This episode focuses on a key aspect of the FMLA — job protection. Listen as three Lincoln absence and leave professionals discuss what job protection means under the FMLA, along with common viewpoints and misunderstandings from both an employer and employee point of view. We’re all hearing more about the importance of employee benefits and flexible work arrangements; our discussion focuses on what that means to the significance of the FMLA as a cornerstone of employee leave and job protection.
Resources mentioned in this episode: Conflict and Compromise by Ronald Elving, DOL’S FMLA Employer Guide, Wage and Hour Division by the numbers for FMLA
© 2022 Lincoln National Corporation. All rights reserved. LCN-4614445-032222
This episode focuses on a key aspect of the FMLA — job protection. Listen as three Lincoln absence and leave professionals discuss what job protection means under the FMLA, along with common viewpoints and misunderstandings from both an employer and employee point of view. We’re all hearing more about the importance of employee benefits and flexible work arrangements; our discussion focuses on what that means to the significance of the FMLA as a cornerstone of employee leave and job protection.
Resources mentioned in this episode: Conflict and Compromise by Ronald Elving, DOL’S FMLA Employer Guide, Wage and Hour Division by the numbers for FMLA
© 2022 Lincoln National Corporation. All rights reserved. LCN-4614445-032222
Hi everyone, this is Karen Batson Marketing Manager at Lincoln Financial Group. I'm so excited for you to hear today's episode, not only because these three guests are ladies that I work with all the time and think are fantastic, but also it's a topic we heard you wanted to hear more about. So today we're diving into what is job protection under FMLA. I'm joined by Trish Zuniga, legal counsel here at Lincoln Financial, Annie Jantz product lead for Leave Management Services. And Lauren Hagen, senior consultant on our claims Best Practices team. We dive into many aspects of that question. We talk about what it says under FMLA. We talk about best practices, we talk about how the employee understands job protection. But most importantly, we talk about why this is so important to your leave strategy. I really hope you enjoy today's episode. Hi, everyone. Yeah, you excited to talk about FMLA today?
Group:Yes, always?
Karen Batson:Well, let's start with introductions. Can you just introduce yourself what you do at Lincoln and how you're related to the FMLA topic.
Lauren Hagen:So my name is Lauren Hagen. I am a senior consultant within our claims Best Practices team, and the products that align into me are FMLA. So that's my kind of relation there to that amongst some other products that we have that run in coordination, so any of our unpaid state leaves and PFML products, all the good stuff that's been coming out over the last few years.
Annie Jantz:And I'm Annie, Jantz I manage our leave products here at Lincoln, that includes our FMLA, and our unpaid state leaves. And you know, any of our company leaves as well.
Trish Zuniga:And my name is Trish Zuniga. I'm a senior compliance consultant in providing support for absence, statutory disability and paid family and medical leave. And in plain terms, I monitor changes to laws, regulations, and other guidance on leave laws. And we know there's a lot of that happening. So I helped make sure that Lincoln remains on top of leave development for our products and the clients who use our products.
Lauren Hagen:On our constant oops, sorry, yeah, I was gonna say the same thing. Yeah. And our constant emails with ever changing landscape? Yeah,
Karen Batson:let's kind of step back and maybe do a little bit of a history question in regards to when FMLA was established, and where the concept of job protection came from, why it was important.
Trish Zuniga:So the self professed FMLA nerd is going to start. I want to start off by acknowledging my source for this story. And this is from a book that's called conflict and compromise. And it's written by Ronald Elving, who used to be a legislative staffer. And it takes a deep dive into how a bill becomes law, but specifically focusing on the FMLA negotiations. So fascinating. And it starts off in 1982, with the story of 300 complaints against employers for violations of a California law providing job protection to working mothers who returned to work after giving birth and finding out that their job was no longer there. And in the discussions to get a federal law passed, protecting workers rights, from mothers, the scope was widened so that all workers could benefit not just mothers or even parents, because everybody is going to experience some sort of event that would prevent them around from being at their job. So it had to be grounded in something anyone could experience. Now, everyone had different ideas of worker protections could look like but one of the key elements that everyone agreed on, and what ended up in the FMLA is that the law should include reinstatement to the same job or its equivalent after someone took leave. So in sum, I would say that the concept of job protection is pretty foundational to the FMLA.
