Employee Terminated upon Return to Work After Alcohol Treatment Could Proceed with Claims against Employer

Original post ubabenefits.com

An employee terminated immediately upon his return from medical leave for alcohol rehabilitation presented sufficient evidence of discrimination under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Ohio state law to present his case to a jury, according to a federal court in Ohio. The employer claimed that the employee had been terminated for misappropriating company goods, but email exchanges between several supervisors discussing the plaintiff’s alcoholism, as well as the timing of his termination, could show pretext. Lankford v. Reladyne, LLC, 32 AD Cases 959 (S.D. Ohio Nov. 19, 2015)

The plaintiff was a sales representative for the defendants, who provide motor supplies to car dealerships. On January 28, 2014, the plaintiff requested FMLA leave to attend an alcohol rehabilitation program. Shortly before the plaintiff requested leave, one of the defendants’ employees informed them that the plaintiff had given free supplies to a customer in exchange for a free oil change given to the plaintiff’s mother. On February 4, 2014, seven days after the plaintiff requested leave, the defendants investigated the incident and it was determined that a meeting with the plaintiff was necessary upon his return to work. At the meeting, the plaintiff denied any knowledge of how his mother came into possession of the coupons used for her free oil exchange. The defendants nevertheless terminated the plaintiff, who subsequently brought suit for disability discrimination, unlawful FMLA interference and unlawful retaliation.

The defendants moved for summary judgment on each of the plaintiff’s claims, arguing they legitimately and non-discriminatorily terminated the plaintiff due to his misappropriation of company supplies. The Court rejected the defendants’ arguments, holding that the plaintiff produced sufficient circumstantial evidence for a reasonable jury to conclude the defendants’ offered justification for the plaintiff’s termination was merely pretext. Among other things, the Court pointed to an email in which the defendants’ Vice President of Sales and Marketing, stated “we have too many signs to ignore and not proactively address,” after learning of the plaintiff’s request for leave. In another statement, this VP also said “[the oil change] was not the only reason [Plaintiff] was fired.” The plaintiff had received overwhelmingly positive reviews just six weeks earlier. Relying on these facts as well as the temporal proximity between the plaintiff’s medical leave and his termination, the Court denied the defendants’ motion for summary judgment.


Weeding Out Low Performers

Original post ubabenefits.com

Every workplace has its fair share of slackers and goof-offs, but it’s what an employer does with those employees that solidifies its corporate culture as one of high or low performance.

Employers that ignore low-performing employees risk more than just productivity. In an article titled, “Study: Beware ‘Toxic’ Influence of Low-Performers” on the Society For Human Resource Management’s website, research found that low-performing employees hurt overall morale and increased their co-workers' workload. Furthermore, innovation and motivation are stifled and mediocrity is deemed acceptable.

What may be of most concern is that a mere 60 percent of survey respondents looked at their co-workers and would rehire them. Their motto should have been: we may hire the best, but we keep the rest.

Successful companies know how to weed out their weakest links, while rewarding and retaining high-performing employees. They know that employees who perform poorly can cause high-performing employees to seek jobs elsewhere. Successful companies are able to identify their best employees, then they establish incentives, opportunities, or other ways of ensuring they stay.

So, how do you identify the best, or even the best of the best? It’s not as easy as it may seem. These are the top 10 percent to 15 percent of the organization. A company must first determine a set of guidelines that mark an employee as a high performer. Once the guidelines are in place, observation of these employee traits should be done in order to ensure uniformity and that the guidelines were set correctly.

Now that a company knows what it expects in its employees, it’s time to announce that to everyone so that they either know they’re doing the right things, or can make a plan for improvement. At the same time, employers should conduct surveys on employee satisfaction. Their focus should be on their top performers and what makes them happy.

