Hello Again, Washington Paid Family and Medical Leave

Posted on: December 3, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

December 3, 2019

 

Here it comes!  Washington Paid Family and Medical Leave benefits are on the horizon, starting January 1.  While we’ve been a bit quiet about WA PFML on this blog lately, we’ve been busy in the background.  So has the state Employment Security Department (ESD) which is charged with administering the state plan and monitoring employers’ voluntary plans.  Sadly, there is much yet to be done by the ESD and time is running short; but we at Matrix are in good shape!

Here’s an update of things from Matrix’s point of view.

Notices to employees #1

The PFML statute requires employers to provide two notices to employees about the program.  The first is a general workplace posting setting forth excerpts from, or summaries of, the pertinent provisions of the statute and information pertaining to the filing of a complaint. (RCW 50A.20.020.)  This is to be in a form prepared or approved by the ESD.  Unfortunately, the notice is not yet available.  Here is what the ESD Paid Leve Website says:

A mandatory poster to notify employees of the program will be available before Jan. 1, 2020. If you would like something to share with your employees prior to that, download our optional paystub insert to distribute or post.

Notices to employees #2

The second notice requirement applies only after an employee experiences 7 consecutive days of absence for PFML reasons.  (RCW 50A.20.010.)  This notice must be provided “within five business days after the employee’s seventh consecutive day of absence due to family or medical leave, or within five business days after the employer has received notice that the employee’s absence is due to family or medical leave, whichever is later.”  This notice form, also to be provided by the ESD, is likewise not yet available; they expect to have it ready before January 1.

The notice requirement will rarely apply to an intermittent leave due to the nature of such leave (a day or two off, here and there).  However, the ESD has confirmed that a notice earlier than after 7 days, as soon as the employer knows the employee is absent for a covered reason, will satisfy this requirement.  Our advice, then, is to provide the notice at the outset of a covered leave rather than waiting and counting for 7 consecutive days of absence.

The good news?  Matrix has you covered!  Once it is available from the state we will include the notice in our packets for all clients with a Washington workforce.

Weekly claim filing

The PFML statute is patterned after the state’s unemployment scheme.  It requires weekly claim filing by the employee which, in the unemployment context makes sense as an employee may obtain employment any day of the week.  But for paid family and medical leave benefits – especially continuous leave – this seems unwieldy.  Say an employee is having surgery and his provider certifies that he will need at least 6 weeks off for the surgery and recovery.  Or an employee requests bonding leave for 12 weeks.  Does it make sense to require a weekly claim and have the state address and adjudicate the claim every week, or just once at the outset?  Oh well, the statute says weekly and that is what will be required of your employees under the state plan.

Under voluntary plans administered by Matrix, however, we will waive the weekly filing requirement (an employer can provide better benefits AND processes under a voluntary plan), thus saving your employees time and hassle, and providing greater certainty to both you and your employee regarding leave approval and benefits.

Minimum claim duration – 8 consecutive hours

According to the WA PFML statute, an employee must miss at least 8 consecutive hours of work to establish a claim.  This applies both during the 7-day waiting period and for subsequent weeks in which leave is taken (since the employee has to file a claim weekly).   So, for example, an employee could meet the 8-consecutive-hours requirement by missing a single 8-hour (or more) shift, by missing 3 scheduled hours Wednesday afternoon and the next 5 scheduled hours Thursday morning, or by missing 2 consecutive scheduled 4-hour shifts.

Once the employee has been absent for a covered reason for 8 consecutive hours, all other hours missed during the week (from the preceding Sunday through Saturday) then become part of that week’s claim for job-protected leave and benefits.   Here’s another example:  An employee misses 3 hours on Monday, a full 8-hour shift on Wednesday, then 2 hours on Friday.  The Monday and Friday hours are both eligible for leave and pay (as well as the 8 hours) because they fall within a week during which the 8-consecutive-hours requirement was met.

Unfortunately, this scheme may have the consequence of encouraging employees to take more time off than they need to meet that 8-consecutive-hours requirement.  If an employee takes time off for a legitimate PFML-covered reason but doesn’t really need 8 consecutive hours, he might be tempted to take more time to get the job protection for what he really needed.  Otherwise the employee who needs, say, only 4 hours per week for physical therapy or due to a bad back flare-up will be without job protection and pay, and/or have to use his PTO to cover the absence.

For clients with a Matrix-administered voluntary plan, we are recommending that the employer waive the requirement to miss 8 consecutive hours to establish a claim, either in its entirety or at least after the employee has satisfied the waiting period.  This will allow coordination of leave usage between WA PFML and the federal FMLA, if both apply.

Possible stacking (or consecutive use) of multiple leave benefits

Consider this from the WA PFML statute:

RCW 50A.15.060 (2) An employer may offer supplemental benefit payments to an employee on family or medical leave in addition to any paid family or medical leave benefits the employee is receiving. Supplemental benefit payments include, but are not limited to, vacation, sick, or other paid time off. The choice to receive supplemental benefit payments lies with the employee. Nothing in this section shall be construed as requiring an employee to receive or an employer to provide supplemental benefit payments.

And this from the WA PFML rules:

 WAC 192-610-075   WAC 192-610-075 Employers may not require employees to take paid vacation leave, paid sick leave, or other forms of paid time off provided by the employer before, in place of, or concurrently with paid family or medical leave benefits.

What does this mean?  It means that if you offer paid time off benefits of any kind – general PTO, vacation, sick leave (voluntary or statutory), short term disability, etc. – the employee gets to choose whether to use those benefits before, during, or after Washington PFML.  Further, there is nothing in the WA PFML statute that allows an employer to designate time off for a covered reason if the employee doesn’t want to do so; and the ESD interprets the statute as prohibiting the employer from doing so.  The result is that it may be possible for an employee eligible for both FMLA and WA PFML to take up to 30 weeks of leave, 18 of it paid under PFML.  Here is an example:

  • Jane is eligible for both WA PFML and FMLA.  She wants to take time off to care for her mother who has
    a serious health condition – a leave reason covered by both FMLA and WA PFML.  If Jane can elect to
    take time off but not apply for WA PFML benefits initially, she may be able to take up to 12 weeks of
    job-protected FMLA leave (because the employee does NOT get to choose whether to use FMLA) and
    then take 12 more weeks of paid and job-protected leave under WA PFML (assuming she is still eligible
    for WA PFML).

Disability benefits also cannot be forced on the employee concurrently with PFML (or vice versa), so it is important to design your STD plan carefully to make benefits available only in circumscribed situations.

Pings for Employers

It’s hard to keep up with what’s going on in Washington, and it’s a bit nerve-wracking to be so close to live claims and not have all the answers.  Many of the administrative rules supporting the WA PFML program are not yet finalized and aren’t expected to be until about December 20.  How’s that for calling it close?  Here are some suggestions that will help you stay as informed as possible.

  • If you are a Matrix Washington voluntary plan client, attend our internal webinar explaining everything
    Matrix has done, is doing, will do to keep you compliant.
    The second session is Wednesday December 4 – contact your Matrix or RSL account manager if
    you need details.
      (The session will be recorded but it’s best to attend live so you can ask questions.)
  • Visit the ESD website here. Review the Employer and Employee pages to get as much information as possible.
  • Sign up for the ESD newsletters in the SUBSCRIBE box at the bottom of that home page.
  • For live answers to questions call the ESD Customer Care Team at 833-717-2273
  • Review the WA PFML statute.
  • Review the WA PFML rules enacted to date and check on progress on final rules on the ESD Rulemaking page.
  • Sign up for informative webinars for employees and employers, rulemaking hearings, and more at the
    Events link at the bottom of the home page.
  • Keep watching this blog!

MATRIX CAN HELP!

Matrix has designed a WA PFML voluntary plan for our participating clients.  We have filed and received approval for over 40 such plans.  In preparation for January 1 claims, we have made necessary system changes, added WA PFML to our letters and packets, prepared extensive training for our claims staff, and are now holding educational webinars for our clients with voluntary plans administered by Matrix.  If the thought of the state administering your employees’ claims has you concerned, contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering.

Keeping up with California – 2019 Legislative Recap

Posted on: November 22, 2019 0

Gail Cohen, Director, Employment Law and Compliance

November 25, 2019

California employers perennially face challenges keeping up with the Golden State’s legislative developments, and the 2019 legislative session was certainly no exception! At Matrix Absence Management we monitor pending and enacted legislation to assist our clients in preparing for those developments, particularly in the leave of absence, disability claim, and ADA/state disability law arenas.

Here is a summary of California’s 2019 enacted legislation relevant to our industry:

CA PFL extended, leave reason added.  Effective July 1, 2020, Senate Bill 83 amended CA Paid Family Leave (“PFL”) to provide for eight weeks (up from six weeks) of paid benefits to eligible employees. The leave is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption.

CA Senate Bill 83 also adds a new qualifying reason to the PFL program: Effective January 1, 2021, California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

Currently, these leaves are not job protected under the paid family leave program. Rights to reinstatement may come from other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.

More changes may be on the way.  The bill includes a requirement for study and development of a proposal for bonding leave up to 6 months per parent, and an increase in the wage replacement rates from the current 60-70%.

CFRA amendment to address flight crews. Clients in the airline industry are used to the FMLA regulations specific to flight crews, which historically have not applied under the California Family Rights Act (“CFRA”).  Assembly Bill 1748, signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, amends CFRA to address airline flight deck or cabin crew employees. The bill closely follows the FMLA rules regarding leave eligibility for flight crews.  It provides that the Department of Fair Employment and Housing may promulgate regulation(s) to assist employers with calculating the hours worked requirement of this CFRA amendment. As of this writing, no such regulations prescribing the method for employers to do so have been made publicly available.

CA organ donation. Current California law requires private employers to give employees up to 30 business days of paid leave for organ donation and up to 5 business days of paid leave for bone marrow donation in a one-year period. Effective January 1, 2020, an amendment to the CA donor law (Assembly Bill 1223will require private employers with 15 or more employees to give eligible employees an additional 30 business days of unpaid leave in a one-year period (measured from the date the employee’s leave begins over the continuing 12 months) for the purpose of donating an organ to another person.  You can find more details about the new CA law in our prior blog post here.

Matrix can help!

Matrix will be ready to administer these California changes as they go into effect.  At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

Excess FMLA Absences: An Employer Success Story

Posted on: November 13, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

November 13, 2019

 

What can an employer do when an employee takes intermittent FMLA leave in excess of the frequency and duration authorized by the health care provider’s certification?  In a good case for employers, one court has explicitly upheld disciplinary measures taken when an employee exceeded her approved absences, resulting in violations of the employer’s attendance policy.  But it was a multi-step process to get there.  Here’s the story:

Tori’s FMLA certification.  Employee Tori Evans worked as an administrative assistant for Cooperative Response Center, Inc., an alarm monitoring service.  After several years of employment (and a pretty dismal attendance record, by the way) she developed reactive arthritis and needed occasional time off for medical treatments and flare-ups.  There is no question in the case that her condition was real.  Tori requested FMLA leave and returned a certification from her health care provider supporting FMLA leave for up to 2 half days per month for medical appointments, and 2 full days per month for flare-ups.  The provider described her symptoms as “GI illness, oral lesions, and joint pains.”  CRC approved Tori’s FMLA leave in accordance with the provider’s certification.

Then what happened?  Tori began reporting absences in excess of her FMLA certification frequency and duration.  CRC’s progressive attendance policy provided for increasing levels of discipline for unexcused absences, culminating in termination for 10 attendance points over a rolling 12-month period.  CRC warned Tori of the possible consequences of absences beyond the approved certification.  Then CRC followed the FMLA recertification process (29 C.F.R. § 825.308), asking her doctor to verify the appropriate frequency and duration based on her condition.  In the section of the new cert form addressing the frequency and duration Tori needed for appointments and flare-ups, the doctor wrote, “Refer to prior FMLA form.” Based on this and other events, CRC assessed 6 points for absences in excess of her FMLA certification; 2 points for requesting FMLA absences for a medical condition not covered by her certification; 1 point for Tori’s failure to follow CRC’s dual absence reporting procedure; and 1.5 points for another absence due to a medical condition not related to her reactive arthritis. 

Total:  10.5 attendance points.  Result:  termination.  Next step:  lawsuit.

What CRC did right.  CRC’s management of Tori’s FMLA leave and her attendance problems was near picture perfect:

  • CRC warned Tori of the consequences of excessive absences (presumably in addition to having its policy
    in writing and available to employees).
  • When Tori began to exceed the parameters of her certification, CRC went back to her provider, following
    the recert process, and obtained verification that the original frequency and duration were still correct.
  • CRC carefully analyzed Tori’s reported reasons for absence to verify whether they were covered by her
    FMLA cert. For example, once she reported an absence of 2 days because her “knee gave out,” which was
    not a symptom of her reactive arthritis as stated by her provider in her original certification.  Other times
    she reported she had “lost her voice” and had a fever and was aching everywhere. On these last two
    occurrences Tori did not relate them to her approved FMLA, in violation of 29 C.F.R. § 825.303(b)
    (until her lawsuit, that is):

When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.

  • CRC enforced its dual absence reporting procedure and assessed an attendance point when Tori reported
    an absence to her supervisor for work coverage but not to HR for FMLA purposes. The courts have
    generally accepted that an employer may require an employee to report an FMLA-covered absence to
    2 sources.  (See our prior blog post on this topic here.)

What’s missing?  It is important to remember that the FMLA regulations indicate a provider’s assessment of frequency and duration for an intermittent leave is an estimate only.  See 29 C.F.R. § 825.306(a)(5)-(8) (e.g., the certificate must contain “an estimate of the frequency and duration of the episodes of incapacity”).   The court did not acknowledge the estimate issue in its opinion.  One suspects that the result would be the same, as Tori had 6 absences in excess of her certification approval.  Nonetheless, employers should not jump to attendance discipline on the basis of just 1 or 2 excess absences. 

Remember, too, that this is just one case – and a district court case at that.  As such, it is not binding on any other courts outside of the federal district of Minnesota.  However, the analysis is sound and provides a good roadmap for handling those excess FMLA absences beyond the estimated frequency and duration.

Pings for employers.   As an employer, you can tightly monitor and assess an employee’s specific absences to ensure they are within the scope of an approved FMLA leave and comply with your absence policies:

  • Enforce company and FMLA reporting procedures
  • Watch the frequency and duration of the employee’s absences
  • Seek recertification when an employee’s absences exceed the certification’s frequency and duration
  • Apply consequences for unexcused/non-FMLA absences

But remember to:

  • Be consistent in applying your policies to FMLA and non-FMLA situations
  • Give a little leeway regarding an employee’s absences – the provider’s certification is an estimate only

The case is Evans v. Cooperative Response Center from the federal court for the District of Minnesota.

Thanks to my fellow blogger Jeff Nowak (and his source!) for bringing this case to my attention.  You can read his take on the case here.

MATRIX CAN HELP!  Are your FMLA procedures up to snuff like CRC’s?  Matrix can help you avoid FMLA pitfalls and follow compliant procedures to manage difficult situations.  We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us through your Matrix or Reliance Standard account manager or at ping@matrixcos.com.

 

ADA Alert:  The EEOC is Alive and Kicking

Posted on: October 22, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

October 22, 2019

 

And sadly, so are disability and pregnancy discrimination. 

I receive press releases from the Equal Employment Opportunity Commission several times each week.  Most of them trumpet new lawsuits filed by the agency or settlements reached with employers it previously sued.  Every year there are some whoppers in terms of settlement dollars. There are also lots of smaller-dollar settlements that don’t make the non-EEOC news banners but have a big impact on the employer nonetheless.

So I got to wondering – how do the numbers stack up with regard to EEOC lawsuits relating to disability and pregnancy discrimination?  I took an unscientific count from the EEOC’s Newsroom  (ticking off the numbers on a piece of scratch paper).  Here’s what I found through October 20 of this year: 

  • The EEOC issued over 250 press releases relating to lawsuits it has filed or settled so far in 2019.
  • 113 (approx 45%) of these were lawsuits alleging disability or pregnancy discrimination and failure
    to accommodate (93 disability-related, 16 pregnancy-related, and 4 involving both).
  • Settlements ranged from $16,000 to $2,250,000 in damages awarded to the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit alleging failure to
    accommodate a cart pusher at a Walmart store. More on that below!

In addition to press releases throughout the year, the EEOC publishes its official tally of charge and litigation statistics annually, which you can review here.

Who is getting sued by the EEOC, and for what? 

Pretty much everyone, and for everything disability-related. 

  • The employers who are subjects of these press releases include hospitals and other medical providers,
    staffing agencies, retailers, grocery chains, entertainment and hospitality companies, manufacturers, fast
    food franchisees, service providers at correctional institutions, telecommunications and trucking companies,
    and on and on. (Lesson: Don’t assume your segment is “under the radar.”)  
  • These employers are getting the EEOC’s attention due to hiring practices, improper medical inquiries,
    failure to accommodate in all shapes and sizes, terminations, more terminations, inflexible leave policies, and
    disability harassment. Did I mention terminations?
  • The disabilities at issue include both mental and physical, although the physical disabilities seem to dominate
    this year: Hearing impairment, bad backs, Tourette syndrome, cancer, and so on.

Now I have to acknowledge that these are EEOC press releases – the agency selects the new or settled cases they want to publicize.  There are also EEOC lawsuits that get dismissed by the court or are adjudicated in favor of the employer.  Still, there are lessons to be learned from the cases the EEOC wants to share with the employer world. 

The ones that speak to me. 

Of the 113 news releases related to disability and/or pregnancy discrimination, here are a few that I found to be noteworthy: 

  • Changing policy. One resort and spa employer settled a lawsuit based on its refusal to allow a
    pregnant employee to wear open-toed shoes (not a safety issue) and to sit while working at the
    reception desk.  I ask you, was that worth it?
  • Inflexible leave policies continue to trip up employers – much to my surprise, as this has been
    an EEOC focus for years. See our blog post on the topic here.   In 2019 so far, at least 4 employers
    settled EEOC disability lawsuits based on the employer’s practice of terminating employees when
    the employees exhausted their FMLA or company medical leave rather than considering ADA
    accommodations (extended leave or otherwise).  These 4 settlements range from $175,000
    to $950,000.
  • Several cases involved failure to accommodate hearing impairments.  Employers need to avoid
    making rash decisions based on stereotypes about the hearing-impaired (remember
    the Case of the Deaf Lifeguard?) or any other disability, for that matter. Rather, consider the
    hearing impaired individual’s capabilities and if necessary, discuss special instructional, training,
    or communication methods as a reasonable accommodation.
  • Ending an existing accommodation. Finally, we must look at that $5.2 million jury verdict against
    Walmart.  This case involved a cart pusher, Paul Reina, whose job consisted primarily of clearing
    the parking lot of shopping carts.  Reina is deaf and has developmental, visual, and intellectual
    impairments.  Reina had worked for Walmart in this capacity from 1998 to 2015, always with the
    assistance of a job coach arranged by Reina’s family and paid for through a Medicaid program.
    In 2015 a new manager was assigned to the store where Reina worked.  A few days later Reina
    was put on administrative leave and never allowed to return to work.  To be fair, Walmart gave
    several reasons it felt Reina should no longer work as a cart pusher, including the argument that
    it was actually the job coach, not Reina, who was performing the job duties.  Nonetheless,
    Walmart discarded an accommodation that had been in place for 17 years. The jury found that
    this violated the ADA and awarded Reina $200,000 in actual damages and $5 million in
    punitive damages.

The consequences beyond dollars. 

An EEOC lawsuit imposes a substantial financial burden even if the employer wins the case, such as the costs of attorneys’ fees, document production, depositions, and other defense tasks. But there are also significant consequences beyond just the monetary issues. Consider also the time spent by your employees, management, and Human Resources personnel to prepare for and defend the lawsuit and the ensuing disruption of your business operations.

In addition, when the EEOC settles a case, it demands other non-monetary relief such as years of oversight by the agency, hiring an ADA consultant, revising ADA policies, posting notice of the settlement in the workplace, and agency-mandated layers of training for employees and management.

Pings for Employers. 

What should you do so that your company doesn’t appear in the EEOC’s 2020 press releases? How about:

  • Train your employees on the ADA and accommodations – why wait for the EEOC or a
    court to tell you to do it? If training heads off even one ADA misstep and EEOC lawsuit,
    it will have paid for itself.
  • Review your leave policies to ensure they don’t violate the ADA by imposing an inflexible
    limit to leave durations or requiring employees to be 100% healed before returning to work.
  • Take the interactive process to heart. Don’t make employment decisions based on your
    belief or a stereotype of what someone with a disability can or can’t do – discuss it with
    the employee and, if appropriate, get relevant medical support.
  • Be ready to change nonessential company rules and procedures as an accommodation.
    Arguments like “we’ve always done it that way” or “then everyone will want the same”
    just don’t win the day.
  • Use available resources to help you understand an employee’s impairment and capabilities.
    The Job Accommodation Network  has a multitude of articles on various impairments and
    possible accommodations, and the staff is available for discussion by telephone.  
  • Consider other resources specific to the employee’s disability. There are multiple websites
    for virtually every type of impairment that will help educate you about the employee’s
    situation.  But remember – again – to avoid those stereotypes and make your determinations
    on the basis of the employee’s specific capabilities and limitations.

 

MATRIX CAN HELP! Matrix’s ADA Advantage® leave management system and our dedicated ADA accommodation specialists help employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our servicesWe will initiate an ADA claim for your employee; conduct the medical intake and analysis if needed; manage the interactive process; assist in identifying reasonable accommodations; document the process; and more.  For assistance please contact your Matrix or Reliance Standard account manager or send an email to ping@matrixcos.com.

CALIFORNIA EXTENDS ITS ORGAN DONOR LEAVE LAW

Posted on: October 9, 2019 0

Gail Cohen, Director, Employment Law and Compliance

October 9, 2019

As our faithful readers know, we at Matrix Radar monitor state leave and accommodation law developments.  We have noticed that, in addition to the proliferation of state paid family leave laws, state legislatures have primarily focused on organ donation, leave for victims of domestic violence, and pregnancy accommodations.

Recently, California Governor Gavin Newsom signed an amendment to the Michelle Maykin Memorial Donation Protection Act to afford California employees who have worked at least 90 days an additional leave of absence for the purpose of organ donation.  Currently, that Act requires private employers to give employees up to 30 business days of paid leave for organ donation and up to 5 business days of paid leave for bone marrow donation in a one-year period.  Employers can require employees to first take up to two weeks of accrued paid leave for organ donation and up to five days of accrued paid leave for bone marrow donation.

Effective January 1, 2020, the amendment (Assembly Bill 1223)  will require private employers with 15 or more employees to give eligible employees an additional 30 business days of unpaid leave in a one-year period (measured from the date the employee’s leave begins over the continuing 12 months) for the purpose of donating an organ to another person.

The amendment retains the requirement that the employee provide written verification that he or she is an organ donor and that there is a medical necessity for the organ donation.  Time spent by employees on leave under the Act as amended does not constitute a break in service and employers are required to maintain and pay for health insurance coverage on the same terms as prior to the leave.

California organ and bone marrow donation leave runs concurrently with leave under FMLA but NOT under the California Family Rights Act.

We have previously blogged about other states with organ and bone marrow donation leave laws.  To read more about those laws, please see below:

Matrix can help!

At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

 

 

New York Adds Leave Law for Victims of Domestic Violence

Posted on: September 30, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

September 30, 2019

Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence.  With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking. 

We previously wrote about these laws here.  

Key provisions of the New York law are summarized below:

Covered employees. “Victim of domestic violence” means:

  • any person over the age of sixteen;
  • any married person; or
  • any parent accompanied by his or her minor child or children

. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND

  • such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
    or emotional harm to such person or such person’s child;  and
  • such act or acts are or are alleged to have been committed by a family or household member.

View New York Social Services law § 459-a.

There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.

Leave reasons.  Reasons for leave are limited to:   

  • Seeking medical attention for injuries caused by domestic violence, including for a child who is a victim of
    domestic violence, provided that the employee is not the perpetrator of the domestic violence against
    the child; or
  • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic
    violence; or
  • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for
    a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the
    domestic violence against the child; or
  • Participating in safety planning and taking other actions to increase safety from future incidents of
    domestic violence, including temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation
    to the incident or incidents of domestic violence.

Undue hardship.  An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as: 

  • The overall size of the business, program or enterprise with respect to the number of employees, number
    and type of facilities, and size of budget; and
  • The type of operation in which the business, program, or enterprise is engaged, including the composition
    and structure of the workforce.

Paid time off and benefits.  The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy.  Any absence not covered by such paid time off may be without pay.  The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences. 

Employee notice and documentation.  An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances.  The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off. 

Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible.  In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of
    domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or
    counselor that the employee or his or her child was undergoing counseling or treatment for physical
    or mental injuries or abuse resulting in victimization from an act of domestic violence.

Other provisions.

Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.

If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)

The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave. 

MATRIX CAN HELP!   At Matrix we administer these domestic violence and sexual assault laws.  We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy.  In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico.  We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

FMLA and Employee Dual-Notice Procedures – Stand Your Ground but Be Clear about Your Policies

Posted on: September 16, 2019 0

A collaborative post by:

Gail Cohen, Director, Employment Law and Compliance, Matrix Absence Management
Marti Cardi, Vice President Product Compliance, Matrix Absence Management
Megan Holstein, Senior Vice President, Absence & Claims, Fineos


September 16, 2019

 

QUESTION:  Can an employer require an employee taking FMLA leave to report absences to both a supervisor and a leave administrator?

