FMLA Archives - a/e ProNet

Complying with the many provisions of the Family and Medical Leave Act (FMLA) is a concern for even those well-versed in the Act. Recently, the Ninth Circuit Court of Appeals clarified when the FMLA applies, and spelled out an affirmative duty of the employer to inquire and confirm if an employee wants to take FMLA leave if eligible.

What Is the FMLA and How Does It Apply?

The FMLA entitles some employees to take unpaid, job-protected leave for certain family and medical reasons. It applies to employers that are public agencies and to private employers with 50 or more employees who work at least 20 weeks in the current or preceding calendar year. An employee is eligible for FMLA leave if they:

Worked for a covered employer for at least 12 months;
Worked at least 1,250 hours during the 12 months prior to the start of their FMLA leave; and
Work at a location where at least 50 employees are employed or within 75 miles of that location.

An eligible employee has the right to take 12 work weeks of unpaid leave in a 12-month period. In general, the employee can take leave due to their own serious health condition; for the birth of a newborn child; to care for a newly-adopted child; or to care for a spouse, child, or parent with a serious health condition. This right means that if an employer terminates or otherwise retaliates against an employee for taking leave, it can result in a civil lawsuit or administrative proceeding against the employer for back pay, reinstatement, and other damages.

When a state provides greater protections than the federal FMLA standards, an employer must comply with state law as well. For example, the California Family Rights Act (CFRA) also covers same-sex domestic partners, and provides more privacy protections. Continue reading “Inquiring Minds and the FMLA”

For many design firms, the ability to offer and maintain competitive employee benefit programs continues to be one of the keys to attracting and retaining the best available talent. Yet, the regulatory and legal environment within which these benefit plans are being designed and administered is more complex than ever. Not only are there ERISA issues, but there is a literal alphabet soup of COBRA, FMLA, HIPAA, etc. With this greater complexity and heightened scrutiny comes risk: risk for the company itself, and the executives and administrators responsible for overseeing and administering the benefit plans.

The good news is that the risks are manageable and design firms with employee benefit programs can take advantage of a three-legged stool of insurance protection – Employee Benefits Liability Insurance, ERISA Bonds, and Fiduciary Liability Insurance. Many executives and administrators are confused about what each of these covers and whether or not they need them. This article will explain how each coverage evolved and what specific exposures they address. We also examine some risk scenarios based on actual litigation.

Employee Benefits Liability Insurance

Employee Benefits Liability insurance (EBL) very simply provides protection against claims arising from errors in the administration of employee benefit plans. This coverage was developed in the mid-1970s largely in response to exposures that arose from the 1962 court decision in Gediman v. Anheuser Busch. In this case, an employer was held accountable to the estate of a former employee for providing incorrect information to the health insurance company, which then in turn denied the employee’s claim. Thus, EBL insurance addresses claims arising out of errors or omissions in the administration of benefit plans. Three typical exposure scenarios covered by EBL insurance include:

An employer failing to properly enroll an employee for health insurance coverage, resulting in a denial of coverage.
An employer not providing an employee with the appropriate COBRA information after termination, resulting in the ex-employee being unable to continue participating in the health insurance plan as required by law.
An employer incorrectly calculating the amount of an employee’s pension benefit so that the employee decides to retire early only to find that the amount is much less.

Continue reading “Managing Employee Benefits: A Three-Legged Stool of Protection”