May 2022 Newsletter

Common FMLA Mistakes

  Many employers have learned the hard way that common mistakes by untrained HR and people managers handling medical leave can open the door to employee lawsuits.  Here are the most common FMLA mistakes made by employers:

  1.      Failure to Identify an Employee’s Need for Leave

  At a minimum, employers should maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave, all within a certain period of time.  Even better, require two calls: one to report the absence generally to the manager and another to an employer intake line or a third-party administrator handling calls on your behalf.  The employer should make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago was FMLA leave and not the unexcused absence for which you are terminating them. If the employee does not follow these call-in requirements and does not identify an “unusual circumstance” as to why they could not follow your call-in procedure, the leave is not covered by the FMLA and is unexcused.

  Also, include clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind.

  2.      Reacting Inappropriately to an Employee’s Request for FMLA Leave

  If you have any doubt as to whether the FMLA may cover an absence, the regulations require the employer to inquire further to determine whether the FMLA covers the absence. 

  Employers should train their managers on how to effectively and lawfully manage leaves of absence under their personnel policies and the law. Investing now to conduct effective FMLA training will save you in the long run when the actual situation presents itself.

  3.      Badgering Employee During FMLA Leave

  Can you make sporadic calls to an employee on FMLA leave to transition work or ask to pass along institutional knowledge? Sure, these won’t lead to any FMLA violation.  But as a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.

  4.      Revealing an Employee’s Medical Condition to Others

  Again, train your employees. Prohibiting disclosure of sensitive medical information must be covered in that FMLA training.

    In its ADA guidance, the EEOC warns that this information can be shared only for extremely limited purposes:

– to supervisors and managers where they need medical information in order to provide a reasonable accommodation

– to first aid and safety personnel if an employee would need emergency treatment

– to individuals investigating compliance with the ADA and with similar state and local laws

– pursuant to worker’s compensation laws (e.g., to a state worker’s compensation office in order to evaluate a claim) or for insurance purposes.

  5.      Automatically Terminating Employment After FMLA Leave Ends

  When an employee exhausts 12 weeks of FMLA leave, it does not mean that the employee transitions into unprotected leave.  At that point, an employer must consider Americans with Disabilities Act (ADA) obligations in determining whether additional ADA leave is required as a reasonable accommodation to help the employee return to work.

  6.      Contesting Post-Termination Unemployment Compensation

  When terminating an employee for unexcused absences, an employer should think long and hard before contesting their unemployment compensation.  As a general rule, the terminated employee doesn’t sue the employer because they believe a law was broken, they believe the employer treated them unfairly. Contesting their unemployment claim can often times further cement the employee’s belief that they were treated unfairly. 

DOJ Issues Guidance on Opioid Addiction and the ADA

On April 5, 2022, the U.S. Department of Justice (DOJ) issued guidance on how the Americans with Disabilities Act (ADA) can protect individuals with opioid use disorder (OUD) and other drug addictions from discrimination.

ADA Background
The ADA is a federal law that prohibits employers with 15 or more employees from discriminating against individuals based on disability.

Drug Addiction as a Disability Under the ADA
The DOJ’s guidance explains that individuals with OUD typically qualify for ADA protection because drug addiction is a physical or mental impairment that often substantially limits one or more major life activities. Individuals in recovery from drug addiction may also qualify for ADA protection if they would be limited in a major life activity without treatment or services to support recovery.

Exception for Current Illegal Use of Drugs
The ADA’s protections do not apply if an individual is engaged in the “current illegal use of drugs.” This is generally defined as illegal use occurring recently enough to justify a reasonable belief that this use is current or that continued use is a real and ongoing problem. The definition does not include the use of a prescribed medication under the supervision of a licensed health care professional.

Workplace Policies
The DOJ guidance clarifies that employers may implement reasonable policies or procedures, including drug testing, designed to ensure individuals are not engaging in current illegal drug use.

Preventing discrimination based on drug addiction is a key part of the DOJ’s efforts to combat the opioid epidemic. 
Cybercrime and Benefits Plans

According to recent estimates from the University of Maryland, a cyberattack occurs every 39 seconds. Data breaches and cyberattacks are daily headlines—and employee benefits plans are no exception to that threat. In fact, employee benefits plans are even more vulnerable as the coronavirus pandemic continues; organizations and benefits providers are relying heavily on electronic access, ultimately creating new vulnerabilities. Some examples of cyberthreats include phishing, malware and ransomware attacks.

Virtually any type of employee benefits plan is vulnerable to hackers. These plans can be exposed to risks relating to privacy, security and fraud. Sensitive information contained in benefits plans is valuable to cybercriminals.

Lost or stolen mobile devices, laptops and flash drives that hold personal information are additional tangible threats to benefits plans. These situations are especially concerning now that more employees are working from home. Given the new remote-working landscape as a result of the pandemic, plan sponsors should, at minimum, consider updating work-from-home policies to include cybersecurity clauses.

Overall, always be prepared for the worst to happen. In the unfortunate event of a security breach, it’s important to be prepared with a basic communication and action plan. Reach out to discuss your cybersecurity concerns, including cyber risk coverage levels and general best practices.

Telehealth Coverage for HDHPs Extended

A spending bill recently signed into law extends the ability of high-deductible health plans (HDHPs) to provide benefits for telehealth or other remote care services before plan deductibles have been met without jeopardizing health savings account (HSA) eligibility. This extension applies to any telehealth services from April 2022 through the end of the year.

HSA contribution rules limit the types of health coverage that eligible individuals may have. As a general rule, telemedicine programs that provide free or reduced-cost medical benefits before the HDHP deductible is satisfied are disqualifying coverage for purposes of HSA eligibility.

However, effective in 2020, for plan years beginning before 2022, the Coronavirus Aid, Relief and Economic Security Act (CARES Act) allowed HDHPs to provide benefits for telehealth or other remote care services before plan deductibles have been met. This meant that HDHPs could provide coverage for telehealth services before the minimum deductible was reached without jeopardizing plan participants’ eligibility for HSA contributions. This rule expired for plan years beginning in 2022.

Impact of the Extension
Under the extension, HDHPs may choose to waive the deductible for any telehealth services from April 2022 through the end of 2022 without causing participants to lose HSA eligibility. This provision is optional; HDHPs can continue to choose to apply any telehealth services toward the deductible.

Note that telemedicine services provided between Jan. 1, 2022, and April 1, 2022, must still be counted toward the HDHP deductible to avoid impacting participants’ eligibility for HSA contributions. 
Sick Workers Should Stay Home

When sick employees come to work, they can potentially spread their illness throughout the office. Learn why sick workers should stay home, especially during the COVID-19 pandemic, by watching the video.

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