ReedGroup is keeping our colleagues, their families, and all Texas and Louisiana residents impacted by Hurricane Harvey in our thoughts. Our Woodlands, Texas office will be closed for the remainder of this week, and our clients are being serviced by our other locations and work-from-home employees. ReedGroup is concerned about our employees and those of our clients and their family members’ health. As such, while we continue to service our clients whose employees and family members are impacted by this storm, we wanted to share some reminders and considerations when it comes to disability, leave, and accommodation management during a natural disaster.
New FMLA or ERISA claims: For employees who recently opened an FMLA or disability benefit claim, either immediately before the hurricane hit or this week, usually an employer sends an eligibility notice along with a Certification of Health Care Provider form to validate the leave necessity. Under the FMLA, the employee has 15 days to return the certification form and disability plans usually have deadlines as well. However, the hurricane and flooding are considered extenuating circumstances. Thus, employers and administrators must be prepared to extend paperwork deadlines or waive a paperwork requirement altogether, and, if applicable, recertify the leave in 6 months. For ERISA claims, the hurricane-caused delays are likely good reason to extend decision deadlines, if absolutely necessary.
In addition, because mail delivery may be halted and power outages might impact people’s ability to access email or forms on the internet, be prepared to resend eligibility and form notices to those in Texas, Louisiana, and other hurricane-impacted areas.
Disability benefits pay: Many disability benefits are scheduled to be paid this Friday and checks are likely in the mail already. Plan administrators should be prepared to stop payment on checks and resend them to employees who need their disability pay and have evacuated or relocated. Encourage plan participants to sign up for direct deposit at this time, if possible.
Reporting a new claim or intermittent time off: The FMLA requires employees to report foreseeable absences and allows employers to enforce attendance policies when it comes to reporting intermittent absences. Disability plans often have deadlines under which a participant must report a disability. But, as mentioned above, Hurricane Harvey creates extenuating circumstances where employers and administrators should waive or extend reporting timeliness policies.
Intermittent leave frequency and duration: Natural disasters such as Hurricane Harvey can cause extreme stress and exacerbate existing health conditions, necessitating more time off. Employers and administrators should anticipate intermittent absences to increase and exceed a provider’s estimated frequency and duration. Under the FMLA, an employer can only recertify an intermittent leave request if the employee’s FMLA usage significantly exceeds the provider’s estimate. Employers should consider waiving any recertification at this time. If an employee already is approved for intermittent leave for a hard-to-verify condition–such as a nervous disorder, migraines or back pain–and requests time off under that leave, consider taking the employee’s word as to the reason for absence, even if you suspect the employee is trying to use FMLA leave for flood damage or other home repairs. Many providers’ offices are damaged or closed, leaving those that are still open overloaded and handling life-threatening health conditions. It may not be worth trying to verify a few absences resulting from this storm.
National Guard leave: If an employee is a member of the National Guard which has been called up to serve in Texas, remember that National Guard service under the authority of state law is not protected by USERRA, but states such as Texas have laws protecting absences due to National Guard and other military-related service.
Businesses that have temporarily ceased operations: The FMLA regulations address employees’ FMLA usage when employers temporarily cease operations for one or more weeks. If the employer’s activities cease and employees are not expected to report to work for one or more weeks, the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.
Caring for a family member: Employees may take FMLA leave to care for a family member, but only as it relates to the family member’s personal care, such as bathing, transporting them to doctor appointments, or fixing meals. The FMLA generally does not provide leave for home cleaning and maintenance. Therefore, if an employee requests FMLA leave to deal with a parent’s flooded basement or to meet a repair crew at the parent’s house, these would not be covered under the FMLA. Employers can use a company leave or personal leave for such requests.
ADA accommodations and leave due to hurricane-created conditions: Harvey’s aftermath may spur legitimate FMLA leave or ADA accommodation requests. The following are all examples in which leave should be granted or accommodations offered:
- An employee with an existing nervous or stress disorder might have his or her condition exacerbated by the hurricane experience and need time off to recover or an accommodation to adjust to the stress.
- An employee with a bad back or other physical ailment might need FMLA time or an ADA accommodation because of aggravating the condition while cleaning up after the hurricane.
- An employee with FMLA leave to care for a parent might need time because the hurricane cut power to the parent’s oxygen tank (requiring him or her to move the parent temporarily) or cut power to the parent’s refrigerator (requiring him or her to bring the parent staples or fresh food) or caused the parent to lose water service (requiring the employee bring the parent bottled water).
- An employee might have received a new injury during the hurricane or during the clean-up, which qualifies as a serious health condition and justifies time off after the fact.
Hurricane Harvey has caused unprecedented devastation, which means a business-as-usual approach to administering leave and accommodations might not be sufficient. Employers should consider reviewing their policies and making appropriate leave administration adjustments that would prevent adding to the burden of those employees affected by Hurricane Harvey who need a leave of absence.
For employers for which we administer leaves of absence, accommodations, and disability management, ReedGroup has provided guidance to our Operations teams regarding when it’s appropriate to extend paperwork and decision deadlines, waive documentation requirements, and delay recertification.