A few quick housekeeping items: there’s a chat feature and a Q&A feature—please use them to ask any questions during the session. There are handouts available, including the sign-in sheet for today’s CE course.

Today’s session is a two-hour CE course focused on FMLA. It's approved for Pennsylvania health and life insurance licensees only. We hope you find the information valuable. Thanks again for joining us, and with that, I’ll turn it over to Rocco.

 
Thank you, Elise. I appreciate it. Good afternoon, everyone. My name is Rocco, and I’m with Mutual of Omaha. I partner with Elise, the URL team, and other brokers in the Central and Northeastern Pennsylvania markets.

I saw someone mention static in the chat—just to confirm, are you still hearing any interference while I’m speaking? I just switched microphones. Does it sound better now? Great, thanks for confirming. Sorry about the earlier issues.

As I mentioned, I work with brokers in the region on ancillary benefits—group life, short- and long-term disability, dental, vision, accident, critical illness, and hospital indemnity. I also support absence management, which includes FMLA and ADA leave for employers with 50 or more employees. That’s the focus of today’s course.

As Elise said, this is a two-hour, two-credit CE course. I don’t anticipate taking the full two hours, but please make sure to complete the sign-in sheet in the handouts section. That form is submitted to the state for CE credit. Even if we finish early, be sure to indicate an 11:00 AM start time and a 1:00 PM end time before submitting it to Elise.

Now, regarding FMLA and other types of compulsory leave—some of you may already be familiar with the topic and may have discussed third-party absence management solutions with clients. Some of you may not have. What we’ve found is that being able to discuss FMLA and absence management solutions with HR managers often sparks strong interest. As you’ll see throughout this presentation, there’s a lot of compliance and administrative responsibility involved, and it can become a burden for HR professionals who are already managing payroll, benefits, and much more.

Wait—did I cut out again? Okay, I’m back. It must be the wind! Feel free to interrupt me if it happens again.

What I was saying is that being able to introduce absence management as a solution can be a real value-add for your clients and prospects. There are many compliance concerns related to FMLA and state-specific leave laws, and handling them properly is critical. Throughout the presentation, we’ll cover a case study, the basics of FMLA, employer and employee responsibilities, an overview of state-level leave laws, and common challenges HR managers face when managing leave.

Elise, I saw you pop back in—are we good now?

Okay, great. Just a heads-up: I’m not a fan of reading directly from slides, but for some sections—especially those with detailed facts or legal language—I’ll need to read through them to ensure accuracy.

Let’s begin with a case study.

A long-term maintenance worker for a large hospital system found himself caring for two elderly, ill parents. He began using vacation and personal time to support one parent receiving chemotherapy, while also caring for another with Alzheimer’s in assisted living. During this period, the hospital’s maintenance department introduced a new performance tracking system. His metrics fell due to time missed for caregiving, and he was ultimately terminated for poor performance.

He sought legal counsel and sued the hospital system for violating his rights under the Family and Medical Leave Act (FMLA), as well as for emotional damages from losing a job he had held for years.

The court ruled in his favor. The hospital and two supervisors were found liable. The total award was $11,650,000, including $900,000 in personal liability split between the two supervisors.

This is not a rare situation. FMLA non-compliance can have serious legal and financial consequences. It’s a federally regulated law with strict guidelines and major penalties for violations.

So, why is FMLA leave management so important?

The cost of non-compliance is twofold. On one hand, there’s the legal liability—failing to approve legitimate leave or approving leave that doesn’t qualify can both create legal risk. For example, in the story we just discussed, an employee was terminated for low performance when he was actually eligible for protected leave under FMLA.

On the other hand, there’s the operational impact. Some employers approve all leave requests out of fear of being non-compliant, which can lead to abuse. Employees may take advantage of this by taking unnecessary time off with job protection, which reduces workforce availability and increases costs.

The Department of Labor has increased its FMLA compliance audits. They are monitoring closely, and it's estimated that up to 70% of eligible employers are not in full compliance.

State leave laws add even more complexity. Existing state programs are evolving, and new ones are added every year. For employers with multi-state operations, staying compliant across jurisdictions becomes a major challenge.

Feel free to enter your questions in the chat at any point during the presentation. You don't have to wait until the end.

To provide some background, the Family and Medical Leave Act (FMLA) was enacted in 1993 to ensure job protection and promote workplace equality between men and women. It is an entitlement, not a benefit. More than 65 percent of FMLA leaves are related to an employee’s own medical condition.