Plenty of data should be collected regarding the criteria that not only make an employee a top performer at the company, but also what he or she prefers in terms of job satisfaction. Going forward, this data should be matched to potential recruiting candidates for new positions. In addition, surveys that measure the quality of a new hire (i.e., whether the recruiter hired the right candidate) should be completed at predetermined intervals of three, six, nine, or 12 months.

In jobs where there is high demand and lots of attrition, correctly recruiting and retaining the best performers could be the key difference in a company’s success.


Employee Relations: Don't Bring Me Down!

Original post ubabenefits.com

Every workplace has its fair share of slackers and goof-offs, but it’s what an employer does with those employees that solidifies its corporate culture as one of high or low performance.

Employers that ignore low-performing employees risk more than just productivity. In an article titled, “Study: Beware ‘Toxic’ Influence of Low-Performers” on the Society For Human Resource Management’s website, research found that low-performing employees hurt overall morale and increased their co-workers' workload. Furthermore, innovation and motivation are stifled and mediocrity is deemed acceptable.

What may be of most concern is that a mere 60% of survey respondents looked at their co-workers and would rehire them. Their motto should have been: we may hire the best, but we keep the rest.

Successful companies know how to weed out their weakest links, while rewarding and retaining high-performing employees. They know that employees who perform poorly can cause high-performing employees to seek jobs elsewhere. Successful companies are able to identify their best employees, then they establish incentives, opportunities, or other ways of ensuring they stay.

 

So, how do you identify the best, or even the best of the best? It’s not as easy as it may seem. These are the top 10% to 15% of the organization. A company must first determine a set of guidelines that mark an employee as a high performer. Once the guidelines are in place, observation of these employee traits should be done in order to ensure uniformity and that the guidelines were set correctly.

 

Now that a company knows what it expects in its employees, it’s time to announce that to everyone so that they either know they’re doing the right things, or can make a plan for improvement. At the same time, employers should conduct surveys on employee satisfaction. Their focus should be on their top performers and what makes them happy.

 

Plenty of data should be collected regarding the criteria that not only make an employee a top performer at the company, but also what he or she prefers in terms of job satisfaction. Going forward, this data should be matched to potential recruiting candidates for new positions. In addition, surveys that measure the quality of a new hire (i.e., whether the recruiter hired the right candidate) should be completed at predetermined intervals of three, six, nine, or 12 months.

 

In jobs where there is high demand and lots of attrition, correctly recruiting and retaining the best performers could be the key difference in a company’s success.

4 Ways to Talk to Employees So They Listen

Original post entrepreneur.com

No one likes to be lectured in the workplace.

As a leader, you need to communicate with your employees to deliver strategic direction, reinforce corporate culture and rally the troops to achieve company goals and objectives. To be effective, you need to deliver these messages in a way that creates energy and enthusiasm, rather than deflating your team.

Here are four tips for talking to employees in a way that energizes them rather than depleting them:

1. Use humor. No matter how big or small your operation may be, there is often tension and emotional distance between the boss and employees. To diffuse that, I regularly use humor, a tactic that makes me more approachable. In my experience, the best kind is self-deprecating humor. When I showed up to meet new employees for the first time at a Midwest location, I started the conversations by poking fun at my pronounced "New Yawk" accent. It got a laugh and made me seem more accessible.

2. Ask open-ended questions. And then be quiet. My favorite question to ask is “Tell me about [insert topic here].” When you ask a new employee about his ideas or a technologist about a new device, you are asking them to do more than give you a pat sentence or two in response. You have the opportunity to access that person’s deep knowledge and passion. Ask a question that opens the conversation wide and then hold still and listen.

3. Bring others into the conversation. A boss-employee conversation may seem casual to the boss but can feel like an interrogation to the employee. To diffuse this situation, I like to bring others into the conversation to even out the experience. I may turn a one-on-one discussion into a larger conversation by inviting people to join us and share their thoughts and experiences. It benefits me, because I get to hear more voices, and it helps put everyone else at ease.

