Category Archives: Legal

ERISA Part 2: The Return – With Guest Andrew Douglass

My wonderful friend Jeremy Bordelon was kind enough to answer some basic ERISA questions for me a while back.  You might say he gave me just enough rope to hang myself.  He really freaked me out about how much of this I don’t know — and don’t understand even when it’s being explained to me.  I feel like, should I ever become some kind of HR bigwig at a huge firm, I’m going to inevitably be led away in handcuffs to ERISA jail.  What’s worse, rather than some evil mastermind, I’m going to come across as one of those idiots on TV who didn’t even realize they were pregnant.  I’ll be screaming, “But I didn’t know!” while they throw me in a cop car.  Ugh.

Probably not the bra, but the rest, I assume, will be remarkably similar to this.

Probably not the bra, but the rest, I assume, will be remarkably similar to this.

That’s where my new friend Andrew Douglass comes in.  He is also an ERISA attorney and offered to answer more questions for me.  Jeremy gave me just enough info in Part 1 to have more questions and now I’ve been somewhat reassured by Andrew in Part 2.  Read on for ERISA Part 2: The Return…if you dare.

My attorney friend, Jeremy Bordelon, answered a few questions in my first post.  I know ERISA started out as a way to benefit employees, but it sounds like a nightmare now.  How did anyone ever think this was a good thing?

The enactment of ERISA was, in large part, a response to tragic events during the 1960s when employer bankruptcies wiped out pension plans, retiree medical coverage, and other benefits without any recourse for the affected employees.   In 1974, Congress responded by creating, for the first time, a comprehensive framework to provide greater protections to employees and more certainty to employers in sponsoring their benefit plans.   Of course, there are still tensions between employers and employees with respect to their benefit plans, but I think ERISA has generally been very successful in its stated aims.

hostess_cupcake_sos

The 5 points he made about denial of health and disability claims – those seem completely punitive and unreasonable.  If my bone cancer treatment is denied and I lose my leg, then find out it wasn’t supposed to be denied, there is NO RECOURSE?!  Has ERISA been hijacked by insurance lobbyists?  How did this come to be this way?

In my view, ERISA has not been hijacked by insurance lobbyists or any other special interest groups.  Instead, I think ERISA has matured significantly since its enactment in 1974.  For example, a recent development in the last few years is the Supreme Court’s seminal decision in Amara v. CIGNA, in which the Court allowed employees to pursue equitable remedies against their employers if they could prove they were provided misleading information about their benefit plans.  The Amara decision will be huge in the coming years in situations similar to the one you posited in your hypothetical  example.  Well that’s a relief!!

da-vinci-robot-surgery-injury-lawsuit

The “ERISA test” about highly compensated employees – can you explain to me how that’s an issue to begin with?  If employees have an opportunity to contribute and be matched up to 6% of their salaries, for example, and everyone does…obviously the CEO is going to have a higher 6% than the receptionist.  I’m obviously misunderstanding something here because that seems too obvious to be a problem.

One of the goals of ERISA is to ensure that broad-based retirement plans do not discriminate in favor of highly-compensated employees.  In tandem with various testing provisions in the tax code, ERISA generally requires a retirement plan to have minimum “coverage” (i.e., the categories of eligible employees cannot be skewed in favor of highly-compensated employees) and to provide non-discriminatory benefits.   In response to your hypothetical, a uniform contribution for all employees (when expressed as a percentage of compensation) is generally non-discriminatory.  This is the case even if, as you noted, a highly-compensated employee ends up with a higher contribution when expressed as a dollar amount.

I asked Jeremy what else I should know to have a reasonable understanding of ERISA and he responded with the truly terrifying (from an HR perspective) tale of Krohn v. Huron Memorial HospitalHow would you answer that question?  What other finer points should I know?

It takes many years to fully understand ERISA’s detailed statutory scheme.  I’ve been working in the employee benefits world for 18 years, and I’m still learning new things.  My recommendation is to talk with as many people in the benefits world as possible.  Make a point to sit down with an actuary, benefit plan auditor, investment advisor, or other benefits professional as often as possible.  You’ll be amazed at how your understanding of ERISA will increase! 