ANSWER:  It depends – but probably yes.  Read on!

 

The Issue

Employers are struggling with the trend in rising  employment time off benefits caused by the numerous new state laws requiring job-protected leave and increasing company leave benefits due to competition for workers.  In response, many employers have strengthened their absence policies. Whether the employer outsources absence management or insources with a centralized administrative or human resources (HR) department, an employee must provide notification that they need time off in order for that leave to be approved and not counted against the employee’s attendance record.

The federal Family and Medical Leave Act (FMLA) regulations address employee notification by requiring an employee to “comply with the employer’s usual and customary notice requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. §825.302(d); §29 C.F.R. 303(c). The FMLA supports employers who have a reporting notice policy by allowing an employer to delay or deny FMLA leave if an employee does not comply with the employer’s policy and no usual circumstances justify the failure to do so. Accordingly, many employers’ absence notice requirements or FMLA policies require an employee to contact both a supervisor and a centralized absence administration office, whether that is an internal HR or Benefits department or outsourced to a third party administrator (TPA); otherwise known as a dual-notice, or two-party call in policy or procedure.

Employees have contested dual-notice policies in court claiming they violate the FMLA by interfering with their right to take FMLA leave. Courts have historically supported employers dual-notice policies. However, a recent Alabama district court decision, LaShondra Moore v. GPS Hospitality Partners IV, LLC,  declined to follow other courts’ support and instead found that an employer’s dual-notice policy that required employees to contact both HR and their manager when reporting absences violated the FMLA. While this decision is an outlier, there are still lessons to learn from the case. Read on to learn more about courts’ approaches to dual-notice policies and whether the DOL might weigh in.

Bad Facts Make Bad Law. LaShondra Moore worked for a Burger King franchise that was one of nearly 200 purchased by GPS.  The new owner required the employees of the purchased locations to complete new paperwork, including reviewing and acknowledging the employee handbook.  The handbook included GPS’s FMLA policy and the requirement to report FMLA absences to store managers and to the centralized HR office.  When Moore’s mother became ill and was hospitalized, she informed her manager multiple times of her need to take time off from work to care for her mother. In spite of awareness that Moore’s absences were the result of her mother’s hospitalization, Moore’s manager issued disciplinary action and ultimately terminated her due to these absences.

Ms. Moore sued for FMLA interference in federal court. GPS based its defense on its employee handbook, which set forth an FMLA policy requiring the employee to notify their supervisor and HR of their need for FMLA leave.

The Court’s Approach to GPS’s Dual-Notice policy. Citing the FMLA notice regulations allowing an employer to require an employee to comply with its notice requirements for requesting leave, the court took great exception to the notion that GPS’s policy required employees to do more – notify both a supervisor and HR – to request FMLA than other types of leave. Essentially, the court found that employers can only maintain a dual notice reporting policy only if the policy applies to all types of leave requests, not just FMLA.

This Case is an Outlier. Several courts that have heard claims by employees who have been disciplined for not following their employer’s dual reporting policies have drawn conclusions opposite to the Moore court. Here is a sampling of those cases:

  • 3rd Circuit – E.D. Pennsylvania- IBW v. PPL Electric Utilities Corp. (December 2017) – Relying on the Acker case
    (discussed below) and concluding no FMLA violation in connection with employer policy requiring employees
    to report absences to their supervisor and “make a three to five minute phone call to a third party administrator.”
  • 5th CircuitAcker v. General Motors, LLC (April 2017) – Judgment in favor of the employer on FMLA interference
    and retaliation claims when employee failed to follow GM call-in procedures, of which he was reminded by
    GM’s TPA. In doing so, the court noted that “[f]ormal notice of absence policies serve an employer’s legitimate
    business interests in keeping apprised of its employees and ensuring that it has an adequate workforce to
    carry out its normal operations.”
  • 6th Circuit Srouder v. Dana Light Axle Mfg. (2013) – Sixth Circuit affirmed judgment in the employer’s favor
    on an interference claim and that the termination of the plaintiff’s employment was appropriate because he
    failed to comply with the employer’s call-in policies.
  • Also in the Sixth Circuit, Alexander v. Kellogg USA Inc., (January 6, 2017), the court again rejected an FMLA
    interference claim challenging the termination of employment on the basis of the plaintiff’s failure to report
    intermittent FMLA absences to both his employer and its TPA.
  • 7th Circuit – N.D. Indiana– Reese v. Zimmer Production, Inc. (September 2018) – The court concluded that the
    employee failed to comply with his employer’s policy, which required him to notify his supervisor and the
    company’s TPA to initiate a request for FMLA.
  • 9th CircuitDuran v. Stock Building Supply West, LLC (January 2017) – The court held that the employee’s
    failure to complete an internal LOA request form and provide certification to the employer’s TPA, both
    mandated by its customary notice policies, doomed his FMLA/CFRA interference and retaliation claims.

Also in the 9th Circuit, the most recent case – Rozairo v. Wells Fargo (D. Oregon, July 17, 2019) in which the court relied on the employer’s policy requiring employees to discuss their request for leave with their manager and call its TPA, finding the employee who failed to comply with that policy for initiating leave could not state claims for violations of FMLA or Oregon’s state equivalent, the Oregon Family Leave Act.

Will the U.S. Department of Labor (DOL) Weigh In?

The DOL announced that it is considering revising the FMLA regulations by announcing its plans to publish a request for information (RFI) next spring to solicit comments to improve the FMLA regulations in two ways:

  1. Better protect workers; and
  2. Reduce employers’ FMLA compliance and administrative burdens.

We think this area of the FMLA regulations governing an employer’s ability to set forth absence notice policies and procedures is ripe for further clarification.

For more information regarding the DOL’s plan to publish a RFI, check out co-author Megan Holstein’s earlier blog here and our friend Jeff Nowak’s blog here.

Pings for Employers:

  • The weight of authority supports that an employer can require employees to report FMLA absences to
    two sources.
  • But, it may not enough to simply place your absence request policy in the employment handbook.
    Employers should broadcast the policy in ways employees can access it, including:

    • highlight the policy on a company intranet and send email reminders;
    • post the policy and FMLA posters in the breakroom and any other venue in which employees may
      congregate;
    • consider holding informational meetings about all of your benefits, including FMLA and other leave
      benefits and how to request the time off; and
    • if using a TPA, engage the TPA as a source and additional reason for further outreach to employees.
      Make sure they understand who your TPA is, what purposes they serve, and how to contact the TPA.
  • Keep your dual-notice policy simple and clear. Do not require employees to be FMLA, state leave, or
    benefits experts to navigate your policy. They don’t need to know when leave is FMLA and therefore
    the TPA must be contacted or, for example, when it’s a common cold and only a manager needs notification.
    Instead, streamline the policy to notice categories such as reasons for leave (e.g., vacation, care of family
    member, employee illness, parental leave, etc.) and/or duration of leave (e.g., absences of fewer or
    more than 3 days).
  • On the other hand, do train your manager to be issue spotters and recognize when an employee’s request
    might be time off for an FMLA-qualifying reason. Managers not only need to spot when a request may be
    covered by the FMLA, but they must know the reporting policy and be able to inform the employee how to
    correctly report an absence under the policy so that the request can be evaluated by the right people, such
    as a TPA or HR.  Then teach them to hand the issue off to those right people and not try to handle it
    themselves – they should be grateful for that!

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Massachusetts PFML Update – Now What’s Going On?

Posted on: August 27, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

August 27, 2019

There are lots of moving parts in Massachusetts these days, as we get closer to implementation of the commonwealth’s paid family and medical leave (PFML) law. Over time we have published several articles on Massachusetts PFML:  You can take a look back at our overall summary and periodic developments by entering “Massachusetts” in the search box of this page. In the meantime, here’s what’s happening now:

Private Plans – A Quick Reminder

An employer can opt for its employees to be covered by the public PFML plan administered by the Mass DFML – in which case the employer does not need to apply, just submits the required quarterly reporting and employer/employee contributions to the commonwealth.

If an employer prefers to cover its employees through a private plan administered by the employer, or by a TPA or insurance carrier like Matrix and Reliance Standard, the employer must apply to the commonwealth and get its private plan approved. Performance of the private plan is ensured either by posting a bond (self-insured plan) or obtaining private PFML insurance. An employer can elect a private plan for paid family leave, paid medical leave, or both. If it elects a private plan for only one benefit, the other is covered by the DFML’s public plan.

Private Plans and Insurance Policies

On August 22, the Massachusetts Department of Family and Medical Leave (DFML) and the Massachusetts Department of Insurance (DOI) held a joint “listening session” regarding private PFML plans. The goal of the two departments and attendees is to develop a private plan template that is compliant with the Massachusetts PFML and DOI requirements. I was in attendance for Matrix Absence Management, along with several of my colleagues from Matrix’s sister company, Reliance Standard Life Insurance Company. Here are some important takeaways from that meeting:

Prior to the listening session the DFML and DOI distributed a private plan/insurance policy template to attendees. This template had been submitted for consideration by an unnamed insurance carrier. Apparently there is some incorrect buzz in the industry that this is a Massachusetts-sanctioned template. DON’T BE FOOLED! This is not an approved template but was shared solely to start and focus the discussion. In fact, there are many mistakes and omissions in the starter template that make it noncompliant with the PFML law and would require rejection of the plan if submitted for approval as-is.

The DOI and DFML recognize the urgent need to get more guidance to carriers and employers regarding private plans and insurance coverage. It is a huge task. (One department representative stated she wished it were April instead of August.) The departments expressed intent to have a new version of the template, incorporating changes suggested at the listening session, available relatively soon, perhaps by the end of this week. The DOI stated that it would be about 3-4 weeks before a plan template could be approved.

The departments expect to hold another listening session after the release of a revised plan template. We will be certain to attend that meeting.

More Private Plan Information

Remember, there is no deadline to file for approval of a private plan – employers can file at any time and the plan will be effective on the first day of the quarter following approval. However, there is financial incentive to get a private plan approval by December 20. In that case the employer is not required to pay the employee and employee contributions to the commonwealth for the 4th quarter, October-December 2019. Rather, the employer can hold contributions collected from employees to fund its own private plan (benefits or insurance premiums).

Of course, the employer is not required to withhold contributions from employees at all, if it chooses to fund the plan entirely itself.

The DFML clarified at the listening session that an employer can file for approval of a private plan without the actual bond or insurance policy yet in place. Approval of the plan by the DFML will be provisional, subject to further filing of the bond or the policy.

However, the DFML recommends patience and suggests employers wait for more guidance from the departments – especially those employers intending to purchase insurance to pay for the PFML benefits. The DFML advises that it may be better to wait until they provide more information so a more complete package can be submitted.

If an employer does not have approval by December 20, however, it will be required to pay the Q4 employer and employee contributions to the DFML during January 2020.

Employee Notices

While so much is in flux, one solid looming deadline is the requirement to provide PFML notices to employees by September 30, 2019.

Forms and more information are available on the DFML website. These are suggested forms and employers can modify them as needed to reflect their current status as to private or public plan, withholding of employee contributions, etc. If you previously sent out notices that are now inaccurate as to details such as commencement of employee contributions you will need to send an amended notice, which is also available on the DFML website.

And, if you haven’t done so yet, go to that same website to download the PFML poster to hang in your workplace. This posting requirement is already in effect, so do it now! Again, the DFML form poster can be modified to fit your situation.

What are Matrix and Reliance Standard doing?

  • Reliance Standard and Matrix continue in their leadership role in the absence management world.
    Reliance Standard
     has formally announced its intent to underwrite both MA Paid Family and
    Paid
    Medical.
    Whether you are fully insured or self-funded for these programs, we can manage
    your risk and your service experience!
  • Matrix has developed its own private plan template, now updated to be consistent with the
    amendments to the PFML law passed on June 13
    and the final regulations issued by DFML
    effective July 1, 2019. This plan is ready for filing if YOU are ready to move forward, regardless
    of whether you choose to self fund PFML benefits or obtain insurance through Reliance Standard
    .

For those employers choosing to self-fund MA PFML benefits, we can help facilitate sourcing the required bond through our sister company, Tokio Marine HCC.

If your company is interested in the private plan option for Massachusetts PFML, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.comAnd stay tuned here for more information about Massachusetts PFML as it develops.

The DOL Gets Busy – New Opinion Letter, New Draft FMLA Cert Forms!

Posted on: August 13, 2019 0

By Marti Cardi, Vice President Product Compliance

August 13, 2019

 

The Department of Labor rolled out two new developments last week just in time to leave for August vacations:  First, a new opinion letter addressing whether FMLA covers time taken for specialized child educational meetings; and second, drafts of new (and improved) FMLA certification forms for public comment.

Let’s dig in!

DOL Opinion Letter FMLA2019-2-A – Meetings for Child’s Individualized Educational Program

On August 8, 2019, the DOL released Opinion Letter FMLA2019-2-A relating to whether attending a meeting to discuss a child’s Individualized Education Program (IEP) qualifies as FMLA leave. 

 

A bit of background:  The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a child who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others. 

The individual who requested the opinion letter explained the situation as follows

You explain that your children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress. You explain that these meetings include participation by “a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the … child under the child’s IEP,” as well as teachers and school administrators. These participants provide updates regarding your children’s progress and areas of concern; review recommendations made by your children’s doctors; review any new test results; and may make recommendations for additional therapy. You ask if your wife may use intermittent FMLA leave for the care of a child to attend these meetings.

I include these details here so it is clear that these are not your everyday parent-teacher conferences or disciplinary meetings – which would generally not be covered by FMLA.

The DOL determined that these meetings did in fact qualify for FMLA intermittent leave.  The wife’s (mother’s) attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition” under 29 C.F.R. § 825.100(a).  And, care for a family member can include “mak[ing] arrangements for changes in care.”  Such FMLA coverage does not require the child’s doctor to be present nor require that the child be receiving treatment at the meetings – providing “care” is sufficient.

Pings for Employers.  Be sure to read my friend Jeff Nowak’s more detailed post on his blog, FMLA Insights. Jeff provides some excellent tips for employers that you will want to heed – including, of course, training your supervisors!

But in a nutshell:  When an employee requests leave to attend meetings relating to the care of a family member (here, a child in specialized education, but it could also be an elderly parent receiving detailed medical treatment), take time to analyze the situation carefully.  Think broadly; don’t just deny the FMLA request because the family member’s condition falls outside our usual concept of a “serious health condition” or because the meeting doesn’t seem to fit within FMLA protection. 

At Matrix our claims examiners have been alerted to this new opinion letter and its significance.  If we receive a request for time off for meetings relating to care of a family member, we will analyze the request for FMLA intermittent leave correctly and obtain appropriate documentation even when the meeting seems at first glance not to be an FMLA-qualifying event.   

 

New Draft FMLA Certification Forms – Now That’s Exciting!

Oh boy, oh boy, oh boy!  New cert forms!  And a chance to comment!  What more could an FMLA geek ask for to relieve the summer doldrums?

Seriously, this is a welcome step in FMLA-Land.  The current certification forms tend to be cumbersome and, in our experience, often don’t yield all the information the regulations entitle employers to receive.  On August 7 the DOL issued a press release explaining the goal of the new forms:

The revisions will make the forms easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave. The revisions will increase compliance with the law, improve customer service, and improve the administration of the law. WHD drafted the revisions with input from the public in letters, interviews, and public meetings….

The changes will reduce the time it takes a health care provider to provide information, and help leave administrators review and communicate information to employees more directly and clearly, reducing violations.

What’s the status?  The DOL is soliciting public comments on the proposed forms by 11:59 p.m. on October 4, 2019.  The official notice was published in the Federal Register and includes directions for submitting comments. After that date, the DOL will consider the comments received and – eventually – issue new final forms.  There is no timeline for final action by the DOL and, although unlikely, they could decide not to change the forms from the current versions.  Until new forms are officially adopted, the current forms remain approved by the DOL but still optional.  With an expiration date on the current forms of August 31, 2021, the DOL has lots of time!

What are the changes?  The changes are summarized by the DOL as:

  • Fewer questions requiring written responses; replaced by statements that can be verified by simply
    checking a box [These are the best changes, in our humble opinion.  They should result in fewer
    inconsistencies within the form and less confusion regarding the frequency and duration for intermittent
    leave.]
  • Reorganization of medical certification forms to more quickly determine if a medical condition is a
    serious health condition as defined by the FMLA
  • Clarifications to reduce the demand on health care providers for follow-up information
  • More information on the notification forms to better communicate specific information about leave
    conditions to employees
  • Changes to the qualifying exigency certification form to provide clarity to employees about what
    information is required
  • Changes to the military caregiver leave forms to improve consistency and ease of use
  • Layout and style changes to reduce blank space and improve readability

Here are the revised forms, with links for your viewing pleasure:

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility of Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

What is Matrix Doing?  Several years ago, we at Matrix designed our own certification forms for FMLA leave necessitated by the employee’s or a family member’s serious health condition.  Like the newly proposed DOL revisions, we adopted a simpler means of identifying the type of serious health condition involved with a check-the-box format and reconfigured the questions about leave parameters, including frequency and duration of episodes for intermittent leave.  As the DOL is now hoping, these resulted in significantly clearer provider responses and much less need for follow-up and clarification.

We will review the DOL’s proposed forms and submit comments by the deadline.  If you would like to share with us your own thoughts on the draft forms, please do so!  Once the forms are finalized we will evaluate whether they have gone far enough to simplify leave management and consider using the DOL forms going forward. 

MATRIX CAN HELP!

At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day.  Our claims examiners are experts in reviewing FMLA certification forms to ensure we have received all the information the employer is entitled to and that it is clear and makes sense.  Want to harness that expertise? Contact us at ping@matrixcos.com or through your Account Manager.

Oregon Becomes the 10th (9th?) State to Enact Paid Family and/or Medical Leave Legislation

Posted on: August 7, 2019 0

By Marti Cardi, Vice President Product Compliance

August 8, 2019

 

It’s getting hard to come up with creative captions for articles about these new state paid family and medical leave laws.  And darn it, can we say Oregon is the 10th state when one of the jurisdictions counted is the District of Columbia?

Well that’s my rule and I’m stickin’ to it.

You can see our tally of the states in our recent blog post on Connecticut’s leave law (we get to our number by including Hawaii, which has a paid medical/disability law but not aid family leave – yet!).  What has Oregon passed, and how does it compare to other recent PFML laws?  Glad you asked: read on!

The Best Paid Leave Law?

Recently, each new state to join the PFML bandwagon proclaims that it has just passed the “best” or “most generous” paid leave law, and Oregon is no exception.  But how do you measure that?  If it’s by the top percentage a low-wage worker can receive, then Oregon does take the cake, proposing to pay benefits up to 100% of earnings in the case of a worker who earns at or below 65% of the state’s average weekly wage.  Just last month Connecticut had claimed that honor with a benefits formula that will pay some workers up to 95% of their wages during leave.  (See our Connecticut blog post.) And based on the current AWW for Oregon at $1044.40 (through June 30, 2020), that puts Oregon’s maximum benefit at over $1250 per week – also beating out the competition by that measurement.

Duration of Benefits.  But there are other ways to measure which state offers the “best” benefits to employees, such as length of paid leave and the reasons for which an employee can take paid leave under the law.  Oregon will provide up to 14 weeks of paid leave per benefit year (12 weeks total for all leave reasons plus another 2 weeks if an employee is incapacitated by pregnancy or related conditions).  That 2-week baby bump is becoming common – Connecticut and Washington are doing the same, for example.  But Massachusetts beats Oregon overall with up to 20 weeks of leave for the employee’s own serious health condition; and both Massachusetts and Connecticut provide up to 26 weeks for care of an ill or injured servicemember.

Leave Reasons.  Oregon is neck and neck with other states as to who offers the “best” benefit when measured by covered leave reasons.  Oregon’s PFML will not cover leave specifically to care for an ill or injured servicemember (although that could form the basis for leave to care for a family member with a serious health condition, generally).  Nor will it cover leave for military exigencies, although that type of job-protected but unpaid leave is available under another Oregon statute.

On the other hand, Oregon will provide “safe leave” for reasons related to the employee or the employee’s minor child being a victim of domestic violence, harassment, sexual assault, or stalking.  Currently only New Jersey offers such paid leave (due to amendments to their law earlier this year, but with a very broad class of family members for whom the employee can take such leave – see our blog post here).  Connecticut will also offer paid leave relating to family violence, but only when the employee is the victim.

Family Members. Finally, Oregon is on the forefront when it comes to the family members with a serious health condition for whom an employee can take paid leave.  The latest trend (and there will be more states doing the same) is to include a broad list of the specific family relationships that are covered by the law (see the chart below) AND include coverage for someone who is “like a family member” to the employee.  Under Oregon’s law this is defined as:  “Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.”  This is in recognition of the changing nature of families in the United States, but it will surely present some administrative challenges to both the state and an employer in trying to interpret and apply this language.  Connecticut and New Jersey have similar covered relationships, and Colorado (expected to pass a PFML law next year) also included this broad category.

The Oregon PFML Law

Here are the key provisions of the Oregon PFML law.  There are many more details, of course, but with contributions over 2 years out and benefits another year after that, we’ll take some time before burying you with all the nitty gritty (much of which we don’t even have yet).  Following the chart are a few more observations, if you are still reading at that point!

 

Issue Provision Bill Sections
Employee Eligibility During the Base Year or Alternate Base Year:

  • Earned at least $1000 in wages AND
  • Contributed to the state PFML Insurance Fund

 

Base Year: first 4 of the last 5 completed calendar quarters
preceding the benefit year (not yet defined)

 

Alternate Base Year:  Last 4 completed calendar quarters
preceding the benefit year

 

Other covered individuals include, under certain circumstances,
self-employed individuals and employees
of a tribal government

§§ 2(1), (3), (5), (8) & (11)

 

Covered Employers All private employers §§ 2(14)(a) & (b)
Total Leave Entitlement
  • 12 paid weeks for all covered
    leave reasons in a benefit year
  • 2 additional paid weeks for
    limitations related to pregnancy,
    childbirth, or a related medical
    condition (including lactation)
  • 4 additional weeks UNPAID for any
    reason covered by Oregon Family
    Leave Act (employee’s SHC, family
    member SHC, mildly ill child,
    bonding, bereavement)

MAXIMUM TOTAL:  18 weeks per
benefit year (14 paid, 4 unpaid)

·        §4
Leave Reasons
  • Employee’s own serious health condition
  • Family member serious health condition
  • Bonding (birth adoption, foster care)
  • Safe Leave (matters related to
    employee or minor child being a
    victim of domestic violence,
    harassment, sexual assault, or
    stalking)

Specifically excludes other leave reasons
covered by OFLA (sick child, bereavement,
military exigencies)

·     §§ 2(17), (19) & (21)
Family Members Spouse or Domestic partner

The following relations to the employee
or employee’s spouse or domestic
partner (includes biological, adoptive,
step, foster, legal ward/guardian,
in loco parentis):

  • Sibling
  • Child
  • Parent
  • Grandparent
  • Grandchild

Any individual related by blood or
affinity whose close association with
the employee is the equivalent of
a family relationship

·     § 2(6), (18) & (20)
Leave Year Calculation Methods “Benefit year” – a 12-month period
to be defined by regulations
§ 2(5)
Leave Increments Benefits payable for leave taken in
increments equivalent to 1 work day
or 1 work week

  • Not clear if employee can take
    shorter increments and add them up
    to equal 1 day or 1 week
  • Increments of 1 work day may be
    taken in nonconsecutive periods of
    leave
§ 12(3) & (4)
Employee Documentation Not yet determined; Director will
establish rules for submitting claims
§ 12(1)(a)
Employee Notice to Employer
  • Written notice 30 days in advance
    for foreseeable leave
  • Less than 30 days’ notice if leave is
    not foreseeable (examples:
    unexpected serious health condition
    of employee or family member,
    premature birth, unexpected
    placement for adoption or foster
    care, or safe leave)
  • If employee commences leave
    without prior notice, must give oral
    notice within 24 hours and written
    notice within 3 days
  • Advance notice for safe leave not
    required if not feasible
§ 9
Employer Notices to Employees
  • Employer must provide written
    notice to employees of the duties
    and rights of an eligible employee
  • Notice must be in the language the
    employer typically uses to
    communicate with the employee
  • Director shall provide a model notice
    for employers’ use
§ 8
Employee Rights
  • For employees employed 90 days
    or more before leave,
    reinstatement to same or
    equivalent position

    • Based on business necessity,
      employers with fewer than 25
      employees may restore
      employee to a different
      position with similar duties
      and same benefits and pay
  • Maintenance of health benefits
    during leave under same conditions
    as if actively working
§ 10
Employee/employer  Contributions
  • Start January 1, 2022
  • Contribution rate to be set by
    Director of OR Employment
    Department
  • Total rate for employer and
    employee contributions may not
    exceed 1% of employee wages

    • Subject to maximum of
      $132,900 of employee’s wages,
      subject to annual adjustment
  • Of total rate, employer pays 40%
    and employee pays 60%
  • Employers with fewer than 25
    employees are exempt from paying
    employer contribution

    • But if a small employer elects
      to pay the employer
      contribution, is eligible for
      grants from the state
§§ 16, 42, 62
Benefits Benefits start 01-01-2023

  • Maximum benefit = 120%
    of state AWW
  • Minimum benefit = 5% of
    state AWW
  • Employees who make 65%
    or less than the state AWW
    are paid 100%
  • Employees who make greater
    than 65% of state AWW are
    paid:

    • 100% of 65% of the
      state AWW     – PLUS –
    • 50% of the employee’s AWW over 65% of the state AWW
§ 7
Private plan “Equivalent plan” that provides equal or
greater benefits and protections
§ 43
Concurrency with Other Leave Laws Leave taken under PFML is

  • Concurrent with FMLA and OFLA
  • In addition to paid sick time under
    ORS §653.606
§§ 5, 6
Interaction with Other Employer Benefits
  • Leave taken under PFML is in
    addition to paid vacation or other
    paid time off earned by the
    employee
  • Employer may allow employee to
    use paid sick time, vacation leave or
    other paid leave earned by the
    employee to replace wages up to
    100% of employee’s AWW
§ 6

 

Other Points of Interest

Here are some additional details that are laid out by the Oregon PFML law.