Many employers believe that FMLA only applies to personal health issues, but as the name implies—Family and Medical Leave Act—it also includes care for family members. It is not limited to the employee’s own condition. Leave can be taken to care for a spouse, child, or parent with a serious health condition.

The number of states with their own family leave laws continues to grow. At the same time, the Americans with Disabilities Act (ADA) often affects the same employees covered under FMLA and introduces added risk for employers who fail to comply. The complexity and enforcement of these laws are continually evolving, which increases the compliance burden on employers.

To be subject to FMLA requirements, an employer must have at least 50 employees within a 75-mile radius. Employers with fewer than 50 employees are not required to follow FMLA, but they may choose to do so voluntarily. This applies to both private and public employers.

For an employee to be eligible, they must have completed at least 12 months of employment and worked a minimum of 1,250 hours in the 12 months prior to the leave. These hours must be active work hours and do not include vacation, sick time, holidays, or other leave.

There is a provision in FMLA called the break-in-service rule, which excludes military service. For example, if an employee worked from 2008 to 2011 and then left, they would have satisfied the 12-month work requirement. If they returned to the same employer in 2015—within seven years—they would still be considered eligible for FMLA, even if they hadn't worked another 12 months. The exception here is military service, which does not count against the seven-year rule. An employee returning from extended military service would still retain FMLA eligibility.

FMLA provides up to 12 weeks of unpaid, job-protected leave in a 12-month period, or up to 26 weeks if the leave is related to military caregiving. Upon return, the employer must reinstate the employee to the same or an equivalent position. The employee’s health insurance benefits must also remain active during their leave, and coverage must remain the same or equivalent to what it was before the leave began. Pay, benefits, and other employment terms must also remain equal or equivalent to what the employee had prior to taking leave. After the 12-week period ends, if the employee does not return to work, the employer is no longer obligated to maintain their employment and can proceed with termination.

Someone asked in the chat whether the presentation slides are available. Yes, they will be provided in PDF format after the session. I’ll send them to Elise, who will then share them with all attendees via email. As for technical issues, everything appears to be running smoothly on my end now.

Another provision of FMLA is the key employee exception. This applies to employees in the top 10 percent of wage earners at a company. If their absence would cause substantial economic harm to the organization, the employer may exclude them from FMLA protections.

During FMLA leave, employees are entitled to continue their benefits. Most health insurance plans allow for continued coverage during approved leave. Ancillary benefits like life insurance, disability, dental, and vision must also remain in place. This includes both short- and long-term disability, which is significant because most disability plans do not normally provide continuation of coverage while an employee is not actively working. Under FMLA, these benefits can remain active for up to 12 weeks.

The employer may choose to pay the premiums during the leave or have the employee pay them. If the employer covers the premiums and the employee does not return to work, the employer can recover those premium costs. Employees have up to 30 days to catch up on delinquent premium payments during FMLA leave.

To qualify for FMLA, the reason must fall under either the medical or family portion. Medical leave is for an employee’s own serious health condition. Family leave is for caring for a spouse, parent, or child with a serious condition, or for the birth or adoption of a child. It also covers military-related leaves, such as caregiver leave or qualified exigencies.

Someone asked whether, once FMLA is exhausted and the employee is still unable to return to work, it’s better to place them on COBRA or continue group health coverage and charge the full premium. That question is more specific to group health plans, which I don’t directly handle. I focus on ancillary products. However, my understanding is that it depends on the carrier and how the group health policy is written. Elise can speak to this in more detail.

Elise explained that once FMLA ends and the employee no longer works the minimum hours required to qualify for benefits, COBRA should be offered. For large employers, this falls under federal COBRA, and employees can be charged up to 102 percent of the premium. Employers can choose to charge 0 percent, 100 percent, or 102 percent—nothing higher. This is the proper next step after FMLA has been exhausted.

If an employee is taking FMLA due to their own medical condition, what counts as a serious health condition? It could include hospitalization or inpatient care, absence from work for more than three consecutive days with treatment at least twice, or pregnancy. It also includes chronic or long-term health issues, or situations where failure to receive treatment would likely result in a serious incapacity. Scheduled surgeries also qualify.

Someone in the chat asked whether foster parents qualify under FMLA. We’ll be covering the definition of “family member” shortly, and that will help clarify whether foster parents are included.

