2018 DMEC Compliance Conference Highlights the Future of Leave Compliance
In May, DMEC held our annual FMLA/ADA Employer Compliance Conference. As always, it was an informative and fun opportunity to delve into some of the most pressing issues surrounding the FMLA, the ADA, and other landmark laws such as paid sick leave and paid family leave.
While the insights and observations gleaned from the conference are many, the three themes that made the biggest impact over the course of four days of sessions were the following:
1) Managers and Supervisors Are Key to Compliance
Helen Applewhaite, FMLA Branch Chief for the U.S. Department of Labor, kicked off the conference with a discussion of the most common compliance problems found in DOL investigations. A large number involve front-line managers, who are often unaware of what is protected under the FMLA, uninformed of their role in the process, and who engage in improper communication with employees about motives or personal lives. It’s exactly these types of behaviors which can lead to discrimination and wrongful termination claims and introduce liability for organizations.
These supervisor missteps can be easily addressed through proper training. Even 30 minutes of training can instruct front-line managers about what to do around the FMLA and the ADA — and just as important, what not to do. This type of FMLA and ADA training should be included along with discrimination, anti-harassment, and other training now standard in many organizations. The cost is minimal when balanced with the benefits of risk reduction and employee satisfaction.
2) Paid Leave Isn’t Going Away
There’s every indication that employee paid leave programs will continue to be the benefit story of the decade. Both paid sick leave and paid family leave laws are cropping up throughout the United States at a rapid pace. This patchwork of leave laws requires employers, particularly those with nationwide operations, to take a closer look at their compliance efforts and their company policies and cultures.
For the most part, employers have largely reacted to external initiatives. That’s beginning to change as data is collected around paid leave’s ROI. Employers can and should get more proactive on the issue, both inside and outside their organizations. HR and disability management professionals can help lead the way.
Resources developed by The Paid Leave Project1 make clear that implementing the right leave programs can pay large dividends for employees and employers. When it comes to human capital competitiveness, leave is often the lowest of low-hanging fruit.
3) ADA Compliance Requires Consistent Policies and an Effective Interactive Process
Many employers think that if they have consistent, clearly communicated policies regarding the ADA, their compliance requirements are met. But the many ADA cases covered at this year’s conference highlight the importance of conducting an effective interactive process, customized for each employee requiring a reasonable accommodation. One size definitely does not fit all when it comes to accommodations under the ADA.
Employers need to ensure they’re proactively watching for accommodation requests, participating in a good-faith, interactive dialogue with employees, consistently applying company policies (such as call-in procedures) for all employees regardless of disability status, and documenting each step along the way. Employers should also identify program gaps by performing a self-audit of ADA accommodation processes and correct deficiencies as they are identified.
While the fragmented legal environment may sometimes make compliance feel impossible, the three themes that came out of the 2018 DMEC Compliance Conference are practical, thoughtful approaches that can help put your programs on the path towards compliance — now and for the future.
Opioid Prevention Resources for Employers
To identify and reduce the impact of the opioid epidemic on their workforce, employers now have access to new free resources to help train staff and build programs.
Drug overdoses were the leading cause of death for Americans under age 50 in 2015 and 2016, killing people at a faster rate than the HIV epidemic at its peak.2 Opioid addiction remains among the most significant safety and health risks for American workers. To protect employees and their families, employers must continue to improve their prevention programs, and drug-free workforce policy and procedures.
The Opioid Toolkit of the Ohio Chamber of Commerce provides an excellent introduction to the opioid epidemic and employer prevention programs. Ohio is one of the states hit hardest by the opioid epidemic. This five-module course with 72 minutes of video summarizes the legal and operational issues employers face in dealing with an employee’s use of opioids and other substances.3 The Ohio Chamber also produced a 60-minute educational video for employees.3
The first module of the employer course explains why employers are at high risk for negative impacts from opioid abuse. The majority of opioid users are employed, and their medical expense is 300% to 400% higher than non-users; their absences are more frequent; and their disability durations are longer. Their first exposure to opioids may have come through pain medications for a workers’ compensation claim.
The modules of the employer course include best practices around how, when, and why to drug test; how to manage a situation if an employee confesses or is found using harmful substances; and an outline of a legally sound drug-free workplace program.
For employers seeking a more detailed education, an excellent free resource is the COPE With Pain program of Integrated Medical Case Solutions (IMCS). A national network of cognitive behavioral therapy providers, IMCS is focused on chronic pain, trauma, and insomnia for the workers’ compensation industry. IMCS provides two free resources, both by Michael Coupland, RPsych, a frequent DMEC conference presenter: an extensive YouTube video series4 and an ongoing email series.5 The emails began a new series on Tapering Off Opioids in July, with concise information about recognizing symptoms and effective treatment approaches.
- The Paid Leave Project resources can be retrieved from http://www.paidleaveproject.org.
- J Katz. The First Count of Fentanyl Deaths in 2016: Up 540% in Three Years. NY Times. Sept. 2, 2017. Retrieved from https://www.nytimes.com/interactive/2017/09/02/upshot/fentanyl-drug-overdose-deaths.html.
- Ohio Chamber of Commerce Opioid Toolkit. Dose of Reality for Employers. Dose of Reality for Employees. Both can be retrieved from http://ohiochamber.com/opioid-toolkit/.
- COPE With Pain. 27 brief videos can be retrieved at https://www.youtube.com/playlist?list=UU1_8DXBkjDMtm-bN3M-HqmA.
- COPE With Pain. Linkedin group includes a signup for the email series, and can be accessed at https://www.linkedin.com/groups/8540640.