Lauren Hagen:Absolutely.
Annie Jantz:Yeah, I completely agree. That was a great overview. Trish, by the way. I love that. And yeah, one of the things that I recently read on the DL a website with the DOL excuse me, the DOL website that I really liked, and I thought kind of summed up a lot of it is they said no worker would need to choose between the job that they need and the family they love. And that was one of the reasons that you know, they had all of this come out the job protection and FMLA. So I think that kind of just sums it up, right? You shouldn't have to choose between the two.
Lauren Hagen:Right? Especially with how we've, you know, the last two years right that we've been living through, I mean, it made it even more apparent Everybody in the workforce, not just parents, but everybody, right? I mean, it resonates still to this day. And I mean, imagine being that mother coming back to work, and you find you don't have your job like Welcome back, you know, I mean, it's, it's I can only imagine so.
Annie Jantz:I know exactly. Yeah.
Karen Batson:Well, let's talk about what does job protection mean? Exactly.
Trish Zuniga:So exactly as it is in the FMLA. law and regulations, when an employee returns from FMLA leave, they must be restored to the same job or to an equivalent job. So what this means is, they have to be returned to the same position or to an equivalent position. And what that means is that they should have equivalent benefits, pay or other terms and conditions of employment. And what I'll just add is that the job protection concept is not absolute. So there are also limitations to job protection provided in the FMLA regs. So if something happened during an employee's FMLA leave, but it's the same thing that would have happened to them anyway, if they weren't on FMLA leave. So for example, the shift has been eliminated, or overtime has been decreased, you know, like, right, concrete business, practical
Lauren Hagen:Like a reduction in force or something or location closing. Right?
Trish Zuniga:Exactly like so if it would have happened anyways, so the employee wouldn't be entitled to return to work or or to what they originally had. And then just the last thing I'll I'll add in the law is another limitation on job protection, which is that an employer can deny restoration to a key employee, and the employee is a salaried FMLA eligible employee who is among the highest paid 10% of the employers employees within 75 miles.
Annie Jantz:Right. That's a great point, too, because I wonder how often that, you know, employers and employees remember that rule or know about that rule,
Lauren Hagen:I was just gonna say the same thing Annie, right. It's a key. I mean, it's, it has to be called out right, within the correspondence you, you know, you indicate right, if they are a key employee if they're aware of it. But it is something I think, you know, employers and employees do tend to forget,
Annie Jantz:Right, right, you just think job protection, well, that just means you nothing can happen, that entire drive is not really true. I mean, it does protect your job. But there are there are some things that fall outside of that.
Karen Batson:Absolutely. Now, there are other lead programs that have job protection, and it is it always defined the same.
Trish Zuniga:So under federal law, there are leave laws that provide job protection. And I'll mention USERRA, and the Americans with Disabilities Act. And I won't go into the history of these laws. But just like FMLA, these laws were passed to adapt to changing environments and circumstances. And the goal is to extend worker protections to these specific employee groups. And then you have state legislation, which depends on policy decisions per state and there are several laws that have job protection, like anti discrimination laws and pregnancy discrimination laws. And it could be positively worded or negatively worded, but the effect is the same. So for example, the law could say, employers are required by law to reinstate an employee, or they could take the reverse approach and say, employers may not discharge employees who take this leave. So no matter what the route you take, the employee is still protected, and the employee should have a job to return to after taking the leave.