My chief takeaway from all this -- all kidding aside -- hire a lawyer.  Always.

My chief takeaway from all this — all kidding aside — hire a lawyer. Always.

Anything else you’d like to add re: ERISA?

There are tons of free resources available to HR professionals that explain the requirements under ERISA, the tax code, and other laws that apply to employee benefit plans.  For example, the DOL and IRS have both, in recent years, expanded their websites and outreach programs to provide information geared to both employees and employers regarding benefit plans.

andrewW. Andrew Douglass has been practicing law in employee benefits and executive compensation matters for 13 years.  Prior to becoming an attorney, he worked as a pension actuary for a large public accounting firm.  There can be no doubt, now though, that he is an ERISA nerd through and through.  His words, not mine.  His favorite TV show of all time is The Wonder Years. Excellent choice!  “I’ve always related to Kevin Arnold and the ups and downs that came with growing up in the 1960s and 1970s.   That said, there was no way I was cool enough as a kid to have Winnie Cooper as a girlfriend!”  When he goes to a non-buffet Chinese restaurant, he orders off the “secret” menu because he’s cool like that…or actually, spicy, like that.

His official bio can be found at:  http://www.seyfarth.com/W.Douglass, or you can reach him on Twitter: @theERISAguy.  See?  ERISA nerd.  I believe I shall keep him on speed dial for when I need bail money in ERISA jail. :)

Losing a Job Before the Interview – Facebook No No’s

Hola all!  While I was out for finals week, other people were kind and generous enough to surprise me with offers of guest posts!  I LOVE THAT.  It’s like the Tooth Fairy for grown-ups!  In case any of you are wondering, I definitely accept guest posts.  Email me or contact me on Twitter if you have some ideas.  In the meantime, enjoy this excellent post about cleaning up your Facebook during a job search from Jeri Johansen, PHR.

Hope you’re all having a great week!  I am! – HRGF

 

facebook popularityFacebook.  People either love it or hate it.  One thing’s for sure, its popularity can’t be beat – Facebook has now surpassed Google as the most visited site in the U.S. with over a billion users.  It didn’t take long for employers to understand that a lot of information can be learned about prospective employees from their Facebook page.   While those pictures of you doing a keg stand provide a great memory of a great party, recruiters are not usually amused by this activity.

Effective January 1st, 2013, new state laws make it illegal for some employers to demand access to their worker’s Facebook accounts, although that does not mean they won’t try to view them.  It’s hard to believe that employers had been taking it upon themselves to demand employees’ social media passwords!  This tactic just screams Title VII violation.  Just think of the type of information an employer could possibly learn from your social media page: gender, race, religion, sexual orientation; the list goes on and on.

mehWhether or not hiring managers should use social media for employment screening, recent surveys show that about 37% do check Facebook before making a hiring decision.  Below is some information to help you clean up your Facebook page before embarking on your post-graduate or post-layoff career search.

 

Facebook Privacy settings

Take the time to set up your privacy settings so that only “friends” can view your timeline.  This may seem like a no-brainer, but if you restrict a lurker’s access to your information, it makes it all the more difficult to not only find you, but to dig up dirt on you.

stalk

Photos

Quite possibly the biggest indicator of a person’s “social media maturity” is their photo section. Would you be interested in going into business with someone whose first impression of themselves is a picture of them chugging a 40-ounce beer and making an explicit hand gesture? Yeah, neither would your future employer.

abort

 

 

 

 

 

 

Status Updates

What you choose to share about yourself on a widespread social platform like Facebook says more about yourself than what you actually say. Constantly complaining about your life, putting other people down or stating controversial opinions with disregard to others’ feelings are all sure-fire ways to have strangers judge your personality before actually getting to know you. You had a bad day at work? Posting about it on Facebook makes it seem like you hate your job and could concern employers that you would bad mouth them as well.  

job status

Proper Grammar & Spelling

Not being an English major is no excuse for improper grammar or spelling errors.  Profanity is another huge turnoff for employers, with 61% saying that they view the use of profanity on social media sites negatively.  Maybe you have great things to say but you can lose your credibility if your spelling or grammar is off.   Let’s review the following post:  “Im so exsited for there company to schedule my inter-view”.   Although you may mean well, this post could be viewed by the interviewer who may become “not so ecxsited” to schedule your interview.