4. Let the little stuff slide. If you are the kind of hands-on person who helped build the business from the ground up, you probably have insight or advice on everything from the capital budget to color of the carpet. But you don’t have to communicate every thought to the staff. If it’s not an important critique, let it go. I visited a flower shop in my company once and noticed the manager was not lining the trashcans with plastic bags. I know from experience that liners make the job easier, but I also know that I don’t need to communicate every idea that comes into my head. It just creates a climate of nitpicking.

Conversations that take place up and down the food chain – between supervisor and staff, people of different departments and the boss and the new employee – are often the source of great new ideas.

As the boss, it’s your job to get those conversations started and keep them going. You have a chance to make that happen (or achieve the opposite) every time you open your mouth.


7 Tips to Get Your Team to Actually Listen to You

Original post entrepreneur.com

Right from the outset, entrepreneurs must pay attention to every communication and opportunity for sharing their passion and vision.  They must communicate effectively, so they can inspire others to come aboard.  They must speak honestly and in ways that reveal their personal character and genuine connection. Yet, this sort of communication style can be difficult and time consuming – especially when demands are huge and time is scarce.

There is far more to being an effective and authentic communicator than most entrepreneurs believe -- at least when they are starting out. Even if you think you’re good at speaking to your team and motivating them, there’s always more to learn.

Leadership communication is a discipline and a practice: The more time, effort and heart you put in, the more effective you become.  There really are no shortcuts.

That said, here are seven ideas that can help you focus your attention and improve your leadership communication.

1. Be authentic.

When you speak with your employees you must come across to them as real. This means sharing your beliefs and your struggles. Talking about moments of doubt but also explaining how you overcame them with more conviction and confidence than ever. Or perhaps share a story or two about a failure and disappointment in life.

The most convincing talks are when stories are shared about personal weaknesses and what one was doing to overcome them or disappointments and failures and how they were turned around.

2. Know yourself.

Dig deep.  Know your values and what motivates you.  If you don’t know yourself you cannot share or connect with others. People want to know what makes you tick as a human being not just as a leader. Share this and make yourself real.

3. Rely on a good coach or a trusted advisor.

Developing good communication skills takes time -- and in the rush of business, that’s scarce.  Having someone who can push you to examine and reveal your interests and passions is enormously helpful and the value is immeasurable.

4. Read up on leadership communication.

If you can’t hire a coach, read all that you can. This is an inexhaustible resource, and you should never quit learning anyway. Books, articles, the internet; the possibilities are endless.

5. Make values visible.

Effective, empathetic communication and a commitment to culture can provide a solid foundation for your ideas and contribute to making it a reality. Many of today’s most successful companies have gone through dramatic crises.  Their improvements often hinged upon genuine communication from the leaders.

For instance, think of Starbucks and Howard Schultz’s clear and genuine communications about the importance of managers and baristas being personally accountable for future success. Your employees want to know what you and the company stands for. What is the litmus test for everything you do? These are your values. Talk about them but you must always be sure to “walk the talk” and live by them.

6. Engage with stories.

You can't rely on facts and figures alone. It’s stories that people remember. The personal experiences and stories you share with others create emotional engagement, decrease resistance and give meaning. It is meaning that gets employees' hearts and fuels discretionary effort, thinking and desire to actively support the business.

Once someone was implementing a massive pricing cut. He could have presented reams of data about this change and why it needed to be made. Instead he invited in four clients of the firm who had written letters about why after more than 10 years they had decided to leave due to our pricing being noncompetitive. Everyone was engaged and quite horrified to hear this feedback. Getting the team’s support for the change was much easier after that.

7. Be fully present. 

There is no autopilot for leadership communication. You must be fully present to move people to listen and pay attention, rather than simply be in attendance. Any time you are communicating, you need to be prepared -- and to speak from your heart.  Leadership communication is, after all, about how you make others feel. What do you want people to feel, believe and do as a result of your communication?  This absolutely can't happen if you read a speech. No matter how beautifully it is written, it doesn’t come across as authentic or from your heart if you are reading it. Embrace what you want to say and use notes if you must, but never read a speech if you want to be believable and move people to action. (And yes this requires a ton of preparation).