Continuing on, a serious health condition may also include two visits to a healthcare provider within 30 days of the start of incapacity, with the first visit occurring within seven days. Conditions that cause three consecutive full days of incapacity, or those requiring ongoing treatment, may also qualify. In general, chronic health conditions that require at least two visits per year to a healthcare provider may meet the definition.

There are many gray areas, and determining whether a condition qualifies can be difficult. This is just one example of how complex and burdensome FMLA management can be for HR teams. Whoever is responsible for reviewing the documentation must make compliance-based decisions while interpreting the law correctly.

Someone asked if they need to print the sign-in form. The answer is no—there’s no need to print. The form can be completed digitally using Adobe or any digital signature tool.

Another question came through: “How far back does FMLA go? My husband passed away in 2019 after a long illness. He went on Medicare and long-term disability, and his benefits were reduced. Would he have qualified for FMLA?”

First, I’m very sorry for your loss. Whether he would have qualified depends on whether he met FMLA criteria at the time of the leave. He would have needed to be employed by a covered employer, worked 1,250 hours in the 12 months prior, and requested leave for a qualifying reason. If he was no longer working or already on Medicare disability, he likely would not have qualified, but this would be case-specific.

To answer the earlier question—would he have qualified for FMLA? The law allows up to 12 weeks of job-protected leave within a 12-month period. It doesn’t provide financial benefits or pay; it simply guarantees that the employee’s job is protected during the leave. The employer cannot terminate the employee while they are on an approved FMLA leave.

Regarding how far back FMLA goes, that may have caused some confusion. The law itself has been in effect since 1993, so it certainly applied in 2019. However, the 12-week leave protection applies only to the 12-month period around the requested leave. So while FMLA was available in 2019, eligibility and protection are based on the timing of the specific leave request.

Another question came up about how FMLA and COBRA interact when it comes to health insurance. Elise clarified that FMLA and COBRA are sequential rather than overlapping. FMLA comes first. If the employee exhausts their FMLA leave and is still not eligible to return to work or meet the hour requirements for health coverage, then COBRA would typically be offered as the next step. Elise will put together more detailed guidance on that and share it with me, so we don’t spend too much time diving into COBRA specifics during this FMLA session.

Going back to the question about whether FMLA existed in 2019—yes, it was fully in place then, having been enacted in 1993.

To address a previous question from Michael Anderson regarding the definition of an immediate family member: FMLA defines this as a parent, spouse, or child. The definition of a parent includes either a biological parent or someone who acted in loco parentis, meaning someone who filled a parental role, even without a biological or legal relationship. This could include adoptive parents, foster parents, or grandparents, provided they fulfilled parental responsibilities.

Another question was asked about whether an employer must continue to pay the employee’s salary during FMLA leave. The answer is no. FMLA provides job protection, not paid leave. The employer is not required to continue salary payments while the employee is on leave, but the employee cannot be terminated as long as they are on a qualified FMLA leave.

Now let's talk about the timing and types of leave, as well as how employers track and record them. FMLA allows up to 12 weeks of job-protected leave within a 12-month period, but employers have a few options for how they define that 12-month window.

It could be a calendar year, from January 1 to December 31. Some employers might use a fixed 12-month period, like their fiscal year or the employee’s anniversary date. For example, if an employer's benefits renew on June 1, they may track FMLA from June 1 through May 31 each year.

Another option is to use a rolling 12-month period, looking backward from the date an employee requests leave. The employer reviews the 12 months leading up to the request to determine how much FMLA leave has already been used. Alternatively, an employer can use a rolling 12-month period going forward. In that case, once an employee begins their leave, the 12-month period begins, and they have 12 weeks of leave available during that time. However, for military caregiver leave, the measurement always starts from the first date of leave taken—no alternate tracking options are allowed.

FMLA does not require leave to be taken in one continuous block. Intermittent leave is permitted. For example, if an employee needs to attend weekly medical appointments every Friday and their condition qualifies under FMLA, they could use one day per week. Over the course of 12 weeks, they would have used 12 days—not 12 weeks—of leave.

From an HR perspective, this tracking can become quite complex. The employer must keep records of how many days or weeks an employee has used, and how much leave remains. Imagine an HR manager trying to determine whether an employee is still eligible after multiple leave periods—two weeks one month, another week later, and so on. Keeping accurate records for multiple employees under different leave schedules can be overwhelming. That’s why many organizations opt to outsource FMLA and state leave management to third-party administrators. It helps relieve HR teams of a significant administrative burden and ensures compliance.

