In Absence Management, ADA, FMLA

Thank you to the Disability Management Coalition for once again hosting an amazing and informative FMLA/ADA Compliance conference. Every year there are exciting new updates from a wide array of speakers, some well-seasoned speakers whom we’ve come to love hearing from as well as new industry speakers with fresh topics and perspectives.

Angie Brown and Curt Drummond at the annual DMEC Employer Compliance Conference 2016Of course, I can’t attend every session, although I’d like to. Those of us who attend every year, know how difficult it can be to decide which session to attend during the concurrent sessions. Do we see the speaker who engages us and captures our attention every year, or the topic that our friend is presenting, or the one in which we know not the speaker at all, but alas we need to refresh our education on that topic.

Because I can not possibly attend every session, I would like to provide you with the highlights of this year’s DMEC Compliance conference from my perspective. If you were unable to attend these sessions, hopefully, I captured some important pieces of information that will assist you in your endeavors.

Employers FMLA Fact Sheet

US Department of Labor Branch Chief of FMLA and Other Labor Standards, Helen Applewhaite, opened this year’s conference along with DMEC’s own Terri Rhodes. Helen has promised us for some years now that a new FMLA Employer Guide will be coming “shortly.” Helen delivered this year, opening to a round of applause by the crowd. You can download the Employer’s FMLA fact sheet right here on the DOL website.

Helen encouraged the group to review this fact sheet and reminded employers about the growing number of audits being performed by the DOL. “When we show up and knock on your door, it is probably not your best day,” says Helen. And she’s right. However, with all the tools we are provided with today, such as DOL clarifications, fact sheets, TPA’s and software to assist your internal administration, we should all be well armed when they do. Helen made it very clear – they don’t want us to fail!

FMLA & ADA Lawsuits Continue to Increase…

Frank Alverez “The Year in Review,” was my next session. I enjoy watching Frank; he’s simply fun to watch. He gets excited when he talks, and his passion for his topics is evident. Some of us may be FMLA geeks, but even we need the excitement to sit for more than an hour in some cases, like this one.

Interestingly enough, when Frank did a show of hands regarding who insourced, outsourced or co-sourced, the majority of the room was insourcing. I often speak to employers who insource, and although they’re not always apt to say that they want to outsource per se, they at least feel that they need the tools to help them succeed so that Helen and her team don’t come knocking. Many employers who insource are still using Excel spreadsheets. It’s a tough sell for the benefits and HR teams to get the funding to do something different. Perhaps they need the person who holds the purse strings to come to the Compliance Conference.

FMLA and ADA lawsuits are consistently on the rise. In 2012, there were 404 FMLA lawsuits. This number was incredibly frightening to employers at that time, but this number has increased to a whopping 1130 in 2015. ADA lawsuits are still rising, although at a significantly slower rate than the FMLA, which is good, because they’ve always been at noteworthy levels. There were 2020 litigations in 2012 and 2076 last year. Approximately 27% of all EEOC lawsuits in 2015 included an ADA claim, which is the highest percentage of any claim enforced by the EEOC.

“Our companies need to find a better way to do a better job,” says Frank when discussing work accommodations up to and including leave. “Leave as an accommodation is an oxymoron. Accommodations are to keep you working, not to relieve you of work! But the courts are enforcing it.”

Every employer needs to be aware that EEOC can knock on your door and say that they want the records for every person who has been subject at any level, up to and including termination, to your company’s ADA/ADAA process, going back many years. If you do not provide it, they will subpoena your documents.

This session went on to discuss some notable cases in 2015, but most interesting to me was Castro-Ramirez v. Dependable Highway Express. In this case, the California courts went above and beyond and said that even if you as an employee are not disabled that you can have a “disability by association” and would be protected the same way. In this case, Luis Castro-Ramirez needed work accommodations to provide daily dialysis for his son. This case deserves a write up all on its own, but I urge you to become familiar with it.

Helen Applewhaite, Marti Cardi, and Megan Holstein offered comprehensive presentations later in the day. Marti and Helen discussed an employer’s rights regarding obtaining medical and clarifying information on provider certifications and encouraged employers to utilize their second and third opinions if they feel it necessary. Megan riled up a few people with the ever controversial 15-day waiting period approval, even if the employee doesn’t return their certification for over 40 days. But hey, that’s what makes it fun right?
Another day, I chose to see Frank again, while he presented “Defending Job Analysis” with Dan Biddle, Ph.D. from Biddle Consulting group. This topic too was engaging and fun.

Parental Leave is Growing in Importance

Parental LeaveLast, but certainly not least, Anna Steffany from Leave Logic presented a slightly different agenda than our normal compliance topics making it refreshing and captivating. Anna is up and coming with a new offering to employers to assist employees through the parental leave process, essentially it seems, from conception through the return to work.

Anna brought three amazing women as panelists; Rachel Ellison, Luciana Nunez, and Miyuki Iwahashi. These powerful women are leaders not only in their individual companies but in the fight to change parental leave across America. They discussed the stigma of maternity leave, and how more often than not, a woman comes back to work feeling ashamed, and a burden to her organization regardless of how natural it is for a woman to give birth.

Luciana Nunez from Danone mentioned the time she knew she needed to make a change. A highly motivated and productive team member came back from maternity leave, sat down for her performance review, and said that she understood if her review was not as good as it should be. Essentially she believed her A status would become a C because she had a baby, it was simply expected.

Nunez formed a team to determine the impact on mothers who return to work feeling a burden, or women who never came back to work at all, finding a few weeks simply too soon to hand over their tiny new person to a stranger. The impact was massive. Danone spent a year implementing change, including extending parental leave for all employees, male or female up to six months, increased breastfeeding resources, and many other magnificent changes that made coming back to work welcoming and productive.

That’s a lot of money spent isn’t it? Danone realized a return on investment in the first 6 months! Their culture is driven to retain, and it’s working. Danone has even gone on to encourage other companies to introduce similar workplace practices. I saw a lot of note taking from men and women alike. I know I felt good when I left.

Thanks again DMEC! I hope to see you all at the Annual Conference in July!

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