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Do you think you know the FMLA and PFL requirements? What if.

Alarmed by the results of the 2019 employee / manager FMLA Knowledge Gap survey regarding lack of understanding of leave provisions and employee and compliance challenges because of it, we decided to follow up 2020 in hopes of seeing a significant improvement. Leave management may not be the attention or requirement described in most managers' jobs, but almost 50% of respondents indicated that they were asked to educate their employees about leave options – especially the Family and Medical Leave Act (FMLA) and the state mandate family and medical leaves. In addition, they must inform their employees that they are entitled to these specific leave benefits. You might think it sounds simple enough, right?

For example, say you are the manager of a New York-based employer and you have an employee whose father suffered a stroke and they inform you that they must be out of work for at least two weeks while they take care of him. You tell them that unfortunately they only have 7 days of paid free time left this year, so they have to return to work when their power take-off is up.

Not so fast ̵

1; you have failed to notify this employee related to the other leave benefits available to take leave to take care of his parent who has a serious health condition. As a government employee in New York in a company with more than 50 employees, they are entitled to job protection according to the FMLA. In addition, they have the right to apply for paid family leave in New York that would reimburse wages for their time without work. By not informing this employee of their rights and obligations under these laws, you have unintentionally violated these laws and as a manager you can be held personally liable.

There are two ways this can go in this scenario. The employee could not have received any negative results from the absence, and you will have had to provide him with "free" FMLA time (job protection) and thus not deduct it from his total allocation, allow him to use it later, or so did you. Remember that you got him back to work at a critical time in his father's life. Maybe he chose not to come back and took unpaid time? Maybe you issued attendance points? You have now critically violated his FMLA rights.

And this scenario is only for one state. Each state has its own set of rules, with state-paid family leave becoming more common but of course still not available to employees in most states. With so many companies now moving to either permanent or hybrid models of work from home, employees can live and work anywhere, complicating how you handle leave of absence.

An alarming knowledge gap among executives

For the second year in a row, we surveyed front-line executives to better understand how well they understand the Federal Family and Medical Leave Act (FMLA) and the State Paid Family Leave (PFL)), provided they live in one of the states currently offering PFL. Although we slightly adjusted some of our questions from our first research in 2019 – limiting the direct comparisons from 2020 to 2019 – the figures continued to create a gloomy picture for managers' understanding of FMLA and PFL, which created operational and business risk for them and the company.

In order to be considered "knowledgeable", managers were required to answer our three questions about FMLA correctly. Of the 435 managers surveyed, only 11% answered all three basic questions correctly, reflecting a significant knowledge gap!

For PFL, we asked two questions to test managers' knowledge and only 17% of these managers could correctly identify benefits that are eligible for PFL, including whether they live in a state that currently offers PFL.

It would be one thing if these managers were not commissioned to leave leave administration in their company, but that is not the case. The picture below shows that almost 50% of managers said they are responsible for educating their employees about these leave benefits and notifying them if they are eligible.

Figure 1: Managers' responsibilities in the management of leave with their employer

Given that 30% of managers in the study considered that the FMLA provided insurance coverage to pay medical bills while on leave and 32% stated that the FMLA provided compensation of lost pay / salary, it is easy to be worried that these managers are responsible for training employees on these leaving alternatives and benefits. Adding to the complexity and risk to the company is that the fact that one of your executives treats their direct reports differently than another related to FMLA is also an FMLA violation. If one manager thinks that FMLA can be taken for a family vacation, and another cannot, you have a significant compliance problem!

Figure 2: Employees 'and managers' responses to the benefits of FMLA. Note: The respondents could choose several answers.

We speculated after the report from 2019 – where we did not ask questions about managers had received FMLA training – that lack of training was an important factor in the knowledge gap. But after collecting training data from the respondents in 2020, we found that the knowledge gap between managers was practically the same, regardless of whether the manager had formal education.

Although this is another red flag, we identified some benefits of education. Managers who had received FMLA training were significantly more likely to agree that they, as managers of employees, could be sued for FMLA and ADA violations. They were also significantly more likely to be responsible for helping with compliance in their organization.

What role does technology play in training managers and employees?

Customer portals become common for large employers as well as insurance companies – recent Majesco research showed that insurers are strongly focused on customers' self-service functions and portals, while 41% to 61% of companies say they implement or have already implemented them.

Although these portals can be used for many reasons, they can be a huge resource for employees and managers when it comes to tracking and reporting absences. Our research showed that portals for self-service companies are employees' preferred method of getting answers to the number of days they have been absent and the days they have left. However, when it comes to more detailed questions, such as the type of federally offered remnants available, employees are more likely to seek this answer by contacting their HR department.

Figure 3: Where do employees go to their leave issues?

The benefits of an efficient and informative self-service portal are great. Having a dedicated platform where employees and managers can access this information 24/7 can play a key role in ensuring that both employees and managers are well trained in the state and federal remnants are available to them. Combined with software that can automatically determine an employee's eligibility for these leaves based on built-in rules is the type of fail-safe compliance solution needed on the market. Hence the increasing demand for absenteeism and accommodation management software that employers can use or insurance companies can provide as a "value-added service" to their employer customers.

Insurance companies that offer this offer, or that are improving their portal, are well positioned to be a good solution to help employers mitigate their compliance risk and improve their leave offer.

How Should Employers Deal With This Knowledge Gap?

As you would expect, there is no silver bullet to solve this knowledge gap. For some companies, the knowledge gap may not be as large. And the approach to solving this gap for one employer may not work for another. Take, for example, the size and location of the employer. An employer with more than 10,000 employees who have offices across the United States will have a much more complicated workforce to deal with absenteeism than for a 200-person company operating in a single state. And as mentioned earlier, the growing acceptance of work from home will accelerate this complexity.

Balancing multiple state-paid family sites along with other local, state, and federal leave laws and eventual company departures is great for anyone whose full-time job is absenteeism management. While no one expects these executives to have the same set of knowledge as these individuals, it probably comes as no surprise that executives who have a comprehensive list of their own daily tasks struggle to correctly identify FMLA and PFL details. However, just letting these managers continue to play a leave of absence in the leave management without proper training is not the answer.

Although our study showed that the existing training structure does not prove to be an effective way to train managers, we heard through interviews with them that these training sessions were rare and covered a wide range of topics – they were not specific to leaves like FMLA . Evaluating whether the existing training at your company is sufficiently focused and effective with your staff is an excellent starting point.

For some employers, however, part of the answer may be to contact an insurance company or third-party administrator for a new "value-added service". Even if it does not absolve your managers of responsibility, outsourcing of leave administration to insurance companies or TPA is becoming increasingly common among employers. Insurance companies and TPA have the resources and technology to optimize the business process and ensure compliance with these laws.

For a complete picture of FMLA & PFL Knowledge Gap 2020, you can download the report here.

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