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This is my blog and I have a job already, so profanity is ok.

Likes

Your “likes” on Facebook can be extremely telling.  While you may well be a fan of “Tattoos by Deviants”, it may come off as unappealing to some more conservative employers.

While changing or updating your Facebook profile is a good practice for job searching, it’s important to remember that nothing you post on the internet is ever completely hidden.  I can still find pictures of myself that I posted during my “only cool people post self-timer shots of them alone in the bathroom” phase in high school.  If in 10 years from now you think you could be embarrassed by the stuff on your social media page, don’t post it!  You don’t want a profile picture or status update to be the determining factor between you and a competing candidate!

jeriJeri Johansen, PHR is an HR Blogger, Manager of Human Resources at Crimcheck.com, and Chair of the 2014 Northern Ohio Human Resource Conference (www.nohrc.org).  She has never been skydiving but claims she would do it, if given the opportunity.  Her favorite vacation is cruising around the Caribbean. 
Crimcheck.com specializes in employment screening and background checks. You can follow Crimcheck.com on Facebook and Twitter also.

HR Blogs and Articles That I’m Reading

I’ve read a few articles lately that could easily each merit their own blog post but I’m a busy gal, so I’ll just share a couple and give my quick 2 cents.  Perhaps you guys can take up the mantle and discuss in the comments!

Can My Credit History Impact My Job Search?

This article, from the ResumeBear blog, really pissed me off.  So much so that I ended up doing a blog post about my own financial troubles the other day.  ResumeBear didn’t piss me off, but the idea that employers would penalize someone for being behind on their bills during this economy is maddening.  Credit can be destroyed by a divorce, a failed business venture, bad investments, etc.  None of those make you a bad person and in fact may make you a better one with more knowledge.  It doesn’t mean the employee would steal, that they’re a crack whore, that they have a chronic medical condition or that they’re lazy and don’t want to pay their bills.  I wanted to pay my bills and it killed me when I couldn’t.  That doesn’t make me a bad employee.  And the thing is, even with legislation preventing this type of discrimination, it’s so insidious that you could almost never prove it.  So it will continue.  I stayed in the zombie job much longer than I should have because I was afraid of applying to other places and having my credit score ruin my chances.  It’s crippling and it’s awful.  Employers need to stop this discrimination.

March Madness – HR Blogger Style!

I can’t remember…did I tell you guys I was involved in this #hrmadness tournament from Sparcin.com?  I lost in the first round, which I knew would happen, but I was incredibly honored to have been included here with 15 people that I read regularly and consider my HR idols, pretty much.  Plus there was some fun smack talking.  If you don’t have them yet, you should add all these blogs to your RSS feed.  The tourney is over now.  A winner has been crowned.  And that winner is:

The Tim Sackett Project – HR Madness Champion!

sackett

The above link takes you to Sparcin which has several of his posts up there.  There is a whole post about dongles which is my new fave “sex scandal” since pubes on Coke cans.  I’ve included a link for the wee little ones who don’t remember 1991.

But here’s why I love Tim Sackett, in particular:

THIS IS WHY YOU’RE AFRAID TO MAKE HR SIMPLE

This is so true that I may now start The Cult of Sackett.  People who work 60+ hours a week are not to be commended.  They need an assistant or to be replaced with someone more capable.  Now obviously, brand new employees, doctors and maybe lawyers and such are different.  Fine.  I understand not everyone has a job where they can get their work done and then go home, regardless of how long it takes.  If CVS says it’s open 24 hours then someone has to be there 24 hours a day. I get that.  But if you ARE in a position where you can come in, get your job done, and then go home…do it.  Do your work well, do it accurately, do it without screwing around in the middle, and finish it.  If you’re done early, ask others if you can be of help to them.  If they say yes, help.  Congrats, you’ve added value today.  If they say no, believe them — and leave.  Go!  Turn off the lights in your office, turn off the computer, fix the thermostat appropriately if you can — save your company some electricity and get the heck out of there.  Escape your office prison.  Enjoy the outside world.  Run your errands.  See your children, see your parents, see your bookie…whatever.  Come back tomorrow and repeat.