Annie Jantz:Yeah. And I think that's a really good point, too, because I think today, employees have more protection than ever, and that maybe will just continue to increase. But with all of the state leaves and FML, and then right, the ADA. I mean, there's just a lot of different ways the employee can be protected. And so I think it's important that employer, keep that in mind as well, like, you may not think about that, that there's another unpaid state leave that may apply, there may be some job protection there. And it might extend beyond the FML depending on the duration. So you know, it's a lot to pay attention to, but it's important as well, so you don't run into an issue,
Lauren Hagen:I think too understanding that, you know, we know with Connecticut, their paid family medical leave that just began they don't consider that job protection, but they do still have the unpaid Connecticut FMLA laws that provide that job protection, you know, in coordination with any federal benefit they're available for. So it is just as you know, that reminder there that we do still have these unpaid benefits and how they run and, you know, to your point, any, you know, they may have expanded relationships outside of the federal FMLA. I know we've seen that come up recently, right before you kmow California and New Jersey, they had that as well in their unpaid plan. So you might be able to be covered under that benefit, not necessarily the federal benefit. So right to remember. What is nice. It's nice to see it changing, though to adapt to, you know, our times now how people live and family members and who takes care of whom. So it's nice to see that change.
Annie Jantz:Yeah, I agree, because it's more inclusive, right, so that you're not leaving people out of the benefits of. So yeah, I completely agree. I think that's a good move.
Karen Batson:Now, can you circle back we kind of talked about this a little bit in regards to what job the employee can return to? And I'm sure there's maybe confusion on the employee part on that. Is it protecting them to come back to the exact job or close to that exact job? Or what are the requirements of the employer in that instance?
Trish Zuniga:Yeah, so I can understand the confusion around it, the FMLA regulations actually expressly say that the employee is not guaranteed the actual job held prior to the leave. Now the employer can choose to hold the exact same job, it's probably administratively easier for them in some cases, but in other cases, and this is allowed by the FMLA, the employer can restore the employee to an equivalent job. And I mentioned a little bit of this earlier, it has to be virtually identical to the original job in terms of pay benefits, and employment terms and conditions like the shift and location. So if somebody was working in California, you can't just up an offer them a position in New York. So it should pretty much look like the original job, and it shouldn't be unfair to the employee. So there are cases where the courts have held what was an equivalent position and what is not. So I'll just give a few examples. There's this one case where an employee argued that in practice, she was transferred to a lesser position and that it was actually a demotion because it included more clerical duties. It didn't require the same level of expertise. And she was required to report to a former peer. So the court saw that the change in positions could deter somebody from taking FMLA leave. So it kind of had a chilling effect on on somebody. So that was a no go pretty much. And then you have this case where an employee said that he lost prestige, because he was a member of the core management group before but not after his leave. But the court looked at the position. So what I'll say right now, it's determined on a case by case basis. And in this case, the employee, you know, had the same salary, he had the same bonuses eligibility, he had the same employment benefits, like full health benefits, even at the same worksite and the same title. And he reported, not to the same vice president, but to another vice president at the same level, so that the Court said was an equivalent job, the loss of prestige. Now, that's just something extra.
Annie Jantz:Yeah, that that makes sense. That's interesting, though. And I guess it's just another layer that the employer has to be aware of when they're thinking about or there's the need to bring them back into an equivalent position. And what does that really mean? That that's very interesting. And Trish, do you think just like in really simple terms, for an employee who's taking leave job protection, it really means you shouldn't be treated any differently as if you had had not taken leave at all, like you'd continue to work? There are obviously some things that can happen, like a job could have changed. And, you know, maybe that position is different now, when you're coming back. But that would have happened, regardless if you were, you know, on leave, or you were in the facility working the whole time. But really, it's meant to just say you can't really be viewed differently, because you had leave.
Trish Zuniga:Absolutely, yeah, I agree with that.
Lauren Hagen:I think it's another good call out right to remind employers that they are going to go that route to really look at it piece by piece, right? Not just, oh, it's the same work location. Oh, it's, you know, you're the same title. But there's other many other things that go into that to be considered equivalent. So I think that's a really good call out. Yeah, maybe why most of them say, You know what, for the for the 12 weeks, I think we're gonna keep you in the same role.
Annie Jantz:Exactly the same, right. It would be challenging, I can definitely see that.
Karen Batson:I feel like it goes back to a lot of conversations we've had on the podcast and our webinar series. Where there's making sure you're compliant. And then there's the best practices you should do in regards to your employee their experience, and quite honestly, your brand and reputation. So really looking at your leave policy based on your company. Yeah, to make sure hitting both of those
Annie Jantz:Yeah, I agree. Yeah.
