Sorting Out Overlapping Laws When Managing Catastrophic Cases

 

When catastrophic illness strikes an employee or family member, case managers have to navigate a complex web of leave laws. Your daily decisions can have a dramatic effect on whether the employee has enough leave available to last through a long recovery, and also can help reduce the employer’s risk of noncompliance. To complicate things even more, leave laws are continually updated, so staying on top of how those changes may affect your cases is essential.

Understanding How To Apply Overlapping Leave Laws: An Example

Take for example, Joe, a full-time M-F employee in Connecticut who is diagnosed with cancer and is prescribed surgery, chemo and radiation. Joe has 10 days of paid time off and also is eligible for FMLA and CT FML (Connecticut Family & Medical Leave). Assuming he has not previously used any leave time, Joe would be entitled to the following:

• Paid Time Off: 10 days or 80 hours.
• FMLA: 12 weeks or 60 days or 480 hours.
• Connecticut FML: an additional 16 weeks or 80 days or 640 hours. (Important note: CT FML runs concurrently with FMLA until the FMLA exhausts at 12 weeks, then CT FML continues for four more weeks.)

Once FMLA is exhausted, however, and even if there is not a more generous state leave law that is applicable, the employer must still consider whether additional time off is a reasonable accommodation under the ADA (Americans With Disabilities Act), as cancer is almost always a “disability.” In this scenario, more time off would be reasonable because there is an end in sight, and it serves the goal of enabling the employee to get back to work. (See the chart below explaining the overlapping considerations.)

Many states (e.g., California, Oregon, Vermont) provide the same 12 weeks as FMLA, so in those states this employee would have exhausted all protected leave time at the same time when FMLA was exhausted near the end of radiation.

Other state FML laws provide differing amounts of leave and leave periods, which must be coordinated with FMLA:

• New Jersey: 12 weeks in 24 months.
• Hawaii: four weeks in 12 months.
• Connecticut and Washington, D.C.: 16 weeks in 24 months.
• Maine: 10 weeks in 24 months.

Strategic Scheduling Preserves Leave Time and Reduces Lost Work Days

As a case manager, you can help make sure the employee will have enough protected leave time to last through a catastrophic illness by strategic scheduling of appointments. The added benefit is that you reduce the number of work days the employee misses (thus reducing “lost work days” for the organization).

In the above example the employer might be able to suggest that the employee try to receive chemo on Thursday or Friday (so two days of incapacity fall on the weekend). This must be medically reasonable and supported by the employee’s healthcare provider. This also would have the effect of stretching out the employee’s FMLA time, since a larger part of the incapacity time would be on weekends instead of during the work week.

Similarly, if the employee is scheduling the radiation at 10:00 in the morning, for example, the employer might be able to request that the radiation be scheduled for first thing in the morning or at the end of the day. Again, this might disrupt business less and would also minimize the amount of travel time the employee has to take as FMLA time, if it is before or after regular work hours.