jumping-man-in-suit-250x250

This is true for people who work remotely as well.  Do your work when you need to do it.  Meet your deadlines, check for accuracy, and — if you have extra time, offer to help others as much as you can.  Then get on with your life.  There will be days that are 12-14 hours long that you didn’t plan for…websites crash, payroll won’t post or other fires need putting out.  If you’re willing to stay late when the universe hands you that crap, you should be willing to go when the universe hands you an hour or two of free time.  Now go away!

Have you guys read anything noteworthy lately?

ERISA Lesson (Pt 1) with Guest Jeremy Bordelon – Teaching Tuesday

ERISA Lesson

The following is an email exchange between my attorney buddy, Jeremy Bordelon, and myself.  He tells me we’ve barely scratched the surface of ERISA here.  Maybe he’ll grace me with a Part 2 sometime in the next few weeks.  My words are in bold.  Everything else is Jeremy.

I have done a lot of benefits administration in my day, but I don’t know much about benefits LAW.  I am SUPER weak on this topic. I could barely come up with any questions, so add anything you want!

Thank you!

ERISA-Congress

Employee Retirement Income Security Act – Became Law in 1974 – Has to do with protecting employee pensions and tax effects of other benefits plans.

Well, it’s that, but it’s more than that.  In the beginning of ERISA, when it was thought of as a “good thing” for employees, employers and benefits administrators were looking for any exception they could come up with to get out from under ERISA.  The courts responded by ruling that nearly everything that had anything to do with an employee benefit was preempted by ERISA.  So now nearly every benefit an employee gets from any private employer is governed by ERISA.  Health insurance, life insurance, disability insurance, and of course pensions.  Now, many employees wish they could get out from under the “protections” of ERISA, but employees are stuck with it.

pensions eggs

Since employee pensions are largely becoming extinct, what does this have to do with other retirement options?

ERISA has a lot of rules regulating what happens when a pension plan shuts down.  As the concept of a traditional “defined benefit plan” dies out, ERISA tells everyone how to wrap things up properly.  As 401(k)s and other types of “defined contribution” plans have become more prevalent, ERISA provides guidance for how those need to be run as well.

Since ERISA is often substituted for “all laws regarding benefits” it includes amendments that created COBRA and HIPAA.  I will probably address those in the blog at a later time.  What other significant impacts does ERISA have on health plans?

The main impact that ERISA has on health plans is the limitation on remedies for the participants.  As the guy who helps people get their benefits when they’ve been denied, it’s certainly the main impact on my clients!  When I represent people who have had a benefit claim denied, I have to explain to them what ERISA means for them, and it’s mostly bad news.  That list of bad news includes:

1)  It may take a year or more to exhaust all your appeals with the administrator, and you must complete that process before being allowed to go to court to pursue your benefits.

2)  If your appeals are exhausted and you do have to file suit to pursue your benefits, you will not have the right to a jury trial.

3)  You will not be able to seek any extra damages for a “bad faith” denial of your claim.

4)  No matter what the administrator said or did, no matter how well-supported your claim was, you cannot seek any extra damages whatsoever.  It does not matter if you lose your leg because a health claim was denied.  It does not matter if you lose your house because your disability benefits claim was denied.  No matter what, the administrator will not have to pay more than they should have paid on your claim in the first place (aside from paying, perhaps, part of your attorney’s fees, and maybe some interest on past-due benefits).

5)  In most cases, the administrator gets the benefit of the doubt, and a denial of your claim will only be overturned if it is ruled to be “arbitrary and capricious.”  This means that if the administrator has any evidence at all supporting its decision, you will lose.  A recent survey of benefits litigation found that claimants get benefits denials overturned in court only about 30% of the time.

no money

Usually, the only good thing I have to tell people when I explain what ERISA means to them is this – it’s cheap to litigate in this area.  This, too, bears an element of bad news, though.  The main reason that it’s cheap to litigate in this area is that there isn’t much discovery allowed.  As an attorney, I usually can’t get the court’s permission to do things like take depositions, serve discovery requests, or introduce extra medical evidence in support of my client’s claim.  Bad for the case, good for the expense bill my client has to pay at the end.