Lauren Hagen:And I think so I mean, we all are well versed right in in FMLA, and those items, but I think to make it understandable, either individual's level right at that employee level, so that they really understand like, what are the what are the major things we need to do? What does this really mean for me? So I guess, you know, it's really relying on your frontline managers and your HR business partners to understand like how this actually folds into your policy and what's out there. So I always try to remind myself of that, even though right, if I'm speaking with someone, they don't do this every day. I do so take that into account.
Karen Batson:How do employers navigate the rules versus what the employee may expect when they come back? And we've kind of I think, tiptoed around this question a little bit.
Lauren Hagen:So I think for this, you know, it's one to me, it's always a really good understanding from a compliance perspective, right? What does that mean? And how does that translate into your company and to that role to that individual in that type of leave? I think it's always good to if you have a question, right, reach out to your carrier, if utilizing a carrier, you know, if you're looking potentially I, you know, hate to be the dark cloud here. But if you're looking potentially to take, you know, employment action to really utilize your internal counseling, your internal resources. Yeah, just to truly understand that, you know, I just think it's, it is hard, right? The law is written in a certain way, and how does that translate into the real world? And I think that's what we all, you know, really deal with? And how does this kind of trickle down to the employee and just helping them understand I just think to me proactive communication, being in communication with your employee, if they have questions, having resources for them, as always, I think any internal leave policy where it's in layman's terms, or somebody can understand it right, or your communication? I think that definitely goes a long way.
Trish Zuniga:Just to expand on the point about communication. Yes, there are required communications under the FMLA regulations. And I'm just gonna go ahead and say that here. And, you know, before they take FMLA, I employers are required to let employees know that they have these rights under the FMLA. And that's on the poster. And it specifically references job protection, and the right to restoration to the same job or equivalent, an equivalent position. And then when an employee actually requests FMLA leave, the employer also has to provide these notices that are required under the FMLA regs. The rights and responsibilities notice also includes a statement on job restoration. But like Lauren said, more than these required pieces under the FMLA regulations, just be in communication with your employee and, and let them know that these are rights that they enjoy under the law, and that this is something that you the employer can and should extend to them.
Lauren Hagen:Absolutely.
Annie Jantz:Yeah. I agree. Yeah. Go ahead, Lauren.
Lauren Hagen:No, Iwas just gonna say, I think that goes back to you know, making sure even you know, the frontline managers or your HR business partner, they really understand. And they almost that, you know, I don't know of any great world, I'm sure we would all have it, we're in places I have a reason for FMLA leave, and I need to take that I don't necessarily know if an employee is going to know that right? And, you know, if yes, we have the posters around and everything of that nature, but I think just hearing something if your employee is, you know, letting you know that they're having, you know, life event going on, or whatever may be happening, just hearing that and just making sure that you're offering this or letting them know, hey, here are these resources, you can go in and read more about it, maybe this is something you want to apply for think about, I think it's always just better to acknowledge it and let them know what's available to them, rather than not know and then you miss potentially sending out write them or them not saying that they knew that they had it or not sending out that notice of rights and responsibilities. And as we all know, and I'm sure it's Trish knows much better than us. But you know, it might seem something small if you miss, you know, that timeframe to send it out or you miss sending out that rights and responsibilities. But if that's multiplied by multiple employees, right, it's happening over and over, that can be a much larger issue in the eyes of the DOL so I think it's always just a good reminder, you know, sometimes I feel maybe employers like, you know, FMLA I, you know, I don't want to ask about it, and certainly you don't wanna be digging into the person's, you know, medical conditions or anything of that nature. But I think knowing that you can still have a conversation with your employee and it probably made them feel more supported through the process, right? They're not not going to be perceived in this light that they were out on leave and you know, coming back, it's it's built for the employee, it's a benefit for them, like Trish said, so they have the right to use it.
