New FMLA or ERISA claims due to a natural disaster

For employees who open FMLA or disability benefit claims, an employer would normally send an eligibility notice along with a Certification of Health Care Provider form to validate the leave necessity. Under the FMLA, the employee has fifteen days to return the certification form and disability plans usually have deadlines as well.

However, natural disasters like hurricanes are considered extenuating circumstances. Thus, employers and administrators must be prepared to extend paperwork deadlines or waive a paperwork requirement altogether, and, if applicable, re-certify the leave in six months. For ERISA claims, natural disaster-caused delays are likely good reason to extend decision deadlines. In addition, because mail delivery may be halted and power outages may continue to impact people’s ability to access email or forms on the internet for weeks, be prepared to resend eligibility and form notices to those in the impacted areas.

Adapting your approach to disability benefits pay

For disability benefits that are scheduled to be paid during, or the week after a natural disaster, plan administrators should be prepared to stop payment on checks and/or resend them to a different address for employees who need their disability pay and have evacuated or relocated. Encourage plan participants to sign up for direct deposit, 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, a natural disaster like a hurricane is likely to create extenuating circumstances where employers and administrators should waive or extend reporting timeliness policies.

Intermittent leave frequency and duration

Natural disasters 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 re-certify an intermittent leave request if the employee’s FMLA usage significantly exceeds the provider’s estimate. Employers should consider waiving any re-certification 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 wind 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 a natural disaster.

Businesses that have temporarily ceased operations due to a natural disaster

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 family member must still meet the requirements of suffering from a serious health condition, so an employee may not use FMLA just because their otherwise able-bodied parent has a well-care visit or has no electricity, and the employee would like to deliver some groceries. The FMLA generally does not provide leave for home cleaning and maintenance, even if the cause is a natural disaster. Therefore, if an employee requests FMLA leave to deal with a parent’s damaged roof, 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 disaster-created conditions

The aftermath of a hurricane or other natural disaster 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 natural disaster 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.
  • Natural disasters like hurricanes can cause a great deal of damage in a very short period. 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 the hurricane who need a leave of absence.

What Guardian is doing

Guardian has provided guidance to our operations teams regarding when it’s appropriate to extend paperwork and decision deadlines, waive documentation requirements, and delay re-certification due to a natural disaster.

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Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. Guardian does not provide legal services. Consult an attorney for legal advice on this or any other topic. GUARDIAN® is a registered service mark of The Guardian Life Insurance Company of America®

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