By Carrie B. Cherveny
In today’s complicated world of leave management, it’s not enough for human resource professionals to be aware of the abundance of relevant laws and the particular circumstances to which they apply.
The bigger challenge may lie in knowing how to navigate those perfect storm situations when they all apply simultaneously, specifically, workers’ compensation, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA).
In terms of leave management, here’s an overview of their separate implications:
- Workers’ Comp: This is a state-based statutorily required insurance program providing wage replacement, medical, and rehabilitation benefits related to the workplace injury for as long as the claim requires or until it’s settled and/or closed.
- FMLA: This law provides employee benefits protections and job restoration rights. Organizations employing 50 or more within a 75-mile radius must provide FMLA benefits for up to 12 weeks (26 for servicemember leave) to eligible employees for qualifying events. Qualifying events include, among other things, birth, adoption, fostering of a child, family member serious health condition, and caring for a service member with a serious injury incurred in the line of duty.
- ADA: Organizations employing 15 or more employees must provide a reasonable accommodation to an employee with a qualifying condition so that he/she may perform the essential functions of his/her job. The employer and employee must engage in an “interactive process” in an effort to arrive at a reasonable accommodation. The EEOC has stated that in some circumstances an accommodation may include a leave of absence.
- ACA: Employers must offer minimum essential coverage, of minimum value that is affordable to eligible employees. Eligible employees includes full-time (reasonably expected to work at least 30 hours weekly) and variable hour employees (those employees not reasonably expected to work 30-hours or more each week). Variable Hour employee’s hours are measured over a pre-determined measurement period. If the employee averages at least 30-hours each week (or 130 hours each month) during the measurement period, he or she is eligible for health insurance benefits for the duration of the subsequent “stability” period. While in a stability period, an employee’s eligibility for benefits does not vary based on hours worked. So long as the employee pays for his/her share of the premium and remains employed the health insurance coverage remains in-force.
Each of these regulations has unique obligations that often intersect:
- Workplace injury.
An employee who experiences a workplace injury that includes “lost time” may also be eligible for the FMLA and potentially the ADA Many workers’ compensation programs require a transitional/light duty program. The ADA likewise requires, at a minimum, that the employer engage in the interactive process to determine whether the employee is entitled to a reasonable accommodation to perform the essential functions of the job. Moreover, during the FMLA leave, the employee, whether full-time or classified as variable hour and in a stability period, should remain on the health plan so long as his/her share of the premiums are paid.
Employers should pay special attention to temporary disabling conditions Since the broadening of the ADA under the Amendments Act, even temporary disabling conditions may qualify for the rights and protections of the ADA under the Amendments Act (ADAAA). To determine whether ADAAA rights apply, an employer should engage in the interactive process, gather the appropriate and necessary medical documentation, and determine whether there is a reasonable accommodation available to perform the essential functions of the job.
- Employee’s serious illness or childbirth or child placement (adoption/foster care).
An employee may be eligible for the FMLA if he/she experiences his/her own serious health condition or upon the birth or placement of a child for adoption or foster care. The employer should work through the FMLA documentation requirements to determine whether the employee is eligible for FMLA leave. Likewise, when an employee experiences a serious health condition that may also qualify as a disability under the ADAAA, the employer must also work through the interactive process with the employee. The ADAAA also has a role in the employer’s determination of intermittent leaves. The employer must consider its obligations to provide a reasonable accommodation to perform the essential functions of the job – whichmay include a reduced work schedule or some period of leave. With respect to continued health coverage during a leave of absence (whether continuous or intermittent), the employer must consider whether the employee is variable hour and in a stability period. If the employee is in a stability period and requires a reduced work schedule, the employee’s eligibility for the health insurance plan is not impacted by the reduction in hours.
- Employee Accommodation That Includes Reduced Work Schedule.
With respect to the FMLA, an employee may be eligible for a qualified leave of absence for his/her own serious health condition, or to provide care to his/her qualifying family member. Either of these may result in the employee working a reduced work schedule for a period of time. If the employee requires a reduced schedule because of his or her own medical condition (not the family member’s) ADAAA eligibility should be determined by working though the interactive process.
Under the ACA, the full-time employee’s health coverage remains for three consecutive calendar months after the reduction in hoursbegins. At the end of the three-months, the employer will measure the employee’s hours to determine if he/she worked an average of 130 hours each of the three months. If the employee did not meet the hour’s threshold, he/she would be removed from the health insurance and offered COBRA for a reduction in hours. The health insurance eligibility of the variable-hour employee who is in a stability period is not affected by the reduced hours so long as the employee pays his or her share of the premium. Once the stability period ends, the concurrent measurement period also generally ends. If the employee worked less than an average of 130 hours in each calendar month of the prior measurement period, then he/she will lose eligibility for the health insurance in the following year.
Charting these waters can be complicated, especially since conditions may qualify for the protections of one regulation but not another. Being mindful of the nuances will help you get through the perfect storm.
HUB International’s team is available to work with you on a diverse range of HR needs, from risk management and regulatory compliance to benefits strategy, program design and workplace culture.