Localization of Employee Wages – §21.  In some states an employee’s eligibility for PFML benefits is based in the first instance on whether the employee is employed primarily within the state (Washington, for example).  Then other eligibility factors kick in, such as hours worked in the state or earnings of a specified amount.  Under the Oregon law it is possible for an employee who only works a very small amount per year in Oregon to receive benefits.  The statute addresses what employee wages are subject to contributions and count for determining eligibility and benefits:

An employee’s wages shall be used to make determinations under sections 1 to 51 of this 2019 Act if the wages are earned for service:

  1. Performed entirely within this state; or
  2. Performed both within and outside this state, but the service performed outside this state
    is incidental to the employee’s service within the state.

As noted in our chart above, it only takes $1000 in earnings in a base year to be eligible for benefits, but of course benefits will be proportionally small as well.

Counting Employees – § 35.  The method for counting employees for such purposes as the small-employer exemption for paying employee contributions will be determined by the Director.  However, the law requires that the determination be based on the average number of employees employed by the e in the 12-month period immediately preceding the date on which the determination is made.

Equivalent Plans – §§ 43-48.  The Oregon PFML law will allow employers to adopt an “equivalent” plan to provide benefits to employees rather than using the state mechanism.  This option is called voluntary or private plans in other states.  Here are some of the key provisions spelled out in the statute:

  • As is common, the plan must offer benefits that are equal to or greater than the state benefits.
  • The employer may impose a 30-day waiting period for a new employee before offering plan coverage.
  • Employee contributions collected by an employer with an equivalent plan must be used for
    plan expenses and are not considered to be a part of an employer’s assets for any purpose.
  • An approved equivalent plan must remain in effect for at least one year. The employer must submit
    an approved plan for reapproval annually for 3 years after initial approval.
  • Benefits for an employee who is covered under more than one plan will be prorated under each plan.
  • The Director must adopt rules to establish the process by which employers may apply for approval of
    an equivalent plan by September 1, 2021.

Administration by a Third Party – § 34.  Following a competitive bid process, the Director may engage a third party to implement the PFML law and to administer the program thereafter.  This bodes well, as so many of the challenges with the programs in states like Washington and Massachusetts seem to be attributable to the fact that the state staff lacks leave of absence management knowledge and experience.  Use of a third party is not mandatory, however.

MATRIX CAN HELP!  It’s early days yet for Oregon PFML.  As usual, we will be watching for developments and reporting on this blog as new information is available.  In the meantime, you can find our prior blog posts about other state PFML laws by typing the state name in the search box – a wealth of articles about the pending Connecticut, Massachusetts, and Washington laws and the 2019 New Jersey amendments.

AND . . . If your company is interested in the private plan option for Washington or Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

 

FMLA 2nd and 3rd Opinion Process: A powerful tool to manage intermittent FMLA

Posted on: July 29, 2019 0

By Gail I. Cohen, Director, Employment Law & Compliance

July 29, 2019

Readers of DMEC @Work Magazine know I have been writing a series of articles on recommended best practices using the 2nd and 3rd opinion process to manage intermittent FMLA leave.  Readers of this blog who have not read my articles (tsk tsk…as if!), well you are in luck because today’s blog post will be a Cliff Notes™ version summarizing the key takeaways from each of those articles!

 

January 2019 Issue: When Can an Employer Request a 2nd Opinion and Why Would I Want to Spend Money to Get One?

An employer can only request the employee attend a 2nd opinion before approving FMLA leave for the employee’s or family member’s “serious health condition,” in connection with a new leave request, or initial certification at the start of a leave year.

Strategic use of the 2nd opinion process is a good investment for employers. The advantages we have seen include the “grapevine effect” in the workplace, organically increasing employee awareness that you are managing leave usage. This increased awareness can often result in reduced frequency and duration of employee leaves.

 

March 2019 Issue: What Does it Mean to Have “Reason to Doubt the Validity” of an Employee’s Certification?

The FMLA for an employer “who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense.” (29 C.F.R. §825.307(b)) Like so many things about the FMLA, there is no definition of what would provide employers with that “reason to doubt.”  At Matrix, we spend a lot of time thinking about things like this! Some of the (perhaps obvious?) circumstances we have identified that warrant an employer to consider pursuing a 2nd opinion include:

  • clearly excessive leave parameters in the employee’s certification for the condition;
  • leave certified by a healthcare provider that does not seem appropriate for the condition
    (e.g., an ophthalmologist certifying depression); and
  • a healthcare provider certifying leave for an employee who is a relative or close friend.

 

May 2019 Issue: Use of Onsite Medical Personnel in Evaluating Whether to Pursue a 2nd or 3rd Opinion

Many employers have onsite medical personnel, or doctors with whom they have a relationship, who can be consulted in connection with the decision whether or not to seek a 2nd opinion. These personnel are prohibited by FMLA regulations from actually performing the 2nd opinion exam, but it does not mean they cannot otherwise be helpful. For example, when you read the employee’s certification and you identify that the frequency and/or duration of estimated leave seems excessive, a medical provider can add heft to that decision by reviewing it as well to confirm (or contradict!) your impression.

 

July 2019 Issue: What Does it Mean to Act in Good Faith in the 2nd/3rd Opinion Process?

Once the 2nd opinion results are received, if the results differ from the employee’s certification, the employer has a choice to either:

  1. accept the employee’s certification and manage the leave to those parameters; or
  2. send the employee to a 3rd opinion, again at employer expense.

If the employer elects to require a 3rd opinion, the regulations require the employer and employee to “act in good faith” in the selection of the 3rd opinion provider; but again, they don’t tell you what that means! We think a process that meets this standard includes the employer proposing 2-3 providers whose specialty is appropriate for the employee’s condition and whose offices are located in the employee’s general vicinity.  Like the 2nd opinion provider, the 3rd opinion provider can’t be someone the employer has previously consulted.

The employee is then given the option of selecting one of the employer’s suggested doctors, or identifying one or more of his own choice – with the same criteria that the employee’s doctor be in an appropriate specialty and with whom he has not previously consulted.

 

More to Come!

There are two more articles in my series that will be published in September and December: In the September issue, I will discuss best practices for what an employer should do about any absences the employee reports while the 2nd/3rd opinion process is pending.  My final column will give guidance to employers on other issues unanswered by the regulations, such as how long the employer can rely on 3rd opinion results.

 

Read the Full Articles.  You can read my column articles here at DMEC.org.  If your organization isn’t already a DMEC member, here’s another reason to join!

 

MATRIX CAN HELP!

At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day and have seen firsthand how thoughtful, strategic use of the 2nd/3rd opinion process can lead to beneficial results.  Want to harness that expertise? Contact us at ping@matrix.com or through your Account Manager.

 

Accommodation Delayed is Not (Necessarily) Accommodation Denied

Posted on: July 25, 2019 0

By Robb McDonald and Marti Cardi, Vice President Product Compliance

July 25, 2019

 

 “This is a case about a civil servant’s dissatisfaction with the government’s sluggishness in accommodating her disability. While delay is no doubt frustrating, it is not, in this case, unlawful.”

So starts the opinion in Weatherspoon v. Price, a case decided recently by the federal court in the District of Columbia.

What Happened?

Monique Weatherspoon was (and, as far as we know, still is!) employed by the U.S. Department of Health and Human Services.  She suffers from uveitis, a sensitivity to light which makes it difficult for her to travel to her office and to read her computer screen.  Over time the Department granted a multitude of accommodations.  Try these on for size:

  • Starting in 2011 and for the next few years, the Department permitted Weatherspoon to work from home
    1-2 days per week and also to work from home as needed due to her condition.
  • In 2015, Weatherspoon’s condition deteriorated and she requested a laptop with an oversize screen. Instead,
    the Department offered to provide a docking station and large monitor for home set up.
  • Weatherspoon took medical leave in November and December 2015.
  • In early 2016, the Department advised Weatherspoon that the docking station and monitor were available
    for pickup. Weatherspoon cancelled several appointments with IT to test and pick up the equipment.
    Once she picked up the equipment, Weatherspoon indicated that she had trouble using it.
  • The Department’s Computer/Electronic Accommodations Program (CAP) suggested that a software
    program, ZoomText, might be helpful and provided Weatherspoon with a trial version. Weatherspoon
    advised the Department that the software was not helping.
  • In May 2016, Weatherspoon requested 100% telework as an accommodation. The Department denied
    the request, but did permit telework for 2 days per week, and episodic telework as necessitated by her
    condition. The Department never denied a request by Weatherspoon for episodic telecommuting.
  • After further in-person assessment, the CAP provided Weatherspoon different ZoomText software and
    a larger laptop. Weatherspoon picked up the equipment in December 2016 when she went to the office
    for the holiday party.

Apparently, this equipment and the telecommuting arrangement were successful in enabling Weatherspoon to perform her job.  Nonetheless, these efforts were not satisfactory to Weatherspoon.  She sued the Department for “failing to reasonably and effectively accommodate” her disability.

Side note.  OK, a little detail here.  Weatherspoon sued the Department under the federal Rehabilitation Act, not the ADA.  The Rehab Act is substantially similar to the ADA but applies to federal employers and employees, while the ADA applies to pretty much all other employers and employees.  The principles, the employer’s obligations, and the employee’s rights are the same.  So in general, a lesson learned in a Rehab Act case also applies to employers covered by the ADA.

The Tortoise, Not the Hare

Weatherspoon alleged that lengthy delays (she claimed 17 months) in providing accommodations were tantamount to a denial of her request.  The court acknowledged that in some cases, a long-delayed accommodation could be considered unreasonable and hence a violation of the ADA/Rehab Act but here, no single accommodation request took more than 3-4 months to resolve – and always ended with the Department providing Weatherspoon with an accommodation.  Moreover, many factors contributing to the delays were beyond the control of the Department.  For example, Weatherspoon took an extended period of medical leave during the request period, cancelled multiple meetings, and delayed in picking up the offered equipment.  The court also noted that it can take weeks or months to analyze and procure proper technology such as specialized software and computer equipment.  And, when dealing with a government entity, movement is “more tortoise-like than hare-like . . . But that’s just business as usual, not evidence of discrimination.”

The Interactive Process – Keep it Going!

As we know, it is important to engage in the interactive process when evaluating an accommodation request, and this requires “flexible give-and-take” between the employer and employee. In this case, Weatherspoon’s supervisor was in regular communication and dialogue with her.  There was also a great deal of communication among Weatherspoon, her supervisor, and 5 additional persons or entities within the Department to assess and meet her needs.  In light of this and the number of attempted and suggested accommodations, the court held that the Department participated in the interactive process in good faith and did not violate the Rehab Act due to the delays in reaching final accommodations.

Pings for Employers

  1. Engage in the interactive process with regular communication and dialogue. Don’t be responsible for
    a breakdown in the process.  According to the Court, “To determine whether the employer held up its end
    of the bargain, courts look to factors such as whether the employer obstructs or delays the interactive process
    or fails to communicate, by way of initiation or response.”  In this case, the Department kept the process
    going to conclusion with some effective accommodations.
  2. So don’t be responsible for unreasonable delays. Weatherspoon did indeed experience delays in obtaining
    effective accommodations.  One wonders whether a private employer would have received the leniency this
    court showed to the Department as a government entity!  You don’t want to be the test case!
  3. Offer alternative accommodations in appropriate circumstances. You do not have to approve an employee’s
    preferred accommodation when there is another effective accommodation that better suits your business needs.
    In this case the Department offered Weatherspoon different specialized equipment than what she requested and
    also pushed back on her request for full-time telecommuting by offering 2 days per week plus other days as
    needed. Just be sure that the alternative offered is effective to enable the employee to perform her essential
    functions.
  4. If you can’t find a reasonable, effective accommodation, a robust interactive process will still serve you well.
    If you engage in dialog with the employee and consider various options, but none enable the employee to
    perform her essential functions without undue hardship, you have fulfilled your ADA obligations.  (But don’t
    forget your duty to consider reassignment, the accommodation of last resort! See our prior blog posts on
    reassignment
    here and here.)
  5. Document the interactions meticulously. Especially in an extended situation like this one, it would be difficult
    after the fact to recreate accurately all the interactions that support your position.

MATRIX CAN HELP!  Through our ADA Advantage, Matrix offers administration and management of employee requests for accommodations.  We manage it all, from intake and medical documentation through the final accommodation decision and follow-up.  We manage and document the interactive  process so you don’t have to worry about those Pings above.  You retain control over the final decision but we help you get there effectively and in compliance with the ADA.  If you want to learn more about our ADA services, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

With this blog post we welcome a new contributor, Robert McDonald, J.D., Ph.D. Robb has been with Matrix Absence Management since 2017 and serves as Vice President of Learning & Development. In this capacity Robb is responsible for course development and instruction to all Matrix employees nationwide.

Connecticut Joins the Paid Family and Medical Leave Club!

Posted on: June 28, 2019 0

By Marti Cardi, Vice President Product Compliance

June 28, 2019

 

On June 25 Governor Lamont made Connecticut the 9th U.S. jurisdiction to adopt a paid family and/or medical leave program.  As a reminder, here are the jurisdictions with paid leave programs and their status:

  • California –in force
  • Connecticut–JUST PASSED! Employee contributions start January 1, 2021;
    leave and benefits start January 1, 2022
  • District of Columbia – employer contributions start July 1, 2019; leave and benefits
    start July 1, 2020
  • Hawaii – disability benefits (medical leave) only; in force (and studying the addition of a
    paid family leave component)
  • Massachusetts – employer/employee contributions start October 1, 2019; leave and benefits
    start January 1, 2021
  • New Jersey – in force; substantially amended in February 2019 to enrich benefits and broaden
    coverage.
  • New York – in force
  • Rhode Island – in force
  • Washington – employer/employee contributions started January 1, 2019; benefits start January 1, 2020

 

Connecticut Paid Family and Medical Leave – the Details

The following summary is based on our early review of the Connecticut PFML statute.  There are many more details in the law; we will continue to analyze the nitty gritty and watch for developments in the program.

ISSUE PROVISION CT S 1
Administration The statue creates an “authority” comprised of 15
appointed board members to oversee creation of
the PFML program
§2
Covered Employee Has earned $2325 during the employee’s highest
earning quarter within the base period (first 4 of 5
most recent quarters) AND:

  • Is presently employed OR
  • Was employed within previous 12 weeks OR
  • Is self-employed or a sole proprietor and has
    enrolled in the program

 

§1(4)
Covered Employers All private employers, regardless of size

Does not cover:

  • The federal government
  • The state, municipalities, or local or regional
    boards of education, except to the extent
    their employees are “covered public
    employees”
  • Nonpublic elementary or secondary schools

 

§1(8)
Total Leave Entitlement
  • 12 weeks per 12-month period
  • Additional 2 weeks for pregnancy-related
    serious health condition
  • 26 weeks for care of ill/injured
    servicemember

 

§18(a)(1)

§18(i)

Leave Reasons
  • Employee’s own serious health condition
  • Family member serious health condition
  • Bonding (birth, adoption, foster care)
  • Organ or bone marrow donation
  • Military exigencies
  • Care of seriously ill / injured servicemember
  • Matters related to being a victim of family
    violence

 

§§18(a)(2)(A)-(F)

§3(c)(1)

Covered Family Relationships
  • Spouse
  • Sibling (related by blood, marriage,
    adoption, or foster care placement)
  • Son or daughter (no age limit) (biological,
    adopted, foster child, stepchild, legal ward, or
    a child of a person standing in loco parentis)
  • Grandparent (related by blood, marriage,
    adoption, or foster care placement)
  • Grandchild (related by blood, marriage,
    adoption, or foster care placement)
  • Parent (biological, foster, adoptive, step, in-
    law, legal guardian of the employee or the
    employee’s spouse; in loco parentis)
  • An individual related to the employee by
    blood or affinity whose close association the employee
    shows to be the equivalent of
    those family relationships

 

§§17(6), (7), (8), (10), (14), (15), (16)
Leave YearCalculation Methods
  • Calendar year
  • Any fixed 12-month period
  • Measured forward
  • Rolling back
  • Care of ill/injured servicemember
    (measured forward only)

 

§18(i)
Leave Increments Continuous, reduced schedule, intermittent §3(e)

§18(c)

Employee Documentation Certification from Health Care Provider for
employee’s or family member’s serious health
condition or for care of servicemember
§19 (a)-(b)
Claims Procedures
  • 2nd& 3rd opinion process allowed if employer
    has reason to doubt the validity of the
    employee’s medical certification
  • Recertification allowed on a reasonable basis
    but generally not more often than 30 days
§19(c)-(e)
Employer Notice to Employees General notice of employee’s CT PFML rights upon
hire, and then annually
§13
Employee Notice to Employer 30 days if need for leave is foreseeable

As soon as practicable if not foreseeable

§18(f)
Employee contributions Start 01-01-2021

Maximum ½ % of employee’s wages up to
maximum compensation subject to SS contribution

No employer contribution

Weekly Benefits Start 01-01-2022

95% of employee’s base weekly earnings up to:

  • 40 x current state minimum wage plus
  • 60% of employee’s base weekly earnings
    above 40 times current state minimum wage
  • Maximum of 60 x current state minimum
    wage

Subject to reduction if needed to ensure solvency
of the PFML program

Predicted to be ~$840/week when benefits start;
up to ~$900 in 2023 due t scheduled increases in
state minimum wage

§3(e)(2)

 

Private Plan Option

Section 11 of the Connecticut PFML law allows employers to adopt an insured or self-funded private plan.  The requirements are very similar to those in Massachusetts.  To be approved, a private plan must:

(A) Confer all of the same rights, protections and benefits provided to employees under the PFML statute, including:

(i) At least the same number of weeks of benefits;

(ii) At least the same level of wage replacement for each of those weeks; and

(iii) Leave and benefits for the same reasons as specified in the statute;

(B) Impose no additional conditions or restriction on the use of family or medical leave beyond those explicitly authorized by the statute or by regulations to be issued

(C) Cost employees no more than the premium charged to employees under the state program;

(D) Provide coverage for all employees throughout their period of employment;

(E) Provide for the inclusion of future employees;

(F) Not result in a substantial selection of risks adverse to the Family and Medical Leave Insurance Trust or otherwise significantly endanger the solvency of the fund;

(G) Have been approved by a majority vote of the employer’s employees; and

(H) Meet any additional requirements established by the authority.

 

What’s Interesting?

Health Care Provider Obligations

In a new but welcome twist, the statute imposes some obligations on health care providers:

  • The health care provider has a duty to provide a complete and timely medical certification
    upon patient’s request
  • The health care provider cannot charge a fee for completing the certification
  • If CT PFML compensation is paid as a result of willful misrepresentation by a health care provider,
    the provider may be liable for a penalty of 300% of the benefits paid as a result. Perhaps this will
    deter providers who simply approve whatever leave frequency and duration the patient says is
    needed without exercising medical judgment.

Like a family member . . .” 

You will have noted (with your hand to your forehead) that leave is available to care for “an individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships.” The law tasks the Connecticut Labor Commissioner to adopt regulations that, among other things, provide guidelines regarding factors to be considered when determining whether an individual’s close association with an employee is the equivalent of a family member relationship otherwise covered by the statute.

Existing Connecticut family and medical leave law

Current Connecticut law provides job-protected but unpaid leave of absence (up to 16 weeks in a 24-month period) for all of the reasons listed above, with leave as a victim of family violence carved out separately.  The vast majority of the existing law is repealed and reenacted or amended by the new PFML law effective January 1, 2022 – the date the paid benefits will start.  The expanded definitions of family members for whom an employee can take paid family leave will provide broader coverage for that leave reason.  Existing law allows leave to care for a parent, child (under 18 or disabled), and spouse.  As you can see above, several relationships have been added, including sibling, grandchild, grandparent, and “like a family member.”

The text of the final bill as passed can be found HERE

 

MATRIX CAN HELP! It’s early days yet for Connecticut PFML.  As usual, we will be watching for developments and reporting on this blog as new information is available.  IN the meantime, you can find our prior blog posts about other state PFML laws by typing the state name in the search box – a wealth of articles about the pending Massachusetts and Washington laws and the 2019 New Jersey amendments.

 

AND . . . If your company is interested in the private plan option for Washington or Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

 

 

OREGON JUMPS ON THE BANDWAGON – NEW PROTECTIONS FOR PREGNANT EMPLOYEES

Posted on: June 27, 2019 0

By Gail Cohen, Director Employment Law & Compliance

June 27, 2019

 

Oregon has passed a law requiring employers with 6 or more employees to grant reasonable accommodations, absent undue hardship, to employees and applicants with known limitations related to pregnancy, childbirth or related medical conditions. The law is effective January 1, 2020.

Here is a summary of its salient provisions:

Reasonable Accommodations: Like many of the pregnancy accommodation laws passed by other states, the Oregon statute identifies specific examples (though not an exhaustive list) of possible reasonable accommodations, including acquisition or modification of equipment; more frequent or longer breaks or rest periods; assistance with manual labor; and modification of job assignments.

Definition of Undue Hardship: The Oregon law defines undue hardship as “significant difficulty or expense,” but also provides several factors that can be weighed by employers to help them establish an undue hardship, such as the overall financial resources of the employer, including the size of its operations and number, type and location of its facilities; the cost and nature of accommodation the employee has sought; and the effect on expenses, resources or other impacts to the facility of the accommodation.

Unfair Employment Practices Related to Accommodation Obligations: The Oregon law also defines as an “unfair employment practice” as denying employment opportunities on the basis of an employee’s or applicant’s need for reasonable accommodations for known limitations; failing or refusing to make reasonable accommodations for known limitations, absent undue hardship; and requiring an employee to take leave under OFLA if the employer can make reasonable accommodations to known limitations.

Notice to Employees: Oregon employers are required to provide notice to employees of their rights, including to reasonable accommodation(s) in the form of posting in the workplace, as well as providing a written copy of the notice to new employees at the time of hire, to existing employees within 180 days of the Act’s effective date (that is, no later than July 1, 2020) and within 10 days of an employee informing the employer of her pregnancy.

Existing Oregon Law Regarding Pregnancy Protections:  Of course Oregon, like virtually all other states and federal law, already prohibits discrimination or retaliation on the basis of sex, which is defined to include pregnancy.

Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

Stop the Presses (Again): Massachusetts PFML Final Regulations and Bond Form have arrived

Posted on: June 25, 2019 0

By Marti Cardi, Vice President Product Compliance

June 24, 2019

Last week the Massachusetts Department of Family and Medical Leave issued the final PFML regulations AND the form for the bond required of self-funded private plans.  Here’s the rundown on both.  With the 3-month delay (see our last blog post here) and these 2 developments, I’m hoping things will be quiet in Massachusetts for a while!

Final PFML Regulations

The final regulations were issued on June 17, 2019. I’ve now read them top to bottom and compared them to the March 29, 2019 draft version.  Sad to say, there are not many revisions that help employers, and many unanswered questions remain.  Here are noteworthy changes or additions:

  • Intermittent leave. The definition of “intermittent leave” allows an employer to designate a minimum
    increment of time that can be taken as intermittent leave, up to 4 hours per segment.  458 CMR 2.02.
    It may be tempting to require employees to use time in larger chunks but, as a practical matter, this may
    prove a challenge when MA PFML and FMLA are running concurrently.  FMLA allows intermittent leave
    in increments of no longer than an hour.  29 C.F.R. § 825.205(a).  If the time increments don’t match up,
    the employee will be using the two job-protected leave entitlements at different rates, which can cause
    administrative difficulties.
  • Groups of employees. The final regulations allow an employer to deduct differing percentages from the
    wages of different groups of employees, as long as no employee is assessed more than the statutorily
    allowed amounts per employee.  458 CMR 2.05((5)(d).
  • Definition of “incapacity.” This definition has been clarified and now reads:

“. . . an inability to perform the functions of one’s position, or where the covered individual is a former employee, to perform the functions of one’s most recent position or other suitable employment as that term is defined under M.G.L. c. 151A, § 25(c), due to the serious health condition, treatment therefor, or recovery therefrom.”  458 CMR 2.02.

  • Certification follow-up. In a new provisions, 458 CMR 2.08(5)(g) states:

Where it determines that a certification lacks required information, or is not accurate or authentic, or is otherwise insufficient, the Department may contact the health care provider and require that it verify, supplement, or otherwise amend the information in the certification.

This appears to be a “lite” version of the FMLA procedures an employer can follow when it receives an
incomplete, insufficient, or otherwise questionable certification.  See 29 C.F.R. §§ 825.305(c) and 825.307.
Presumably this will also apply to employers and their TPAs when administering claims under a private plan.