Annie Jantz:Yeah, and I, I completely agree with everything you said, Lauren, and I, you know, I really like the part like educating the frontline managers and supervisors so that they understand this, because there are definitely areas that as an employer, you have to be careful that you, you know, you're not refusing to authorize FML, or you're discouraging an employee from using that. And I was looking at some statistics for 2021 from the Wage and Hour Division and 41% of the complaints that came in, were related to refusal to restore to equivalent position or termination. So I mean, that's a good portion of the complaints. And then overall, so this isn't just limited to the job protection piece of it, but the there were 43% of the total complaints for 2021 that came in, that were actually considered valid. And that resulted in 1.4 million in back wages. So you know, there's another reason to just be careful and looking at job protection and making sure that staff, including frontline managers, as well as the employees are educated about what that means.
Lauren Hagen:I mean, right. I mean, no, no company obviously wants to have that financial hit. But I think also, you know, as Karen mentioned, for we've said in other podcasts or other webinars is, it's also your brand, right? Nobody wants you only want to be in the headlines, if it's something good, right, you're showing you're doing you're really proactive, and you're really supportive of employee benefits, and understand that rather than the reverse, it is still surprising to me with all the benefits that we have out there that there is that so high of a percentage of employees that have you know, they were terminated, you know, and that they were successful. And when they went to the court, you know, it's just, I think it's still live and learn, and people are working through it. But we have so many different benefits now, especially with ADA and I think sometimes, you know, it can be a lot. I mean, we know where administrators, and it's, you know, we don't understand the brevity of it and how much is out there.
Annie Jantz:Right. Exactly, exactly. It's complicated. Becoming more complicated.
Karen Batson:Well, speaking of other programs, and you brought up Connecticut, right, Connecticut has their own FMLA program. How does the federal FMLA then work with states that have specific FMLA? Programs? How does that work for the employer, the manager, the employee, all those involved?
Trish Zuniga:Any perfect time to say Yes, speaking of complicated,
Annie Jantz:Very complicated, right?
Trish Zuniga:So complicated. And it's because these unpaid and paid leave programs are designed differently. And it could differ on so many elements. And employers have to be mindful of this. And they just need to know the job protection provisions under each leave program, among others. So in Connecticut, this was pretty good since the unpaid leave law and the paid leave law were coordinated so that the two can align. So for example, Connecticut, the PFML program has the monetary benefit, but not job protection. But the job protection is available under the Connecticut FMLA or the unpaid leave that runs concurrently. And it's a good thing that the state legislators when they crafted the PFML law, they just amended the FMLA as well, so that the two could run together and have the same eligibility. And then you have some states, where the two don't necessarily match up. So I'll just call out like a specific difficulty. I don't think this is going to be a surprise to anyone, it's it's on the state website. But in Washington State, the threshold for eligibility for job protection is higher than the eligibility for the job program. So it's kind of a difficult choice for employees, because they're eligible for paid leave, but they could possibly rethink whether or not to take this leave, because they're not covered by any guarantees of job protection. So.
Annie Jantz:Yeah, which is interesting, too. Yeah.
Lauren Hagen:And especially if they haven't, you know, met their requirements for federal FMLA, right, that could potentially be running or maybe they've exhausted that on a different event. So it is it's a hard choice for them to and then for the employer to know exactly what needs to be running, what notices need to go out, you know, and where to deduct entitlement at all. It all starts. I will thank Connecticut for that it does make it much easier.
Annie Jantz:It does and the last time that I looked up the information, it was like 56% of U.S. employees are eligible for FMLA. So again, it's not 100% Some of those people, you know, maybe in positions that are, they're just not yet eligible, you know, maybe they haven't worked enough hours or enough time. So again, you have state programs that may fill in those gaps or other benefits that are out there. But it all depends on the state the leave whatever they're looking at, because the criteria is different. So eligibility may be different. So yeah, there's a lot to consider there
Karen Batson:This a good lead into my next question, how important to then overall leave benefits that an employee has is FMLA. You know, given all the paid leave options that are out there?