Your speeches are visible and important components of your role as a leader. Successful entrepreneurs are conscious of that role in every communication, interaction and venue within the organization and beyond. They also know that while today’s world provides a wide range of ways to communicate to your organization -- mass email, text, Twitter, instant message and more --connecting is not that simple. Electronic communication is a tool for communicating information -- not for inspiring passion.


Can you hear me now?!

Original post by ubabenefits.com

If your boss has never yelled at you, then either you own your own business, are self-employed, or have a boss who is mute. At some point in your working career, it’s safe to say that you’ve been yelled at by a supervisor. Whether that anger toward you was justified or not is probably up for debate, but what can almost be guaranteed is that you weren’t quite sure how to handle it and respond.

An article on Business Insider’s website titled, “6 ways to respond to your boss yelling at you,” discusses the multiple ways employees can react to their boss yelling at them. Let’s get two important things out of the way first. If your boss isn’t just yelling at you, but is actually bullying you, then you should go to your human resources department immediately. However, if you’re just being yelled at, then never, EVER, for any reason should you yell back. Don’t give your boss a reason to be madder at you. It’s just not worth it.

Do you think you’re right and the boss is wrong? Don’t yell back. Are you the scapegoat for someone else’s mistake? Don’t yell back. Is your boss just venting and you happen to be in the wrong place at the wrong time? Don’t yell back. Yelling never accomplishes anything and if you yell at your boss, you risk the obvious of being fired, or at least being watched like a hawk or having a grudge held against you.

Now, there’s nothing wrong with standing up for yourself and, fortunately, there are many ways to accomplish this without further upsetting the boss. Once things have calmed down, analyze exactly WHY the boss is yelling at you because, you know, you could actually be seriously at fault.

Regardless of fault, the primary reason that your boss is yelling is most likely because he or she has simply reached the breaking point. After you sit there (or stand) and “ride out the storm,” ask to speak with your boss privately at a later day and time. Make it a formal meeting either in the boss’s office or a conference room. Before the meeting, make sure you have a plan for mending the relationship and resolving the issue that made your boss so angry in the first place.

The reason your boss was so angry could have been a misunderstanding. If that’s the case, then say so, but remain composed and keep things as factual as possible without straying off-message. Your boss may then ask questions so as to better understand the situation. Be honest, but remember to stay focused and stick to the point.

If, in fact, the reason your boss was yelling at you was because you screwed up, then take responsibility for your mistake. Don’t place blame with others, make excuses, or be argumentative. Accept blame and tell the boss that you understand why you made the mistake, say that you’re sorry, and that you will work diligently to correct the mistake as quickly as possible. After all, everyone makes mistakes.

Let’s assume that whatever the boss was yelling at you about wasn’t your fault. When you have the follow-up meeting with your boss, try and have a solution developed. By demonstrating initiative and thinking on your feet, you just might be able to turn this around in your favor and show the boss that you’re a team player that can shake off being berated.

Finally, make sure that you’re proactive and stay on top of the resolution. Give your boss regular updates and ask for feedback to ensure that you’re on track and won’t get yelled at again. If all goes well, you should be back on your boss’s good side in no time!


Perfect Attendance! How to handle leaves of absence under the ACA

Original post by ubabenefits.com

The Patient Protection and Affordable Care Act (ACA) requires applicable large employers (ALEs) to offer full-time employees health coverage, or pay one of two employer shared responsibility penalties. An ALE is an employer with 50 or more full-time or full-time equivalent employees (for 2015, this threshold is 100). A full-time employee is an employee who works 30 hours or more a week.

Leaves of absence can make it difficult for an employer to determine if or how an employee counts toward the ALE threshold of 100, as well as determining if an employee is considered full time and must be offered coverage.