FMLA can also apply to reduced work schedules. For instance, an employee might be medically cleared to work only 20 hours a week instead of their usual 40. In this case, FMLA covers the time they’re not working, allowing job protection for the hours they’re unable to fulfill.

Now let’s look at the responsibilities of both the employer and the employee under FMLA.

Employers must post a notice in the workplace that explains employee rights under FMLA. This notice must be approved by the Secretary of Labor. They must also include rights and obligations in employee handbooks or other materials provided at the time of hire. Once an employee notifies the employer of their intent to take leave, the employer has five business days to respond with a written notice that outlines the employee’s rights and obligations, and whether the requested leave qualifies under FMLA. The employer is also responsible for keeping all documentation related to the employee’s leave confidential and separate from general personnel files.

When a new employee joins the organization, the employer must inform them of any FMLA coverage they may have. Once the employee initiates a leave request, the employer must provide detailed instructions on next steps, eligibility, approval or denial, and relevant forms.

Employers are required to issue several notices: a general notice about the law, a rights and responsibilities notice outlining what the employee is entitled to and must do, an eligibility notice indicating whether the employee qualifies, and a designation notice confirming whether the leave request is approved under FMLA. These notices can be posted online as long as they’re easily accessible to all employees.

If an employee is found ineligible, the eligibility notice must include the specific reason for denial. If an employee submits multiple requests for leave during the year for different reasons, a new eligibility notice is only required if the employee’s status has changed since the previous request.

The employee also has responsibilities under FMLA. If the need for leave is foreseeable, such as in the case of pregnancy or scheduled surgery, the employee must provide at least 30 days’ advance notice. They must also submit medical certification from a healthcare provider within 15 calendar days of the leave request. If they fail to submit this certification on time, the employer has the right to deny the leave, even if the condition would otherwise qualify.

Employers can require additional documentation during the leave, including recertification of the condition. They may also request second or third medical opinions at their own expense if they have reason to question the initial certification. Periodic updates from the employee on their condition and return-to-work status can also be required. Some employers may have a policy requiring employees to call in or check in regularly while on leave—for example, every two weeks.

When a leave request is submitted, the employer must determine whether the employee meets eligibility criteria. This includes confirming 12 months of employment, 1,250 hours worked in the prior 12 months, and whether the employee has already exhausted their 12 weeks of leave. If the leave request meets the qualifying criteria, the employer must issue the eligibility notice and rights and responsibilities notice within five business days of the initial request.

The rights and responsibilities notice must inform the employee whether the requested leave will count against their annual FMLA entitlement, whether medical certification is required, whether paid leave must be used concurrently, and the right to unpaid leave if no paid time is available.

Employers have the right to request medical recertification every 30 days and may require annual recertification if the condition continues into a new FMLA leave year. If the employee uses all 12 weeks of leave and remains employed, a new 12-week FMLA entitlement will begin in the next applicable leave year. The employer may require updated certification at that time.

Medical certification requests from the employer must be made within five business days of the employee’s notice or within five days of the start of an unforeseen leave. Employers may also contact healthcare providers to authenticate the certification or clarify information. However, all medical information remains protected under HIPAA, and the employer cannot request any additional information beyond what is on the certification form.

Now moving into the topic of state leave laws—as previously mentioned, FMLA is a federal law that provides unpaid, job-protected leave across the entire country. In addition to this federal protection, there are currently 14 states that have enacted their own statutory leave laws, offering additional protections and, in many cases, paid benefits. These state leave programs may focus on medical leave, family leave, or both, and they can differ significantly in their structure and requirements.

The 14 states that currently offer these statutory leave programs are California, Colorado, Connecticut, Washington D.C., Hawaii, Maine, Maryland, Minnesota, New Hampshire, New Jersey, New York, Oregon, Rhode Island, and Washington. Two nearby states, Delaware and Maryland, are slated to implement their programs on January 1, 2025, although final regulations and details are still being finalized. Vermont is also preparing to launch its state leave program by July 2025.

Each state may offer different types of protected leave. These can include family and medical leave, pregnancy or disability leave, baby bonding, bone marrow donation, leave for volunteer firefighters, school-related activities, domestic violence-related leave, and KinCare.

When it comes to compliance, both with FMLA and state leave laws, mistakes can be costly. FMLA compliance is a well-known target for litigation, and penalties for non-compliance can be substantial. As demonstrated earlier in the presentation, lawsuits related to FMLA violations have resulted in significant financial penalties for employers. The federal government takes these violations seriously, and it’s essential that employers administer leave programs properly.

