Leave of Absence Compliance Updates & Trends: Managing Leave Effectively

Examining current leave laws and trends to ensure compliance while attracting and retaining top talent.

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Leave of absence is one of the most litigated areas of employment law. With ever-changing leave laws and HR teams strapped for time and resources, how do you effectively manage leave? Join OneDigital leave experts to examine current leave laws and trends to ensure compliance while attracting and retaining top talent. This session will equip you with the tools you need to make sure you have effective and compliant leave programs in place.

Frequently Asked Questions

Here are the questions that were submitted during the live webinar, along with their answers.

- - What is PWFA? 
    Pregnant Workers Fairness Act.
  - I know to qualify for FMLA, the 12 months doesn't have to be consecutive, but what is that timeframe? 
    The 12 months of employment are not required to be consecutive in order for the employee to qualify for FMLA leave. In general, only employment within seven years is counted unless the break in service is (1) due to an employee’s fulfillment of military obligations, or (2) governed by a collective bargaining agreement or other written agreement.
  - How does the FMLA location requirement (50 ees within 75 miles) apply for a remote employee? Can the employer still grant FMLA leave?
    For FMLA eligibility purposes, an employee’s personal residence is not a worksite. Instead, the employee’s worksite is the office to which he or she reports and from which assignments are made. When considering eligibility for remote workers, the DOL guidance points out that “the determination of the worksite for an employee who teleworks is fact specific and will be based on factors, such as where the employee reports to work or the location where the employee’s assignments are made.”
  - I maybe misheard, but it sounded like you said that employees cannot use PTO (specifically FlexPTO) "in conjunction with" (which I understood to me concurrent with) FMLA. I agree that employees cannot choose to use PTO (including FlexPTO) instead of or to delay FMLA, but there's no legal reason why employees couldn't use PTO concurrent with FMLA?  
    The FMLA only requires unpaid leave. However, the law permits an employee to elect, or the employer to require the employee, to use accrued paid vacation leave, paid sick or family leave for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When it comes to "Flexible" or "Unlimited" PTO, we recommend that your policy be very clear on this can or cannot be used during leave or to extend leave periods.
  - If we give someone an extra break can we require them to clock out?
    The ADA does not require additional paid breaks beyond what other employees receive. Instead, employees can make up the time for extra breaks by extending their work hours or using leave. Employers can also treat additional breaks as unpaid, but they should ensure accurate timekeeping systems.
  - Should employees take FMLA concurrently with a state law such as NYS paid family leave?
    Yes, FMLA can run concurrently with NY DBL/PFL if an employee's leave qualifies for both laws and their employer is covered under both laws.
  - What is the likelihood that a Federal Paid Family/Medical Leave program is put into place?
    As of January 2024, there is a bipartisan effort in Congress to establish a national paid family and medical leave (PFML) program. The Paid Family Leave Working Groups plan to release a legislative framework soon. PFML was previously proposed in the Build Back Better bill, but it did not make it into the final version passed by Congress.
  - If you are a CT Employer and have a remote worker in TX, does the employee fall under CT FMLA or the Federal FMLA program?
    This depends on various factors, such as where the employee reports to work or the location where the employee’s assignments are made.
  - We have a 3-day paid leave for bereavement. If employee needs more time, how do we determine if FMLA is appropriate or is Paid leave an option?
    FMLA doesn't specifically provide bereavement leave, but employees may be eligible for FMLA leave in some situations. For example, employees may be eligible for FMLA leave if they need to care for a relative with a serious health condition as a result of their death, or if they need to address issues arising from the death of a covered military member. Employees may also be eligible for FMLA leave to care for a dying family member or for grief counseling. However, FMLA leave is only for providing care, and the right to take FMLA leave ends if the family member passes away. States with provisions for bereavment leave inlcude CA, IL, MD, OR, WA.
  - Have you seen any trends regarding employers who are no longer offering STD due to their state having a paid leave? Thoughts?
    A private STD plan generally covers more than the state plan. It also helps keep everyone across the company to receive a consistent benefits.
  - If an employee has had FMLA paperwork in place and did not use all 12 weeks withing the 12 months. Now that 12 months is over can a new set of paperwork be started for the next 12 months?
    12 months after an employee first uses FMLA leave for a particular qualifying reason, employers may request a new certification in connection with a request for leave for that same reason.
  - HR provides an EE with FMLA paperwork, however before HR can designate/approve it as FMLA, doesn't the EE first have to return medical certification? If the EE doesn't provide this documentation then the FMLA is denied.
    Yes, an employer can deny FMLA leave if an employee doesn't provide a complete and sufficient medical certification within 15 calendar days of the employer's request. The employer must advise the employee of the consequences of not providing adequate documentation when the request is made.
  - If employer offers a rolling year FMLA if an employee used some of their 12 weeks FMLA entitlement and is requesting a new FMLA on another matter in less than a year from their last FMLA, how do you calculate the remainder time left of FMLA?
    Please see https://www.dol.gov/agencies/whd/fact-sheets/28h-fmla-12-month-period!
- How do managers track the leave hours on the timecards?
  This depends on the timekeeping system used. Typically there is a payroll code specifically for FMLA and other types of leave.
- Are we allowed to add PTO/FTO after the employee’s FMLA leave ends?
  This depends on your company policy.
- We have an employee who lived in MA and paid into PFMLA and then moved out to NC and is still employeed with a MA based employee but noticed that the employer stopped contributing to the MA PFMLA. Would they still qualify for MA PFMLA?
  They could possibly still qualify if they continue to meet the requirements found here https://www.mass.gov/info-details/your-eligibility-for-paid-family-and-medical-leave-pfml
- Is a dental procedure considered FMLA?
  This depends. The dental procedure must meet the FMLA's criteria for a serious health condition, which is an impairment that requires ongoing treatment by a health care provider. Continuing treatment is generally defined as a period of incapacity of more than three consecutive calendar days, combined with at least two visits to a health care provider.
- Just wanted to confirm- do these apply to employers with 15 or more employees or 50 or more? CT specifically.
  As of January 1, 2022, all employers with at least one employee in Connecticut are covered by the Connecticut Family and Medical Leave Act (CTFMLA).
- The employer can create a policy where employees are required to use/exhaust their sick/pto/vacation concurrently with FMLA?
  Yes, employers can require that employees use accrued PTO/vacation/sick during FMLA.
- Curious to know if our remote works in AZ, IL, PA fall under MAFMLA or Federal?
  MAPFML applies to workers in MA. FMLA would apply to remote workers who report to or get their assignments from a location with 50 or more employees in a 75-mile radius.
- Is state paid family leave eligiblity generally based upon wherever the group pays payroll taxes?
  Each state has eligibility requirements that could be based on where employees live, work, and usually involves meeting a minimum earnings requirement and paying into the state plan.

