incorporate tough penalties and consequences for non-compliance. Employers need to have an integrated disability absence management strategy in place and working.

Begin looking at your organization’s absence and disability management structure and ask whether it is working effectively or not. Learn how to design a structure that will address the needs of your employees and organization so that the processes, paperwork, communication, etc. run smoothy throughout the organization.

3. Compliance with ADA

Another reason to develop an integrated disability absence management program is to help ensure ADAAA (“ADA”) legal compliance. As a result of COVID, many employers became much more acquainted with the ADA when they had to make accommodations for employees that did not want to be vaccinated or had health conditions that put them at high risk if exposed to others with COVID in the workplace. COVID continues to persist and for employers this means they will need to continue to manage employee’s time off for treatment. The CDC has estimated that the proportion of people who had COVID-19 and go on to experience post-COVID conditions can be:

• 3% at one month or longer after infection
• More than 30% at 6 months among patients who were hospitalized.

In addition to managing an employee’s time off from work, employers will need to manage accommodations when employees are ready to return to work and that could include managing an employee’s request to work remotely. While working remotely was popular during the COVID pandemic, it continues to remain popular with employees. What should an employer do when they need employees to return to the workplace to perform their work and an employee requests an accommodation to work remotely due to a disability? Answer: Under the ADA, covered employers are required to help determine and provide effective, reasonable accommodations for employees with disabilities and to help determine effective accommodations. The EEOC recommends employers engage in an interactive process. The interactive process is a step-by-step process in which employers and employees with disabilities who request accommodations work together to determine reasonable accommodations. There are six steps in this process, and they include:

Step 1: Recognizing an Accommodation Request
Step 2: Gathering Information
Step 3: Exploring Accommodation Options
Step 4: Choosing an Accommodation
Step 5: Implementing the Accommodation
Step 6: Monitoring the Accommodation

These steps may seem easy, but in fact, there is a great deal to learn and understand about each one. Knowing how to skillfully maneuver through each step and properly document the process will increase the likelihood of success for both the employer and the employee. Identifying, selecting, and training appropriate staff to manage this process or utilizing external third-party ADA specialists should be part of an effectively designed integrated disability absence management program. Legal issues can quickly arise if the ADA interactive process is not well managed.

Conclusion

There is no doubt that the area of disability absence management continues to evolve and increase in complexity. It infiltrates and impacts almost every aspect of an organization’s operations from productivity, quality, safety, employee engagement and satisfaction, financials, performance, morale, and legal. The solution is an employer specific, well thought out, fully integrated disability absence management program. Gain the critical skills you need to devise and implement the most efficient plan for your organization.