Hey Compliance Warriors!

Todays were talking the Bermuda Triangle of the FMLA! When three laws intersect. Lisa gives some great tips on hopefully how to fly out in tact.

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Enjoy and until next time, Be Audit Secure!


Lisa: Welcome to another episode of Small Business Spin Falls. I’m Lisa Smith

Mason: and I’m Mason Merrell.

Lisa: Today we’re talking about the FMLA.

Mason: This one sounds fun.

Lisa: Yeah, it’s actually going to be sort of a scary one because this was a situation that a member of ours wrote in with and she said basically they’re going through this problem with three intersecting laws. So, this is what we call the devil’s triangle.

Mason: Kind of like the Bermuda Triangle?

Lisa: Yeah, actually, yeah. A lot of people call it the Bermuda Triangle too, so you could really call it either one. Basically, it’s where these three laws intersect. And like with the Bermuda Triangle, sometimes you fly in, but you don’t fly out.

Lisa: So anyway, what we want to look at is which law takes priority over the other ones and where do we even begin when we have FMLA, Worker’s Comp and the ADA all at the same time.

Mason: Okay. So where would you begin with that?

Lisa: Well, you want to begin with FMLA really because this is the paperwork that has to be done. And of course, this is where they are job protected. Now you’re going to also be beginning with worker’s comp too because the person is going to have gone to the doctor and this was determined that it is an injury that occurred at work and it’s going to be treated and so forth. So, those two guys kind of run together.

Mason: Okay, well that makes sense then.

Lisa: Yeah. So, workers comp though will give money toward paying bills and income replacement and that kind of thing. Where FMLA just does job protection only. So, we want to kind of look at both of those together. Now the ADA specifically in this situation doesn’t require paperwork, although down the road we might institute some ADA medical exams and things like that. But right now, all we have to do is just be conscious of the fact that the person is undergoing something that is disabling them from work and so forth. And we’re just kind of being conscious of that right now.

Mason: Okay. Well that’s good. So, you kind of couple the two together and then you handled the, the FMLA part of it? Is that what you do?

Lisa: Yeah basically, so once we’ve got worker’s comp handled and we’ve got the FMLA paperwork started, we know that the person is qualifying and we’re running all of these together. We’re going to rock along pretty easily at that point. However, what happens quite often is then we have maybe vacation or sick time or paid time off or you know, something like that that is sitting over here as well. Maybe we have a state requirement to have a state version of the FMLA. Okay. And you know, maybe that’s paid, maybe that’s unpaid. So now we have to go in and we have to start working with these intro intricacies as well and kind of wrapping them all together to make sure that we’re following those laws. Now that’s hard to talk about on a podcast because every state is different, and some will have more stringent laws and others that the thing is that we don’t want to forget about the state level laws.

Mason: So, you can’t basically just generalize those state level laws. You have to look into what your state requires and go from there.

Lisa: Exactly. The other thing that we want to remember is that if we have some vacation or paid time off or something that’s sitting there, um, a lot of times, um, employers will get that wrong because we’re accustomed to running that alongside FMLA. Since FMLA is unpaid, we run the paid leave alongside it concurrently with it. But here we go. Now we have a monkey wrench because we’ve got the worker’s comp wage replacement coming in. And according to worker’s comp laws in every state I know of the law says that you can’t be drawing more than what you would have normally made. So, let’s say you make $1,000 a month and workers’ comp is paying you $667 of that. So, if you have all of this paid time off, sitting over here, you can’t take full days of paid time off, then you’d be getting like paid a full day and two thirds or something, for all of your days that you’re counting. So, you can’t do that. But what you can do is take a little bit of the paid time off like another, like a third of the day and put against the two thirds that worker’s comps paying and now you have full days.

Mason: Yeah, you have like an even playing field there.

Lisa: Exactly. So, for HR folks and payroll folks, what that means is that we have to really keep good records and not just say: “Well the policy says that if you take three hours off, you get docked for the full day of PTO.” Maybe your policy says that, but in this case, you would be caught in the Bermuda triangle and you would be going down fast because we can’t do that in this situation.

Mason: I see. Well I don’t think we’ve stressed enough on this podcast about records…. Like every episode we talk about it.

Lisa: We talk about record keeping every time, don’t we? But so anyway, I know that some of you have more questions than what we can answer on this podcast, so please feel free to write into us, support@helpdesksuites.com if you’re one of our members. Now, if you’re not one of our members right into as anyway you’re not going to be on the priority list, but we will try to work our way back around to you. And if you haven’t checked out our website, please come to helpdesksuites.com we definitely would love to have you as a member. As a member you get priority support.

Mason: Yeah. So with kind of your Burmuda triangle, how often would a person run into this? Is this pretty rare thing or is it just kind of situational?

Lisa: It’s really situational and it’s actually not rare. It just really kind of depends on the size of your business. It’s a numbers game. So, the more employees you have, the more likely this is going to happen. Maybe if you’re in construction or you’re in like a heavy lifting industry or you know, a lot of mechanical stuff, you might have people getting hurt more easily than if you run an insurance agency where everyone sits at a desk. So the chances of them all intersecting together will just depend on a lot of factors.

Mason: Gotcha. Okay. Well that’s, that’s good to know. So I guess the main thing about this type of situation is just to be educated on the matter and think about it ahead of time before something can happen and just know what you’re going to do, like a plan almost like an action plan in place of what to do.

Lisa: Exactly. You are dead on.

Mason: Okay, great. Well I think that wraps this one up and um, we will get into another subject next week.



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