An estimated 14.5% of all employees are likely to take FMLA-eligible leave this year.

Here are four ways to ease the administrative burden and stay compliant with the new laws that took effect earlier this year.

1. Integrate your leave policies

A lot of FMLA headaches can be prevented by integrating your FMLA policy with your disability, workers’ comp and/or maternity policies.

Example: Reword your disability policies to say the firm may terminate an employee who takes more than  X amount of short- or long-term disability, including FMLA time.

This eliminates the chance of employees double-dipping from their leave pool.  Many firms already require employees to use up paid-time off (PTO) before moving on to FMLA. You’re in the clear to do so as long as you notify employees of this policy.

As an administrative time saver,  you may also want to overlap FMLA evaluations with your ADA policy. Here’s why: ADA issues often trigger FMLA eligibility.

Without retracing your steps, you can often evaluate an FMLA request and determine whether an employee  is entitled to ADA accommodations, including intermittent leave or a reduced work schedule.

The key: FMLA allows you to obtain medical certification that a serious medical condition requires time off work.  Just remember that FMLA itself isn’t an ADA accommodation, and a legit FMLA denial doesn’t automatically mean ADA won’t apply.

2. Adopt preliminary designations

Want to reduce the headaches of intermittent leave that occurs without prior notice? You may want to adopt preliminary FMLA designations.

These can be made when the employee requests leave but you have been unable to confirm the employee is eligible or you’re waiting for medical certification.

Once you get the necessary info, you can finalize the designation. If the employee fails to provide certification shortly after his or her return, the leave can legally be changed to an unexcused absence.

You may also want to create  an FMLA spreadsheet to track certifications and approvals of intermittent leave.

3. Use decision trees

FMLA decision trees are a great tool for determining eligibility on a case-by-case basis. And you don’t have to reinvent the wheel to design one. In particular, decision trees are  a great teaching tool for walking supervisors and employees through  the certification process.

An interactive decision tree –  where users answer yes or no to a series of questions and get an eligibility decision – is available here.

4. Design paperwork checklist

Distributing  paperwork checklists to workers requesting leave helps you meet your obligations and give employees everything they’ll need for approval.  The items:

• a healthcare provider statement indicating which part of the “serious health condition” definition applies to the case
• medical facts supporting it, including the approximate date the condition started, its probable duration and the probable length of the current need for leave
• a notation of whether intermittent or reduced time leave is required and the probable frequency, and
• the paperwork due date.

Best part: You only have to take this step once. It’s on the employee if he or she misses the deadline for providing medical certification.

What are your biggest challenges when it comes to the Family and Medical Leave Act (FMLA)?

For many benefits/HR pros, it’s administering intermittent leave and making the right call about eligibility. Here’s guidance on how to proactively handle two common scenarios that give administrators fits:

1. Can’t pinpoint need or frequency for leave

Even when an employee’s health condition is considered “serious” under FMLA and a doctor provides certification, it’s still tough to pin down the need for – and frequency of – intermittent absence.

Migraine headaches are one such condition that give employers fits with FMLA. Chronic pain (without a diagnosis of a specific cause) is another. In one case (Sconfienza v. Verizon), a woman suffering from migraine headaches asked her employer for intermittent FMLA leave.

Her doctor informed the employer she’d need to take off several days a month, on an as-necessary basis. Each time she had an episode, she asked for leave, sometimes for part of a day, often more than one day.

When several of her requests were delayed or denied, the woman sued for FMLA discrimination. The company countered by saying the delays were caused by the vague info the employee provided about her treatments.

To clear up the matter, the company had another physician contact the employee’s doctor. The employee’s doc refused to cooperate, citing privacy issues. So the company denied the leave.

A U.S. District Court judge ruled the company was within its rights to delay or deny leave in this case. But the company got slapped down because it never asked the employee for permission for her physician to be contacted by another doctor.