  • 7-day waiting period. An employee will not receive benefits during the first 7 calendar days of leave.
    This 7-day waiting period will count against the total available period of leave in a benefit year. The final
    regulations have added this clarification:  “Where the approved claim involves leave on an intermittent
    or reduced leave schedule, the wait period shall be seven consecutive calendar days, not the aggregate
    accumulation of seven days of leave.” In other words, once an employee takes any increment of leave the
    7-day waiting period starts and is completed after the 7th calendar day, regardless of how many days of
    leave the employee has (or has not) taken during that time.
  • Definition of “child.” Under MA PFML, an employee can take paid leave to care for a child with a serious
    health condition.  The final regulations have modified the definition of child by deleting the provision that
    a child must be either under age 18 or, if age 18 or older, incapable of self-care because of a mental or
    physical disability at the time the leave is to commence.  This has the effect of expanding the family members
    for whom the employee can take PFML, and creates another category (adult child who is not disabled) that
    is not covered by the FMLA.
  • Private plan recordkeeping. A new provision specifically requires employers with an approved private plan to
    retain all reports, information, and records related to the approved plan, including those related to all claims
    for benefits made under the plan, for three years.  The employer must submit this documentation to the
    DFML upon request. 458 CMR 2.07(7) (b)

The final regulations can be found here.

 

The Bond Requirement for Private Plans

The PFML statute requires employers with a self-funded (uninsured) private plan to support their application for approval with a bond from a surety company.   We previously wrote about the bond requirement here.   The DFML has now published the required bond form and filing instructions.  One requirement I don’t recall seeing previously is that the employer must attach a copy of its most recent audited or consolidated financial statement for the previous year.  There is also reference to the “self-insured plan number.” Based on previous communications with the DFML it appears that the employer can designate any number as an identifier for its self-funded PFML plan.

 

MATRIX CAN HELP!  As noted above, there are still many uncertainties regarding how Massachusetts PFML will actually function.  Matrix will administer Massachusetts PFML for our clients who elect the private plan option.  Rest assured, we will be posing our questions to the DFML so that our clients will receive best in class administrative services. If your company is interested in the private plan option for Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com

 

Massachusetts Passes Lightning Bill to Delay Some PFML Dates–AND, the Final Regulations are Here!

Posted on: June 19, 2019 0

By Marti Cardi, Vice President Product Compliance

June 19, 2019

In a coordinated move so fast it makes your head spin, the Massachusetts governor and legislature have passed the promised bill to delay by 3 months the start of employer and employee contributions to the paid family and medical leave program, to October 1. The bill, MA S 2255, brings about some other modifications to the PFML law as well. What hasn’t changed is the date for commencement of benefits – still January 1, 2021.

In addition, the final Massachusetts PFML regulations have been posted on the Massachusetts Department of Family and Medical Leave (DFML) website here. The regulations are key to fully understanding and administering the Massachusetts PFML law. The DFML received many comments and suggestions for final revisions, and we will be studying the changes made from the 03-29-2019 draft.

In the interest of getting this article about the statutory delays posted timely, we are not including an analysis of the final regulations yet. Watch this blog for another article shortly.

 

THE CHANGES

Here is the content of the announcement sent by the DFML to Massachusetts employers on June 14, 2019, regarding the delays of prior PFML compliance dates, with Matrix’s observations in italics:

 

Required Withholding Now Starts October 1

“The start date for required PFML contributions is now October 1, 2019. On that date, employers must begin withholding PFML contributions from employee qualifying earnings.  Employers will be responsible for remitting employee and (if applicable) employer contributions for the October 1 to December 31 quarter through MassTaxConnect by January 31, 2020.”

Matrix observations: Remember that (1) employers can elect to cover the employee share of contributions, regardless of whether they choose to use the public plan or a private plan to comply with the law; and (2) employers with a private plan approved by December 20, 2019, don’t have to remit any payments to the DFML. So to say the start date for “required PFML contributions” is now October 1 is a little misleading.

This delay in the start date for contributions may be less of a blessing for some employers than for others, if you have already programmed your payroll system to start the employee paycheck deductions on July 1. Now, any such deductions are not required by the law until October 1 (f at all) and so might be a violation of state or federal wage laws if initiated on July 1. Consult your employment counsel if this is an issue for you.

 

Contribution Rate Change

“The PFML law requires that the Department adjust the contribution rate to offset the shorter period for collections that will result from the three month delay. As a result, the total contribution rate has been adjusted from 0.63% to 0.75% of employee qualifying earnings. This adjustment will ensure that full funding will be in place for the commencement of benefit payments in January 2021.”

Matrix observations: The amendments do not specify how long this adjusted rate will remain in effect, but the law requires the Department of Family and Medical Leave (DFML) to review and adjust the rate effective each October 1, if needed.

The PFML statute requires the employee to pay 100% of the contribution attributable to family leave and the employee and employer to share the contribution attributable to medical leave on a 40% employee/60% employer split. This has not changed. The DFML advises that the 0.75% will be apportioned as follows:

  • 0.13% to family leave, of which the employee pays all; and
  • 0.62% to medical leave, of which the employee pays not more than 40%

 

You can see a graphic illustration of the new contribution rates on the DFML website.

 

Timeline Extended for Required Employee Notices

“Employers now have until September 30, 2019, to notify all covered individuals of their rights and obligations under PFML. Check the Department website at mass.gov/pfml in the coming days for updated notices to provide to your workforce.”

Matrix observations: What if you have already sent the notices that were previously required by May 31 June 30? The DFML has this guidance on its website:

“If you provided written notices to your workforce prior to the June 14 delay announcement, you will need to provide them with an addendum sheet explaining the updated program dates and contribution rates. This addendum will be provided by DFML during the week of June 17.”

If you haven’t sent the notices yet, just use the new DFML notice forms. You can find the updated notice requirements and templates (and the addendum once available) here.

As an aside, in my communications with the DFML I have confirmed that the poster and the individual notice templates available on the DFML website are examples and can be modified as needed to reflect accurately your own situation, as long as all the notice elements are covered. This will be particularly significant for employers with a private plan or those electing not to withhold contributions from employee paychecks.

 

Timeline Extended for Exemption Applications

“Employers that offer paid leave benefits that are at least as generous as those required under the PFML law may apply to the Department for an exemption from making contributions. Employers will now have until December 20, 2019, to apply for an exemption that will excuse them from the obligation to remit contributions for the full period commencing with the October 1 start date.”

Matrix observations: The exemption referred to here is obtained adopting an approved private plan – one administered by the employer or a by third party such as Matrix or an insurance company rather than the state. See the end of this post for information about private plan assistance Matrix is ready to provide.

If the private plan application is filed by December 20, 2019 (and ultimately approved by the DFML) the employer can avoid paying employee and employer contributions to the state for the period October 1- December 31, 2019. The advantage is retaining those contributions to fund an employer’s own private plan and payment of benefits. Matrix recommends filing in advance of December 20 to ensure plenty of time for approval. Guidance from the DFML about the private plan exemption can be found on the DFML exemption page.

Note that there is no “deadline” to file an application for private plan approval. The DFML will accept filings on a continuous rolling basis, but a plan won’t be in effect until the first day of the quarter following approval, so the employer will have to pay to the state any employee and employer contributions accruing prior to that date. As a result, there is a financial incentive as described above to get your plan filed by December 20, 2019.

 

PFML Regulations Will Be Final and Effective on July 1, 2019

“The final regulations will be posted on the Department website at mass.gov/pfml on Monday, June 17, 2019. The regulations will be formally published under the title 458 CMR 2.00 DEPARTMENT OF FAMILY AND MEDICAL LEAVE.”

 

Matrix observations: And, they’re here! The regulations are key to fully understanding and administering the Massachusetts PFML law. The DFML received many comments and suggestions for final revisions, and we will be studying the changes made from the 03-29-2019 draft. In the interest of getting this article posted timely, we are not including an analysis of the final regulations yet. Watch this blog for another article shortly.

 

Other Provisions of the Amendments to the PFML Law

In addition to the above changes, the newly-passed amendments address some of the concerns expressed by employers and other stakeholders. The effect is to better align the PFML law with the federal Family and Medical Leave Act:

  • Unable to perform: The definition of a serious health condition for which an employee may take medical
    leave has been expanded to require that the condition “makes the covered individual unable to perform the
    functions of the covered individual’s position.” The amendment further explains: “This provision shall be
    construed consistent with the equivalent provision of the federal Family and Medical Leave Act of 1993,
    codified at 29 U.S.C. 2612(a)(1)(D).”
  • Former employees: The amendment also explains: “A covered individual who is a former employee shall
    be considered unable to perform the functions of the covered individual’s position if the covered individual
    is unable to perform the functions of the covered individual’s most recent position or other suitable
    employment as that term is defined under [the PFML law].”
  • Medical certification: The required contents of a medical certification to support leave are expanded to
    include:

    • A statement by the health care provider that the covered individual is unable to perform the functions
      of the covered individual’s position;
    • A statement of the medical necessity, if any, for intermittent leave or leave on a reduced leave schedule; and
    • If applicable, the expected duration of the intermittent leave or reduced leave schedule.

Unfortunately, still missing is a requirement to provide an estimate of the frequency and duration of each episode of a condition’s flare-up requiring intermittent leave – an important bit of information to manage intermittent leave effectively.

Similar requirements relating to medical necessity and the duration of intermittent or reduced schedule leave have been added to the certification in support of leave to care for a family member with a serious health condition or covered servicemember.

MATRIX CAN HELP! 

In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the Massachusetts and Washington private plan options.  These include developing state-specific sample private plans for use by our clients and a guide for our account managers to assist you with the private plan decision and application process.

If your company is interested in the private plan option for Massachusetts or Washington PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.comAnd stay tuned here for more PFML information as it develops!

Massachusetts Announces Likely 3-Month Delay in Collecting PFML Premium Contributions

Posted on: June 12, 2019 0

By Marti Cardi, Vice President Product Compliance

June 12, 2019

 

Vast amounts of uncertainty and unanswered questions surround the Massachusetts Paid Family and Medical Leave program.  The law currently provides that employers participating in the plan administered by the Massachusetts Department of Family and Medical Leave (DFML) must start withholding contributions from employee paychecks as of July 1, 2019.

On June 11, Massachusetts Governor Baker and leaders of the Massachusetts house and senate announced an agreement to postpone the start of PFML contributions for 3 months, until October 1, 2019.  The change must be accomplished via an amendment to the PFML statute but all parties are on board to get this done.   This is welcome news for employers as they will have more time to get payroll arrangements perfected, decide whether to apply for an exemption from state coverage with a private plan, and otherwise implement.

The anticipated amendment to the PFML statute may also include technical changes to clarify program design.  Clarifications are expected to include amendments relating to intermittent leave, the definition of “serious health condition,” and closer alignment of the Massachusetts PFML law with the federal Family and Medical Leave Act.  (See aimblog published by the Associated Industries of Massachusetts, which was instrumental in advocating for the delay.)

In order to maintain the level of funding for the program that would be achieved if contributions commenced July 1, the combined employer/employee contribution of 0.63% of an employee’s wages will be increased to 0.75%, or from $872 to $1038 per year for an employee earning the state average weekly wage.  It is not yet known how long this increase will stay in effect.  At present, the law requires the DFML to adjust the contribution rate annually, depending on various economic factors, starting October 1, 2021, effective the next January 1.

Massachusetts PFML Reminders

Massachusetts employees and other covered workers can start receiving paid leave benefits January 1, 2021.  The law provides for annual paid leave up to 20 weeks due to an employee’s serious health condition, 12 weeks for family leave purposes (bonding, caring for a family member with a serious health condition, and military exigencies), and 26 weeks to care for a family member with a service-related illness or injury.  There is a 26-week cap on total annual leave benefits.

Over time we have published several articles on Massachusetts PFML.  You can take a look back at our overall summary and periodic developments by entering “Massachusetts” in the search box of this page.

Other Massachusetts PFML News

If an employer chooses to comply with the PFML through a private plan, the law requires the employer to either post a bond or provide benefits through an approved insurance company.  The DFML expects to publish an approved bond rom and instructions any day now.  Watch this blog and the DFML website for that development.

Also, the DFML is constantly updating its website with new information, so a periodic check-in just to see what’s new is worthwhile.  Of course, we will report any major developments here.

MATRIX CAN HELP! 

In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the Massachusetts and Washington private plan options.  These include developing a sample private plan for use by our clients and a guide for our account managers to assist you with the private plan decision and application process.

If your company is interested in the private plan option for Massachusetts or Washington PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.comAnd stay tuned here for more PFML information as it develops!

 

KENTUCKY PASSES LAW REQUIRING REASONABLE ACCOMMODATIONS FOR PREGNANT EMPLOYEES

Posted on: May 14, 2019 0

By Gail Cohen, Director Employment Law & Compliance

May 14, 2019

 

On April 9, 2019, the Governor of Kentucky signed Senate Bill 18, making it the latest state to pass legislation requiring employers, absent undue hardship, to grant reasonable accommodation(s) to employees with “limitations” as a result of pregnancy, childbirth or related medical conditions. The Kentucky Pregnant Worker’s Accommodations Act (“KPWA”), takes effect June 27, 2019, and applies to employers with fifteen or more employees in the state.

Let’s break it down:

What is a “Limitation” as a Result of Pregnancy, Childbirth or Related Condition? The KPWA does not use the term disability or disabled by pregnancy, etc. as do many state laws in effect. For that matter, normal pregnancy is not a disability under the ADA. The term “limitation” is not defined by the Act but appears to indicate broader coverage than the ADA. Therefore, Kentucky employers should engage in the interactive discussion with regard to the KPWA, even if the nature and duration of the employee’s “limitations” and condition would not otherwise require doing so under the ADA.

What Are Reasonable Accommodation(s)? The act provides a nonexclusive list of potential reasonable accommodations, including:

  • frequent or longer break times;
  • time off to recover from childbirth;
  • acquiring or modifying equipment;
  • seating;
  • temporary transfer to a less strenuous or less hazardous job;
  • job restructuring, light duty, and/or modified work schedule;
  • and a private space (that is not a bathroom) in which to express breast milk.

What about Undue Hardship? The KPWA provides for an employer to decline to provide accommodation if doing so poses an “undue hardship” and includes the traditional types of factors we have seen with similar statutes, i.e. significant difficulty or expense given the size and financial resources of the organization. In addition to those traditional factors, the KPWA provides for additional factors when an employee requests accommodation for her pregnancy, childbirth, etc. For example, the duration of the requested accommodation, and whether similar accommodations are required by policy to be made (or have been made) for other employees for any reason. The latter factor, of course, should look familiar to any employer who knows and complies with the federal Pregnancy Discrimination Act.

Unlawful Employment Practices. Absent undue hardship, the KPWA rules failing to make reasonable accommodation(s) as unlawful employment practices. Like many other state pregnancy accommodation laws, Kentucky’s prohibits requiring an employee to take a leave of absence if another reasonable accommodation can be provided and requires the employer and employee to engage in a timely, good faith and interactive process to determine effective, reasonable accommodations.

Employer Posting and Notice Requirements. Employers are required to conspicuously post notice of an employee’s right to, among other things, reasonable accommodations for pregnancy, childbirth or related medical conditions. Employers are also required to provide written notice to new employees when they begin employment and to existing employees within thirty days of the Act’s effective date, June 27, 2019.

Want to learn more?

Join Matrix Radar authors Marti Cardi and Gail Cohen for a practical discussion of the various state laws providing protections for pregnant employees and new parents, and a review of the EEOC’s focus on employers who get it wrong. The webinar, sponsored by the DMEC, will take place June 18, 2019 at 12 noon Eastern (9 AM Pacific). Click here for more information and to register.

 

Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

Good News for Massachusetts Employers – A Delay of Pending Deadlines (and a Word on Taxes)

Posted on: May 2, 2019 0

By Marti Cardi, Vice President Product Compliance

May 2, 2019

 

 

That’s right, yet another Massachusetts paid family and medical leave update! Today’s news will be welcomed by Massachusetts employers, especially those considering whether to adopt a private plan rather than use the state program.  Let’s be honest, though – it’s only good news because it backs off from some of the imminent deadlines that were going to be extremely difficult for employers to meet.

Here are the updates, quoted directly (in italics below) from the DFML announcements available on its website. See our comments and analysis below each DFML update.

Exemption Deadline Extended for Quarter 1
The Department’s current guidance requires that exemptions for private plans must be approved in the quarter prior to the quarter in which they will go into effect. For Quarter 1 only [July-September 2019], however, the deadline to file for a private plan exemption that will be in effect for first quarter contributions for paid family and medical leave has been moved from June 30th to September 20th, 2019. This will allow employers additional time to contemplate private plan options. Going forward, the Department will continue to accept applications on a rolling basis but applications must be approved in the quarter prior to the quarter in which they go into effect.

Please note that contributions to PFML begin on July 1, 2019 and the September 20, 2019 extension of the exemption application deadline only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward. Therefore, DFML recommends that businesses in the Commonwealth consult with their tax advisors as to the implications associated with applying for a private plan exemption that may or may not be approved.

Employer Notice to Employees
The deadline for employer notice to employees has been extended from May 31 to June 30, 2019. The notice, which may be provided electronically, must include the opportunity for an employee or self-employed individual to acknowledge receipt or decline to acknowledge receipt of the information.

Please Note: The Department of Family and Medical Leave is continuing to accept comment on draft regulations regarding paid family and medical leave and is planning to host two additional listening sessions in May which will be announced shortly.

What does this mean for employers?

Under the prior rule, if a plan was not approved by June 30, the employer would owe the employer and employee contributions to the Commonwealth for all of the quarter (July-September 2019); and this amount could not be recovered even if a private plan was later approved. Now if your private plan is approved by September 20, 2019, you will not have to pay over the July-September 2019 premium contributions to the Commonwealth but rather can keep those for funding your own private plan benefits payments.

Here is a quick rundown of upcoming dates and obligations:

  • All employers will continue to have reporting obligations for every quarter, including Q1 of the program
    (July-September 2019). The DFML has stated it will issue more reporting guidelines prior to July 1
    so that employers know what data they need to be ready to provide after the close of Q1, probably
    in October 2019.
  • All employers will need to post the required notice for workers in the workplace.  See our prior post
    here for more details
  • Individual notices. All employers will need to send individual notices to every employee and
    contractor and receive an acknowledgement or refusal to acknowledge signed by the worker, but the
    deadline has been moved to June 30, 2019.  More details are available
    here and here.
  • Applications for private plan approval can be filed at any time after April 29, 2019. However, the
    application will need to include a copy of the private plan, a copy of the required bond (see our
    blog post
    here), and if Matrix is applying for your company, a signed authorization for Matrix to
    act on your company’s behalf.

A Word on Taxation Issues

On May 1 the DFML also issued a notice that addresses the taxation question – sort of.  We have received several questions about tax treatment of premiums paid by employees and benefits.  Matrix cannot answer those questions, as we are not tax advisors.  Apparently, the Commonwealth of Massachusetts isn’t either.  Here is their notice:

Tax Information
The tax treatment of PFML contributions for both state and federal purposes is governed by federal tax law. The Commonwealth has requested guidance from the Internal Revenue Service on this question and others related to the tax implications of PFML contributions and benefits. Until IRS guidance is issued, individuals and businesses are urged to consult with their own tax advisors on these questions. Based on its own review of federal rules and following consultation with the Massachusetts Department of Revenue, the Department of Family and Medical Leave anticipates that the IRS will conclude that employee contributions should be withheld from after-tax wages. A definitive rule for proper tax treatment of contributions will be available once IRS guidance is issued.


MATRIX CAN HELP!  In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the private plan option.  These include developing a sample private plan for use by our clients, and an employer guide to the private plan decision and application process.  If your company is interested in the private plan option for Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.comAnd stay tuned here for more information about Massachusetts PFML as it develops – we’ll bring it to you daily, if necessary!

 

Massachusetts Announces PFML Private Plan Bond Requirements

Posted on: April 30, 2019 0

By Marti Cardi, Vice President Product Compliance

April 30, 2019

 

It seems like just yesterday (it was!) that we reported on significant new information and resources from the Massachusetts Department of Family and Medical Leave that were released on Friday.  No sooner was our article posted when more news came from DFML:  Details on the private plan bond requirement.

The new information is quoted below in full, and can be found on the DFML website here.

Bond requirements

In addition to the leave benefits explained below, self-insured plans must include the following bond amounts to be eligible for exemptions.

For every 25 employees covered by a business, DFML requires a bond value of:

    • $19,000 for qualifying family leave plans
    • $51,000 for qualifying medical leave plans
    • $70,000 for qualifying plans for both family and medical

Examples

Family leave plans

    • You have 12 employees and you’re applying for an exemption from family leave.
      Your required bond value is $19,000.
    • You have 85 employees and you’re applying for an exemption from family leave.
      Your required bond value is $57,000.

Medical leave plans

    • You have 12 employees and you’re applying for an exemption from medical leave.
      Your required bond value is $51,000.
    • You have 85 employees and you’re applying for an exemption from medical leave.
      Your required bond value is $153,000.

Both family and medical leave plans

    • You have 12 employees and you’re applying for an exemption from both family and
      medical leave. Your required bond value is $70,000.
    • You have 85 employees and you’re applying for an exemption from both family and
      medical leave. Your required bond value is $210,000.

 

If your company is interested in the private plan option for Massachusetts PFML, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.comAnd stay tuned here for more information about Massachusetts PFML as it develops – we’ll bring it to you daily, if necessary!

Hot Off the Presses: Yet Another MASS-ive Update!

Posted on: April 29, 2019 0

By Marti Cardi, Vice President Product Compliance

April 29, 2019

I had just exhaled after presenting our Massachusetts Paid Family and Medical Leave (PFML) webinars on April 23-24
when the Massachusetts Department of Family and Medical Leave unleashed a barrage of new information, guidance, and resources.  You may have heard my plaintive cry, “Make it stop!”

But it hasn’t stopped and so here we are with more updates for you.  If you
missed our webinars, you can get up to speed from our prior blog post,
which includes a link to our webinar deck.

CLICK ON MR. RADAR TO VIEW APRIL 24, 2019 BLOG

Counting workers for the under-25 exemption from employer premiums

Employers using the public plan to provide PFML benefits and with fewer than 25 Massachusetts covered workers are exempt from
paying the employer share of medical leave premiums to the Commonwealth’s trust fund.  If your workforce is near this number,
it is important to know how to count your workers for this exemption. The draft regulations (section xx.05) direct you to count the number of employees on the payroll “during each pay period and dividing by the number of pay periods” but do not state over what period of time to do this averaging.

New materials released by the Department of Family and Medical Leave (DFML) on Friday now clarify that you consider your number of workers per pay period to get an annual average, based on the prior calendar year for the current calendar year.  And remember, covered workers for this count includes both regular employees and 1099-MISC workers if those contractors constitute more than 50% of your total workforce.

The new posting from the DFML can be found at https://www.mass.gov/info-details/counting-the-covered-individuals-in-your-workforce-under-the-pfml-law.

Private plan exemptions

Also in the new materials released by DFML is an entire page with ancillary materials devoted to the private plan exemption, whereby employers can apply for approval of their own paid medical and/or family leave plan rather than having employee leaves administered by DFML. The new resources include a walk-through of the application process complete with a video demonstration of an online application.  Important points to note:

  • You will need to log on to MassTaxConnect to start the application process. If you don’t already have an account,
    there is a link for registering.
  • After providing basic company and contact information, you will answer a series of yes/no questions.  The
    questions are designed to determine whether your plan is compliant with the PFML requirements.
  • Next is an opportunity to upload any supporting documents.  Interestingly, the tutorial and the online application
    (to the extent I could read it!) does not specifically require a copy of your plan but certainly the plan itself would
    constitute supporting materials.  The application website allows you to upload more than one document so
    if your plan is contained in multiple documents you have the ability to include all. If you are having a TPA
    such as Matrix submit the application for you, a signed statement providing the necessary authority would
    be important to include.
  • After completing your application, you will be notified within 1-2 business days of the status of your plan.  If
    the plan is not approved, you will have a chance to request further review by the DFML.

The new materials can be accessed here:  https://www.mass.gov/info-details/exemptions-from-paid-family-and-medical-leave-for-private-plans

Employer Notices to Employees

With the upcoming employer notice requirements (posters and individual worker notices) came a lot of questions.
To recap:

  • Employers must post a general notice of employee and contractor rights and responsibilities under the PFML
    law in the workplace, meeting certain language requirements.  This posting should be done immediately.
  • Employers must provide individual notices to employees and contract workers in their primary language and
    receive an acknowledgment from each worker by May 31, 2019.  That last part is a new clarification – see
    the discussion below.
  • We provided more detail on these notices in our blog post here, including a link to our webinar deck.

Here’s what we have now learned from the DFML, via a response from the Director to my email questions:

  • The May 31 deadline applies both to giving the notice AND receiving the acknowledgements.  The PFML statute
    doesn’t address employers’ notice obligations to current individual employees, but the DFML has now set the
    May 31 deadline for employers to both provide the notice and receive the acknowledgments (or refusals) from
    existing employees.  This is 30 days in advance of when withholding from worker paychecks will begin on
    July 1 (if the employer is not covering the employee share of PFML premium contributions).
  • That acknowledgement form and the odd refusal to acknowledge. The statute requires employers to provide
    individual notices and an opportunity for workers to either acknowledge receipt of the notice or decline
    to acknowledge receipt in writing.  The DFML does not plan to provide a form for use if the employee refuses
    to acknowledge receipt of the notice.   Here is what came out of my brain to fill this requirement.
    (Note this is my best guess and I cannot promise whether the DFML would find it sufficient):


EMPLOYEE STATEMENT DECLINING TO ACKNOWLEDGE RECEIPT OF NOTICE
I decline to acknowledge receipt of the Employer Notice to Employee relating to my Rights and
Obligations under the Massachusetts Paid Family and Medical Leave Law, M.G.L. c.175M.
I understand my employer will retain a copy of this statement.