Under the ACA, any hour for which an employee is paid or entitled to payment must be counted as an hour of service. This includes:

An hour worked

  • Vacation
  • Holiday
  • Sick time
  • Incapacity (including disability)
  • Layoff
  • Military duty
  • Paid leave
Exceptions to the rule exist for:
  • Hours worked by a student as part of the Federal Work-Study Program (or a similar state or local program)
  • Hours which are considered income from sources outside the United States
  • Hours performed as a "bona fide volunteer"

Counting HoursFor hourly employees, an employer must count actual hours worked or paid.

For employees who are not paid hourly, an employer must use any of these three methods:

  • Counting actual hours worked or for which vacation, holiday, etc. are paid
  • Crediting an employee with eight hours' work for each day for which the person was paid for at least one hour of work, vacation, holiday, etc.
  • Crediting an employee with 40 hours' work for each week for which the person was paid for at least one hour of work, vacation, holiday, etc.
An employer using a crediting system must be careful not to underestimate an employee's hours. For instance, an employer may not use the eight hour method for an employee who works 10 hours a day, three days a week.
As a general rule, if an employee terminates employment or is terminated from employment (not a layoff) and is rehired within 13 weeks (26 weeks for individuals working for an educational institution), or has unpaid non-FMLA (Family and Medical Leave Act) leave and returns to work within 13 weeks, the employee's status as either full-time or non-full time must be reinstated, and he or she cannot be treated as a new hire, subject to a waiting period. Coverage must resume by the first of the month on or following the date the employee returns to work.
When an employer is tracking employee's hours to determine if the employee is full time and should be offered benefits, the employer can use one of two methods; the monthly method or the measurement and look-back method.

Monthly Method.
Under the monthly method, the employer looks at each employee's actual hours of service (an hour worked or an hour of vacation, holiday, sick time, incapacity including disability, layoff, jury duty, military duty, or paid leave) each calendar month. An employee is assumed to be full-time for the month if he or she works 130 hours (regardless of the actual length of the month). If an employee takes paid FMLA leave, the paid hours would count in the monthly total of hours. If the employee takes unpaid FMLA leave (or any other unpaid leave) the employee would not have any hours credited to them during their leave. Once the employee drops below 30 hours per week for the month, the employer does not need to offer coverage. If the employee returns from a leave of absence within 13 weeks, coverage must resume by the first of the month on or following the date they return from work (assuming the employee was and is full time).

Look-back Method.
Under the look-back method, the employer looks at the number of hours the employee averaged during a look-back period called a "measurement period." Once the employer determines whether or not the employee worked full time during the measurement period, that determination generally will apply throughout the immediate stability period regardless of the number of hours the employee actually works (unless the employee's employment ends).
Employers must remember that an employee can only have one limited non-assessment period per employment period. This means it is important for an employer to determine if an employee is a continuing employee or a terminated and rehired employee.
Counting Hours for Educational InstitutionsMonthly Method. Under the monthly method, if an employee of an educational institution (whether public or private, and from primary through university level) has a break in service because, for example, he or she has unpaid leave, it is summer break, or his or her employment terminates, and the employee returns to work or is rehired within 26 weeks, the employee must be treated as a continuing employee, and no new waiting period can be imposed when he or she returns to work. Coverage must resume by the first of the month on or following the date he or she returns to work. If the break in service is more than 26 weeks, the employee can be treated as a new employee, subject to a new waiting period.
Example: Steve teaches full-time at Rose School. Steve does not work for Rose during summer break, which runs from May 27, 2015, through August 22, 2015. Steve's coverage must resume as of September 1, 2017, because his break in service was less than 26 weeks. Rose does not need to offer coverage to Steve during June, July, or August, since he worked less than 30 hours per week during those months and Rose has adopted the monthly measurement method. Rose does need to offer coverage to Steve from September through May.
If the employer wishes, it may use a shorter measurement period for short-term employees. The employer may use a break period equal to the employee's original period of employment (but not less than four weeks) instead of 26 weeks as the break period if the employee has a break in service during his or her first 26 weeks of employment. This is called the parity rule.