I’ve heard people saying things like “We have to make sure this passes the ERISA test” with regards to discrimination.  Is this the part about highly compensated employees setting aside and receiving a proportional amount of salary/match to other employees?  Or are they referring to some other discrimination test?

That could be what they’re referring to.  ERISA does have rules about equality between highly compensated employees and everyone else.  On a day-to-day basis, that would probably be what you heard people talking about.  There is another anti-discrimination provision in ERISA, though.  It states that employers can’t take adverse actions against employees for attempting to exercise their rights under an ERISA pension or welfare benefits plan.  The same section of ERISA provides for whistleblower protections, too.

What else should I know to have a reasonable understanding about this?

Well, on the employer side, there are a few things HR folks need to know.  In addition to making sure people are enrolled properly, making sure premiums are paid properly, and making sure claims are forwarded to third-party administrators properly, the HR pro’s biggest and most important job is providing information.  For failure to provide plan documents on request, the plan administrator (usually the employer) could be subjected to penalties of up to $110 per day.  These penalties do not go against any third-party administrators, only the “plan administrator” itself.  If the Department of Labor is asking for information, the penalty for a late response could be up to $1,100 per day.

img_fines pay fines

HR pros can also run into problems just answering (or not answering) employee questions.  Plan fiduciaries (employers as plan administrators, insurers as claims administrators) have an obligation to convey complete and accurate information material to the participant’s (or beneficiary’s) circumstances.  This includes answering questions the participant didn’t think to ask.  For failure to do so, participants can’t currently get money damages in court, but that may change.  (DOL guidance suggests money damages should be available, but currently the courts aren’t following that guidance).  “Equitable remedies” (non-money damages) available for these errors can be substantial, though, including a complete re-write of the Plan to comply with the faulty information given.

For example, consider the case of Krohn v. Huron Memorial Hospital.  Mrs. Krohn was a nurse who worked at the hospital.  She was in a coma after a car accident.  When her husband asks about short term and long term disability benefits, he’s told by HR that the Krohns would be better to stick with the benefits offered by their auto insurer than to file applications for the employee disability benefits plans.  The HR person was under the partially mistaken understanding that 1) auto insurance usually pays more than STD, and 2) that you can’t get both at once.  Based on this advice, Mrs. Krohn did not apply for STD or LTD.  What she should have done was apply for LTD.  Even if she couldn’t receive both benefits at the same time, she would at least have a live claim.  Instead, Mrs. Krohn returns to hospital HR four years later, when her auto insurance benefits are exhausted, asking if she can now file a claim for LTD benefits.  The third-party carrier refuses to consider such a late claim.  Mrs. Krohn has no way under ERISA to force them to do so (she’s long since missed the deadline to apply under the strict terms of the plan).  Instead, she sues the hospital for providing inaccurate or incomplete info about the plan.

The court held that the hospital had a duty to make sure that the Krohns understood everything they needed to know about her benefits, even if the Krohns didn’t know the right questions to ask.  The “duty to inform is a constant thread in the relationship between beneficiary and trustee; it entails not only a negative duty not to misinform, but also an affirmative duty to inform when the trustee knows that silence might be harmful.”  Because of the bad advice Mrs. Krohn got from HR, the hospital wound up having to pay 20+ years of LTD benefits itself, because the third-party insurer was covered by the fact that the claim was not filed on time.

tina

I expect that cases like Krohn would probably keep HR people awake at night.  I mean, to a certain extent, the courts expect you to be mind-readers.  You’re supposed to know what information plan participants need, even when they don’t really know themselves, or else your company could be on the hook for benefits you thought were insured by a third party.  Don’t get me wrong – for every case like Mrs. Krohn’s, there are probably a dozen others where the employee gets nothing.  But I don’t think any responsible HR professional wants that to happen, either.  Talk to your employees and do your best to keep them informed about the terms of their benefit plans.  Hopefully issues like these can be avoided entirely.