Under FMLA, the judge said, the request for more medical info should’ve been brought to the employee’s attention. Then, if the employee failed to get the needed clarification from her doctor, the company was free to deny intermittent leave.

The recent changes to FMLA will provide some relief to employers in similar situations. The new rules allow the plan administrator (but never a supervisor) to contact the employee’s doctor to request the documentation necessary to process FMLA. This can at least establish whether leave is necessary, although the frequency may still be tough to pinpoint for a condition like chronic migraines.

2. Their chronic pain becomes yours

How about cases in which an employee chronically claims to be in “too much pain” to work? Chronic pain is considered a serious health condition. But unless there’s a known cause (e.g., a torn knee ligament), it’s often tough to document the need for FMLA.

Even worse, legit absences for pain (not the folks who conveniently get a backache every Friday) are tough to predict and designate as FMLA. One key to lessening this problem may already be under your nose.

Many employers’ health plan networks include pain management specialists. Educating employees about seeking out network specialists for legitimate chronic problems can save the company a lot of hassle down the road.

Ideally, an employee suffering from chronic pain goes to a specialist early in the FMLA certification process – preferably as his or her first stop after the primary care doctor. How it works: The doctor uses X-ray guidance to locate the source or sources of the employee’s pain, and determines a treatment schedule.

This often makes FMLA documentation easier, and helps you better predict how often the employee will miss work.

The feds waited until the last moment to spring a massive document (the final regs span 200 pages) on employers. It’s unfair to expect employers to digest and prepare to comply with all the changes in notification requirements, certifications and other crucial administrative practices in such a short period of time. The good news is that many of the changes appear favorable to employers. The bad news is that the paperwork burden may be even heftier.

In the most recent issue of What’s New in Benefits & Compensation, we devoted our cover story to an overview of the most important changes. For those looking for a good online review, here is a pretty succinct review.

I would also suggest breaking down the changes into bite-sized pieces and visiting this labor attorney’s FMLA blog, which not only has resources tailored to the FMLA revisions, but also looks at recent FMLA-related court rulings that could affect you.

Are your policy and procedure manuals a lawsuit waiting to happen?

There’s no law that require you provide employees a benefits handbook or manual. But best practice is to have one, so long as you follow some basic rules for what needs to be in there, and what should never be in there. Three sections to review immediately:

• pay policies (especially overtime)
• FMLA, and
• paid leave.

Your choice of wording in these sections could make or break your company’s case if an employee sues. Following are three of the biggest red flags that many firms ignore.

Handbook Taboo #1: Overtime policy violates FLSA

Many handbooks contain the following dangerous statement: “Authorized overtime is paid at 1.5 times the hourly rate.”

From a legal standpoint, that’s the same as saying “Our organization is non-compliant with FLSA’s wage and hour laws.” Under FLSA, if a non-exempt employee works overtime – whether it’s authorized or not – you must pay the overtime rate. No exceptions.

What’s legal is to create policies designed to prevent unwanted OT before employees work it. For example, it’s fine for a hanbook to say, “All overtime must be authorized by your supervisor.”

For such a policy to be effective, however, it’s necessary to have formal procedures for OT-authorization. Your handbook must describe these steps (e.g., written permission from a supervisor), as well as any disciplinary procedures for breaking the rules.

But once the hours are worked, it’s too late not to pay for it. Even if you pay for OT (whether authorized or unauthorized), the mere suggestion in the handbook that you may be withholding pay for unapproved OT could get you sued under FLSA.

Taboo #2 : Vague language on FMLA coordination

Writing FMLA policies in your manuals is one the toughest challenges in creating a compliant handbook.
Federal law says that if you have a benefits manual, you must describe how FMLA overlaps with other company benefits.

Example: Do you require people to use available paid leave and FMLA concurrently? If so, you must include this info in the FMLA section of the handbook.