Among the most common errors employers make are issues with understanding how different states define serious health conditions and how leave should be tracked. Because leave does not have to be taken in one continuous 12-week block, but can instead be taken intermittently throughout the year, tracking becomes a logistical challenge. Employers with workforces spread across multiple states face even greater complexity, particularly when those states have different requirements on top of federal FMLA regulations. A company with 200 employees across eight states, for instance, may find that four of those states have their own leave laws layered over FMLA.

Other frequent errors include failing to notify employees of their rights, failing to inform employees that their leave is being counted toward the 12-week entitlement, or misapplying absenteeism policies. For example, if an employee is out on FMLA-protected leave for 10 days, an employer cannot count those absences against the company's attendance policy or terminate the employee for exceeding time-off limits. Doing so violates FMLA protections and can lead to litigation. Employers also sometimes incorrectly deny leave that should have been granted to care for a seriously ill parent or child, assuming FMLA only applies to the employee’s own health condition.

There are also issues with medical certification. Failing to request certification in writing, not allowing the employee 15 calendar days to obtain and submit it, or not handling medical documentation correctly under FMLA guidelines can all lead to compliance failures. Employers may misunderstand what qualifies as a serious health condition, terminate employees during or immediately after FMLA leave, or mismanage the required documentation.

When it comes to managing FMLA in-house, non-compliance carries real risk. Denying a request that should have been approved opens the door to Department of Labor fines, lawsuits, and potential liability for individual managers. However, going to the other extreme—over-compliance, where every request is automatically approved without proper review—also creates problems. It leads to productivity loss, abuse of the system, time theft, and creates an environment where employees may feel they can take leave even when they don't qualify, simply because the employer isn’t following the law carefully.

As the presentation nears its conclusion, a key decision point is whether an employer chooses to manage FMLA and state leave internally, or to outsource absence management to a third-party vendor. If the company manages it internally, all tracking, eligibility determination, compliance, and communication responsibilities fall on the HR team. For smaller employers or those with limited HR resources, this can be a significant administrative burden.

There are several vendors available that offer absence management services, though many will only work with companies that have 300, 500, or more employees. However, Mutual of Omaha provides an absence management solution for employers with as few as 50 employees, which aligns with the FMLA threshold for employer applicability—50 or more employees within a 75-mile radius.

One of the key advantages of outsourcing absence management is the ability to streamline and integrate FMLA with state leave programs and short-term disability benefits, if the employer offers them. This creates a simplified experience for employees. Instead of submitting separate requests for FMLA and short-term disability, employees can make a single request to the vendor. The vendor reviews the leave for FMLA approval, submits a short-term disability claim to the insurance carrier, and manages the entire process. This “one-call-does-it-all” model improves efficiency, reduces errors, and ensures a smooth employee experience.

The absence management services offered through Mutual of Omaha are provided via FMLASource, a program run by ComPsych, based in Chicago. It includes administration of both FMLA and ADA leave management for groups of 50 or more employees. Importantly, Mutual of Omaha does not charge any implementation fees for this service—whereas other vendors may charge thousands of dollars just to get started. The cost is also competitive, typically around $2.50 per employee per month, compared to $3 or $4 with other providers. In some cases, depending on the size of the group, lines of coverage, and other factors, Mutual of Omaha may be able to subsidize the cost of the service as well.

To summarize, outsourcing FMLA and state leave administration offers several advantages. It removes the compliance burden from HR teams, ensures proper review of all leave requests, and helps avoid lawsuits and fines. The vendor determines whether the leave is approved or denied, maintains all documentation, and provides legal support if challenges arise. It also tracks all types of leave, including any overlapping state protections, and provides employees with a full packet of their entitlements and next steps. The employer no longer has to manage this manually, which saves time, reduces liability, and helps maintain consistency across the organization.

This concludes the formal portion of the presentation. At this point, the floor was opened for questions.

Elise rejoined to address a final question: during FMLA leave, does the company have to continue paying the employee’s salary? This question had already been addressed earlier, confirming that no, FMLA does not require employers to continue paying wages during leave. The law only provides job protection, not paid time off.

Before wrapping up, attendees were reminded to download the required form, which can be completed electronically and sent via email. There’s no need for a wet signature. The completed form should be returned to Elise, who will forward it to Rocco for processing.

With that, the session was brought to a close. Elise thanked everyone for attending, and the meeting concluded with well wishes for a good weekend.