stressed_woman

*GULP*  This is the part of HR that makes me get overwhelmed and want a nap.  I just like helping people.  Ugh.  This whole employment law bit is both incredibly boring and scary.  I just know I’m gonna get arrested for something one day.  :)   More study needed!!

http://www.dol.gov/ebsa/faqs/faq_compliance_pension.html

http://www.dol.gov/dol/topic/retirement/erisa.htm

http://newsroom.infinisource.com/post/2012/08/16/Who-Does-What-on-Your-ERISA-Plan.aspx

Jeremy Bordelon

Jeremy Bordelon has worked at the Chattanooga, Tennessee law firm of Eric Buchanan & Associates (http://www.buchanandisability.com/) since 2004.  He’s worked his way up from paralegal to junior partner (so far).  While working for the firm, Jeremy earned his Bachelor’s degree in Legal Assistant Studies from the University of Tennessee at Chattanooga.  He then earned his law degree from the University of Tennessee College of Law in 2009, magna cum laude.  Jeremy is admitted to practice before all State and Federal courts in Tennessee, as well as the United States Courts of Appeals for the 6th and 11th Circuits.  He has successfully handled hundreds of social security disability, private disability insurance and ERISA long-term disability benefits cases.  Prior to law school, Jeremy served eight years in the U.S. Navy as an enlisted Cryptologic Technician, achieving the rank of Petty Officer First Class.

In his spare time, he enjoys road cycling, woodworking, and sailing with his lovely wife.  He likes his steaks medium rare, and he’s never seen LOST or The Wire!  His fave character on The West Wing, though, is Josh Lyman so that’s an acceptable substitution.

Teaching Tuesdays: A Lesson in FMLA with Hilary Bancroft

Hello All -

Welcome to my first Teaching Tuesday!  Today I’ll be getting a lesson in FMLA from Hilary Bancroft.  I’m very excited Hilary volunteered to be my first guest teacher.  She really knows her stuff.  On to the lesson!

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This is what I know (or what I think I know) so far –  Hilary’s changes/additions will be in BLUE so you all can see where I was weak and need more study.  I’m not ashamed.  That’s the whole purpose of this blog – learning together!

Employers are only required to provide FMLA if they have 50 or more employees working within a 75 mile radius of their office.  Very small companies do not have to comply because it would cause a hardship.

Employees are considered eligible for FMLA once they have been with their employer for one full year, provided they have worked at least 1250 hours during that year.

An eligible employee can receive FMLA due to: a serious illness or injury of their own, a serious illness or injury to a spouse, parent or child that requires them to be a caregiver, to receive proper pre-natal care if something like bed rest is required, after the birth of a child, or after the employee takes a child into their home through foster care or adoption.

care for the elderly

Most conditions have to be signed off by a doctor to determine if they are serious enough to warrant taking leave.  Other than pregnancy or adoption, an employee cannot “choose” how much time they want off.  They can only have as much as the doctor recommends.  For example, after my neck surgery a while back, the doctor recommended 4 weeks off.  I could not have decided to take more in order to have a long vacation and call it FMLA, right?  

Often companies have a specialized medical certification they have the doctor complete and the doctor has to specify clearly how much time is needed, the reason for the time, and the expected duration of the condition. Often within my organization we will only do a 6 month approval maximum even if it is a permanent condition as the condition can often change and this allows us to get updated medical information on a regular basis from the doctor. The law does not specify how frequently information can be requested from the doctor on the condition, but I’ve usually heard the minimum approval should be for a month unless the doctor specifies it is a two week condition.

Once an employee is determined to be eligible for FMLA, they can take up to 12 weeks of unpaid leave and still be entitled to all their benefits during this time.  At the end of their FMLA, they are guaranteed their old job back or a similar one with the same pay and benefits.  Their benefits are not free while they are out; the employer can recoup the cost of various premiums when the employee returns to work or they can pay separately while they are out.

Sibling-Pair

Leave is extended up to 26 weeks if caring for a military service member who was injured on active duty, I think.  I have never encountered this situation AT ALL so I’m REALLY unfamiliar here.

