Natural Disasters & Employee Benefits: Legal & Moral Considerations

Making Natural Disasters Less Disastrous for Your Employees

With the recent hits of Hurricanes Harvey, Irma and José as well as the 8.1 magnitude earthquake that hit Mexico and the ongoing wildfire problems in the Western United States, many are left wondering what they’re supposed to do in the face of such tragic, unprecedented damage caused by natural disasters.

This goes for everyone – if you’re a victim, how do you cope, and get back on your feet? If you’re lucky enough to be far away from destruction, how can you help? If you work in politics, what is the plan for disaster relief? However, working in the space that we do, we’d like to weigh in on the employer perspective: what benefits and leave allowances your employees are legally entitled to in the midst of a natural disaster and what employers might want to consider, while not required, in order to alleviate the burden for their employees.

natural disasters employee benefits

FMLA & ADA and Natural Disasters

What’s Required

When it comes to FMLA and/or ADA related leaves of absence, there’s essentially no real change in process in the face of a natural disaster, at least in terms of the law. There are, however, a few factors to consider, even if you’ve no plans to make a policy change:

  • A bad storm or earthquake may heighten the severity of any pre-existing conditions your employees might have. A spike in FMLA or ADA leave requests is not uncommon in the aftermath of a natural disaster; someone with an exiFMLA Accommodationssting nervous disorder may be dealing with stress-related conditions, blood pressures may be on the up-tick, people may need time to care for relatives who didn’t fare the storm well, etc.
  • It is possible for a natural disaster to spur a new condition or injury, such as backpain from home repair, stress-induced migraines, or anxiety over destroyed property.
  • Employees who are members of the National Guard and are called for disaster-related duty are not necessarily protected under USERRA, but certain states do protect such absences.
  • Even in face of a natural disaster, the FMLA does not account for absences due to things like tending to flood damage, home repair, or looking for missing relatives after a storm. For these situations, employees would need to take personal or company leave to take care of such matters.
    • Absences that are protected by the FMLA that might arise would include the onslaught of an existing condition or a new one brought about by the natural disaster (as mentioned above), as well as the need to care for a spouse, child, or parent who cannot tend to their own medical needs. For example, perhaps a relative is diabetic and they need help managing their medication, which needs to be refrigerated, as they’re now without power.
  • If your office is impacted by a natural disaster and you need to shut down business operations, or if employees are not expected to work, FMLA entitlement days should not be counted for any employee during that time.
    • If an employee is on FMLA leave at the same time that the office is shut down, you need to treat them (in terms of pay, benefits, etc.) as if they are on non-FMLA leave according to your organizational policies.
  • A natural disaster can very well be considered an “extenuating circumstance”  that might prohibit an employee from completing the requisite claim and eligibility paperwork by the original deadline. See below.

What Some Employers Are Doing, “Just Because”

As a high-category hurricane or powerful earthquake are no doubt devastating both materially and emotionally, many employers are doing their best to show empathy and support for their employees during such difficult times. A few ways they are doing so are:

  • Allow more time for claims.
    • For example, we have clients in areas affected by Hurricane Harvey who are allowing employees an additional 30 days to meet any claims requirement – whether STD, FMLA or any other kind. Keep in mind that if people have been evacuated, relocated, and/or are experiencing a power shortage, they should not be expected to meet the same deadline. They may not receive a certification form in the mail because they haven’t been at their home address, and without power and internet they might be unable to complete any such documentation online.
  • Consider those in FEMA-designated disaster areas.
    • Individuals in these areas may need unique assistance and, depending on the damage, there could be cause for a temporary process change on a case-by-case basis.
  • Expand or discount any available medical services.
    • We have a clients who, as a benefit, offer telehealth services to their employees. Some organizations, in the aftermath of a natural disaster, allow employees to access this service for doctors’ visits and consultations completely free of charge, regardless of their health insurance plan.
  • Remind employees of support services.
    • In times like these, employee assistance plans (EAPs) can be essential. Whether it’s providing updates to community situations, arranging access to local services or offering a counselor to talk to, employers are reminding employees how to contact the EAP and in many cases extending access to be 24/7, rather than restricting it to regular business hours.
  • Take your employees’ word.
    • If an employee requests FMLA leave while you suspect they might be using the time for something like assisting an elderly parent with their flooded home, it might behoove you to simply allow it and take their word for it.

As with all matters relating to employee benefits, there are things that employers legally have to accommodate for, and things that are just nice for them to do. It is important to understand the difference and come to an agreement as to what kind of plan will be put in place, if any. Further, if your organization has not yet been faced with a serious a natural disaster, there’s never a better time than the present to start developing a system should the need ever arise (and we certainly hope it doesn’t).

11 Interesting FMLA Statistics and Facts (May 2016)

FMLA statisticsThough it has only been around for little more than two decades, the Family Medical Leave Act (FMLA) has made a very serious impact in the way employers view and administer absence management. The guidelines in which most employers have to operate within under the FMLA can be challenging, at times, as is compliance documentation, but all in all, employers do recognize that the law is an important one that does have a positive impact on the workforce.

So how much impact has the FMLA had over the years? Here are some helpful FMLA statistics and facts that we have been able to uncover during the course of our consulting work. We will try to update this post fairly regularly. All stats and facts are linked to their original source, where appropriate and source dates are included.