Example:
Rose hires Jill as an aide on September 14, 2015. Jill resigns on December 15, 2015 (after 15 weeks of employment). Jill is rehired on May 30, 2016 (22 weeks after she resigned). Rose uses the parity rule. Because Jill's period of employment was less than her break in service, Rose does not have to offer coverage to Jill until she completes three full calendar months of employment after her rehire.

Note:
Spring break and Christmas vacation often will be paid; paid hours of service are considered time worked even if the employee does not actually perform services during the week or month.

Measurement and Look-back.
Under the measurement and look-back method, employees of educational institutions (whether public or private, and from primary through university level) cannot have breaks in service of four to 26 weeks counted against them when measuring hours. Employers may either disregard the breaks or assume the employee continued to work his or her usual schedule during summer break. The employer does not have to disregard unpaid breaks (other than a break for FMLA, USERRA leave, or leave for jury duty) that exceed 501 hours in a measurement period.
Example: Paul is employed by Orchard School. Paul works 38 hours per week from September 7, 2014, through May 23, 2015, and then does not work and is not paid during the summer break. Paul goes back to work on September 7, 2015. Because Paul was off for 15 weeks, which is less than 26 weeks, Paul's coverage must be reinstated by October 1, 2015, if it lapsed. Also, for purposes of determining Paul's average hours of service per week for the measurement period, Paul is credited as having an average of 38 hours of service per week for the 15 weeks between May 24, 2015, and September 5, 2015. However, Orchard is not required to credit more than 501 hours of service for the employment break period (15 weeks × 38 hours = 570 hours).

Note:
Spring break and Christmas vacation often will be paid; paid hours of service cannot be applied against the 501-hour cap.

FMLA, USERRA, and Jury Duty
If an employee is on a leave of absence under FMLA (paid or unpaid), USERRA (Uniformed Services Employment and Reemployment Rights Act), or jury duty, under the look-back method the employee is treated as if he or she worked during the leave, even if the leave is longer than 501 hours. This means employees are offered coverage while they are on leave, and when their hours are calculated during the leave period's contemporaneous measurement period, the period of leave is disregarded.
An employee on FMLA, USERRA, or jury duty leave essentially must be treated as if he or she worked during the leave (even if the leave is longer than 501 hours).

Example:
Amy works for a company that uses an April 1 through March 31 measurement period, an administrative period of April 1 through May 31, and a June 1 through May 31 stability period. Amy is considered full-time for the June 1, 2015, through May 31, 2016, stability period. Amy is on an FMLA leave from October 1 through December 31, 2015. Amy must be offered coverage during her FMLA leave (regardless of whether the time is paid or unpaid). When applying Amy's April 1, 2015, through March 31, 2016, measurement period, Amy's employer will disregard the three months she was on FMLA leave and average her hours from April through September 2015 and January through March 2016 to see if she must be considered full-time for the June 1, 2016, through May 31, 2017, stability period.
If an employee declined coverage for a stability period, and then has a leave of absence, upon return the employer is not obligated to make a new offer of coverage to the employee.