Annie Jantz:I really like this question, because I think it definitely is one, I can see where it comes up. And you start to think, well, you know, are we ever going to just not need FML, right, we have all of these state leaves, we have paid leaves that are emerging, and right now, we still only have a handful, but that may change over the course of the next several years. But I still think FMLA is really important. One, I kind of look at it, like it's the foundation, it kind of started all of this, right? This job protection, this leave letting you know, an employee go out to care for themselves or their family member. And so I think that it's it's a crucial benefit. And it's the same, so there's been changes over the years to to FML, or there's different things that have come out. But for the most part, it's the same, it's been consistent, it is consistent, and whether I, you know, whatever state I live in, or whatever employer I work for, you know, it's going to be the same, we're all having the same equal benefit, you know, we have to follow those same rules. So I think that there's something to be said for that there isn't pay involved. And so that is a gap, which, you know, definitely is what you know, is bringing about all of these states coming up with a paid benefits. So that is definitely a gap there. But I think that the FMLA, if nothing else, it provides everyone that equal benefit. And a lot of people still don't have access to a paid leave program, a state paid leave program. And the other thing I'll mention too, on the DOL website, again, they've said since the enactment of FMLA, there's been more than 100 million people use FML. So again, it's that's a Yeah, that's a lot. And I'm not sure when that number was collected, you know, it's out on their website now. But I mean, that's a lot of people using FML. So it's it's clearly an important benefit.
Lauren Hagen:Yeah, absolutely. I agree. I think too, right. We forget that. Yes, there is job protection, but also a portion of that is making sure that you still have your health care coverage, right. From your employer, which I mean, I don't know, if it's just because I'm older, and I'm a son, but that is more important to me now. Right, then, you know, and having that and having that job protection, but you know, especially I mean, could you imagine if you were out to for yourself for your own condition or to care for a family member, and then, you know, say that family member's, your spouse or your child, and then you didn't have that protection, or had to pay, you know, out of pocket at that time for your health insurance? It would be? I mean, how do you manage that it's almost defeating the purpose of going out, right. I mean, so I think that's a part of it for people to remember too. And I, you know, I always when I first started, and I was, you know, working leaves when I first came into the company years ago, it was reminding them that yes, that's the pay, but this is job protected. And your employer may not necessarily consider short term disability job protection, or your PTO as job protection. This is. So I think that was always a reminder that we had for those individuals, you know, I understand you're out and you want to still receive pay, right? If that's if that's entitled to you, but it is important, and I, you know, maybe your employer, if they don't require you to utilize your PTO, you know, for are all of it before you can use your disability benefit. It saves you that PTO time, so you can actually do fun stuff, when you are able to come back and you're healed, you know, or you come back for having the baby. So I think it is it's good in in many different ways.
Trish Zuniga:These are excellent points.
Karen Batson:I mean, I'd add to that retirement savings
Lauren Hagen:Well exactly!
Karen Batson:You know there are so many things that come with your with your job for your future.
Lauren Hagen:I think I did call it two although now we're seeing obviously, just the changes with the state paid leave benefits and that how there are a lot of them are offering it on an intermittent basis prior to those really, if you wanted to have that job protection FMLA was that true way to take if you had to go you know, if you had a flare up in your condition, and or if you had, you know, a doctor's appointment to have that time covered or had to bring an individual so you know it I think that's important too, you know, they they don't realize it because maybe they're not receiving that pay. Well, now they are if they're in that state by you know, they have that job protection, and it's it's definitely something that you can feel good about right that you're not using that PTO time or it's a legitimate reason. So yeah,
Trish Zuniga:These are so excellent points. And I'm not going to repeat myself because I agree with all of these. The only thing I'll add is that FMLA as Annie said is great because it's available nationwide and what's great is that in these changing times when employers are opening up their job searches to people who are outside of their local jurisdiction, so they're hiring outside of local markets. So it's really great because even if you are working in a state that's different from your employer, you're covered by this state PFML program, or you're not covered by this state PFML program. FMLA is always there. And that's just great to have something that you can count on.
Lauren Hagen:Absolutely.
Annie Jantz:Yeah, that's a great point two, Trish
Lauren Hagen:We will take some consistency nowadays. Right? We all I will take it!