FMLA Statistics

Date FMLA was signed into law:

February 5, 1993


Number of times the FMLA has been used since enactment:

More than 100 million times

Last checked 5/20/16


Percentage of US private sector employees that have access to paid family leave:

12%

Last checked 5/20/16


Average percentage of the US workforce that is on FMLA leave at any point in time:

10.7%

Last checked 5/20/16


Average duration of an FMLA leave:

14.2 days

Last checked 5/20/16


Top reason for FMLA leaves:

Employee’s own health conditions

Last checked 5/20/16


Top medical condition employees take FMLA leave for:

Surgery

Last checked 5/20/16


Percentage of total FMLA leaves in the US that are due to pregnancy:

17%

Last checked 5/20/16


Top FMLA enforcement complaint to the US Department of Labor in 2015:

Termination


Number of FMLA enforcement complaints in 2015:

1,419


Percentage of employers that report complying with the FMLA has had a positive or no noticeable effect on employee absenteeism, turnover and morale:

91%

Source date: 2013


Supreme Court Legalizes Same-Sex Marriage Nationwide: The Employer Impact

supreme court same sex marriage fmla

As you are likely aware, a short time ago, the United States Supreme Court ruled that same-sex couples have the right to marry anywhere across the United States. Prior to the ruling, 36 states and Washington D.C. allowed same-sex marriages. Now, the 14 states that have bans will be forced to lift them.

You can read the full Obergefell v. Hodges decision here.

This ruling is game-changing on a number of different levels socially and politically, but we’d like to point out that many employers will be impacted by this decision as well and should be prepared.

The most notable change will be evaluating your spousal eligibility in all areas of employee benefits. In addition, leave policies including but not limited to FMLA compliance will need to be reviewed. Dust off those policies and start re-reading them to pinpoint what changes need to be made.

Photo by tedeytan

Employer Alert: Important Change to FMLA Forms

paperwork photo

The Department of Labor (DOL) Family and Medical Leave Act (FMLA) certification forms originally expired in February and the DOL was very slow to respond…but it seems as I was eating my first hotdog of the season the DOL was making a minor but critical change to the FMLA certification forms.

The new forms, which will not expire until May 2018, now include the following language

Do not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).

This new wording is related to the Genetic Information Nondiscrimination Act (GINA) and is an important addition for most employers.

You can download the new forms here.

Don’t forget to update your printed forms and those on your websites!  Also, talk to your vendors to ensure they are up to date with regards to GINA and other important nondiscrimination regulations.

Of course, if you have any questions about FMLA, please feel free to contact Spring. You may also be interested in a helpful eGuide I recently authored about FMLA compliance.

Photo by Cast a Line

Same Gender Marriages and the FMLA- Considerations for HR Professionals

same gender marriage fmla

Today is a good day for same gender spouses under the U.S. Family and Medical Leave Act (FMLA).  Although it’s taken a while for the FMLA to catch up on the 2012 changes related to the Defense of Marriage Act (DOMA) being overturned based on the details of the United States vs. Windsor that day finally arrived on Friday, March 27, 2015.

With this change a spouse is now defined based on the state of celebration.  Therefore even if your state does not recognize same-sex marriage your policy related to the FMLA will need to recognize it, assuming it occurred legally in another jurisdiction.

Most human resource professionals have been preparing for this change for months…maybe years but here are two key reminders:

  • Although you may have known about this was coming since 2012, most supervisors have not!  Take an opportunity to remind your supervisors of this change.
  • Ensure you do not treat documentation requirements differently for same-sex marriage.  Therefore if a marriage certificate is not needed for opposite sex spouses, do not require it for same-sex spouses.

Take this opportunity to review your policy and documentation.  If the DOL comes knocking you will only have 72 hours to respond to their inquiry so look into it before they arrive at your door.

Photo by Mark Fischer

Webcast: Integrated Disability and Absence Management

absence managementRecently, Spring partner Teri Weber co-presented a webinar with members of the ClaimVantage team about integrated disability and absence management.

The webinar covered a number of topics including:

  • 1) Industry trends affecting Absence and Disability claims management
  • 2) The benefits of integrating your Disability and FMLA claims
  • 3) Industry best practices for managing these claims together

In case you missed the session, we are please to be able to provide you with the recording below.

Interested in learning more about Spring’s integrated disability and absence management solutions? Contact our team for more information.

 

Image credit: Vero Villa via flickr

Upcoming Webinar: Integrated Disability and Absence Management

teri weber spring consulting groupNext Friday, Spring partner Teri Weber will be co-presenting with members of the ClaimVantage team about integrated disability and absence management.

The free webinar will occur March 14th at 1pm EDT and will cover a number of topics including:

    1. 1) Industry trends affecting Absence and Disability claims management
    2. 2) The benefits of integrating your Disability and FMLA claims
    3. 3) Industry best practices for managing these claims together

 

Please Click Here for registration information.

Employer Update: FMLA Definition of “Spouse” to be Changed to Cover Same-Sex Spouses

This month, the Department of Labor (DOL) announced an update related to same-sex marriage and the spousal definition under the Family and Medical Leave Act (FMLA).

Currently the FMLA definition of spouse links directly with state law; however, after the Supreme Court’s landmark decision related to the Defense of Marriage Act (DOMA) in United States v. Windsor absence management professionals were expecting the DOL to reconsider their definition of spouse.

See Also: Managing an Absent Workforce: A Guide to the Family Medical Leave Act (White Paper)

Since some states do not recognize same-sex marriages the FMLA left a gap for individuals that were married under state law but it may not have been recognized in their state of residence.  Currently  couples that live in a state that does not recognize same-sex marriages are  not covered as “spouses” under the FMLA. Once the change is implemented, this policy will be modified on a federal level.

The DOL indicated their regulatory change will “fully implement the Supreme Court’s decision”.  Timing is unclear at this time but Spring will continue to provide updates.

More information about this DOL FMLA announcement can be found here.

Have questions about the FMLA or any of the recent DOL rulings? Contact our Integrated Disability Management Team and we will be happy to help out.