__________________________________________________________________________________________

Signature

__________________________________________________________________________________________

Print Name

__________________________________________________________________________________________

Date


  • Evidence of Employer Compliance.  The DFML declined to provide any guidance regarding what will constitute
    sufficient evidence that you provided the correct notice and opportunity to acknowledge or decline if the
    employee refuses to do either.  My suggestion is to use a reasonable means that is designed to get actual
    notice to each employee individually.   Consider:

    • Regular mail to the employee’s current home address with a log to substantiate the mailings (as we know,
      recipients often refuse to accept certified delivery)
    • Electronic delivery to the employee’s known functioning email with a means to produce a copy of the email
      sent (again, employees may decline to provide a read receipt)
    • Hand delivery to the employee by someone who keeps a log of date, time, and other facts of each delivery

Don’t just leave a stack of the forms in the lunchroom or tell all employees generally to check it out on your intranet.

  • Individual notice in employee’s primary language.  The DFML says this is a requirement even if it has not yet
    provided a translation in the language you need for an employee.  At the time of our webinars, the notices to
    W-2 employees and 1099-MISC workers were available in 5 languages plus English.  However, as of Friday the
    notices are now available in 13 languages on the DFML website here.
  • Compliance with posting notification for teleworkers.  There is no provision in the PFML statute for electronic
    “posting” as there is for electronic individual notices.  I asked the DFML, could the employer put the poster on its
    intranet accessible to employees, or email it to remote workers?  The DFML agreed these are reasonable
    options. Consistency with your process for other electronic employee notifications would be a good thing as
    long as it is an effective means of giving notice.
  • Changing your decision whether to withhold employee premium contributions from paychecks.  If an
    employer states on the notice form that it will not withhold contributions from employee paychecks, the
    DFML says the employer can change this decision later.  But, plan to provide a new individual notice to
    employees and contractors, including obtaining those acknowledgements or refusals.  Thirty days’ advance
    notice of the change sounds like a good plan to me, although nothing in the law requires that.  And the
    same applies if you initially withhold employee contributions and then decide you will no longer do so.

Matrix is on it!  Stay tuned to this blog for all the news on Massachusetts paid family and medical leave developments other in other states. And when time permits, we’ll cover some non-PFML issues, too!

More MASS-ive Developments That You Need to Know (and DO) Now

Posted on: April 24, 2019 0

By Marti Cardi, Vice President Product Compliance 

April 24, 2019

 

As you well know, employees and employers are responsible for contributions to the Massachusetts Family and Employment Security Trust Fund starting July 1, 2019.  On April 23 and 24, Yours Truly presented webinars on the current status of Massachusetts paid family and medical leave and what you need to know, and do, now to get ready. Short on time? Access the webinar PowerPoint deck by clicking Mr. Radar; it is chock full of timely information and important links to the Department of Family and Medical Leave (DFML) website resources.  An audio recording of the webinar will be available soon – just watch this blog for a link when it is ready.

 

CLICK MR. RADAR FOR THE WEBINAR CONTENT!

 

 

In the meantime, here are a couple of crucial pointers for your immediate action:

  • The DFML has released forms for the required general notice to workers about the PFML and their rights.
    Post these notices now, in English and in each language which is the primary language for 5 or more
    individuals in your workplace.  DFML has made the poster available in 13 languages.  Access the posters
    on the DFML website
    here.
  • Individual notices. You must send specific notices to employees and contract workers by May 31, 2019,
    in workers’ primary language.  The notices require you to advise your workers of various information,
    including whether you will be withholding the employee share of the premium contributions from their
    paychecks and, if so, in what percentage amounts; and whether you presently have a private plan
    approved by the Commonwealth for the medical leave, family leave, or both.  Then, you must get a
    signed statement from each employee and contract worker either acknowledging receipt of the notice
    or declining to acknowledge receipt.  If the employee refuses to sign either, you must be able to show
    that you actually gave the notice and an opportunity to sign either statement to the employee.
    The DFML has provided the notices in 5 languages so far, that can be downloaded here. 

Check out our webinar deck at the link above for a lot more MA PFML information, including things to consider when deciding whether to adopt a private plan rather than provide the required benefits through the Commonwealth’s program, and a list of action items. 

For more background info on MA PFML you can type “Massachusetts” in the search box of this blog to find all of our previous MA PFML blog posts. 

Washington PFML Developments Keep Us Hopping

Posted on: April 8, 2019 0

By Marti Cardi, Vice President Product Compliance Gail Cohen, Director Employment Law & Compliance

April 8, 2019

Despite my recent advice to Washington employers to “sit back and relax,” I now have to say: Don’t get too comfortable with all things Washington PFML.  Although employers have been required to withhold premium contributions from employee paychecks (or waive such withholding) since January 1, lots of pieces are still in motion.  We recently blogged about the delay in premium payments and reporting to the state here.  Now:

  • The governor has signed into law some amendments to the PFML statute relating to employee benefits, the
    waiting period, voluntary plans, and more.
  • The Washington Employment Security Department (ESD) has finalized its Phase Three Rules, which relate
    in part to claims handling procedures.

Amendments to Washington PFML

The full bill as passed can be reviewed here. These are some of the more significant changes:

Waiting period

Employees must satisfy a 7-day waiting period before they can start receiving benefits. Prior to the PFML amendments, it was unclear how that waiting period would work. The law now states more clearly that the waiting period consists of “the first 7 consecutive calendar days” (rather than the previous version, “first 7 calendar days of leave”).  The amendments further clarify that the waiting period starts when an eligible employee takes leave for the minimum claim duration of 8 hours.  So, once an employee’s leave for a qualifying reason begins, he can start receiving benefits 7 calendar days later (if the leave continues beyond that) rather than having to take 7 days of leave before getting benefits.

And a reminder:  No waiting period is required for leave for the birth or placement of a child.

Topping off PFML benefits

The original PFML law had a strange provision that prohibited employers from allowing employees to use other pay benefits during a PFML leave. This has been corrected to align more closely with PFML laws in other states. Now, once benefits start in 2020, an employer may offer “supplemental benefit payments” to an employee on family or medical leave in addition to any paid family or medical leave benefits the employee is receiving.  Supplemental benefit payments include, but are not limited to, vacation, sick, or other paid time off.  Employers are not required to offer supplemental pay benefits.  If offered, the choice whether to use them lies with the employee – the employer cannot force the employee to use such benefits.

Voluntary plans

The PFML amendments affect voluntary plans as follows:

    • Payment of benefits from only one plan. An employee may only receive payment of benefits for
      family leave, medical leave, or both from one approved plan at a time. If an employee is simultaneously
      covered by more than one approved plan, the employee will receive benefits only under the plan for
      which the employee has worked the most hours during the employee’s qualifying period.  From the
      context of this amendment, it appears that this applies whether the simultaneously applicable plans
      are 2 voluntary plans or a voluntary plan and the state plan.

What is NOT clear (and we’ll be asking questions of the ESD) is whether the employee receives benefits limited to the amount attributed to that one plan only, or receives benefits equivalent to his entitlement under all applicable plans, but only paid by the plan of the employer for whom the employee has worked the most hours in the qualifying period.  If that is the case (we hope not), how would the paying plan know how much is owed to the employee under other applicable plans?

    • Waiver of voluntary plan eligibility. To be eligible for benefits under a voluntary plan, an employee
      must have worked both 820 hours within the state during the qualifying period, and 340 hours for
      the employee with the voluntary plan (the 340 hours can count toward/be a subset of the 820 hours).
      An employee who commences work with a new employer with a voluntary plan is eligible for benefits
      immediately if she was eligible under a voluntary plan with her previous employer.  Otherwise, that
      340-hours-of-work for the new employer requirement applies before she can receive benefits.
      Pursuant to the new amendments, however, an employer with an approved voluntary plan may waive
      the 820 and/or 340 hours worked requirements, in whole or in part, to allow an employee to be
      immediately eligible for coverage under the employer’s voluntary plan
      .

Phase Three Final Rules.

A bit of background:  States pass the laws that require employers to provide paid family and medical.    The laws establish the basic structure of employee and employer rights and obligations.  Then the state agency that will be responsible for implementation, administration, and enforcement of the law passes rules or regulations (same thing, basically) that fill in the details needed to administer the law and advise employers and employees how to comply.

The Washington Employment Security Department (ESD) designed a process to draft, revise, and finalize its PFML rules in six phases.  The final version of the Phase Three rules have been released.  These are important because they address the claims handling procedures, including:

  • Defining a claim year
  • Employee notice requirements (timing and content)
  • Process and timing for application of benefits
  • Requirements for documentation of the leave request (certification contents, timing, etc.)

The Phase Three rules are available here.

What Matrix is doing:

  • Employers can still file for approval of a voluntary plan at any time. Matrix has a template for
    voluntary plans and a complete process for submitting plans for approval on behalf of clients.
  • Now that the Phase Three rules are finalized, Matrix is developing claims handling procedures,
    employee 
    communications, training for our employees, and other necessary processes. We will
    be ready for claims 
    management for our clients with voluntary plans when benefits are available,
    starting January 1, 2020.
  • Matrix continues to pose questions to the Washington ESD for provisions of the law and rules that are
    still not clear.

MATRIX WILL BE READY ON JANUARY 1, 2020.  WILL YOU?

If you want to learn more contact us at ping@matrix.com or through your Account Manager.

 

Falsified FMLA Certifications? Employer Doesn’t Have to be Inspector Clouseau to Support Honest Belief Defense!

Posted on: April 2, 2019 0

By Gail Cohen, Director Employment Law & Compliance

April 2, 2019

 

Marion Egler was employed as a Reservations Agent for American Airlines.  From 2006 through 2013, she applied and was approved for, FMLA on thirty-four separate occasions.  In November and December 2014, Egler submitted four certification forms for continuous blocks of time that appeared to have been “whited out and/or written over.”  The FMLA regulations allow an employer to authenticate a certification form, by providing a copy to the provider and asking for verification that the information supplied was completed or authorized by the provider who signed it.  As a result of the apparent alteration of those forms, American sought authentication of the certifications and was advised by the doctor that it was not completed or signed by that provider or anyone else in his office.

Egler was confronted with these discrepancies and denied knowing anything about the forms being altered. Egler wrote a statement (she later claimed under duress) in which she indicated she understood her leave was being questioned and that while she understood the forms appeared to have been altered, she indicated she’d be following up with her doctor’s office because “she [couldn’t] speculate.” She was placed on a paid suspension and invited to submit any additional information to clarify the discrepancies.  When she did not do so, American fired her for altering FMLA forms, a violation of the company’s Code of Conduct.

Egler appealed her termination using the company’s process to do so, claiming she was “not guilty,” and had not been given the resources and time to defend herself. She submitted two additional letters purporting to come from the provider’s office. He reiterated that neither he nor anyone else in his office completed this documentation. As a result, the company upheld the decision to terminate her employment on appeal.  Egler sued American alleging, among other things, FMLA interference and retaliation.

The court quickly disposed of her FMLA interference claim because American granted her all the leave she had requested and moved on to the retaliation claim.  In evaluating that claim, the court elaborated that it is Egler’s burden to undermine American’s “honest belief,” meaning, presenting evidence that American did not honestly believe she had broken its conduct rules by submitting altered FMLA certifications.  While Egler herself “emphatically denied [she] alter[ed] the forms,” and challenged whether American had shown that she had done so, that is not the standard.  It is not the role of the court to decide that the reason given for the employer’s decision was “wise, fair or even correct;” it is Egler’s burden, as the plaintiff, to demonstrate that the reason for American’s decision was false, dishonest or more likely the result of retaliation. Her own self-assessment was not enough.

American went to her doctor, just as the FMLA allowed it to do, and had substantiated that the forms were not authentic. Armed with this information, and a good faith investigation that allowed Egler to be heard, American acted on its honest belief she violated its rules and prevailed on summary judgment.

You can read more here: Egler v American Airlines, E.D. North Carolina (February 21, 2019)  

 

PINGS FOR EMPLOYERS – What American Did Right

  • They had a written policy addressing falsification or fraud in the FMLA process
  • They allowed employee to take the leave, then reinstated her and dealt with
    the fraud issue separately.
  • They didn’t deal with the fraud issue until their investigation was complete. In
    connection with their investigation, they used the tools the FMLA affords employers
    like seeking authentication of medical information and/or certification forms that
    appear to be altered.

 

If you just can’t get enough of FMLA certifications (and let’s face it, at least it’s not Paid Family Leave!) you might want to check out the 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR. On May 8 our very own Gail Cohen and fellow legal eagle and blogger extraordinaire  Jeff Nowak will present Medical Certifications: How to Maximize one of the FMLA’s Most Important Tools. Don’t miss it!


Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

MASS-ive developments in Paid Family Medical Leave law

Posted on: March 21, 2019 0

By Marti Cardi, Vice President Product Compliance Gail Cohen, Director Employment Law & Compliance

March 21, 2019

 

Big dates are ahead in Massachusetts relating to its paid family and medical leave program.  The Department of Family and Medical Leave (DFML) has announced two key developments:

Massachusetts PFML regulations. The second draft of the PFML regulations will be issued on March 29.  You may recall that the first draft was issued on January 23, 2019.  These were a start but many key topics were not addressed.  The DFML conducted over 10 listening sessions around the state, soliciting comments from attendees on the draft regulations.  The DFML also accepted written comments through March 13.

Now the DFML has announced that the next draft of the regulations will be published on March 29, followed by another public comment period. We expect these to be near final due to the extensive outreach the DFML conducted to gather input. Final regulations will be published and effective no later than July 1, 2019.

Private plan applications.  Employers can begin filing private plan applications on April 29, 2019.  The only detail we have been able to find so far is that applications may be filed through MassTaxConnect We have submitted over 20 questions to the DFML to identify information that Matrix and employers will need to know in deciding whether to file for a private plan.  These address application details, approval process and turnaround time, details on the bond requirement, and much more.

Based on our prior communications with key personnel at the DFML, we anticipate that the application process will be more employer-friendly than our experience in Washington.  In fact, there are indications that, unlike Washington State, employers may be able to submit existing plans that meet or exceed the Commonwealth’s requirements rather than designing and submitting a new, Massachusetts-specific plan.

We are currently developing templates for employer-sponsored private plans to satisfy the medical leave benefit, the family leave benefit or both requirements, and will make these available to our Massachusetts clients as soon as they are completely vetted.

Need to catch up? You can read our prior review of the Massachusetts PFML here. Below is a timeline of the Massachusetts PFML journey from inception to launch, as currently represented by DFML.

Matrix has you covered! We’ve been watching for these developments and know employers have many questions that – we are hopeful – will be answered in the next few weeks.  In anticipation, we have scheduled webinars to be held on Tuesday, April 23 and Wednesday, April 24. Both webinars begin at 2:00 PM Eastern time. Click the day you prefer to attend and REGISTER today!

 

 

 

 

 

 

We can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

DOL to Employers: If it’s FMLA, it’s FMLA. If it’s not, it’s not.

Posted on: March 18, 2019 0

By Marti Cardi, Vice President Product Compliance Gail Cohen, Director Employment Law & Compliance

March 18, 2019

 

There is joy in my blessed li’l FMLA heart.  The US Department of Labor has issued a much-needed Opinion Letter addressing whether an employer or employee can elect not to apply the FMLA to a leave for an FMLA-qualifying event.  Spoiler alert:  The answer is NO.

This has never seemed like a gray area to me.  We blogged about this over 3 years ago.  (See prior blog posts here  and here.) As I said back then, “No, no, no!  The employee does NOT get to choose!”  The regulations are clear, and the DOL FMLA Branch Chief has spoken publicly on this issue. Yet many employers still think employees have the right to choose whether to use FMLA for a qualifying absence.

In the new Opinion Letter FMLA2019-1-A, the DOL addressed this specific question:  Can an employer delay application of FMLA to a leave that is clearly FMLA-qualifying and allow the employee to first use paid sick leave or other leave?

But the DOL went further. As stated in the Opinion Letter:

  • Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason,
    neither the employee nor the employer may decline FMLA protection for that leave.
  • Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying
    leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
  • Once the employer has enough information to make this determination, the employer must,
    absent extenuating circumstances, provide notice of the designation within five business days.
  • And so, the employer may not delay designating the leave as FMLA-qualifying even if the
    employee would prefer that the employer delay the designation.

When does this arise? Take a look at my friend Jeff Nowak’s blog FMLA Insights for a humorous example (and some additional guidance).  Here is another scenario. Your employee announces she is pregnant.  She also tells you that her husband needs surgery and she wants to take a week off to care for him during the operation and recovery.  But, she doesn’t want to use her FMLA time for that, preferring to reserve it for bonding following the birth of the child.  She’ll use her accrued sick leave and PTO instead:

EMPLOYEE: I am pregnant and want to take FMLA for bonding time after my baby is born.  I also need a week off to care for my husband following his surgery next month.  I want to use my sick leave for the time to care for my husband and save all of my FMLA for bonding.   Remember, care of my husband is an allowed use for sick leave under our policy.

YOU (the employer):  OK.

YOU (6 weeks later): Hey, you said you only needed a week off and you’ve been gone 2 weeks.  You are out of sick leave and PTO.  You’re fired.

EMPLOYEE: But you can’t fire me! My husband needed more time for recovery and care.  The time off was for an FMLA reason and I have job protection.

YOU: You said you didn’t want to use FMLA.

EMPLOYEE: Yes, but I wouldn’t have chosen that if I had known I wouldn’t have job protection during my leave!

What a mess.  I wonder who wins in front of a jury?

It’s OK to allow employees more time through company policies.  The Opinion Letter makes clear that an employer cannot designate time as FMLA in excess of the 12 (or 26) weeks, whether before OR after FMLA leave. If you want to be more generous, provide it through a company policy but don’t call it FMLA.  In fact, the FMLA regulations state that “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.”  29 C.F.R § 825.700.

But what about “substitution?”  Sometimes there is confusion due to the provision in the FMLA regulations that an employee may “substitute” other leave for FMLA leave.  But the regulations – and now the Opinion Letter – make it clear that paid leave provided by the employer will run concurrently with the unpaid FMLA leave.  29 C.F.R § 825.207(a).  As the DOL says in the Opinion Letter:

[P]roviding such additional leave outside the FMLA cannot expand the FMLA’s 12-week (or 26-week) entitlement under the FMLA. . . . Therefore, if an employee substitutes paid leave for unpaid FMLA leave the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

So here’s the deal, in my words:

  • The FMLA is a law that provides 12 (or 26) weeks of job-protected leave of absence for 5 qualifying leave
    reasons (key word: law).
  • Neither the employer nor the employee can change the law or choose not to follow it.
  • It’s the law.

Pings for Employers

  • Don’t allow an employee to decline FMLA coverage and protections for a leave you know, or have reason
    to believe, is for an FMLA-qualifying event.
  • Always provide the employee with the FMLA Notice of Rights and Responsibilities and Eligibility Notice
    within 5 days of the employee’s leave request. If you are not clear whether the leave is requested for an FMLA
    reason, be safe and provide the employee with the notices and the certification form.
    Failure to do so
    could be considered interference with the employee’s FMLA rights.
  • Don’t chafe about this rule if it is news to you: It’s actually to your benefit!  The rule gives you, the employer,
    some control over how much time your employees can take off and when. You get to choose whether and
    under what circumstances employees can take more company leave following FMLA leave by designing your
    policies accordingly
    .
  • If you live in states covered by the federal Ninth Circuit Court of Appeals, you may already be aware of the
    opinion in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014). In that case the court held that
    an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order
    to preserve FMLA leave for future use.  A few lower courts in other states have followed the Escriba decision.
    In the Opinion Letter the DOL explicitly rejects the Ninth Circuit’s holding.  This causes a conundrum for
    employers within those states – whether to follow the court’s ruling or the FMLA regulations and now this
    Opinion Letter.

I strongly support the DOL’s interpretation as the only logical result from the FMLA statute and regulations, and have always maintained that the Escriba decision is flat out wrong. (But then, they didn’t ask me!) For more discussion see our prior blog posts linked above. But, you should check with your own employment counsel for advice regarding the specific fact situation you are dealing with.

 

Matrix can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

Sit back and relax! Washington PFML reporting and payments to the state delayed by 3 months.

Posted on: March 14, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

 

We know employers have been on the edge of their seats wondering when and how they can begin their required Washington paid family and medical leave reporting for Q1 slated for April 1-30.

Well, calm yourself. 

The state just announced that first quarter employer reporting is being delayed until July 1-31, 2019.  Likewise, Q1 payments to the state for employer and employee premium contributions for those employers using the state PFML plan have been delayed.  At that time, employers will make 2 separate reports, and payments if applicable, for 2019 Q1 and Q2.

More information can be found on the state’s website, particularly the rollout FAQs and the email notice to employers.  One point of note: The delay in the reporting and payment deadlines for Q1 does NOT affect the start of PFML benefits on January 1, 2020.

We at Matrix have been watching the WA PFML website and announcements regularly for information about procedures for employers to fulfill their requirements for reporting and premium payments for Q1.  I’m guessing the state needs more time to get the technology in order.  Not a big surprise, considering they can’t even accept electronic payments yet for voluntary plan application fees.

The employees of the Washington Employment Security Department (ESD) who answer our calls and emails have been very kind to deal with and offer as much assistance as the statute allows.  But I hope other states in the process of implementing or considering paid family and medical leave are watching.  The PFML law passed by the state legislature did not allow ESD enough time to develop the program procedures, regulations, and technologies.  The ESD staff is left with tough questions and, sometimes, no good answers.  Hang in there ESD folks, and thanks for what you do!

Matrix can help!  At Matrix we offer administration of Washington voluntary plans for paid family and medical leave.  These include providing a plan template, filing the plan with the state, fielding ESD questions, and seeing the plan through to approval.  Then Matrix will administer the PFML leave and benefits for your Washington employees, along with other Washington statutory leaves, the FMLA, and your company policies.  For assistance and more information, contact us at ping@matrix.com or through your Account Manager.

Spice up your compliance with 50 Shades of FMLA!

Posted on: March 4, 2019 0

Are you struggling to manage FMLA gray areas such as intermittent leave or suspicious leave requests from employees?

The 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR, is the place to find answers and solutions that help you minimize risk in your organization and ensure you’re on the path towards ongoing compliance.

Our very own Marti Cardi, together with Jeff Nowak, will help you “color in” those gray areas of FMLA compliance. Read their recent blog post to get a peek under the covers of their general session, 50 Shades of FMLA: Dealing with Those Gray Areas.

This session is just one of many that will prepare you to confidently tackle your organization’s FMLA/ADA challenges. Check out the list of sessions and speakers online.

Early registration ends on Mar. 7. Don’t miss the chance to save $200! Secure your spot today.

 

 

New Jersey Forges Ahead with Increased Paid Family Leave Benefits and Job Protections

Posted on: February 27, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

As the first state to enact a mandated paid family leave law in 2009, New Jersey was the leader in this now-burgeoning field.   Currently, there are 4 states with PFL laws (CA, NJ, NY, RI), 3 more jurisdictions with new laws in the process of being implemented (DC, MA, WA), and 22 states (and counting) that have introduced PFL bills in 2019.

Not resting on its early accomplishments, New Jersey has now enacted a bill (AB 3975, the “Act”) that brings substantial changes and increased coverage to the state’s existing Family Leave Act (NJ FLA), the Security and Financial Empowerment Act (SAFE Act), and the paid family leave insurance program (NJ FLI).  Signed by Governor Murphy on February 19, 2019, some of the changes were effective immediately and others phase in later in 2019 and 2020.

Changes Galore.  The Act is lengthy and makes many changes to New Jersey’s FLA, SAFE Act, and FLI – far more than we can cover in this post. To make it easier to view the changes in context, here  is a link to a chart that provides a comparison of the basic provisions of each law.  Changes are shown in red, bold italics. Removed provisions are shown as such: as strike-through text.  All changes are effective immediately unless otherwise noted.

 

  • Covered relationships. The Act effects a significant expansion of the types of family relationships for which
    employees can take leave or receive benefits pursuant to the NJ FLA, SAFE Act, and NJ FLI.  This includes
    not only added relationships, but also removal of the age limit for care of a covered child with a serious
    health condition under NJ FLA and NJ FLI.  One good result is that covered relationships for whom an
    employee can take leave or receive benefits are now uniform across all 3 laws.   (Effective immediately.)
  • Lower threshold for covered employers. More employers will be required to provide job-protected leave
    under the NJ FLA, as the coverage threshold decreases from employers with 50 or more employees to those
    with 30 or more employees. (Effective June 30 or July 1, 2019 – the Act has conflicting provisions regarding
    effective date.)
  • SAFE Act leave now eligible for benefits. Employees who are, or whose family member is, a victim of
    domestic or sexual violence can now receive FLI benefits for leaves taken for reasons relating to such events.
    (Effective immediately.)
  • Increase in weeks of FLI benefits. Employees will be able to take more paid leave, as the FLI benefits period
    increases from 6 weeks to 12 weeks, or from 42 days to 56 days if taken intermittently.  (Effective for leaves
    commencing on or after July 1, 2020.)
  • Elimination of waiting period. There will no longer be a 7-day waiting period before an employee can receive
    paid leave; rather, benefits will start on the first day of a covered leave. (Effective for leaves commencing on or
    after July 1, 2019.)
  • Increase in benefits payments. Currently, employee benefits under FLI are paid at 2/3 of an employee’s average
    weekly remuneration (AWR), subject to a cap at 53% of the statewide AWR. In 2020 benefits will increase to
    85% of the employee’s AWR, capped at 70% of the statewide AWR.  (Effective for leaves commencing on or after
    July 1, 2020.)  These changes also apply to the state temporary disability benefits.
  • Increase in “wages” measurement. For calendar years beginning on and after January 1, 2020, an employee’s
    “wages” for purposes of contributions to the NJ temporary disability and paid family leave programs will increase
    from 52 times to 107 times the NJ statewide AWR, rounded up to the next higher multiple of $100.
    This rate will be determined as of September 1 each year, to be effective the following January 1.
  • Private plans. A private plan no longer requires approval by a majority of the employees to be covered by the plan
    unless the employees are subject to a collective bargaining agreement that does not expressly waive the
    employees’ 
    right to a majority election as a condition of the plan.  (Effective immediately.)

