Category Archives: Medical

Embracing the Discomfort – The Plan

Expand-yourself-Get-out-of-comfort-zone

The 5th anniversary of my 29th birthday is in a little over 3 weeks and I’ve been thinking about things that I’ve learned about myself over the years.  I’m nosy.  I have an extraordinary memory, which passes for intelligence about 95% of the time.  I will probably never be a morning person no matter how hard I try.  I can be very envious and insecure…and I have an absolutely incredible tolerance for pain.

imagesThat last part is going to sound like bragging when I explain it, but it’s really not.  When I know something is SUPPOSED to hurt, I let it hurt.  Case in point: I had horrible dry socket after my wisdom teeth were extracted because no one remembered to give me a syringe and the instructions to prevent dry socket.  So when I was in pain 2 and then 3 weeks later, I just thought, “Well I just had surgery.  It’s supposed to hurt.”  The oral surgeon was appalled at my final visit.  I’ve had the same thing happen to me in the ER on Christmas Eve with strep throat*, from the neurosurgeon who diagnosed those ruptured discs in my neck, and from a different neurosurgeon after the operation to remove those ruptured discs.  “How are you sitting here without writhing and crying?  Why aren’t you asking for more pain meds?  Why aren’t you taking the ones we gave you?” or something along those lines.  My answer is always the same:  “I’m sick, I’m injured, I just had surgery.  It’s SUPPOSED to hurt, right?!  Complaining doesn’t help.”  I just always assume that the amount of pain I’m in is the amount I’m supposed to be in and deal with it.  Evidently some of you are whiny little drug-seeking bitches, though.

That being said, while I do have an incredible tolerance for pain, I have ZERO tolerance for discomfort.  I hosted a bridal shower for my friend Lea many years ago, the weekend Pope John Paul II died (great memory, right?).  I was outside planting flowers in pots for several hours the day before the shower.  It was early April in Baton Rouge, sunny but not hot, and there was a lovely breeze.  It was a beautiful day.  For a week after, my lips feel like they were constantly covered in cellophane and it was all I could do to get out of bed.  I don’t think I talked about anything else for a week except which lip balms I liked and which I didn’t.  In the case of discomfort, complaining does help because it makes others around me miserable too and, seriously, why should I suffer alone?

Me in a room that's too stuffy.

Me in a room that’s too stuffy.

If the thermostat is too hot or cold, I’m dying.  Bug bites and paper cuts make me want to check myself into a mental ward for a sedative.  People have found me in my office before, rubbing myself on a door jamb trying to scratch my back like a cartoon bear.  I really would rather be stabbed in the gut than sleep in a room that doesn’t have a fan.  I’m the whiny little bitch in this scenario and I’m ok with that.

What does all this nonsense have to do with my plan?  Well…summer 2013 is going to be The Summer of Dominique’s Discomfort.  For starters, I’ve signed myself up for a 7:30 am Zumba class on campus.  This isn’t a fun class that I can drop anytime.  This is for credit and I will be assigned a grade.  I don’t need this class to graduate, but it only cost $60 more and for 2 months of Zumba, I might as well.  Did I mention the part about not being a morning person or liking to sweat?  What have I done?  Did I mention also that I’m a former smoker and since my knee surgery 14 years ago I have become about as limber as a rusty lawn chair?

ive-made-a-huge-mistakeAlso, I signed up for one of those Color Runs at the end of June and roped 2 friends into joining me.  It’s a 5K.  I haven’t started training AT ALL yet, and I haven’t run in…EVER.  My whole life I have been able to swim a mile before I could run one, so that’s gonna suck — and I paid money to do this.  Holy shit.i-exercised-once

Once I lose some weight, I want to start biking again.  For now balancing all this heft on my hoo-ha on a bike hurts my hiney more than is worth it.  That will be later in the summer.

I’m going off sugar.  I’ve done an Atkins-esque plan before.  No, it’s not high protein.  No, it’s not all bacon.  You basically eat your body weight in veggies.  Look it up.  I feel a lot better when I do that and I have a lot more energy but that first week is a bear.  None of you are going to want to give me even the slightest criticism on Facebook, Twitter, over the phone or in person or we might both end up on the news.  What is the opposite of the Twinkie defense?

Or you'll do what I do which is to watch all the good food go bad and order pizza.  And ice cream.

Or you’ll do what I do which is to watch all the good food go bad and order pizza. And ice cream.

I’m going to be in school (the Zumba plus another easy class) and working this summer.  At the same time I have plans to do a lot of HR and finance education to make myself more valuable at work.  That won’t be uncomfortable but will be a bit time-consuming.  My summer reading list is already at about 8 books and that doesn’t include anything for school yet.  I’m very lucky to have a cool boss who is grooming me for bigger things.  ”Learn More Stuff” is actually my number one summer assignment.

There is still the elephant in the room with Dad, and considering my birthday and Father’s Day always go hand-in-hand, at some point some awkwardness will have to be addressed there…I hope.  I’ve reached out.  We’ll see.

