Reducing FMLA Compliance Risks Webinar: Follow-Up Q and A

In our recent webinar, “Reduce Compliance Risks Associated with FMLA,” we had a great discussion around Family Medical Leave Act (FMLA) requirements for employers, as well as the ways in which brokers can help protect themselves and their clients from compliance missteps. Our FMLA discussion, led by guest speaker and compliance expert Angie Surra—Senior Director of Compliance with Navigate HCR—prompted some great questions from our attendees. So many, in fact, that we decided to answer them in this article. Didn’t make the webinar? You can watch a replay, download the webinar slides, and read the Q&A below.

Webinar Q&A

Q: Can you go over the integrated ER vs. controlled group - who is subject to FMLA?

A: Employer with one Employer Identification Number (EIN) and multiple locations - must be aware of number of employees per location and whether those locations are within 75 mile radius of each other. Controlled Group is multiple EINs sharing same ownership and must count all employees of each EIN.

Q: Does FMLA apply to 50 full-time employees (30 hrs. a week) or just 50 employees. Do they need to be paid as well?

A: Employee size is based on total number of employees regardless of how many hours they work. FMLA is designed as unpaid. However, employers may have sick leave policy in place. Employer may require employee to use paid sick time, vacation or other paid time off concurrent with FMLA.

Q: Just to clarify - Let’s say a company has five offices. If one of the five offices are more than 75 miles from any of the other four offices, then they are not subject to FMLA?

A: Correct

Q: Employee started working at company 1/9/17 and went on maternity on 9/24/17. Ss she eligible for Paid Family Leave?

A: No. The employee has not met the 12 months of employment rule.

Q: What if you have someone that is a month away from the 12 month rule and the company gives them FMLA but doesn't do it for all. Are they opening themselves up for discrimination?

A: Yes, that could open them up to discrimination. It is always recommended to follow the rules and regulations and treat all employees equally.

Q: If employee coverage lapses for nonpayment, the insurance carrier will require the returning employee wait until open enrollment. Will the carrier recognize FMLA and make an exception?

A: That is up to the carrier. But normally, you would need to look at the length of time out of service in comparison to the rehire rules in place by employer and carrier.

Q: What is the Employer's responsibility after the 12 weeks expires? What is the process when you know in advance that they will exceed the 12 weeks?

A: The protections afforded under FMLA end after the 12 weeks are up. Employers need to consult legal counsel where ADA issues may exist. Employer will always need to offer COBRA at the end of the 12 weeks.

Q: Please discuss key employee exceptions and the continuing of payments by the employee for benefits while out on FMLA?

A: A Key Employee is entitled to the protection of benefits during approved FMLA. They are not afforded the protection of returning to their same position. This rule was put in place because an employer may need to fill the position of a key employee as duties of a key employee are generally critical to the business operations.

Q: Employee started working on 1/9/17 and went on maternity on 9/24/17- is she eligible for NYPFL?

A: The employee would be eligible for NYS Paid Family Leave for 8 weeks. NYS does not consider length of service in this law.

Q: Employee was out on maternity and used STD and FMLA then resigned. She is now asking if she is eligible for NYPFL - please confirm.

A: If she was an active employee during the absence (didn't resign until after) then yes, she should be eligible for the NYS Paid Leave.

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