Employers can obtain more information and state assistance at the New Jersey Division of Temporary Disability and Family Leave Insurance website. The site is not yet up to date with the changes brought by the Act but nonetheless has helpful resources.

Matrix is ready!  Matrix is up to date and is managing leaves and benefits under the New Jersey Family Leave Act, SAFE Act, and Family Leave Insurance program in accordance with the new changes.  If we are administering state leaves of absence and/or the NJ paid family leave for your company the transition will be seamless and your employees will receive the leaves they are entitled to.  For those employers using the NJ state paid leave program, our initial information packets to employees will continue to instruct them to file for FLI with the state.

Massachusetts PFML Again – But Not Yet

Posted on: February 14, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

In our last blog post about Massachusetts Paid Family and Medical Leave (MA PFML), we boldly announced we would be holding Session 2 of our webinars on the law soon, targeting late February.  Well, it turns out that the draft regulations issued on January 23 by the Massachusetts Department of Family and Medical Leave (DFML) are very preliminary and the end of February is much too soon.  We have very little concrete information at this point so discussing the regulations would be quite speculative.  At the end of this post is a summary of the key provisions of the Massachusetts law itself.  In between, let’s share what we do know.

Status of the regulations:  The DFML is holding listening sessions on the draft regs around the state through February, during which they take questions and comments about the draft but do not answer any questions.  I attended the first listening session in Boston and came away with more questions than I started with!  However, I have the good fortune of meeting telephonically periodically with the state Deputy Attorney General who is leading the effort to draft the regulations, so I have been able to share all of my questions, suggestions, and concerns.  The DFML anticipates final regulations by the end of April, with an interim 2nd draft sometime between now and then. 

Employee and employer contribution rates:  One point that seems to be fairly settled is the contribution rates for PFML premiums, which start July 1, 2019. 

Here’s a rundown of what we know:

  • Total premium for both family and medical leave is 0.63% of employee’s wages up to the Social Security taxable amount ($132,900 in 2019)
  • Of that, 0.52% is for medical leave and 0.11% is for family leave
  • The employee pays all of the premium for family leave
  • The premium for medical leave is paid 40% by employee, 60% by employer
  • The net result is that the employer and employee each pay approximately 50% of the total premium
  • Employers can opt to pay for the employee’s share of premiums for the public plan or, in the case of a private plan, not collect premiums

That 0.52%/0.11% split between medical and family leave premiums is contained in the draft regulations so it’s still subject to possible revisions, but the DFML seems pretty set on those numbers.

Private plans:  Sometimes called voluntary plans in other states, the Massachusetts statute does allow employers to opt out of the state “public” plan and instead comply with the law via a private plan administered by the employer, TPA or insurance carrier.  Here is what we know so far:

A private plan must confer all of the same rights, protections and benefits provided to employees under the PFML law, including but not limited to:

  • Providing family leave to a covered individual for the reasons and for the number of weeks required by the law
  • Allowing family or medical leave to be taken intermittently or on a reduced schedule
  • Providing a wage replacement rate during all family and medical leave of at least the amount required by the law
  • Imposing no additional conditions on the use of family or medical leave beyond those explicitly authorized by the law or regulations
  • Using the same employee eligibility requirements as set by the law, and
  • Providing that the cost to employees covered by a private plan shall not be greater than the cost charged under the state program. 

An employer can choose to provide greater employee rights and benefits than those set by the law – e.g., a higher benefit rate or more weeks of paid leave.

Matrix is on it:  Watch this blog for updated information and dates for the next MA PFML webinar as things develop with state procedures and the regulations.  As we did in Washington, Matrix will prepare a Massachusetts private plan template for use by our clients who engage Matrix as their Massachusetts PFML TPA.  One advantage to working with the state on developing the regulations is that Matrix has been able to suggest regulations that will make having a private plan easier for employers and more beneficial to both employers and employees.

Summary of the PFML law

Here are the basic elements of the MA PFML, subject to elaboration and further development through the regulations:

Effective Date:                 

  • Premium contributions: 07-01-2019.
  • Benefits: Family member SHC: 07-01-2021.
  • All other reasons: 01-01-2021.

Administration:               

  • By state; private plans permitted; insurance permitted.

Employee Eligibility:    

  • Employee has been paid wages in the 4 quarters prior to leave amounting to at least 30 times the weekly benefit rate.
  • Includes former employees if eligibility is met at end of employment and leave commences within 26 weeks

Covered Employer:        

  • All; no minimum number of employees

Job Protection:                

  • Same or equivalent position

Leave Reasons:                

  • Employee’s SHC
  • Family member’s SHC
  • Bonding/parental leave
  • Military exigencies (same as FMLA)
  • Care for ill or injured servicemember

Covered Relationships:

FMLA and MA PFML

  •  Spouse
  •  Child
  • Parent

Additional MA PFML Family Members

  • Domestic partner
  • Parent-in-law (including parent of domestic partner)
  • Grandchild
  • Grandparent
  • Sibling

Duration (12 months):                  

  • Employee’s SHC (medical leave): 20 weeks
  • Family leave (bonding, care for family member, or military exigency): 12 weeks
  • Care for service member: 26 weeks

Maximum in 12-month period:

  • 26 weeks

Leave Calculation Method:         

  • “Benefit Year” — measured forward 52 weeks from the Sunday preceding the first day of the EE’s covered leave

Leave Use Increments:                 

  • No minimum increment
  • Continuous, intermittent, reduced

Funding:                                             

  • Family leave premium fully paid by EE
  • Medical leave paid 40% by EE, 60% by ER
  • Total premium = 0.63% of EE’s wages
  • Cap on wages subject to premium determined by Social Security program limit ($132,900 for 2019)
  • Split between family and medical leave premiums:
  • 52% for medical and 0.11% for family = 0.63%
  • Comes out to about 50/50 split in total between employer/employee

Benefits:                            

  • 80% on portion of employee’s Average Weekly Wages (AWW) equal to or less than 50% of state AWW, plus
  • 50% on portion of employee’s AWW greater than 50% of state AWW
  • State AWW is currently $1107.48 (Dec 2019)

https://ycharts.com/indicators/massachusetts_average_weekly_earnings_of_all_employees_private_service_providing_unadjusted

  • Maximum based on 64% of state AWW
  • Statutory cap of $850/week if 64% of AWW is higher

Voluntary Plans:              

  • Permitted for medical leave and/or family leave
  • Must be approved by state
  • Insurance permitted (but no details in law)

Effect on other laws:     

  • Concurrent with FMLA
  • There is no existing MA family/medical leave law
  • MA Parental Leave still in effect – 8 weeks for bonding

Draft regulations:           

  • Released 01-23-2019 – lots of work to be done yet!

Massachusetts PFML Rolls Forward – Draft Regulations Released!

Posted on: January 25, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

 

You know you are a compliance geek when the bright spot of your week is the release of new leave law regulations!  Yes, I’m guilty as charged – but I know I’m not alone.  Here’s the scoop:

On January 23 the Massachusetts Department of Family and Medical Leave (DFML) released draft regulations that start to flesh out the how-to’s of the Massachusetts Paid Family & Medical Leave law (PFML).  The regulations can be accessed from a link on the DFML home page.

 

We know you are eager to learn all about MA PFML, the new draft regulations, and what they mean for your business.  That’s why we will be holding webinars soon – presently targeted for February 27 and 28.

For more information and an invitation to the webinars, watch this blog, contact your sales or account manager, or send us an email at ping@matrixcos.com.

 

 

Kudos to the DFML for getting this document out somewhat early.  The MA law doesn’t require draft regulations until March 31 and final regs until July 1, 2019 – very late in the game, considering employer and employee contributions start on July 1.  However, the DFML is cognizant of the challenges employers will face getting ready for this new leave and benefits law so, truly, the sooner the better.  The Department also expects to finalize the regulations prior to that July 1 deadline.

Be aware, however, this version is very likely to change before being finalized.  For that reason, I am not going into much detail here about what the draft regulations contain.  The document itself states in a header on every page, “DRAFT – REGULATIONS UNDER DEVELOPMENT – FOR THE PURPOSE OF EARLY PUBLIC INPUT ONLY – 1/23/19.”

To this end, the DFML has scheduled 7 public listening sessions to gather comments on the draft regulations.   The sessions run from January 30 through February 19 at various locations around the state.  Dates and locations are available on the DFML home page.

At Matrix we are actively involved in keeping current on MA PFML developments, but we are also helping to shape these and similar regulations.  I lead a small group that has periodic conferences directly with the Massachusetts Undersecretary of Labor/General Counsel for the Executive Office of Labor and Workforce Development, who is leading the development of the MA regulations.  In addition I will attend the January 30 listening session in Boston while other Matrix representatives will attend other sessions around the state.

DRAFT REGULATIONS

Much of the content of the draft regulations is a repeat of provisions of the PFML law itself.  There are some details about claims documentation, time limits, and employer reporting obligations.  Much more is needed to define how to apply for and operate a private plan and how to administer claims.  I will be vocal in at the listening session and in my meetings with Commonwealth personnel.

KEY PROVISIONS OF MA PFML

High level, here are the key provisions of the MA PFML law:

Private plans.  Employers can meet their MA PFML obligations through a public plan administered by the Commonwealth or through a private plan for medical and/or family leave that offers benefits at least as beneficial to employees as the state plan.  The law also specifically recognizes that employers can obtain private insurance to cover their benefit obligations under a private plan.

 

Matrix can help!  We anticipate developing a model private plan to meet employers’ MA PFML obligations and assisting in administration once benefits go into effect starting January 1, 2021.  Many details are yet to be developed by the Commonwealth for such plans, so stay tuned.

 

Covered employers.  All employees of any size must comply with the law, although an employer with fewer than 25 employees in the Commonwealth is not required to pay the employer portion of the premiums.

Eligible employees.  An employee is eligible for leave benefits if he or she has been paid wages in the “base period” amounting to at least 30 times the weekly benefit rate.  The base period is the last 4 completed calendar quarters immediately preceding the first day of an individual’s benefit year.  Coverage includes benefits for former employees within 26 weeks of separation and independent contractors if the employee or contractor meets the eligibility requirement.

Funding.  The benefits will be funded at an initial rate of 0.63% of an employee’s average weekly wage (to be adjusted annually):

  • The premium for medical leave (employee’s own serious health condition)
    will be paid 40% by the employee and 60% by the employer
  • The employee pays 100% of the premium for family leave
  • The premium has not yet been apportioned between medical leave and family leave

Premium contributions.  Employers and employees must begin making premium contributions July 1, 2019.  Employers can, of course, choose not to withhold premium from employee paychecks and instead pay the employee share themselves.

Benefit amount.  Weekly benefits are paid based on a percentage of an employee’s wages:

  • Wages equal to or less than 50% of the state average weekly wage (SAWW) will be paid at 80%
  • Any portion of wages in excess of 50% of the SAWW will be paid at 50%
  • Initially, benefits will be capped at $850 per week. Thereafter, benefits are capped at 64% of the SAWW,
    to be adjusted annually.

Paid leave benefits start dates.  Paid leave benefits for all leave reasons except family member serious health condition begin on January 1, 2021.  Paid leave benefits to care for a family member with a serious health condition begin on July 1, 2021.

Leave reasons.  Leave reasons mirror those of the federal Family and Medical Leave Act (FMLA), which will run concurrently if both laws are applicable:

  • Employee’s serious health condition
  • Family member’s serious health condition
  • Bonding with a new child
  • Family military exigencies
  • Care for a seriously ill or injured service member

One difference employers will notice is that the list of family members for whom employees can take leave includes not just the employee’s parent, child, or spouse like FMLA, but also domestic partners, parents-in-law, grandparents, grandchildren, and siblings.  Any MA PFML taken to care for these additional family members will not count toward usage of the employee’s FMLA entitlement.

Leave duration.  Leave durations in a “benefit year” are up to:

  • 20 weeks for medical leave (an employee’s own serious health condition)
  • 12 weeks of family leave (care of a family member with a serious health condition, bonding, or military exigencies)
  • 26 weeks to care for a seriously ill or injured service member
  • An aggregate maximum of 26 weeks in a benefit year for all leave reasons

Benefit year.  All leave entitlements and usage are measured forward 52 weeks from the Sunday preceding the first day of the employee’s covered leave.  (Rolling forward, get it?)

Still geeking out?  Matrix held national webinars last year to help introduce and explain the Massachusetts PFML law.  If you can’t wait until the next round, you can do all your preparation here and be at the very front of the class!

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Ladies and Gentlemen, Start your Engines! State Paid Family and Medical Leave Legislation for 2019 is Here

Posted on: January 3, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

 

Even before Baby New Year needs a diaper change, New Hampshire is first out of the gate with a redux of its 2018 paid family and medical leave (PFML) bill.  A copy of the 2019 version text is not yet available but it is believed to be exactly the same as the 2018 version. 

In 2018 no fewer than 20 state legislatures introduced bills for some form of paid family and medical leave program.  The bills take many forms, from some fairly tepid proposals that would give employers who voluntarily provide paid family and/or medical leave a state tax credit, to full, mandated paid leave programs.  And among these, there are many variations as well:  programs completely run by the state; programs that allow an employer to adopt a private plan to comply with the state law; and programs that contemplate private insurance to fund and administer the paid leave program.

Every state put its own signature on its bill, but there were some common trends:

  • Putting the funding responsibility on employees, either entirely or together with a smaller employer contribution
  • Leave reasons that track FMLA, but often with more family relationships for whom an employee can take leave
    to provide care (common additions include siblings, grandparents, grandchildren, and domestic partners)
  • Requiring minimum leave increments of one work day or 8 hours

At Matrix we watch all the state legislatures through 2 daily tracking services. We also look at other factors such as the political makeup of the state legislature and the governorship. Based on 2018 activity and a strong Democratic presence in state elected positions for 2019, here is our list of states most likely to pass PFML legislation in 2019:

Colorado

Connecticut

Hawaii

Illinois

Maine

New Mexico

New Hampshire

Oregon

Vermont

 

 

Of course, it is unlikely that all of these states will pass something this year.  If they do, I’ll have to clone my team!  But we will track the introduction of bills and their movement through the legislatures, and we’ll let you know of any major developments through Matrix’s blog www.Matrix-Radar.com and our On Your Radar monthly updates.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Matrix Compliance Experts Take the Stage!

Posted on: December 11, 2018 0

Matrix’s Gail Cohen Co-Presents with EEOC Counsel at DMEC Webinar

By Gail Cohen, Director, Employment Law/Compliance

I had the privilege of presenting last week with Chris Kuczynski, Assistant Legal Counsel of the EEOC in Washington D.C. on “EEOC Insights into What Employers Still Get Wrong about the ADA.” The presentation was a webinar through the Disability Management Employer Coalition (“DMEC”).

In putting our materials together, Chris and I identified four ADA issues
that seem to be particularly challenging to employers. For those who
were unable to attend, here are the four topics we covered and key
best practice pointers we discussed:

  • Telework as a Reasonable Accommodation: Courts have often
    sided with employers who deny telework as an accommodation on
    the basis that the job requires teamwork and/or face-to-face
    collaboration with clients and/or colleagues. But beware! The
    EEOC will challenge employers who cannot demonstrate that
    this is truly an essential job function.  As a result, it is critical
    for employers to conduct a job analysis and confirm that the
    job description accurately captures the essential job functions as performed by employees. And, this job description
    should accompany any ADA-compliant medical inquiry the employer makes to the employee’s healthcare provider
    to understand whether telecommuting will assist the employee in performing his or her job functions, why it is
    necessitated by the employee’s condition, and whether the provider can suggest alternative accommodations the
    employer can offer.
  • Qualification Standards v. Essential Job Functions: Chris explained a distinction employers often get wrong –
    confusing qualification standards (requirements intended to predict whether someone can perform the job,
    such as having a college degree or a commercial driver’s license) with essential functions (what the person actually
    does on the job – lifting packages, selling things). The EEOC will challenge employers if a particular
    qualification standard has the effect of screening out prospective employees in a discriminatory fashion.
    Employers must be able to demonstrate that a particular qualification is both job-related and consistent with
    business necessity. This is sometimes unsuccessful, as borne out by a case the EEOC brought on
    behalf of a postal worker whose condition limited her to lifting 10 pounds and who challenged a 70-pound
    lifting standard that the employer was unable to demonstrate was job-related and consistent with business
    necessity. Indeed, the EEOC was able to demonstrate by talking to employees who performed the job that
    they never lifted more than 35 pounds.
  • Leave as Accommodation: The EEOC and courts agree that, in general, leave of absence is a reasonable
    accommodation. But employers: Don’t just grant leave because the employee asks for it. The EEOC agrees that
    it is entirely appropriate for an employer to conduct ADA-compliant medical inquiries when an employee
    requests leave as an ADA accommodation. Such inquiries will assist the employer to ascertain why the
    employee’s condition requires leave (continuous or intermittent), how much leave is necessitated,
    whether such leave will enable the employee to return to work and perform the essential functions of his
    or her job, with or without accommodation(s), and to explore alternatives to leave that may be effective
    for the employee to report to work.
  • Reassignment: Following an ADA leave of absence an employer must try to reinstate the employee. But, if the
    employee cannot be accommodated in his or her current role, the accommodation of last resort must be
    considered – reassignment. To the EEOC, this means the employer and employee working together to
    identify positions open now or in the foreseeable future for which the employee is qualified and which are
    substantially equivalent to his or her current role. The employer cannot simply sit back and let the employee
    search and apply for open positions.
  • BONUS OBSERVATION: During the Q & A following our presentation, an employer asked what can be done
    if an employee refuses to participate in the interactive process. Chris explained that an employer who has
    told the employee about the ADA process upfront, including the need for both parties to engage in good
    faith in an interactive discussion, and who has documented its good faith efforts to do so will likely
    prevail in an EEOC charge or other proceeding alleging failure to accommodate. The burden of proof
    in such matters is on the party who is responsible for a breakdown in the interactive process and,
    if an employee is that party, the employer is excused from any obligation to provide accommodation(s)
    to that employee.

DMEC members can listen to a recording of the presentation and obtain a copy of our presentation materials through these links:

  • Webinar recording: (Name and email are required to be directed into the recording)

 

Meanwhile, Marti is presenting too!

By Marti Cardi, Vice President, Product Compliance

While Gail was putting the finishing touches on her DMEC presentation with the EEOC, I had the opportunity to present a session at the National Workers’ Compensation and Disability Conference on December 5. The topic was “Return to Work without Violating FMLA, ADA and Workers’ Compensation Laws.” I don’t claim to be a workers’ comp expert so I partnered with Rich Montarbo, a great workers’ comp attorney from that challenging state of California. We discussed the many employer options as alternatives to leave of absence, or to shorten a leave and get employees back to work safely and legally. Our sister company Safety National posted a blog about the presentation so rather than rewrite the material, I will link you to that story here.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation requests and making the medical inquiries to which you are entitled to understand what an employee needs and how you can help. You always retain the final decision whether and how to accommodate, but Matrix manages the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

WASHINGTON STATE PAID FAMILY AND MEDICAL LEAVE MOVES FORWARD STEP BY STEP

Posted on: November 13, 2018 0

Employer Action Items and Resources

Washington paid family and medical leave is coming (PFML). Although leaves and benefits aren’t available until January 1, 2020, employers have decisions to make before employer and employee premium contributions start in January 2019.

You can read our prior blog posts for a summary of this up-coming law and significant developments at this link or enter “Washington” in the blog’s search box.

Employer Action Items. Time is ticking, and as a Washington employer you have things to do! At Matrix we are working with our clients and business partners to help them get ready for Washington PFML. Below is a list of key action items that all Washington employers, even those with a single employee, must address soon (and there will be more in 2019!):

  • Decide whether to use the state program or a voluntary plan. Unless and until you have an approved voluntary
    plan,
    you and your employees will be covered by the state program.
  • If you decide upon a voluntary plan:
    • Develop the plan and file for approval with state – allow 30 days for approval.
    • Make employer choices that are available with a voluntary plan, such as whether to use the accelerated
      payment option and whether to offer greater benefits (duration, amount, leave reasons, covered
      relationships) than required by state.
  • Determine whether you will deduct from employee wages or pay the employee premiums yourself (for state plan)
    or bear all costs by the company (for voluntary plan). If you choose to deduct employee premiums from paychecks:

    • Communicate with your payroll service about employee deductions.
    • Communicate to employees about deductions starting 1/1/2019 (we recommend including a brief overview
      of benefits coming 1/1/2020).
    • For a voluntary plan, set up a separate bank account to hold premiums deducted from employee wages.
    • For the state program, be ready to pay employee and employer premiums to the state quarterly, starting
      April 2019.
  • Post notices in your workplaces by the date required (to be announced by the state; we expect a state-issued
    form notice for employers’ use).
  • By 1/1/2020, review and revise existing STD policies/plans and other company leave policies to coordinate with
    the required Washington PFML benefits and ensure no duplication of benefits.

Matrix Resources. Matrix has developed a variety of resources to assist employers in preparing for Washington PFML, making the necessary choices, and developing a compliant voluntary plan:

  • Webinar on Washington PFML generally (recording available)
  • Webinar on voluntary plans specifically (recording available)
  • Washington PFML Comparison – State Program vs. Voluntary Plan
  • Washington PFML – State Program or Voluntary Plan? Employer Considerations
  • Sample voluntary plan

We can help you make the decision – state or voluntary – and file and administer your voluntary plan if that is your election. If you would like to receive any of these resources or discuss your options, the process, and more, contact your Matrix account manager or practice leader, or send your questions to us at ping@matrixcos.com. We are constantly updating and adding to our materials, so stay in touch!

Washington Resources. The Washington Employment Security Department (EDS) administers the PFML program. Its website has many resources for employers and employees. One of the latest additions is the Employer’s Toolkit, which provides an overview of the PFML program, employer responsibilities, premium calculations, and sample communications to employees about PFML, including a handbook insert, an email or blog notice to employees, and a paystub insert. Another helpful resource is the Voluntary Plan Guide which provides an overview of voluntary plan requirements.

The state is drafting and implementing rules that provide details on the PFML program, benefits, voluntary plans, the claims process, and more. The rules are divided by topic into 6 phases. All draft and final rules can be accessed on the ESD’s Rulemaking Page. Here is the status so far:

Keep watching this blog. We will provide updates as rules are drafted and finalized.

Matrix can help! Washington paid family and medical leave imposes many new employer obligations and challenges. We can help you through the morass. Call on your account manager or practice leader, or contact us at ping@matrixcos.com.

NEW YORK ADDS ORGAN DONATION TO STATE PAID FAMILY LEAVE REASONS

Posted on: November 12, 2018 0

Last month we addressed some leave of absence bills pending in various state legislatures.  New York’s governor has signed one of these bills into law, adding organ and tissue donation to the definition of “serious health condition” under the New York Paid Family Leave law (NY PFL).

Specifically, a serious health condition will now include “transplantation preparation and recovery from surgery related to organ or tissue donation.”  NY PFL only applies to leave to care for a family member with a serious health condition and other family leave reasons, so this will not affect employees’ own disability leaves. The law does not make any additional changes to the NY PFL, but it does include a prohibition against discrimination in the provision of life, accident, health, and long term care insurance based on the status of an insured as a living organ or tissue donor.

Definitions of “organ” and “tissue” are incorporated from the NY Public Health Law as follows:

4. “Organ” means a human kidney, heart, heart valve, lung, pancreas, liver or any other organ designated by the commissioner in regulation in consultation with the transplant council.

10. “Tissue” means a human eye, skin, bone, bone marrow, heart valve, spermatozoon, ova, artery, vein, tendon, ligament, pituitary gland or a fluid other than blood or a blood derivative.

What impact will this law have on family care leaves under NY PFL? Perhaps very little. Under NY PFL an employee is already entitled to take paid time off to care for certain family members with a serious health condition. This term is defined to include an illness, injury, impairment, or physical or mental condition that involves:

(1) inpatient care in a hospital, hospice, or residential health care facility; or

(2) three days of incapacity due to a medical condition and continuing treatment or supervision by a health care provider

It is hard to imagine a situation where an employee’s family member is an organ or tissue donor that doesn’t already satisfy one or both of these definitions of serious health condition.   As a result, there is not likely to be much, if any, increase in use of NY PFL to care for a family member due to this new law.

The text of the law can be accessed through a link on this page.   The new law goes into effect on February 3, 2019.

 

Matrix Can Help!