Unpaid Leave
If the employee is on an unpaid leave of absence (except unpaid FMLA) and in a stability period, the employee must be offered coverage through the stability period. When the employee's hours are calculated during the contemporaneous measurement period, the leave of absence will count as zero hours of service.
Examples: Wilson Inc. uses an October 15 through October 14 standard measurement period and a January 1 through December 31 standard stability period.
Ruth is a full-time employee for purposes of the January 1 through December 31, 2015, standard stability period. Ruth takes an unpaid leave of absence (that is not FMLA, USERRA, or jury duty leave) from March 15, 2015, to May 15, 2015. Ruth must be offered coverage during her leave, since she is entitled to coverage during the 2015 stability period. When calculating Ruth's hours during the October 15, 2014, through October 14, 2015, measurement period, Ruth will have zero hours of service from March 15 to May 15, 2015.
Don is a full-time employee for purposes of the January 1 through December 31, 2015, standard stability period. Don takes an unpaid leave of absence (that is not FMLA, USERRA, or jury duty leave) from March 15, 2015, through August 9, 2015. Don must be offered coverage during his leave because he is entitled to coverage during the 2015 stability period, but Don drops his coverage. Because Don's leave is longer than 13 weeks, he has a break in service, and Wilson may treat Don as a new employee, with a new waiting period and initial measurement period, when he returns on August 10. Until August 10, he is considered a full-time employee of Wilson Inc.
Stan is a full-time employee for purposes of the January 1 through December 31, 2015, standard stability period. Stan takes an unpaid leave of absence (that is not FMLA, USERRA, or jury duty leave) from March 15, 2015, through August 9, 2015. Stan must be offered coverage during his leave because he is entitled to coverage during the 2015 stability period, but Stan keeps his coverage. Because Stan's leave is longer than 13 weeks, he has a break in service, and Wilson may treat Stan as a new employee, with a new waiting period and initial measurement period, when he returns on August 10. Until August 10, he is considered a full-time employee of Wilson Inc. This example will be the most difficult to administer and employers should work with their counsel to develop compliant policy to handle this situation.
If an employee declined coverage for a stability period, and then has a leave of absence that is less than 13 weeks, upon return the employer is not obligated to make a new offer of coverage to the employee.

Layoffs
If the employee is laid off during a stability period (not terminated) and is considered full time, coverage must be offered during the layoff.
If an employee had no hours of service and the employee discontinued coverage but then returns to work within 13 weeks, coverage must be reinstated by the first day of the month following his return to work. The time on layoff will have zero hours of service for purposes of the measurement period. If the employee had no coverage and the layoff exceeds 13 weeks, the employee can be treated as a new employee, with a new waiting period and initial measurement period, when he returns. If the employee had coverage during the layoff, there is no reinstatement issue and he will have no hours of service to measure during the time he was laid off.

Disability
Disability leave is a source of confusion for many employers. The rules do not provide guidance on handling disability leave when an employee receives disability payments from a third party. Employers should consult with legal counsel in these situation to determine their individual requirements, however, a conservative approach would credit the employee with hours worked regardless of the source of payment. Until further guidance is issued, a risk adverse employer should consider disability leave as a paid leave of absence and credit hours and maintain coverage accordingly.

Conveying Policies
ALEs should ensure that employees understand how their full-time status is determined and what happens if they are rehired or take a leave of absence. Employees should have sufficient information to determine their eligibility under the plan. This information should be contained in the summary plan description (SPD).

Determining ALE Status
Under the ACA, an employer is a "large employer" for a calendar year if it employed an average of at least 50 (for 2015 this threshold is 100) full-time or full-time equivalent employees during the prior calendar year. Employers must count an employee's actual hours each calendar month during a calendar year to determine if the employer is a "large employer" -- the look-back measurement and stability periods are not used here.
To determine its status as an applicable large employer (ALE), an employer must count employees' hours of service. Specifically, an hour of service means each hour for which an employee is paid, or entitled to payment, for the performance of duties for the employer, and each hour for which an employee is paid, or entitled to payment by the employer for a period of time during which no duties are performed due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence.
A "full-time" employee is a common-law employee who worked an average of 30 or more hours per week during a calendar month. Any employee who averaged 30 or more hours per week (130 hours in a calendar month) is considered one full-time employee. Actual hours worked are not considered for this calculation. Part-time employees (those who average less than 30 hours per week) count on a pro-rata basis and their hours are combined to create "full-time employee equivalents." This is done by adding up the hours of all less-than-full-time (30 hours) employees for a calendar month and dividing the total by 120. All hours worked by the full-time equivalent employees are considered for this calculation, including any overtime.
The employer must add the total number of full-time and full-time equivalent employees for each calendar month, add each month's total together, and divide by 12. If there is a fractional number of full-time equivalent employees for a month, the fraction is retained to the nearest hundredth. If there is a fraction after the total calendar year average is determined, the fraction is dropped (i.e., the employer rounds down).