Military leave has a lot of different requirements and can even be extended to include things like military services, time to spend with the member in the military while they are on a leave for a week or two, etc.

For most FMLA purposes, caring for a son or daughter means a minor child under the age of 18.  FMLA is given to adult children if they are disabled and unable to provide self-care. Because of technicalities in this arena, I think most people would want to consult an employment attorney to be sure they are complying legally.

With my company in particular, we did extend FML to apply to a household member so employees whose child still lives with them at home are also covered under FML. This is at the discretion of the company.

A few questions I have:

dad-holding-baby-photo-450x400-grf-75651574

Does the law specify about paternity leave?  Can a man use FMLA after his wife has a baby or if they adopt – or does the law specify that it’s only available to a woman after she gives birth?

The law does make it clear that both fathers and mothers have the same rights under FML to take unpaid leave to bond with the baby. The leave must be taken within 1 year of the birth of the baby (so hypothetically a mother could take the first 12 weeks off and then the father could take the next 12 weeks off or they could take it together). It is also offered in the circumstances of adoption to both adopted parents. It must be taken within 1 year of the adoption date of the child.  This type of leave can be taken on a continuous or reduced leave basis, if the reduced leave is approved by the employer. For example, an employee could take the 12 weeks by taking Mondays and Fridays off for 30 weeks or taking Tuesdays and Thursdays off for 30 weeks. This is subject to approval by the employer. The only guaranteed approved leave is if it is taken continuously. Leave for bonding with a child cannot be taken intermittently, it must be a set schedule.

FMLA_Demonstrative

Is it the responsibility of the employer to OFFER FMLA or is it the responsibility of the employee to ask?  I know most people are presented with this info upon their orientation as a new hire and beyond that, HR can’t read minds.  HR can’t know if an employee’s parent has developed Alzheimer’s unless the employee brings that to their attention, yes?

If an employee specifies to their employer that they have a serious health condition that they need to take time for, it is the employer’s responsibility to advise them of the FML benefit. If the employee does not mention a medical condition, the need to care for someone with a serious health condition, or express the need to take time off for these things, the employer cannot know that they should offer FML to them. We also offer information regarding Family Medical Leave and how to apply in our Employee Handbook to ensure that all employees have access to the information if they seek it out as well. We also typically recommend that if the employee mentions anything medically related, that the manager encourage them to have a conversation with HR and advise the employee they do not have to provide any information to management regarding their condition.

At least in the state of Louisiana, FMLA differs from pregnancy leave.  Pregnancy leave is available immediately upon hire and can last for up to 16 weeks/4 months.  Is this the law everywhere?

This is not the law everywhere; there are many different FML laws in various states. For example, California has paid disability leave as well as CA specific family medical leave. Oregon has similar laws. You should always check with your state government website to see if your state does have state-specific requirements that are more strict than the federal policy.

FMLA-3

Anything else important that I should know?

I can’t think of anything, but with FML there’s more that I learn every day and new litigation taking place that changes the requirements! When in doubt, if you’re denying an FML condition, I would recommend consulting with your company’s lawyer just to be safe.  

Thank you so much, Hilary, for all this wonderful information and for taking the time to chat with me!  I really appreciate it!  My first guest teacher, everyone!

Hilary

Hilary Bancroft graduated from Providence College.  She majored in Marketing and minored in Finance. She started in an HR Development Program at a Fortune 100 company in 2010 as a way to get her foot in the door and ended up loving it. She spent her first year learning most of the HR basics such as Worker’s Compensation, termination, new hire orientations, and her “best friend”, Family Medical Leave. She lives and works in Boston and is always looking for new connections in the HR world to hear about best/different HR practices.  She can be reached on Twitter at @HRHilary or her LinkedIn Profile at http://ow.ly/hD5PZ.  She prefers cake to pie and is not at all adventurous when it comes to pizza toppings.  Hilary is currently buried beneath two and a half feet of snow but assures me she’s fine and drinking lots of cocoa. 

Ok gang – did we miss anything?  Get anything wrong?  Let us know in the comments!