At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and other business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

MATRIX AND EEOC TO PRESENT AT DMEC ADA WEBINAR: The EEOC Weighs in on What Employers Still Get Wrong About the ADA

Posted on: November 9, 2018 0

by GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

I am pleased to announce that Matrix will be presenting at an upcoming DMEC webinar on December 6, 2018.  Our co-presenter will be Chris Kuczynski, Assistant Legal Counsel and Director of the ADA/GINA Policy Division of the EEOC.  The webinar, “The EEOC Weighs in on What Employers Still Get Wrong About the ADA,” will provide EEOC guidance and practical advice on the following tricky ADA issues often confronting employers:

 

  • Telework as a reasonable accommodation: What should an employer do when an employee asks for
    telework for reasons related to a disability?  Can the job be done from home?  What if the employee
    has performance problems?
  • Qualification Standards v. Essential Functions: What is a qualification standard, how does it differ from
    essential functions, and why does it matter?
  • Managing leaves of absence under the ADA: Inflexible leave policies may violate the ADA and an indefinite
    leave of absence is not a reasonable accommodation, but what can an employer do in the vast majority of
    leaves that fall in between?  How do you assess a leave request for reasonableness?  How do you manage
    multiple requests for extensions? What medical inquiries can you make?
  • Reinstatement and reassignment following leave: When, why, and for how long do you have to hold the
    employee’s specific job open? What are your obligations for reassignment?  When can you call it quits?

DMEC member groups may register for the webinar here: December 6th Webinar. Non-members may register for a $29.95 fee. Contact your Reliance Standard/Matrix account manager for information/assistance!

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

STATE LEAVE LAW UPDATES – WHAT’S HAPPENING IN YOUR NECK OF THE WOODS?

Posted on: October 22, 2018 0

California – New leave reason under paid family leave

California’s paid family leave law (CA PFL) provides up to 6 weeks of paid (but not job protected) leave of absence for family reasons. Current bases for which an employee can receive paid benefits include caring for a family member with a serious health condition and bonding with a new child.  Recently the California legislature passed, and the Governor signed, a bill adding military exigencies as a leave reason for which an employee can receive paid leave.  The events for which military exigency leave can be taken are the same as under FMLA, when the need is related to the military member’s active duty or call to active duty: 

  • Matters related to short-notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling (other than from a health care provider)
  • Rest and recuperation
  • Post-deployment activities
  • Care for the parent of the military member
  • Additional activities agreed to by the employer and employee

The new law will be effective January 1, 2021; not clear why the big delay! The law does not expand the total paid leave time available to employees under CA PFL, nor does it provide job protection for this leave. Eligible employees will continue to have job-protected military exigency leave for up to 12 weeks under FMLA, which will run concurrently if the leave is taken for a reason covered by both laws.  However, military exigency leave is not provided by the California Family Rights Act (CFRA).

 

Pennsylvania – Expanding FMLA-like leave rights to care for more family members

The Pennsylvania legislature has revived a bill first introduced in 2017 that, if enacted, would provide FMLA-like leave based on additional family relationships and leave reasons.  Senate Bill 479  seeks to add siblings, grandparents, and grandchildren as family members for whom an employee can take job-protected leave, but only in very limited circumstances. The state bill incorporates some of the federal Family and Medical Leave Act’s provisions, such as employee eligibility rules and the definitions of employee and employer.

The additional family relationships for which leave would be provided are:

  • Grandparent: a biological or adoptive grandfather or grandmother or step-grandfather or step-grandmother
  • Grandchild: a biological or adoptive grandson or granddaughter or step-grandson or step-granddaughter
  • Sibling: a biological or adoptive brother or sister or stepbrother or stepsister

But, leave can be taken for these family members ONLY if the grandparent, grandchild, or sibling:

  • Has a certified terminal illness AND
  • Does not have a living spouse, child over 17 years of age or parent under 65 years of age

The bill, if passed, will provide 6 weeks of leave in a 12-month period that must be taken in minimum increments of one week. The leave will not run concurrently with FMLA because the new family relationships are not covered by FMLA. Conversely, however, FMLA leave taken will reduce an employee’s leave entitlement under the state statute.  How that provision will work is not entirely clear, but presumably the state is trying to provide leave for additional reasons without increasing an employee’s total leave entitlement in a 12-month period to more than the 12 weeks provided by the FMLA.

The bill also contains employee notice and certification provisions.

 

New York – Lingering attempts to expand leave reasons under the Paid Family Leave Act

New York’s Paid Family Leave Act (NY PFL), which went into effect on January 1, 2018, currently provides paid leave for bonding, caring for a family member with a serious health condition, and military exigencies related to a family member’s active duty deployment.  Benefits in 2018 are 8 weeks of leave paid at 50% of the employee’s average weekly wage (subject to a cap).  Those will increase to 10 weeks at 55% in 2019.  We provided a summary of the changes in this prior post.  For a refresher on NY PFL and other recent developments, check out our earlier posts on this blog by searching “New York.”  For more information, the official state website is here.

Several bills are currently pending in the New York legislative process for possible expansion of available leave reasons.  Here is a summary of the most pertinent.

Bereavement.   New York Senate Bill 8380A has passed both houses of the New York legislature and is awaiting (since June!) the governor’s signature or veto.  If passed, the bill adds bereavement due to the death of a family member as a leave reason for NY PFL.  Opponents of the bill point out that there is no time limit on usage of bereavement leave in relation to the date of the family member’s death, no limit on how much time can be used, and no limit on usage increments – so the employee can use bereavement leave in one-day increments as with other leaves under NY PFL.

Organ & tissue donation.  New York Senate Bill 2496 is also awaiting the governor’s signature. If signed, this bill will amend NY PFL to add “transplantation preparation and recovery from surgery related to organ or tissue donation” to the definition of serious health condition.  The bill does not make any additional changes to the NY PFL, but it does include a prohibition against discrimination in the provision of life, accident, health, and long term care insurance based on the status of an insured as a living organ or tissue donor.

Domestic violence.  Also pending, but farther back in the legislative process, is Senate Bill No 7723 that would add matters related to domestic violence as reasons for which an employee can take NY PFL.  Types of activities covered include getting medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, relocating to a permanent or temporary residence.  The bill limits the amount of paid leave available for these reasons to 2 weeks, plus an additional 2 weeks of unpaid leave.  This bill has not made any headway in the legislature since early this year, but is still alive.  We previously provided details about this problematic bill here.

Matrix Can Help!

At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and other business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

Feds Issue Guidance on Tax Credit for Paid Family and Medical Leave Benefits – and a Possible Extension?

Posted on: September 25, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

 

On September 24, 2018, the federal Office of Associate Chief Counsel (Tax Exempt and Government Entities) issued a Notice providing guidance on the employer tax credit for paid family and medical leave under §45S of the Internal Revenue CodeNotice 2018-71 does not have the force of regulations which are yet to come, but it does offer employers with much-needed interpretive direction on how the tax credit works and what an employer must do to claim the credit.

We previously blogged about the tax credit when it was passed, and I am happy to say that nothing in the Notice contradicts our interpretations back then.  You can read our summary of the tax credit hereI suggest you go back and read our prior blog post before proceeding here – it will all make more sense!

Possible extension of tax credit.  The tax credit is set to expire on December 31, 2019 – and so is in effect for only 2 years! However, on September 6 the US Senate introduced a bill (S. 3412) that would extend the tax credit by 3 years, through December 31, 2022.  This bill also would require a study to examine the effectiveness of the tax credit for paid family and medical leave.  We’ll be watching and will report any significant movement on that bill.

Highlights of Notice 2018-71.  The Notice has questions and answers on the following topics:

  1. Eligible Employers
  2. Family and Medical Leave
  3. Minimum Paid Leave Requirements
  4. Calculating and Claiming the Credit
  5. Effective Date

Here are some of the more helpful bits of guidance.  All of these answers and examples depend, of course, upon the employer’s policy otherwise meeting all the requirements for the paid leave tax credit.

  • Required policy provision – non-interference. Employers may voluntarily provide paid family leave to employees
    who are not eligible for FMLA leave (called “added employees” in the Act) and receive the tax credit for such
    payments as long as the employer has a policy that complies with the Act. One of the policy requirements is a
    provision against interference with the employee’s policy rights to paid leave, and a provision against termination
    of an employee for complaining about a violation of the policy.  The Notice provides some sample language for
    a policy provision that will satisfy this requirement.  Q&A 3
  • Effective date of tax credit for your policy. An employer’s written policy demonstrating compliance with the tax
    credit law must be effective before the paid leave is taken; but for 2018, this can include a policy with a retroactive
    effective date if the employer pays the leave benefit to any employees who took leave after the retroactive
    effective date. Q&A 5 and 6
  • Purposes for use of paid leave. The employer’s paid leave must be available only for FMLA leave reasons to
    qualify for the tax credit.

    • So, for example, a paid leave policy that allows an employee to use the paid leave for vacation as well as
      FMLA leave reasons would not qualify for the tax credit. Q&A 9
    • On the other hand, a policy that limits the pay benefit to FMLA-covered reasons but includes family
      relationships not covered by the FMLA (g., siblings or grandparents) will get partial coverage by the tax
      credit. Any leave time taken to care for a spouse, for example, will qualify for the tax credit, while other
      time taken to care for a sibling will not, even it the employee provides a pay benefit for both.    Q&A 10
    • The employer’s policy does not need to provide paid leave for all FMLA leave reasons. The Notice
      provides the example of an employer who offers 6 weeks of paid leave only for parental/bonding leave.
      Any paid leave provided pursuant to that policy will qualify for the tax credit even though other FMLA
      leave reasons are not covered.  Q&A 9
  • Existing short term disability plans can count! Paid leave provided under an employer’s short-term disability
    program, whether self-insured by an employer or provided through a short-term disability insurance policy,
    may be characterized as family and medical leave under § 45S if it otherwise meets the requirements for the
    tax credit. Q&A 11

The Notice provides much more information and examples regarding calculation of wages, the tax credit, and many other issues.  If your company is considering taking advantage of this tax credit, do yourself a favor and read the full Notice.

PINGS FOR EMPLOYERS

Our recommendations at this time remain the same as when we first blogged about the federal PFML tax credit.  Remember, Matrix is not a tax or financial advisor, so you need to:

  • Consult your tax advisor. As with all things tax-related, you should consult with your tax advisor to determine
    whether your existing plan is covered by the new paid leave tax credit or what changes you need to make to
    qualify.
  • Consult your financial advisor. If you don’t have a paid leave plan for your employees, consult with your financial
    (and tax) advisor to determine whether the incentive provided by the tax credits is enough to justify offering a paid
    leave benefit to your employees.
  • Consider benefits beyond monetary. In this day of strong competition for good employees, remember that a
    superior benefits package can be a lure.  But, with the tax credit scheduled to last only two years, also consider
    whether your company can continue the benefit if the tax credit expires on December 31, 2019. Even if the law
    is extended by 3 years as proposed by Senate bill 3412, taking away the benefit might not be a good employee
    relations move at a later date.

 MATRIX CAN HELP!

As state and federal programs proliferate, Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.

If you have questions, contact your Account Manager or ping@matrixcos.com.

Washington State PFML: Open for Business on Voluntary Plans; Proposed Phase Three Rules Released

Posted on: September 17, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

I wish I could receive Frequent Flyer miles for all the “trips” I am making back and forth between the East and West Coasts, covering developments in state paid family and medical leave programs. The most recent news is 2 tidbits from Washington State.

Voluntary Plans Now Being Accepted.  All employers must provide paid family and medical leave benefits to their employees, but the state provides the option of using the state plan or a “voluntary plan” administered by the employer or a third party administrator or insurer.  A voluntary plan must be approved by the state before it is effective.  As of September 17, the state is accepting applications for approval of voluntary plans.   Employers can apply and file their plans for approval here.  That site also provides lots of helpful information for employers considering a voluntary plan.  An employer must complete the application, submit a copy of its voluntary plan, and pay a $250 fee before the application will be considered complete.  Because the process is brand spankin’ new, the ESD is not yet providing information regarding how long it will take to get plan approval (or rejection). 

Matrix will offer administration of voluntary plans for our clients.  We’re developing a sample voluntary plan that our clients may choose to use, with appropriate employer-specific provisions.  We anticipate this will be ready for client review by approximately October 1 – but it is a detailed process so bear with us as we work to develop a top-notch plan.

Proposed Phase Three Rules Released

The state has released the draft rules for Phase 3 of the state’s PFML rulemaking process.  Sounds dry – and it is – but these rules, once finalized, give employers and TPAs like Matrix more detailed information regarding how to comply with the Washington paid family and medical leave law.

The Employment Security Department (ESD) is charged with developing the rules and, ultimately, administering and enforcing the law.  We wrote about the rules in a prior blog post.  At that time ESD was only planning on 4 rulemaking phases.  This has now been expanded to 6 phases.  The details change periodically as circumstances necessitate.  You can keep an eye on the timeline – if you care to! – on the state’s PFML Rulemaking site, or you can watch this blog for updates.  All proposed and final rules are also available on that page.

The Phase Three Proposed Rules cover benefit applications and benefit eligibility.  Here are some highlights:

  • Definitions:
    • Under the WA PFML statute, parents who are entitled to take paid leave include “de facto” parents and
      those in loco parentis to the child. A “de facto parent” is someone who has fully committed to the parental
      role with the consent of the legal parent.  Someone in loco parentis to a child has intentionally taken over
      parental duties and is responsible for the child’s well being.
    • A “claim year” is the 52-week period starting on the date of birth or placement of a child, for bonding leave,
      and on the date a completed leave application is filed for all other types of family and medical leave.
      NOTE:  This appears to create a situation where, for foreseeable leave other than bonding, the employee only
      has 11 months in which to take the leave, since the claim year includes the 30-day advance notice period. 
  • Employee notice to employer:
    • An employee must give notice of the need for leave at least 30 days in advance for foreseeable leave, and
      as soon as practicable when the employee becomes aware of the need for leave less than 30 days in advance.
      Generally this means notice the same or next business day once the employee is aware of the need for leave,
      but the employer should take into account the particular facts of the employee’s situation.
    • The employee’s notice to the employer must be in writing (hallelujah!) and must include the anticipated timing
      and duration of the leave. Under the proposed rule, written notice includes “handwritten, typed, and all forms
      of written electronic communications, such as test messages and email.”
    • If an employee provides late notice (presumably without extenuating circumstances) the employee’s benefits
      can be denied for the period of time the notice was late. NOTE:  The proposed rule does not specify exactly
      what this denial of benefits means:  Does the time off still count toward the employee’s paid leave entitlement
      to shorten the remaining time and benefits available, or is it more of a delay of benefits, with the employee still
      able to take the full 12 weeks of leave (or 16 or 18 weeks, depending on circumstances)?  Does the employee
      have job protection but not benefits, or no protections or benefits under the law at all during the period
      of late notice?
       
  • Initial application for benefits:
    • Employees must make application through the procedures the state will make available, or as defined in
      a voluntary plan if the employer elects this route.
    • An employee must support each claim for benefits with documentation as specified in the rules: For the
      employee’s own serious health condition or to care for a family member, the employee must provide a
      certification from a health care provider documenting the serious health condition and other relevant
      information.  For bonding, acceptable documentation includes a birth certificate, court documents, or
      other written documentation.  For military exigencies, documentation includes military orders but a
      “statement” to show why the leave is necessary is also acceptable.  NOTE:  The proposed rule does not
      explain from whom the statement must come.  Must the employer accept a written statement of the need
      for leave from the employee him/herself?
    • An employer can require the employee to provide documentation of a familial relationship to support
      benefits eligibility, such as a birth or marriage certificate or court document.
    • The proposed rules provide explanations of how an employee’s average weekly wage and weekly benefits
      are calculated. We’ll wait until these are finalized before diving into a big discussion here.
    • Hourly employees’ “typical workweek hours” are determined by dividing the total hours worked in a
      qualifying period by 52. NOTE:  This does not take into account that, according to informal guidance from
      the ESD, it is possible to establish eligibility in fewer than 4 prior quarters.  So for example, dividing hour
      worked in 3 quarters by 52 would significantly understate the employee’s typical work week.
    • If an employer is using the state benefits plan, the ESD will send the employer notice when an employee
      has applied for benefits. NOTE:  There is no time specified by which ESD must send this notice to the employer.

An observation:  So far, the final Phase One rules and the proposed Phases Two and Three rules have not added much substance.  Compared to the federal FMLA regulations that really flesh out FMLA rights and procedures, the WA PFML rules so far seem more to provide tiny slivers of information, in some cases merely repeating things already in the statute itself.  It appears that much of the real details will have to be developed over time through experience.  Good luck, employers!

Matrix can help!  As always, we are tracking and analyzing developments regarding the Washington Paid Family and Medical Leave Program.  Matrix will offer development and administration of voluntary plans for those employers who choose this route rather than putting themselves in the hands of the state.  With  required employee and employer premium payments beginning in 2019 and benefits beginning in 2020, it’s time to get started!.  If you have questions, contact your Account Manager or ping@matrixcos.com.

 

Meanwhile, Back in New York  . . .  Increases in PFL Benefits, Durations, and Premiums

Posted on: September 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

Here we are, 8 months into the first year of paid family leave in the state of New York.  My attention, and that of many employers, has been diverted somewhat to the upcoming paid family and medical leave law enacted by the state of Washington, with premium collections beginning in January 2019. (For more information on Washington, you know where to go: www.matrix-radar.com, and search for anything about Washington.) 

But New York marches on, and we are closing in on changes to the NY PFL program that will go into effect January 1, 2019.  The statute itself has built-in annual increases in the employee benefits percentage and leave duration for the 3 years after implementation.  In addition, the Superintendent for the NY Department of Financial Services is to publish by September 1 of each year the rate for employee premiums for the policy period beginning on the following January 1. That information was released on August 31, 2018, and is available here.

Here’s how NY PFL premiums and benefits compare from 2018 to 2019:

Effective Duration State Annual Weekly Wage (AWW) Employee Premium* (capped at same % of state AWW) Maximum Employee Premium Employee Benefit (capped at same % of state AWW) Max Benefit per Week
Jan 1 – Dec 31, 2018 8 weeks $1,306 0.126% of employee’s weekly wage $1.65 / week

 

$85.56 / year

50% of employee’s AWW $652.96
Jan 1 – Dec 31, 2019 10 weeks $1,357.11 0.153%  of employee’s gross wages each pay period $2.08 / week

 

$107.97 / year

55% of employee’s AWW $746.41

*The state uses slightly different terminology to describe the employee’s payroll contributions in 2018 and 2019, but the result should be the same – take the premium out of the employee’s paycheck at the proper percentage of that pay period’s wages until the maximum annual employee premium has been met.

Carryover of leaves from 2018 to 2019

At this point, one pressing question on employers’ minds is how much leave and benefits are available if an employee’s leave starts in 2018 but carries over into 2019? Here are some FAQs from the NY PFL website update for 2019:

  • If I start my continuous leave in 2018, and it extends into 2019, am I eligible for the benefits at the
    2019 rate and an extra two weeks?

    You get the benefit rate and number of weeks in effect on the first day of your leave.

Managing an intermittent leave that carries over is – of course! – more complex:

  • If I start my intermittent leave in 2018, and it extends into 2019, am I eligible for the benefits at the
    2019 rate and an extra two weeks?

    You get the benefit rate and number of weeks in effect on the first day of a period of leave. When more than
    three months passes between days of Paid Family Leave, your next day or period of Paid Family Leave is
    considered a new claim under the law. This means you will need to file a new Request for Paid Family Leave
    and that you may be eligible for the increased benefits available should this day or period of Paid Family
    Leave begin in 2019.

Remember that, in all events, the amount of leave an employee can take is measured looking back 52 weeks from the date of most recent usage.  Here is an example of how to assess an employee’s leave rights in 2019 if the employee used all 8 weeks available in 2018:

  • I used all eight weeks of PFL in 2018. Can I take more PFL in 2019 if I experience another qualifying event?
    If you experience another qualifying event in 2019, you may be eligible for up to two weeks of additional leave.
    The maximum amount of leave in 2019 is 10 weeks in a 52 week period. If you took eight weeks of PFL in the last
    52 weeks, and have another qualifying event in 2019, you may be limited to two weeks at the new rate, since it is a
    rolling calendar. When it has been 52 weeks from your 2018 leave dates, you will accrue a new week of available PFL,
    up to another eight weeks.

MATRIX CAN HELP!

As state and federal programs proliferate, Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.

If you have questions, contact your Account Manager or ping@matrixcos.com.

DOL issues New “Safe Harbor” FMLA Certifications

Posted on: September 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

The Department of Labor recently issued updated versions of certifications employers can use when employees ask for FMLA leave. The new certifications are in effect until August 31, 2021. However, only the expiration date has changed.

The older forms with an expired date are still fully compliant with the FMLA but do tend to cause questions. Remember, these are just “safe harbor” forms; they are not mandatory. As many of our readers and employer clients have experienced firsthand, the DOL certification forms do not always provide employers with a “complete and sufficient certification.”

As a result, Matrix has developed its own certifications for employee’s own serious health condition and for a family member’s serious health condition that we use for managing our clients’ FMLA claims. These customized forms have resulted in fewer incomplete or unclear certifications, leading in turn to more expedient and efficient adjudication of FMLA entitlement. Matrix will be using the DOL certifications with the new expiration dates for military exigencies and for care of an ill or injured servicemember or veteran.

The new DOL forms are available here.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.

If you have questions, contact your Account Manager or ping@matrixcos.com.

New DOL FMLA Opinion Letters – Organ Donation and No-Fault Attendance Policies

Posted on: August 31, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee, or other entity requesting the opinion. Thus, it provides an official, reliable interpretation of the FMLA and its regulations.

We may not always agree with the Division’s opinion, but at least we know where the agency stands!

On August 28, the DOL issued two new FMLA opinion letters:

Is incapacity due to organ donation covered by FMLA?

Opinion Letter FMLA2018-2-A offers guidance on whether time missed due to an organ donation is covered by the FMLA. Specifically, can an otherwise healthy employee, who does not himself suffer from a serious health condition, take FMLA to undergo organ donation surgery, recover from surgery, and receive other postoperative treatment?

The DOL concluded that the answer is “yes.”

As our readers know, for an eligible employee to take FMLA for his own condition he must have a serious health condition. This term generally indicates that the employee has an “illness, injury or mental or physical impairment” that requires “inpatient care” or “continuing treatment” and that makes the employee unable to perform the functions of his job  The DOL reasoned that the treatment itself the employee must undergo in connection with an organ donation renders the time associated with doing so a qualifying serious health condition. The surgery to donate an organ typically involves a stay in a hospital for one or more nights, which qualifies as “inpatient care.” Once the definition of a serious health condition is met, other periods of incapacity related to the serious health condition, such as recovery and postoperative treatments, will also be FMLA-protected absences.

Although not directly stated, the implication is that it doesn’t matter if the serious health condition arises from a voluntary situation – in this case, donating an organ to someone else. If the employee’s health situation meets one of the definitions of a serious health condition, absences are covered by the FMLA.

This is certainly an elaboration on the common understanding that, in general, the employee has to have an existing condition that necessitates time away from work for treatment. With this opinion letter, the DOL makes it clear that even if there is no existing serious health condition, elective treatment that creates a serious health condition can support FMLA leave and job protection. Another example where this might apply is infertility treatment. The condition of infertility is not an incapacitating condition but the treatment may incapacitate the employee and therefore provide FMLA protections.

PINGS FOR EMPLOYERS:

  • Always analyze whether an employee has a serious health condition in accordance with the definitions
    in the regulations. Even those conditions that the DOL notes will not typically be a serious health condition
    (the common cold, the flu, etc.) might qualify if the employee’s condition, incapacity, and/or treatments meet
    one of the definitions.
  • Don’t be influenced by whether the employee’s serious health condition is brought on by voluntary treatment
    for the benefit of the employee such as cosmetic treatments or for the benefit of others such as organ or
    bone marrow donation.
  • Judge each situation on its particular facts; don’t make assumptions based on the nature of the
    employee’s condition.
  • Remember that some states have laws that protect employees who need leave to donate an organ,
    bone marrow, and other human tissue. You can refresh yourself on these laws with our prior blog post here.

No-Fault Attendance Policies Done Right!

The DOL’s other August 28 opinion letter (FMLA2018-1-A) relates to an employer favorite – no-fault attendance policies. These are polices where an employee’s absence, no matter what the cause, is counted against the employer’s attendance point system. Once an employee accrues a pre-set number of absences, she is subject to discharge per employer policy. Points usually roll off the employee’s record after a certain period of time, such as 12 months after the absence. The catch is that absences attributable to FMLA leave cannot be counted toward an employer’s attendance policy.

An employer posed this question to the DOL: Does an employer’s no-fault policy violate the FMLA if it is put on hold during FMLA leave and the employee returns to work with the same number of attendance points as he had accrued prior to the start of leave? The DOL says no, as long as the policy is applied in a nondiscriminatory (read: consistent) manner.

Under this employer’s policy, attendance points remain on an employee’s record for 12 months. But, if the employee goes on FMLA leave, the employee’s accrued points at the beginning of the leave remain and do not roll off during the leave.

The DOL recognized that the FMLA does not entitle an employee to superior benefits or position simply because he or she took FMLA leave. (e.g., 29 C.F.R. § 825.214.) Removal of absenteeism points is a reward for working and therefore an employment benefit under the FMLA. If the number of accrued points remains effectively frozen during FMLA leave under the employer’s attendance policy, an employee does not lose a benefit that accrued prior to taking the leave. According to the new opinion letter, the DOL’s longstanding position is that such practices do not violate the FMLA, as long as employees on equivalent types of leave receive the same treatment.

On the other hand, if the employer counts equivalent types of leave as “active service” under the no-fault attendance policy—meaning the employer counts such leave toward the twelve months necessary to remove points—then the employer may be unlawfully discriminating against employees who take FMLA leave.