Karen Batson:Well. My next question, I'm not sure how you guys are going to answer it. So our first episode of season three, we had the consumer insights team on and we talked about the great resignation, but in particular, how employees are changing or how are reshuffling in their jobs, whether it's demanding more flexibility. So they're doing, you know, different types of work schedules, the remote component, like you just mentioned, going off on their own or having multiple jobs versus a career type job. How does that then affect that consistency of FMLA,
Trish Zuniga:I would say that FMLA is beautiful in that it's consistent, the concepts remain the same. So job protection is still there. But during these times of workplace flexibility, what compliance with the FMLA looks like it could look different. And I'll give you one example. So in 2020, the DOL issued a field assistance bulletin on what employer notices could look like because more and more workers were working remotely. And you'll recall that in the FMLA, it says like, oh, you should post your FMLA poster in a conspicuous location in your worksite. Well, what does that mean when everybody's working from home? Right. And so what happened was that this field assitance bulletin its guidance to internal DOL investigators. So what that means is, it gives employers an opportunity to learn what the DOL considers as compliant or non compliant practices. And going back to employer notices. What the DOL said was that you could go ahead and post your FMLA poster on a website or an intranet. And this is compliant. As long as you the employer already posts your notices electronically, according to your own business practices. And you have to make sure that like the FMLA regulations, it's conspicuous and that people know where to find it. So you have to tell them, like, hey, it's on this part of the company website. Otherwise, it kind of looks like you know, in in practice, when you hide your FMLA poster in a basement. That's, that's not good. And then you have what the DOL considers compliant electronic individual notices, which is when an employer can use email to provide notices to the employee, as long as the employer usually uses email to communicate with the employee. So the concepts are the same, send notices, let the employee know that they have FMLA rights just looks different.
Lauren Hagen:That makes me think of to just during, you know, the height of the pandemic. We weren't even allowed to go into doctors offices, so a lot of telemedicine and how does that look in the completion right of those certification forms? Because it's, you know, when you, we still have it with your doctor, and they're offering this, you know, you know, what does it How does that change the look on FMLA? So I thought it was a good change, right? It just shows that we're moving along with the times and technology and how people, you know, how they make things happen in their day. So.
Annie Jantz:Yeah, Trish, I was thinking, when you were talking about this, and the flexibility now that a lot of employers are offering, is there anything like that an employer would need to keep in mind when you have maybe an employee who's working flex scheduling already, you know, you you're working from home, you know, you need to go to a doctor's appointment, or take your kid to an appointment, you have some of that flexibility, where maybe previously some of that would have been intermittent leave, if you have like a condition that would actually qualify under FML. And how does an employer I guess, look at that and make sure that they're still not preventing someone from taking that time that they may need, while they're still letting them have this flex schedule. And maybe the distinction is that the person is saying, hey, I need time away for you know, just mentioning the fact that they're taking care of themselves or someone else, but I just that's the only piece that I started thinking about that could bring about some challenges to the employer, maybe even not even realizing that they're saying, oh, yeah, just take this flex scheduling or, you know, do whatever you need to do, but maybe it would qualify under that job protected intermittent time.
Trish Zuniga:So it comes back to just the idea of communication between the employee and employer. And, you know, just figuring out like, what is what is your schedule, really? And when are you taking leave? So I think the opportunities for that communication, despite not being in person and face to face, like with the advent of technology, there's just so much more ways to communicate between employee and employer, and that's what they should be doing.
Annie Jantz:Right? It probably more important now than ever. Right? With more and more people working remotely?
Lauren Hagen:And definitely employer...oops sorry...
Karen Batson:No, go for it.
Lauren Hagen:I was just gonna say definitely, with employers, you know, to retain, right and attract talent, they're trying to make the, you know, as the most flexible as they can be. So, I guess for me, you know, that was a really great, great question Annie. Because if you did start to think about, right, what if the employer is like, Listen, you know, you can just take the time as you need, right? It's not a big deal, we're going to be flexible with you can do it, you know, through the day, if it's only an hour, I would just put the reminder out there, too, if you're doing that for you know, Lauren Hagen make sure you're giving that same opportunity to Trish Zuniga right and he, and let's do it that way. And just be you know, that consistency of it. I mean, I know, certainly there might be differences. And maybe you know, if you have a salaried employee versus, you know, hourly employee that's there. But I think it's just taking that into account. If you're going to be flexible. For one, let's make sure we review each case, too.