Otherwise, the employee is entitled to “save up” their 12 weeks of FMLA until after paid time is used up. The result is your organization’s benefits manual accidentally gives away extra family or medical leave that is now protected by the law.

What happens under these circumstances if you terminate an employee for attendance policy violations? Assuming that the excessive leave was the reason for termination, the chances are that court will look at what’s written in your manual and rule in the worker’s favor. 

Taboo #3: Unclear paid time-off policies

Whether you have separate sick time and vacation policies or a single paid time off bank, your manual should be crystal clear on how leave is accumulated, and when and how it may be taken. 

Example: If you expect employees to file written vacation requests signed by a supervisor, but your manual only says “written request” and neglects the need for supervisor approval, a request denied for lack of a supervisor signature may not hold up if the employee challenges it.

When reviewing your paid leave policies, make sure the manual is clear on its descriptions of:

• Eligibility. Do part-timers and/or temps qualify? If so, when?
• Accrual. How do you calculate the banks (e.g., one year of service = 18 PTO days per year)?
• Use. How soon can an employee take leave? Do unused days roll over to the next year or are they calculated on a use-it-or-lose-it basis?

Policies versus procedures

In re-reading any section of your manual, ask yourself, “Is this a policy or is it a procedure?”

Here’s the difference: A policy is where your company stands on a certain issue, such as a policy banning employees from smoking. A procedure is how you get things done. Example: Employees who participate in a smoking cessation program must submit for reimbursement through your Payroll department.

The sections in your manual that describe policies must contain:

• specific descriptions, such as, “Employees may not wear shorts to work,” and
• enforcement details, such as what will happen if an employee violates the dress code?

Meanwhile, sections describing procedures should also be as specific as possible.

For example, compare these two handbook statements for requesting family leave:

1. “If an employee is aware of a need for family leave 15 days or more before it is to begin, the worker must file a request for leave within 15 days of the start date.”
2. “If there’s a foreseeable need for leave, the leave request must be filed ahead of leave within a reasonable time. ”

The first statement is clear and protects your firm if the manual is challenged in court. The latter is open to debate – and possibly lawsuits.

In general, you can require people on FMLA to keep you informed every 30 days about their status and planned return date. But there are several situations where you can bypass this rule.

Three scenarios

Generally speaking, there are three cases where you can bypass the rule limiting re-certifications to once every 30 days:

• The employee requests an extension of the approved leave period
• The circumstances of the original leave have changed (example: the employee reported complications after undergoing surgery), or
• You’re aware of information that raises reasonable doubt over the validity of the earlier certification.

Remember: Under FMLA, you can require a fitness-for-duty certification before your organization allows the employee to return to work. Just make sure the certification applies only to the health condition that caused the employee’s original request for leave.

Beware ADA overlaps
Another confusing aspect of FMLA re-certification is its potential overlap with the Americans with Disabilities Act (ADA). The ADA and FMLA differ in their rules for both disability-related communications and returns to work.

If the employee has a known ADA disability requiring accommodations (e.g., a bad back), all communications during FMLA must be job-related only. An exception: The person required FMLA for an unrelated condition.

The ADA also has tougher rules for return-to-work certifications. If the person has a chronic bad back but suffered a knee injury, you can’t require a general physical to check on both conditions.

There a few cases where ADA works to your benefit. You can require a new medical certification if it’s a new accommodation request. Generally speaking, you needn’t reinstate employees who:

• are no longer physically capable of performing their old jobs or the duties of a comparable position
• worked jobs where a light-duty assignment would cause undue hardships for other employees assigned to pick up the slack, or
• worked jobs in which light duty is impossible to offer.

But be careful: Both FMLA and ADA place tough standards on employers to prove that comparable position isn’t available and light duty isn’t feasible. The benefit of the doubt usually goes to the employee on leave.

• Let employee set administrative wheels in motion. Let the employee break the news of her pregnancy to management. Never broach the subject first. Reason: There are still potential discrimination issues that can arise even if supervisors have the training and common sense to handle the issue privately and discreetly.

• Review benefits early in the process. Shortly after management is informed of the pregnancy, Benefits/HR should sit down with the employee to make sure she’s clear on your organization’s pregnancy-related benefits (including standard unpaid FMLA) and return-to-work policies.

• Follow doctor recommendations to the letter. If an employee’s ability to physically perform her job is affected by her pregnancy, it is up to her to provide written instructions from her doctor. Legally, employers are expected to carefully follow the doctor’s directions on how long the employee can work, her physical limitations, and necessary time off during the pregnancy.

What’s your biggest challenge when it comes to the Family and Medical Leave Act (FMLA) administration?

For many benefits/HR pros, it’s administering intermittent leave and making the right call about eligibility. Here’s how to proactively handle three common scenarios that can wind up in court:

1. Can’t pinpoint leave need or frequency

Even when an employee’s health condition is considered “serious” under FMLA, it’s sometimes tough to pin down the need for – and frequency of – intermittent absence. Migraine headaches are one such condition that give employers fits with FMLA. Chronic pain (without a diagnosis of a specific cause) is another.

In one recent case (Sconfienza v. Verizon, Inc.)  a woman suffering from migraine headaches asked her employer for intermittent FMLA leave. Her doctor informed the employer she’d need to take off several days a month, on an as-necessary basis.

Each time she had an episode, she asked for leave, sometimes for part of a day, often more than one day. When several of her requests were delayed or denied, the woman sued for FMLA discrimination.

The company countered by saying the delays were caused by the vague info the employee provided about her treatments.

To clear up the matter, the company had another physician contact the employee’s doctor. The employee’s doctor refused to cooperate, citing privacy issues. So the company denied the leave.

A U.S. District Court judge ruled the company was within its rights to delay or deny leave in this case. But the company still lost the case because it never asked the employee for permission for her physician to be contacted by another doctor.

Under FMLA, the judge said, the request for more info should’ve been brought to the employee’s attention. Then, if the employee failed to get the needed clarification from her doctor, the company was free to deny intermittent leave.

2. Breaks in service time

If an ex-employee later comes back to work at your firm, does his or her previous service time count toward FMLA eligibility? The answer is yes. A worker needn’t be continuously employed to meet FMLA’s 12-month, 1,250 worked-hours eligibility rule.

In fact, a court recently ruled in favor of a woman rehired some two decades after her previous service (O’Connor v. Busch’s Inc). She was in an accident a short time after her return and was denied FMLA leave based on lack of service time.  The court said that her previous stint at the company counted for FMLA purposes.

The feds have been promising for years to revise FMLA to close this legal loophole. The DOL has said it will unveil the final plan this summer, but as of yet, nothing has been forthcoming. It’s believed that when the changes finally come, service time prior to a continuous five-year break will no longer count for FMLA eligibility purposes.

For now, though, all previous service time counts.

3. Their pain becomes yours

How about cases in which an employee chronically claims to be in “too much pain” to work? Chronic pain is considered a serious health condition. But unless there’s a known cause (e.g., a torn knee ligament), it’s often tough to document the need for FMLA.

Even worse, legit absences for pain (not the folks who conveniently get a backache every Friday) are tough to predict and designate as FMLA.

One key to lessening this problem may already be under your nose.

Many employers’ health plan networks include pain management specialists. Educating employees about the network specialists can save a lot of hassle down the road. Ideally, an employee suffering from chronic pain goes to a specialist early in the FMLA certification process – preferably as his or her first stop after the primary care doctor.

How it works: The doctor uses X-ray guidance to locate the source or sources of the employee’s pain, and determines a treatment schedule. This makes FMLA documentation easier, and helps you better predict how often the employee will miss work.

The Department of Labor (DOL) has proposed a set of changes to FMLA, slated to take effect in 2009. The DOL’s proposals are currently being reviewed by the Office of Management and Budget.

Two key issues:

• expanding FMLA to cover workplaces with fewer than 50 employees, and
• in cases where there is unclear medical certification, allowing increased communication between an employer and a worker’s doctor for purposes of clarification.

Employers hoping for a tightening of the restrictions on intermittent leave may be out of luck.

Companies have complained that allowing workers to take FMLA leave for a few hours or even minutes is disruptive and hurts productivity. No major changes are anticipated in that area.

It remains to be seen if the feds will be able to finalize the changes this year. The DOL was originally supposed to issue the preliminary proposals back in 2006.

But it may be time to reconsider.  Here’s why: Your state may beat you to the punch. California already requires paid FMLA, and several other state legislatures are considering similar changes to state labor laws.

Meanwhile, some insurance vendors are willing to expand their short-term disability coverage policies to include FMLA.

In some organizations, offering paid FMLA is seen as a way to spruce up the compensation and benefits package and gain a recruiting edge. Before going this route, experts recommend asking two key questions:

1. Is paid FMLA affordable?

To keep the program affordable, it’s crucial to know the cost-control mechanisms that’d be in place.
For instance, with many types of disability, paid benefits are limited to 50% to 60% of the employees’
salary and require a seven-day waiting period before payment.

Premiums depend on your firm’s FMLA use history and employees’ age and gender mix. Example: Women are 10 times more likely than men to take FMLA for the care of an elderly parent or newborn child. So insurers may charge an annual $372 premium per female employee and just $141 for males.

2. Is paid FMLA manageable?

To work things out on the administrative side, the vendor must be able to adapt your system of:

• obtaining medical certifications
• processing intermittent leave, and
•  handling requests for family-related leave (spouse, dependent child, parent or, if allowed in your firm’s FMLA policy, domestic partner).

Beating ‘em to the punch

In addition to the state proposals, there’s been a recent trend for unions to use paid FMLA as a bargaining chip. Some unionized employers are choosing to beat the unions to the punch and design a paid family or medical leave benefit on their own terms.

New Jersey recently became the third state to require paid leave. The new law supplements current FMLA and state family and medical leave laws.

New Jersey employers must give employees six weeks of paid medical leave, effective July 1, 2009. California enacted its plan in 2004. Washington approved five weeks of leave starting in Oct. 2009, but they can’t decide how to pay for it.

In New Jersey, the law applies to all employers – even those with fewer than 50 employees. It’s expected that paid leave will allow more people to take off work for FMLA reasons.

Cause for concern?

Increased leave-taking is one of the top concerns for employers. They’re afraid that paid leave won’t just make it easier for people who need it to take it. They think it’ll also be attractive to people who don’t need it but want paid time off from work. Key eligibility requirements:

• Employees must give 15 to 30 days advanced notice, unless it’s an emergency

• If the leave’s not for childcare, employees have to get certification from their healthcare provider

• Employers can require employees to use up to two weeks of sick, vacation, and other PTO before they qualify for paid leave, and

• Employers can get state approval to provide a similar benefit under a private insurance plan.

Who’s worried most: small employers who are otherwise exempt from FMLA. The New Jersey law is a brand new requirement for them and many companies are afraid it’ll be tough for the organization to pick up the slack for leave takers. Meanwhile, HR and supervisors will have to deal with added paperwork.

Employees foot the bill

But, there’s some good news: As long as an employer doesn’t fall under the umbrella of FMLA or the New Jersey Family Leave Act, it can permanently replace employees who take leave.

In addition, employers won’t have to foot the bill. Employees are compensated for leave through a payroll tax. The plan’s set to take effect July 1, 2009. They’ll start taking out payroll deductions January 1, 2009.

Payroll deductions will equal about $33 a year per employee. Employees won’t be able to collect their entire payroll. Instead they get two-thirds of their salary, up to $524 per week.