Crediting Hours to Employees
Monthly Measurement Look-Back Method
FMLA (unpaid) Employee would not be credited hours. FMLA obligations regardin benefits apply. Employer must determine average hours of service per week for the employee during the measurement period and use that average for the entire measurement period, or, the employer can credit the employee with hours of service during the leave at a rate equal to the employee's weekly average during the weeks he or she was not on leave. FMLA obligations regarding benefits apply, along with any obligations of the current stability period.
FMLA (paid) Each hour of paid leave counts as an hour worked. FMLA obligations regarding benefits apply. Each hour of paid leave counts as an hour worked. FMLA obligations regarding benefits apply, along with any obligations of the current stability period.
USERRA Employee would not be credited hours. USERRA obligations regarding benefits apply. Employer must determine average hours of service per week for the employee during the measurement period and use that average for the entire measurement period, or, the employer can credit the employee with hours of service during the leave at a rate equal to the employee's weekly average during the weeks he or she was not on leave. USERRA obligations regarding benefits apply, along with any obligations of the current stability period.
Jury Duty Employee would not be credited hours. Employer must determine average hours of service per week for the employee during the measurement period and use that average for the entire measurement period, or, the employer can credit the employee with hours of service during the leave at a rate equal to the employee's weekly average during the weeks he or she was not on leave. Stability period obligations regarding coverage apply.
Paid Leave (vacation, holiday, sick time, etc.) Each hour of paid leave counts as an hour worked. Each hour of paid leave counts as an hour worked. Stability period obligations regarding coverage apply.
Unpaid leave less than 13 weeks (not in any of the above categories) Employee would not be credited hours. Employee is not credited with any hours of service in the concurrent measurement period. Stability period obligations regarding coverage apply.

The Road to Better Absence Management

Originally posted by United Benefit Advisors (UBA).

Stephen Coffman
Group Practice Leader
The Guardian Life Insurance Company of America
A more meaningful attempt to manage absences can go a long way toward helping ease the staffing and morale challenges of small and midsize businesses that often feel the impact of absences more acutely than larger firms. What's more, in an environment where government oversight is only intensifying, effective absence management may become more challenging and burdensome for employers unless they have access to a specialist who understands the increasing and ever-changing federal, state and local Family and Medical Leave Act (FMLA) laws. The Americans with Disabilities Act (ADA) also needs to be considered. For example, requirements have expanded in recent years to include reasonable accommodations designed to reduce employee stress. This stress can weaken an employee's immune system, which can potentially lead to them getting sick and then trigger absences and erode productivity.
Small or midsize employers may not even be aware of all these issues and updates, nor have the staff to appropriately address them, which can leave companies vulnerable to lengthy and costly ligation. Plus, a growing "sandwich generation," combined with an aging population, means the incidences and complexity of employee absences will only increase. For this and many other reasons, outsourcing absence management or partnering with an expert makes a lot of sense. But what should employers look for when evaluating their outsourcing options? Absence management programs that follow these five best practices, as revealed in the Guardian Absence Management Activity IndexSM and Study, will generate better outcomes for companies:
  • A full return-to-work program, starting with a written policy.
  • Detailed reporting for disability and FMLA usage patterns, costs and more.
  • A process that gives employees referrals to health management programs.
  • A central leave-reporting portal for short term disability and family and medical leaves.
  • Using the same resource for short term disability, family and medical leaves and other benefit programs.

Aside from helping to ensure compliance with FMLA, a more robust program approach to absence management can help shorten the duration and severity of absences and return employees to work sooner, thereby reducing health care costs and improving productivity. It's a win-win for both employers and their employees.