What has inspired all of this apart from this blog and all of you?  Two friends that I HATE.  Remember when I said I could be envious?  I really can.  And I don’t hate them in the way I hate Al-Qaeda or Gwyneth Paltrow.  I’m not angry at them.  I hate them in a way that you can only hate someone you really love.  The truth is that I adore them both but they have achieved so much while I have been stagnating that it just makes me sick with happiness, admiration and seething, undying jealousy.  They are AWESOME and I am NOT (yet).  They’ve been through the pain already and I have yet to begin.

Here they are together.  At once the banes of my existence and my reason for getting up in the morning.

Here they are together — at once the banes of my existence and my reason for getting up in the morning.

Look at the guns on this b...est friend of mine!

Look at the guns on this b…est friend of mine!

Julia** lives in Portland and is raising 2 wonderful boys with her husband.  I lived with her for a while in college and she was never ever fat, but she was not the lean machine she is today!  She’s taken up fitness as her life’s purpose pretty much and she looks amazing.  Even more than the changes to her appearance, though, she has achieved so much.  She has run a couple full marathons, I think.  I know at least one was for Team In Training, so she did a good deed there.  She did an Olympic-distance Ironman, I think.  She routinely does half-marathons and smaller triathlons. Some of that may be wrong, I have no idea.  All I know is she has a shitload of medals and I have an assload of cellulite.  She is in incredible shape and really enjoys what she’s doing.  I’m jealous.

This one used to shun photos like the plague and now he's taking them all the time.  And always smiling!  It's like he knows something that I should be learning.  Hmmm.

This one used to shun photos like the plague and now he’s taking them all the time. And always smiling! It’s like he knows something that I should be learning. Hmmm.

My friend John** lives in Houston and he has recently lost something crazy like…200 pounds.  I don’t know the exact number but it’s a lot.  He was depressed and fat (I’m familiar) and something just clicked for him one day.  He went to a medically-supervised weight loss program, began working out, and now he’s lost all this weight, toned up, and has also been bitten with the running and triathlon bug.  His confidence has gone through the roof.  He’s a fitness evangelist now that makes Jimmy Swaggart look like some stuttering wallflower in comparison.  He is so much healthier, so much more vibrant and a real inspiration.  Again, I’m jealous.

And I know I could do something about it and change my life but it’s just so much easier to sleep in, to watch Netflix instead of studying, to order pizza instead of cooking for myself, and make “easy” choices instead of difficult ones.  BUT…since hopping out of my comfort zone accidentally worked so well earlier this year, that’s what I’ve got to do now.  I’m slowly learning that lesson.  The fact is, this summer is probably going to suck.  Maybe even more than the summer of mental illness or neck brace.  It’s going to be sweaty and uncomfortable and painful but hopefully I’ll be better for it at the end…waist a little smaller and brain a little bigger, or more wrinkly or something.

Growth does not happen in the comfort zone.  I have to remember that.

Growth does not happen in the comfort zone. I have to remember that.

My official motto:  Embrace the Discomfort.  It’s Definitely Going to Suck, But It Probably Won’t Kill Me.

Will keep you posted!  Any words of encouragement would be wonderful, but I’m warning you guys…June 1 and all the carbs are gone.  At that point, any criticism will be viewed as an act of war.

Hope everyone had a great long weekend! – HRGF

*Don’t ever go to the ER on Xmas eve.  The morgue will feel sorry for the ER staff and send up a ham.  Apart from the gross irony of getting meat from the morgue, the ER staff will be overjoyed at ham and will forget about you for 2 hours.

**Names and locations changed to protect friends I hate.  With love.  But then I put up their pics so whatever.

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. :)

Sometimes Life Has Other Plans…

One of these days I am going to learn to not get too excited about things I think will be fun, and not get too down about things I think are going to royally suck.  I often end up wrong about both.

s-DUKAKIS-large

Saturday I got my hair done, got a brow wax, got a manicure and a last minute bug up my butt to whiten my teeth, so I got some fancy 2-hour strips…all in preparation to take tons of pics with all my fave HR celebrities and network the hell out of people.  It was not an inexpensive day but frankly the hair and the brows needed to be done anyway and were unavoidable.  I was looking a little Dukakis there.

Saturday night was not what I had planned, but it was awesome.  The few minutes I spent with some HR celebs in the restaurant while shoving food in my face were really fun, and tasty.  Picking up the fellas at the airport was an adventure and they were fabulous.  If I could only spend a little quality time with a few people there, Mike Haberman, Doug Shaw and Bill Boorman were good choices.

amigos

Then came the cut.  What I thought was not that bad before I went to bed (at 5 am) was not that great in the morning (at 9 am).  It eventually required superglue and a couple stitches.  Nothing life-threatening but super inconvenient and painful.  The tetanus shot was not fun either and the pain meds made me super queasy.  Sunday through Tuesday was largely me sleeping like the dead, sitting around with my foot propped up, and occasionally experiencing some very unpleasant things…with the ball of my foot all taped up and me walking awkwardly on the outer side of my foot, as little as possible.  The cut is kind of in a crease, so it shouldn’t even scar (which is good for future blisters, I’m told) and could have been way worse.  I’ve had way worse happen to me (ACL injury, 2 ruptured cervical discs) and I can still see poor Kevin Ware’s injury in my head, so this was NOTHING, really, and I have no right to complain.

