Confusion Leads to Liability

Transcription

1 Workplace Flexibility Through FMLA: A DARTS Workplace Eldercare Publication May 2010 A CASE FOR EDUCATION The Family Medical Leave Act (FMLA) is one major tool by which employers and employees structure workplace flexibility. A 2006 study showed that percent of all FMLA absences are for child or elder care (ComPsych: FMLA Source). It found a two-fold growth in elder-care-related FMLA leave requests, from 16 percent in 2003 to 36 percent in Over 80 percent of these absences were intermittent leaves. Working caregivers of elders are increasing in the workplace, and retaining and supporting these mature workers has a business value as well as a social one. The Challenges Intermittent FMLA leaves are typically unscheduled (51 percent) and of unspecified duration; the employee s work is not performed during the absence. The flexible nature of intermittent leave makes it extremely effective, but documentation is more challenging and less accurate. In addition, work is not performed while the employee is on leave, adversely affecting productivity, staff morale, and the bottom line. While most HR managers value FMLA as a program, they find it challenging to track, document, and cover unexpected absences to ensure productivity. A 2005 Society for Human Resource Management (SHRM) Online Survey found that 68 percent of members experienced challenges in administering/ granting medical leave under the FMLA. Of the near dozen possible challenges, tracking intermittent leave garnered 51 percent of all responses more than any other issue. The SHRM survey also found that over 60 percent of employers believe they have granted FMLA time off that was unfounded. Literature shows no standard way of capturing costs related to FMLA leave management that is, assessing the economic impact on organizational productivity and profitability is inconsistent. Confusion Leads to Liability Lack of clarity surrounding FMLA provisions is one factor in the rising numbers of employee caregivers who file Family Responsibility Discrimination (FRD) lawsuits which have increased nearly 400 percent from 1996 to 2005 (Center for WorkLife Law). This, at a time when employment discrimination cases overall have decreased. Contributing factors included: Greater use of FMLA by family caregivers. The eldercare responsibility has increased and it occurs over a longer time period. Use of FMLA leave is in smaller, more frequent increments, resulting in greater total work disruption, possibility of reporting errors, impact on morale, and productivity issues. FRD cases concerning family caregiving are more successful than those in other areas of employment discrimination, and awards are high: $100k to $25m. Fifty-four percent are greater than $100,000 (Zeidner). Employees prevail in nearly half the cases. The rise in cases is pervasive, affecting every state, every industry, every size company, and every organizational level....over 60 percent of employers believe they have granted FMLA time off that was unfounded. The Challenges...1 Confusion Leads to Liability...1 Working Caregiver Perspectives...2 Employers Interests..2 Education Leads to Better Understanding...3 Other Options...4 Sources...5 1

2 Working Caregiver Perspectives Workers bringing successful FRD suits alleged discrimination by their employers due to family caregiving responsibilities. Cases are based on failure to promote, biased remarks, improper application, and haphazard implementation of FMLA policies. Workers with family responsibilities pregnant women, mothers and fathers, employees caring for aging parents say they are losing out on job opportunities, pay, and benefits because their bosses assume family responsibilities are at odds with their jobs (Center for WorkLife Law). It is a form of discrimination to make an assumption based on what you assume to be true about a group, including people with family responsibilities, states Leslie Silverman, an employment attorney who led the caregiver initiative while vice chair at the EEOC, currently of Proskauer Rose in Washington D.C. (Silverman). Many employees working with family care obligations had performed well, effectively balancing work/life issues, until their supervisor changed. Cancellation of flexible work arrangements, change of shifts, and new productivity requirements were often imposed, according to some supervisors, with intent to push family caregivers out. This was true for elder care cases as well as new parents (Center for WorkLife Law). This has happened frequently enough to gain recognition as the New Supervisor Syndrome. Other examples of successful claims of FRD include: Firing or demoting employees when they become pregnant Passing over highly qualified mothers for hire or promotion in favor of less qualified fathers or women without children Firing employees without valid business reasons when they return from leave Denying flexibility to employees who want it for child care reasons, while allowing flexibility to other employees for nonfamily reasons Firing employees whose spouses or elderly parents become disabled, fearing increased absenteeism or higher health insurance premiums Fabricating work infractions or performance deficiencies to justify dismissal of employees with family responsibilities (Center WorkLife Law) Employers Interests The implications for employers administering FMLA lead in many directions. Some organizations are busily seeking new administrative solutions and best practices without addressing the underlying causes of FMLA use by employees. As one example, they may integrate software tracking with the organization s payroll system to capture leave time. 2