Meet the Speakers

Kirstin Kleinschmidt, Principal, HR Consulting

Kirstin Kleinschmidt is a Principal and leads the HR Consulting team at OneDigital - Northern California. OneDigital is a national team of experienced employee benefits advisors who create greater value for employers and inspire individuals to become more engaged health care consumers.

Kirstin has spent over 22 years in the health care/insurance industry. Prior to joining OneDigital, she built a successful insurance and HR consulting agency in the bay area focusing on small to mid-sized companies.

Kirstin is driven to provide creative, strategic solutions for her clients. She thrives off the knowledge that clients can come to her with any query they have, not only insurance or HR but any business issue. When she's not in the office, she spends time with her family, making special time for her grandkids in particular.

Selena Smith, Leave of Absence Analyst

Selena Smith is a Leave of Absence Analyst at OneDigital – West Region. Selena has spent almost 20 years in Human Resources with the last 7 years being focused on Leaves of Absence. Prior to joining OneDigital she worked in various industries including medical technology and professional sports.

Selena is a Certified Leave Management Specialist (CLMS) and loves the challenges that come in the area of Leaves of Absence. She enjoys helping clients and their employees navigate through the ever-changing world of leaves. She has a sense of satisfaction that her clients and their employees can trust her with their leave questions and issues and know they are compliant in this area.

When not tackling leaves, Selena enjoys spending time with her family whether at sporting events, performing arts, or just relaxing.

Jennifer Holland, Leave of Absence Analyst

Jennifer Holland is a Leave of Absence Analyst at OneDigital, and has spent the last 20+ years in the Leave of Absence (LOA) industry. Prior to joining OneDigital, she worked with both employers and third party administrators setting up LOA processes and supporting systems.

Jennifer enjoys helping clients and their employees navigate through the challenging and ever-changing landscape of leave management. She prides herself on the fact that clients and their employees can trust her with their leave questions and issues and have the peace of mind that they are compliant in this area.

When not immersed in leaves, Jennifer enjoys spending time with her family and close friends at concerts or just relaxing.

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Leave of Absence Compliance Updates & Trends: Managing Leave Effectively

Examining current leave laws and trends to ensure compliance while attracting and retaining top talent.

On-Demand Recording Now Available

Watch On-Demand

Take Advantage of this Great Opportunity Presented by OneDigital

Frequently Asked Questions

Meet the Speakers