Still, less than ideal timing.  I had a chance to hang out with Laurie Ruettimann and totally missed my chance to fangirl on her like I planned, I missed Janine and Doug from my Zombie Apocalypse team, William Tincup (and I remember we talked about it in the car but I don’t remember what the answer was…was he BORN with that last name?) plus British people!  I’ve been watching Doctor Who and I was in love with all things British up until a certain character had to leave and now I’m just pissed.  But I didn’t know that till last night!  I would’ve been FINE over the weekend with the Brits!

tardis-david-tennant-doctor-who-tenth-doctor-HD-Wallpapers

I got excellent coverage of SHRM from all the tweets and blogs coming from there.  I learned a lot and was entertained quite a bit, and wasn’t even there.  If you haven’t done so yet, take a look through all the #lashrm13 tweets and Google it to read some great blogs.

dentist

In celebration of me possibly finally learning this life lesson, rather than aim for any “fun” activities next week, I’m going to try and see the dentist, the gyno and start training for my first 5k as soon as these stitches come out.  If I get really crazy I might try and get a colonoscopy.   I’m anticipating mild to moderate fun.

Keep ya posted!

-HRGF

PS – I believe the foot is doing well.  Walking on it is less painful and it itches like a mofo.  That’s a good sign, yes?  Healing?  Let’s hope so.

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!

imagesCAQS78F9

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.

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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:

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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.

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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.

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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!

I’m on Rx, You’re on Rx, We’re ALL on Rx!

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Doctors don’t (ideally) hand out pills willy-nilly.  99 times out of 100, if a doctor prescribes you medication, it’s because she really believes it will improve your health.  Following their instructions is a prudent thing to do and has nothing to do with your job, right?  You can’t be fired for that, can you?  That’s crazy talk!  That seems like such a patently obvious thing to me that to even write about it seems superfluous.  And yet…check out this great eye-opening blog post from Michelle Bowman (@michelebow)!

http://blogs.lawyers.com/2013/01/cant-fire-for-rx-medication/

I didn’t post that for my health, really.  Please open in another window or tab and read it.  I’ll wait.  It’s not long.  I’ll even give you a few extra seconds to roll your eyes back to their normal position because no doubt they’ll be oriented in another direction after you read it.

A particular point of crazy that stands out to me: “…Dura Automotive Systems required employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications. Dura also said employees could only keep their jobs if they stopped taking their meds.”  The first case Bowman mentions, at the masonry company, was about a woman taking medication for a bipolar disorder.  Let’s assume there were people taking similar medications at this automotive company.  So first they fail a drug test, then have to reveal a very personal illness, and then have to stop taking the medication for the illness…invalidating the reason for disclosing it in the first place!

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Plus, it is DANGEROUS for people with mental illness (and I assume other illnesses) to abruptly stop their medications.  They can have terrible withdrawal symptoms, become suicidal or, yes, even homicidal.  I’d rather risk any potential workplace safety issues of someone ON their medications, thank you very much.

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Think about that.  Sometime, somewhere, in the offices at Dura Automotive, there was a meeting.  And it was decided that these automotive experts knew better than doctors about their employees’ health.  Huh.  I guess that settles it.  Next time I have a sore throat, I’m going to Auto Zone!

Now, clearly, I understand that a neurosurgeon, a crane-operator, a fireman, and a school bus driver do not need to be taking Vicodin, prescribed or not, while at work.  No one is arguing with that.  If medication would truly interfere with your job, maybe HR needs to take that into account and initiate some FMLA?  Maybe light duty for a few days?  Maybe the employee can ask their doctor if something else would be equally effective?  Maybe (if it won’t affect performance) the employee can take minimal doses before/during work and then resume a normal dose at home?  There are a myriad of things I would consider here instead of terminating someone’s employment because they were taking medication that a doctor recommended!

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It just so happens that I had a serious neck injury almost 2 years ago that caused extensive nerve damage.  For 2 months, it felt like I had one arm in the electric chair.  I eventually required surgery but in the 7 weeks between the injury and the operation, a high dose of Lortab was all that got me through the day.  My boss at the time was wonderful and I considered her a friend.  I told her immediately about the medication and that if I happened to require a random drug test during that time, I definitely wouldn’t pass.  In the beginning, I was also afraid the medication would make me goofy or that I would become addicted since I knew I’d be on it a while.  I also told her my fears about this and asked her to keep a look out in case I started acting differently and told her that I might be asking her to check over my work a little more frequently.  She was happy to do so, wanting me to be safe and also for our work not to suffer.  Everything turned out fine: neck is perfect again, no addiction, and to my knowledge I did not make any huge mistakes at the office.  Still, it was a blessing to be able to communicate so openly with her and work together to ensure a positive outcome for both myself and the company.  I wish more employers and employees had that level of communication.  It really was a godsend.

Again, I’m still learning some of the more technical aspects of HR.  I’m not an expert on FMLA or HIPAA, and I’m certainly not a doctor or lawyer.  Do you have a different take?  What would you recommend if an employee’s medication possibly interfered with their work?