3 While such tactics may help, it is important for employers to pay attention to the broader issues in order to address the real problem. They need to: Know employment responsibilities Respect employees rights under FMLA Offer solutions such as flexible work hours, telecommuting, or job-sharing to help lighten the load for FMLA (Wilken) The increase in FRD frequency shows that employers do not understand yet the legal risks of failing to prevent discrimination, nor the impact of lost opportunities and talent by failing to adapt the workplace to the needs of today s workforce (The Center for WorkLife Law). The best adaptation is to train supervisors on legal obligations and on best practices for today s workforce. Beyond attending to the spirit of the law and educating all levels of users, employers should be looking at elder care as a retention strategy for older workers, and as a way to reduce productivity losses and other costs to the organization (SHRM: Corporate Eldercare). Capitalizing on this trend could become a positive benefit for employers. Incidentally, employers do not pay employment taxes on benefits, so institutions can reduce their tax burden by casting some of an employee s compensation as a family care responsibility. IRS section 125 allows up to $5,000 subsidy for family care. ( print/views/2009/09/29/shandy) Education Leads to Better Understanding Once an organization gets on top of all these issues and implications, the next challenge is to clarify FMLA provisions to managers, supervisors, and employees: clarify guidelines, establish a common language on FMLA provisions, and coordinate expectations for reporting and tracking. A literature survey reveals various communication goals that target misunderstanding in the area of FMLA and FRD litigation. For Caregivers Build awareness of family caregiving issues eligible for coverage Survey caregivers to determine the types of support most needed Provide access information, highlighting local organizations that provide caregiver services and resource information For Managers The U.S. Equal Employment Opportunity Commission (EEOC) recommends: Train managers about legal obligations that impact decisions regarding treatment of workers with caregiving responsibilities Describe common stereotypes or biases about caregivers that can result in unlawful conduct Provide examples of prohibited conduct relating to workers caregiving responsibilities Respond to complaints of caregiver discrimination Protect against worker retaliation...capitalizing on this trend could become a positive benefit for employers. 3

4 In addition, managers need effective training on: Who qualifies as family Federal law applies to the employee, spouse, children, or parents. Some states have broadened the definition to apply to domestic partners and parents-in-law. What qualifies as a serious health condition The federal definition is broad and sometimes confusing; the ailment must require inpatient medical care or continuing treatment from a health care provider. Consistent use of medical certification forms, which require both the employee and the doctor to clearly describe the nature of the health condition, increasing reliability that it is legitimate. As to form issuance and completion, federal law allows employees 15 days to complete and return the form. Awareness of and assistance for working caregivers in accessing resources relative to family responsibility within and outside the organization. Handling multiple employee issues related to caregiving. This education campaign needs to be carefully coordinated, and may require a variety of educational tactics targeting specific employee groups. Other Options Other examples of caregiver support include (SHRM: Eldercare at Work): LifeWorks, a resource and referral product offered by Ceridian Corp, an HR outsourcing company based in Minneapolis. Call to arrange an in-person assessment of the care receiver s environment, functional capability, and options for services or change in residence. Service is nationwide, provided by professional managers of geriatric care. LifeSolutions, a resource and referral service of OptumHealth Behavioral Solutions in Golden Valley, MN. Provides access to a professional consultant and resource referrals and information, via the LifeSolutions web site. AstraZeneca contracts with OptumHealth to provide a suite of eldercare services in person, by phone, by nationwide network of geriatric nurse practitioners. AstraZeneca s Eldercare Employee Network provides topical monthly education programs as well as Just In Time Care, which allows up to 10 days care per year, subsidized at up to 90 percent of cost. George Mason University, Fairfax Va, provides an elder care services coordinator; also provides monthly support group and offers seminars on caregiving from a distance, communication strategies, and financial and legal considerations for long-term care. Freddie Mac, one of America's biggest buyers of home mortgages, offers access to care through Bright Horizons and features medical and non-medical care services as negotiated by a support/network employee group. LifeWorks and an on-site EAP counselor also provide support on eldercare issues. At the Jewish Home in San Francisco, nurses are cross-trained to ensure someone is always on hand to fill in for any colleague who may need to take leave. (Zeidner) 4

5 Sources ComPsych, FMLA Source, Executive Office of the President, Council of Economic Advisers: Work-Life Balance and the Economics of Workplace Flexibility, March /economics-workplace-flexibility Human Resource Management Online Survey (SHRM), SHRM: Corporate Eldercare: How to Care for Elder Care Givers, 10/15/09 views/2009/09/29/shandy SHRM: Elder Care at Work, HR Magazine. September, 2008 Silverman, Leslie, quoted in Handle with Care, HR Magazine, 11/1/09. The University of California-Hastings Center for Worklife Law. Family Responsibilities Discrimination: Litigation Update U.S. Equal Employment Opportunity Commission (EEOC): Employer Best Practices for Workers with Caregiving Responsibilities. Wilken, Carolyn: Balancing Work and Caregiving: A Guide for Employers. University of Florida, 2006, WorkLife Law, A Center of UC Hastings 12/21/09 Zeidner, Rita: Handle with Care, HR Magazine, 11/1/

6 DARTS WES Workplace Eldercare Seminars DARTS, DARTS Workplace Eldercare Seminar offerings are supported by funding from the Metropolitan Area Agency on Aging (through the federal Older Americans Act) and the Greater Twin Cities United Way.