Annie Jantz:Yeah, that's a great point.
Karen Batson:What you said was kind of where I was going, because again, with that podcast I did on the consumer insights in the great resignation, one of the top things employees are looking for are the employer showing that they care. So going back Trish to your point, having the conversations and just working with the employee to understand what they need, can benefit what the employees actually want, and what they're saying they want from their employer as well creating that environment of caring and knowing what the employee is going through.
Lauren Hagen:Absolutely. I mean, I don't know if you all remember, but when paid parental leave was like, Woo is the big new, you know, kind of thing. And now we're seeing it's more of that's obviously consistent, right. But it's nice to see that employers are going back and reviewing those, and making sure that it's inclusive of however you make a family who, you know, however, that family is not just, you know, very boxed in kind of groups. So I think that's nice, but we're starting to see a lot more of a paid caregiver leave, people are understanding that, you know, there could be, you know, an elderly individual in the home or somebody in your home that you need to take care of. And it's not just, you know, for these reasons. So I think it's definitely nice to see that employers are kind of going back and looking at their leave policies and seeing how flexible they can be, and what works for them and just brushing up on some that they have, you know, making sure it's inclusive,
Karen Batson:Right. Well, last question. Do you guys, do you have any parting words that you want to give to our listeners that we haven't covered already, because we've already covered so much?
Trish Zuniga:Well, for me, we've been talking about the FMLA all this time. But what I wish that more employees and employers knew is that you don't have to invoke those four letters, all at the same time, you don't have to say the magic words FMLA for an employee to avail of these rights under this law, so employers, if an employee tells you that they need to take time off to have surgery, that's enough information for you to be on notice that this employer needs to take job protected time under the FMLA.
Lauren Hagen:Yeah, that's a great call out. I think, for me, it's understanding that this is a benefit for the employees, right, it's definitely for them and for their protection. So it can be different than some maybe some of the other benefits that you as the employer are building. And that's your, your plan and your process. So I think it's just remembering that but also remembering that there is opportunities right under the FMLA to still have conversations with your employees. It's not like you can't, you know, speak to them talk to them can't you know, you can still ask them questions and keep that line of communication open. So that one they have the use of it, but that they're also using it within the rights right within the rights that they have. So I think that's important.
Annie Jantz:Yeah, I mean, you guys both make great points. I don't know that there's a whole lot left. I The only thing that I would I guess just a reinforce again, from something that we said is that education is so important for frontline managers to understand and even like what Trish said, knowing what those words are because it may not be FMLA if they come in, you know, your employee comes in and says something to you. So I think it's it's really that is just education, educating yourself and just understanding what these what these regulations mean and how it impacts your organization.
Lauren Hagen:Great call out. Have a trusted resource that you can go to.
Annie Jantz:Oh!
Karen Batson:Trish has a bug on her mic.
Group:Laughter
Trish Zuniga:Oh I'm so sorry! Bryan will cut this!
Karen Batson:I think it's a stinkbug. All right. Oh, keep it it's a good way to end with a good. Well, thank you all so much for joining and kind of having this great conversation on job protection.
Lauren Hagen:Absolutely. Thank you for having us.
Trish Zuniga:Thank you so much for having us!
Karen Batson:Thank you for listening to today's conversation. I hope you were able to get a couple of nuggets of new information I know that I did. We love to hear from you about what you think of the podcast series or particular episodes. You can tell us by rating us sharing an episode or even reaching out to Lincoln benefits professional to say what episode you enjoyed the most. We are available on a majority of podcast applications. So follow us on Apple Spotify or wherever you get your podcasts. This is the first place our episodes go live. So you'll be the first to know when something new is available. And I promise we have some great episodes in store for the rest of season three. In fact our next episode for April is going to be on April's news in the leave landscape. We'll cover the top stories to make sure you stay informed so I hope that you'll have a chance to listen to that conversation.
Disclosures:The information contained in this podcast is for general use and is not a substitute for the advice of an attorney or your human resource professional. Lincoln Financial Group is the marketing name for Lincoln National Corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations.