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Just as people are recovering from Hurricane Harvey, including our colleagues in ReedGroup’s Woodlands, Texas, office, our Texas clients, and their employees, ReedGroup is preparing for Hurricane Irma and her aftermath. ReedGroup’s Orlando office will close this afternoon as we monitor Hurricane Irma’s path, and ReedGroup’s clients will again be serviced by our other locations and work-from-home employees.

We remain committed to helping our colleagues, their families, and residents impacted by these hurricanes while they deal with evacuations, relocating, and recovery. I’m proud of my ReedGroup colleagues’ efforts in both Hurricane Harvey and Irma preparations and Hurricane Harvey recovery. ReedGroup staff made outbound calls to disability benefits recipients in Texas to ensure each person has access to their benefits and explained their options for their leave and disability while they focus on staying safe and rebuilding. ReedGroup staff donated goods and funds to Hurricane Harvey recovery programs, and donated vacation and personal time to our Texas colleagues. I have no doubt ReedGroup will continue these efforts during Hurricane Irma.

Our earlier article discussed how to handle leave, accommodations, and disability during Hurricane Harvey. With regard to Hurricane Irma, we repeat those reminders and considerations here.

New FMLA or ERISA claims: For employees who recently opened an FMLA or disability benefit claim, 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, hurricanes and any associated 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, 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 Florida, Texas, Louisiana, and other hurricane-impacted areas.

Disability benefits pay: Many disability benefits are scheduled weekly or bi-weekly, and checks may be in the mail already. Plan administrators should be prepared to stop payment on checks and resend them to employees who need their disability pay but have evacuated or relocated. We 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. However, hurricanes create extenuating circumstances where employers and administrators should waive or extend reporting timeliness policies.

Intermittent leave frequency and duration: Natural disasters such as hurricanes 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. We expect many providers’ offices will be 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 state impacted by a hurricane, remember that National Guard service under the authority of state law is not protected by USERRA, but states such as Texas and Florida have laws protecting absences due to National Guard and other military-related service. Many employers are modifying their company personal leave policies to include National Guard service during natural disasters and states of emergency.

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. Employees can use a company leave or personal leave, if available, for such requests.

ADA accommodations and leave due to hurricane-created conditions: Harvey’s and Irma’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 to 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, and the impact of Hurricane Irma could be similar or worse, 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 hurricanes 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. ReedGroup will continue supporting our colleagues, client employees, and their families through challenging times such as these, not only through absence management, but through donations and other assistance. 

Megan Holstein

Megan Holstein

Megan Holstein, Esq., is Vice President of Compliance at ReedGroup. Ms. Holstein provides leadership, product creation, and effective guidance to ensure ReedGroup’s software and service products are best in class and compliant with governing law. Specifically, Ms. Holstein's work focuses on, and she has developed an expertise in, the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and their state law equivalents as well as disability and family leave benefits, including ERISA as it pertains to short- and long-term disability plans. Ms. Holstein is the product owner for ReedGroup’s ADA and Workplace Accommodation product offering. Ms. Holstein co-authored ReedGroup’s LeaveAdvisor™ online reference tool and ReedGroup’s white papers regarding leave as an accommodation under the ADA, absences and accommodations for pregnant employees, and paid sick leave laws.

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