PINGS FOR EMPLOYERS:

  • Review your “no-fault” attendance policy to ensure that it does not penalize employees for absences
    attributable to FMLA reasons.
  • Treat any policy regarding “freezing” of attendance points accrual or roll-off the same for FMLA absences
    as for any other types of absences (for example, absences attributable to a workers’ comp injury or pursuant
    to a personal leave policy).

For more background on DOL opinion letters, you can review our prior blog post.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.

If you have questions, contact your Account Manager or ping@matrixcos.com.

Bring it On – Washington Paid Family and Medical Leave!

Posted on: August 23, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

 

Reliance Standard and Matrix are planning a series of Webinars to keep you up to date on this topic. The first series will be August 28 and 29, 2018 @ 11:00 am PDT / 2:00 pm EDT and will be hosted by Marti Cardi, Vice President Product Compliance, Dave Lea, West Coast Regional Practice Leader and Chris Smith, Practice Leader, Leave, Disability and ADA.

Please click here  to register for the 28th and here  for the 29th.

Starting in 2020, Washington will be the fifth state in the nation to offer paid family and medical leave benefits to workers. The program will be funded by premiums paid by both employees and employers. This paid leave law will allow workers to take, in a 12 month period:

  • Up to 12 weeks of paid leave when they welcome a new child into their family, need to take care of an
    ill family member, and for certain military-related family needs.
  • Up to 12 weeks for the employee’s own serious health condition. An additional 2 weeks of paid leave may
    be available if the serious health condition is pregnancy-related,
  • If workers experience multiple events in a given year, leave entitlement is capped at 16 weeks total for all
    leave reasons, (or up to 18 weeks if the employee’s serious health condition is pregnancy-related.
When does WAPFML go into effect?

Employers must start collecting benefit premiums from employees on 1/1/2019. Employee premiums and the employer’s premium contribution must be paid to the state quarterly throughout 2019 unless the employer has a state approved voluntary plan.

Below are some Key Issues and Provisions that you need to know right now.

Issue Provision
Effective Date ·   Premium contributions: 01-01-2019

·   Benefits: 01-01-2020

Employee Eligibility ·   Must work 820 hours in the “qualifying period,” defined as the first  4 of the prior 5 calendar quarters; OR

·   If the employee is not yet eligible, the preceding 4 calendar quarters.

·   [Equates to about 15.75 hours per week over 4 quarters]

 

Covered Employer All private employers, the state and subdivisions, and units of local government; no number of employees threshold
Job Protection ·   Employees covered by state plan:

     o   Works for an employer with 50 or more employees

     o   Has worked for employer for 12 months at start of leave

     o   Has worked 1250 hours in past 12 months at start of leave

·   Employees covered by a Voluntary Plan:

     o   Has worked for employer 9 of last 12 months at start of leave

     o   Has worked 965 hours in past 12 months at start of leave

Leave Reasons ·   Employee’s own serious health condition (defined same as FMLA)

·   Family member’s serious health condition

·   Bonding with new child (birth, adoption, foster placement)

·   Military exigencies (same as FMLA)

Duration in a 12-month period ·   Medical leave (employee’s serious health condition): 12 weeks

     o    2 additional weeks if employee experiences a serious health condition with a pregnancy that results in incapacity

·   Family leave (bonding, care for family member, or military exigency): 12 weeks

·   Maximum in 12-month period:

     o    16 weeks combined total for medical and family leaves

     o    18 weeks if employee experiences a serious health condition with a pregnancy that results in incapacity

Leave Calculation Method All leaves entitlements are measured forward 12 months from date of:

·   Birth or placement, for bonding

·   Employee’s filed application for leave benefits for all other leaves

Leave Use Increments ·   Full-hour increments

·   Minimum of 8 consecutive hours of leave

Covered Family Members ·   Child (any age)

·   Parent (includes step and in-laws)

·   Spouse

·   State-registered domestic partner

·   Sibling

·   Grandparent

·   Grandchild

 

Benefit Amount
AWW = average weekly wage
·   Employees who make 50% or less than the state’s AWW will receive 90% of their AWW.

·   Employees who make greater than 50% of the state’s AWW will receive:

      o    90% of their wages up to 50% of the state’s AWW; PLUS

      o    50% of their AWW in excess of 50% of the state’s AWW (subject to the $1000 cap)

Maximum benefit ·   2020: $1,000/week

·   Adjusts annually as of September 30 each year; effective the next January 1

Waiting Period ·   No waiting period for bonding leave

·   7 day waiting period for all other leave reasons

Funding Mechanism

 

AWW = average weekly wage

·   Net result: Employee pays 67%, employer pays 33%

·   2019 and 2020: total premium for medical and family leave benefits of 0.4 percent of employee’s wages, capped at the state’s AWW; then annual adjustments

·   Premium for medical leave (employee’s own SHC) = 2/3 of tot premium

      o    Employee pays 45% of this

·   Premium for family leave = 1/3 of total premium

      o    Employee pays all of this

·   Employer may elect to pay all or a portion of the employee’s share of the premium

Administration WA Employment Security Department
Existing Employer Paid Leave Benefits Employers may:

·   Adopt or retain leave policies more generous than any policies that comply with the requirements of the WA Family and Medical Leave Program ; or

·   Make payments to supplement the benefit payments provided under the Program to an employee on family or medical leave.

Employer Voluntary Plan ·   Detailed provisions for employer voluntary plans that offer benefits at least as beneficial to employees as the state plan

·   No provisions (or prohibitions) for insured voluntary plans

 

Relationship to Existing WA Family Leave Act The existing WA Family Leave Act will be repealed as of 12-31-2019, the day before the new PFML program goes into effect.  No information yet on how leaves started in 2019 will carry over interact with the law effective for leaves 1/1/2020.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

The Work/Life Squeeze – Focus on Caregiver Leaves

Posted on: August 6, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

 

It is not often that trends in life, legal issues, and employment practices coincide, but we are in that situation now.  Increasing numbers of employees have caregiver responsibilities for family members – children, elderly parents, family members with health needs, and others. The legal protections for caregiver employees are broad and numerous, and growing every year.  Some employers are trying to get ahead of these issues by implementing family-friendly policies and benefits to assist employees dealing with caregiver responsibilities.   With approximately 1 in 6 American workers concurrently serving as caregivers for family members, we are seeing:

  • An increase in state laws that provide workplace protections and benefits – think state paid family and
    medical leaves like California, New York, and others. Washington State, District of Columbia, and
    Massachusetts have passed PFML laws and are on the horizon.   Watch this blog for reports on developments.
  • An increase in family caregiver benefits offered voluntarily by employers – partly to be competitive in this
    tight hiring market but also because it is the right thing to do. You can take look at what leading companies
    are doing regarding voluntary paid maternity, parental, and caregiver leave benefits in this resource from the
    National Partnership for Women and Families:
    Leading on Leave: Companies With New or Expanded Paid Leave Policies (2015-2018).
  • Increased employee success in lawsuits and EEOC charges based on caregiver responsibilities. For an excellent
    summary, check out   Caregivers in the Workplace – Family Responsibilities Discrimination Litigation Update 2016.

The Work/Life Squeeze: Policies and Protections for Caregiver Employees.  The DMEC’s Annual Conference is being held in Austin August 6-9.  I will have the pleasure of presenting on workplace caregiver issues during the conference.   My share of the presentation will focus on the legal protections (FMLA, ADA, Title VII, state laws, etc.).  My co-presenter is Jim Tierney, Sr. Program Manager, Total Absence Management, Corporate Benefits from Medtronic. He will discuss Medtronic’s new industry-leading caregiver paid leave program – providing not just paid maternity and bonding leave, but also paid leave for many other caregiver reasons, such as caring for an ill family member.

Please join Jim and me at the DMEC conference if you will be there – 1:30-2:30 Wednesday, August 8.

Medtronic, based in Minneapolis, is a global leader in medical technology, services, and solutions.

Disability Management Employer Coalition (DMEC) is a national association dedicated to providing focused education, knowledge, and networking for absence and disability professionals.  Visit their website at http://dmec.org/.

We previously wrote about caregiver workplace protections in this blog postIt is still up to date except for the expansion of states that now or in the near future will provide paid family and medical leave benefits.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

The Essence of Parental Leaves – Treating Fathers Differently Costs Estée Lauder $1.1 Million and Much More

Posted on: July 26, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Perfume and cosmetics giant Estée Lauder has agreed to pay $1.1 million to a class of male employees who received less bonding leave and less return to work job flexibility than their female counterparts.  Under its prior policy, men received just 2 weeks of parental leave to bond with a new child.  Women received 6 weeks after their medical leave ended and flexible return-to-work benefits upon expiration of child bonding leave, such as temporary modified work schedules, to ease the transition back to work.

The EEOC filed suit against Estée Lauder in August 2017.  On July 17, 2018, the court entered a consent decree resolving the case. In addition to the $1.1 million payment to the class of male employees, the consent decree imposes other requirements on Estée Lauder. The company must:

  • Administer parental leave and related return-to-work benefits in a manner that ensures equal benefits
    for male and female employees
  • Provide training on unlawful sex discrimination
  • Allow monitoring by the EEOC

Estée Lauder met the requirement of equal benefits during the course of the lawsuit when it voluntarily (with the EEOC watching over its shoulder) implemented a revised parental leave policy that provides all eligible employees, regardless of gender or care­giver status, the same 20 weeks of paid leave for child bonding and the same 6-week flexibility period upon returning to work. For birth mothers, these paid parental leave benefits begin after any period of medical leave occasioned by childbirth.

These are common terms imposed by the EEOC when it sues an employer and obtains a consent decree – a judgment agreed to by the employer to resolve the EEOC’s lawsuit.  Other common terms include:

  • Posting the consent decree on employee bulletin boards;
  • Hiring a nondiscrimination consultant; and
  • Reporting to the EEOC on all complaints received by the employer for a number of years. 

As you can see, the payment by the employer pursuant to a consent decree is often just the tip of the iceberg in terms of total amount of internal costs, management time, and distraction caused by an EEOC investigation and lawsuit.

Observation:  Many employers attract the EEOC’s attention by discriminating against pregnant employees and mothers – termination, forced leave, failure to promote, etc.  Ironically, this lawsuit arises from an employer treating pregnant employees more favorably than men.  I’m sure Estée Lauder is feeling the adage, no good deed goes unpunished!

Pings for Employers

  • Check your policies. Leaves related to having a new child fall into 2 categories:  medical leave for
    the birth mother, and bonding leave for all parents.
  • Any leave provided only to the birth mother must relate to her medical condition. Common “disability”
    leave after birth is 6 weeks for a vaginal birth, 8 weeks for a C-section.  If your plan noticeably exceeds
    these numbers you are at risk of a challenge that the leave is not related to the birth mother’s health condition
    and is discriminatory against non-birth parents.
  • Leave for bonding must be equal for all parents – birth mothers and non-birth parents (fathers and second
    mothers). Same for other new-child related benefits, such as the flexible return to work options offered
    by Estée Lauder.
  • To be competitive, parental/bonding leave should also be available to adoptive and foster parents. Some state
    laws require this.
  • To see what other employers are offering as voluntary paid maternity, parental, and caregiver leave benefits,
    check out this resource from the National Partnership for Women and Families:
    Leading on Leave: Companies With New or Expanded Paid Leave Policies (2015-2018).
  • For more detailed guidance – at least from the EEOC’s perspective – you can review their
    Enforcement Guidance on Pregnancy Discrimination and Related Issues.

Matrix Can Help.  Matrix offers comprehensive leave management services, including administration of company leave policies such as maternity and parental leaves (paid and unpaid).  For more information contact your account manager or your sales representative, or send an email to ping@matrixcos.com.

An ADA Tale of Vaccine Exemptions, Employer Notice, and the Interactive Process

Posted on: July 16, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

A recent case involving controversy about mandatory vaccines teaches two ADA lessons:

  • A doctor’s note may be sufficient notice to an employer of a disability and
    accommodation request.
  • If you do something for nondisabled employees, don’t deny the same thing for
    someone with a disability.

Aleka Ruggiero was a registered nurse working for Mount Nittany Medical Center (MNMC).  She suffered from severe anxiety and eosinophilic esophagitis.  These conditions limited her ability to perform certain life activities such as eating, sleeping, and engaging in social interactions. Despite her impairments, Aleka was able to perform her duties as a nurse at MNMC.

The vaccine brouhaha.  MNMC directed all clinical employees to receive a vaccine for tetanus, diphtheria, and pertussis (the TDAP vaccine) by May 15, 2015.  Aleka did not get the vaccine but faxed MNMC a note from her doctor stating Aleka was “medically exempt” from receiving the vaccine due to medical concerns.  MNMC asked the doctor to identify which of the eight contraindications listed by the vaccine manufacturer applied to Aleka to exempt her from receiving it.  The doctor responded that Aleka had severe anxiety about some of the potential side effects, especially in light of her history of allergies and eosinophilic esophagitis.  “Patient being terrified, I feel the risk of this TDAP injection outweighs the benefits.”  This note did not address which, if any, of the contraindications applied to Aleka.

MNMC sent a letter to Aleka stating that the information provided by the doctor was insufficient to excuse her from the vaccine and setting a new deadline for her to receive it.  Aleka suggested she be allowed to wear a mask at work – as she alleged other nurses were allowed to do to accommodate their refusals to receive the flu vaccine.  She also alleged that other MNMC employees were allowed to refuse the TDAP vaccine yet remain employed.  Aleka did not receive the vaccine by the new deadline and was terminated by MNMC.

A doctor’s note can be adequate notice.  Aleka sued, asserting a claim for failure to accommodate, among others. The trial court dismissed Aleka’s claim, holding that (1) she failed to allege that MNMC was on notice of her disability and request for accommodation and that, in any event, (2) MNMC had fulfilled its obligation to engage in the interactive process when it notified Aleka that it would exempt her from the vaccine if she suffered from any of the identified contraindications.

The Third Circuit reversed and reinstated Aleka’s claims.  As to the first issue, the court noted that an employer is not required to engage in the interactive process to identify an accommodation unless it is on notice of a disability and request for accommodation, but the threshold for adequate notice is fairly low.  Aleka’s request for exemption from the vaccine coupled with two doctor’s notes to the same effect (which included information about her medical conditions) were adequate to put MNMC on notice of both Aleka’s disability and her request for an accommodation.

Oh, that interactive process.  On the second issue, the court recognized that both the employer and the employee bear responsibility for identifying a reasonable accommodation.  A party who fails to communicate, either by initiation or response, may be acting in bad faith.  In this case, MNMC showed no signs of having considered Aleka’s request to wear a mask or offering to discuss available alternatives.  This was sufficient to raise the inference that MNMC had failed to engage properly in the interactive process and deprived Aleka of the individualized consideration to which she was entitled under the ADA.  According to the court, MNMC was not obligated to provide the accommodation requested by Aleka, “but it also could not simply reject the request and take no further action.”

Accordingly, the case was sent back to the trial court for further litigation proceedings.

Ruggiero v. Mount Nittany Medical Center  (3rd Cir. 2018).

Pings for Employers

This case is in early stages yet and the employer may still prevail, but more a more thoughtful and involved approach might have saved MNMC a lawsuit.

  • Be sure to engage in the interactive process. Even though an employee has an obligation to identify a
    reasonable and effective accommodation, this court and the EEOC will tell you that rejecting the employee’s
    suggestion, without more, is not “interactive.”
  • Consider what you do for employees in other situations. MNMC apparently felt that Aleka’s failure to identify
    a specific contraindication justified denying her request to avoid the vaccine and wear a mask.  And maybe, in
    litigation, they will be able to show facts that justified differing treatment of Aleka.  But how much better to allow
    her to wear a mask and avoid a lawsuit, or discuss with her their objections and avoid a lawsuit?

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

Hawaii Enacts Law to Require Analysis for Paid Family Leave

Posted on: July 13, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Hawaii is moving closer to a paid family leave program with legislation signed by the Governor on July 5.  The law does not enact a PFL law but requires the state Legislative Reference Bureau to conduct an analysis to assist the legislature in determining the most appropriate framework or model for the establishment of paid family leave for the state.

The analysis will include a comparative analysis of other state paid leave models, including temporary disability insurance models. Factors to be considered include scope of coverage; gender equity; ease of making applications or claims; speed of benefit payment; and financial sustainability.  The analysis will also assess cost and other impacts on employers and employees.  The Bureau’s final report must include its findings, recommendations, and proposed legislation, to the legislature no later than September 1, 2019.

Hawaii currently has paid temporary disability benefits for up to 26 weeks per benefit year for an employee’s own disability and an unpaid family leave law that provides up to 4 weeks per calendar year of job-protected unpaid time off.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

California Updates Its Paid Family Leave Law with a Clean-Up Bill

Posted on: July 12, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

 

NOTE TO READERS:  This topic was originally addressed in this blog on July 12, 2018.  That post sparked some questions about the California Paid Family Leave program that make it appropriate to issue this revised article.  The content of the original post was accurate but is now supplemented with additional information in this version, specifically relating to the two weeks of PTO an employer can require an employee to use before taking California PFL.

______________________________________

Today’s post is not exactly earth shattering news, but we promise to keep you up to date on developments in leave laws and accommodations.  California has enacted a bill that makes a minor adjustment to the state’s paid family leave program – mostly a “technical correction” really. (CA A 2587)

The state family temporary disability insurance program, also known as the paid family leave program, provides wage replacement benefits to workers who take time off to care for a seriously ill family member or to bond with a minor child within one year of birth or placement of that child.

Existing California law allows an employer to require an employee to use up to 2 weeks of earned but unused vacation time before, and as a condition of, the employee’s initial receipt of paid family leave benefits during any 12-month period. Prior to January 1, 2018, California imposed a 7-day waiting period before employees could begin receiving benefits for a covered absence and the employer could apply that vacation pay to cover the waiting period. The 7-day waiting period for these benefits was eliminated as of January 1, 2018, by a prior law.

This new California law now eliminates the application of vacation leave to the waiting period, consistent with the removal of the 7-day waiting period for these benefits on and after January 1, 2018. After all, you can’t apply the employee’s vacation pay to the 7-day waiting period because there no longer is a 7-day waiting period.  Technically the effective date is January 1, 2019, but as there has been no waiting period since January 1, 2018, there has been nothing to which to apply that accrued vacation.

Employers are still able to require employees to use up to two weeks of accrued vacation or PTO, if available, prior to receipt of PFL benefits.  The use of such accrued paid time off is in addition to the 6 weeks of state or voluntary plan paid family leave benefits, which will follow the 2 weeks of PTO.  The statute refers to use of accrued “vacation” but material from the California Employment Development indicates that this includes an employer’s broader paid time off benefit as well.

Matrix can help!  Matrix is a leading provider of services for administering California State Disability Insurance and Paid Family Leave voluntary programs.  Ping us for more information at ping@matrixcos.com.

Undue hardship?  You’d better really mean it.

Posted on: July 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

An employer was recently caught “crying wolf” with regard to a claim of undue hardship.  The result?  The employer will have to prove in a jury trial that its assertion was not a pretext for disability discrimination in violation of the ADA. 

Accommodation basics.  An employer must provide an ADA accommodation to a disabled employee if the requested (or an alternative) accommodation is reasonable and effective.  Reasonable means that, on its face, the accommodation is plausible and feasible.  Effective means the accommodation will enable the individual to perform the essential functions of his/her position. 

If these two criteria are met, then the employer’s only defense to providing the accommodation is that it will impose an undue hardship on the employer’s business. Undue hardship is defined as “significant difficulty or expense” in relation to the size of the employer, the resources available, and the nature of the operation.   42 U.S.C. § 12111 (10); 29 C.F.R. § 1630.2(p)(1) and (2).

The case.  Jana Churchwell worked for the City of Concord, North Carolina, as a project engineer from 2001 until her termination in July 2015.  (It takes lawsuits quite a while to wind their way through the court system!)  Throughout her employment Jana suffered from chronic autoimmune urticaria and in 2013 was also diagnosed with IBS and chronic migraine headaches.  She took intermittent and then continuous FMLA leave due to her IBS and migraines. 

In June 2015 the City gave Jana notice that she was about to exhaust her FMLA entitlement and provided her with information about requesting an ADA accommodation.  On June 16 Jana requested accommodations consisting of leaving the office or working from home when symptoms occurred, leaving for medical appointments, and avoiding extreme temperatures.  However, her doctor stated that no accommodation would enable Jana to work when she was suffering from a migraine and that she might need leave of 1 day per every 2 weeks or less.   The next day she also requested medical leave for 30 days as an accommodation, which would have provided time off until July 17. 

The City granted the various work-related accommodations but denied Jana’s leave request and stated she must return to work by June 26.  Jana’s supervisor denied the request because the Engineering Department had 3.5 full time engineers (Jana was one), 48 active projects, and “[l]osing one full-time engineer staff person would put [the Department’s] projects even further behind schedule.”   Jana responded she needed more time and did not return to work.  The City terminated her on July 6 for violation of the City’s absence without leave policy. 

What’s wrong with this picture?  So far, it sounds like the City made a valid undue hardship argument – granting Jana more leave would result in significant difficulty in operating the Engineering Department and jeopardize its productivity. But certain key facts doomed this argument:  The City did not advertise Jana’s position until August 2015, well after Jana’s requested leave period; and Jana’s replacement was not hired until early 2017 – so the Department functioned with only 2.5 engineers for about 1-1/2 years.  Finally, with changes in treatment Jana would have been able to return to work at the end of the requested 30-day leave (which was, after all, only about 10 days from the date of her termination) with the other accommodations which the City had granted.

On these facts, the court ruled that a jury could conclude the City’s undue hardship argument was a pretext for disability discrimination.  It denied the City’s request for summary judgment.  Now the fate of both Jana and the City is in the hands of a jury. 

Churchwell v. City of Concord  (M.D.N.C. June 11, 2018).

 

Pings for employers.

  • If you have a valid undue hardship reason for denying an accommodation, be sure your subsequent actions
    support that argument. In the Churchwell case, the City articulated a very good argument – but then lived
    with the alleged undue hardship for months and months after Jana could have returned to work.  This clearly
    undercut the City’s position and gave Jana ammunition to argue pretext.
  • An undue hardship defense is difficult to establish. Monetary consideration alone will rarely win the day.
    Rather, it takes a showing of significant operational difficulty or expense. 
  • Keep records of your analysis and the factors considered. According to the EEOC, generalized conclusions will
    not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized
    assessment of current circumstances that show that a specific reasonable accommodation would cause
    significant difficulty or expense.
  • If a specific accommodation will cause an undue hardship, don’t stop there! Be sure to engage further in the
    interactive process to see if there is an alternative that will be reasonable and effective before closing the door
    on the employee. 
  • For more information, including the types of factors you should consider to develop an undue hardship argument,
    check out the EEOC’s
    Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA

 

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

A “Grand Bargain” – Massachusetts Enacts Paid Medical and Family Leave

Posted on: June 29, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Governor Charlie Baker signed a bill on June 28 making Massachusetts the seventh jurisdiction to enact paid family and medical leave (PFML).  The paid leave provisions are part of a so-called Grand Bargain between the state legislature and voters that was designed to keep several voter initiatives off the November ballot. 

Here are some key provisions:

Funding.  The benefits will be funded at an initial rate of 0.63% of employee’s average weekly wage (to be adjusted annually):

  • The premium for medical leave (employee’s own serious health condition)
    will be paid 40% by the employee and 60% by the employer
  • The employee pays 100% of the premium for family leave
  • The premium has not (yet) been apportioned between medical leave
    and family leave

Premium contributions.  Employers and employees must begin making premium contributions July 1, 2019.

Paid leave benefits available.  Paid leave benefits for all leave reasons except family member serious health condition begin on January 1, 2021.  Paid leave benefits to care for a family member with a serious health condition begin on July 1, 2021.

Leave reasons.  Leave reasons mirror those of the federal Family and Medical Leave Act (which will run concurrently in most cases):  Employee’s serious health condition, family member’s serious health condition, bonding with anew child, family military exigencies, and care for a seriously ill or injured service member.

Benefit amount.  Benefits are paid based on a percentage of an employee’s wages, with a cap of $850 weekly.

Leave duration.  Leave durations in a 12-month period are up to:

  • 20 weeks for medical leave (an employee’s own serious health condition)
  • 12 weeks of family leave (care of a family member with a serious health condition, bonding, or military exigencies)
  • 26 weeks to care for a seriously ill or injured service member
  • Aggregate maximum of 26 weeks in a 12-month period for all leave reasons

Voluntary plan.  Employers can meet obligations through the state plan or through a private plan(s) for medical and/or family leave that offer benefits at least as beneficial to employees as the state plan

Matrix will administer this leave law for clients: Watch this space for a more detailed summary of the new law in the next day or two. 

Existing PFML laws.  California, New Jersey, New York, and Rhode Island already have paid family and medical leave laws in effect.  In addition, Washington State’s PFML law will require premium payments starting January 1, 2019, and paid leave benefits starting January 1, 2020.   You can check out our prior summaries about Washington State here and hereWashington D.C. is next in the wings with premium payments starting July 1, 2019, and paid leave benefits starting July 1, 2020.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Matrix’s Gail Cohen on ADA Panel at EEOC Regional Meeting

Posted on: June 25, 2018 0

Many of you know my colleague, Gail Cohen, an attorney who works closely with me at Matrix and assists our clients, consultants, and others with ADA and leave of absence issues.  Gail recently participated in a panel presentation on the ADA – specifically accommodations and the interactive process – at an EEOC-hosted conference.  Kudos to Gail for being selected to join in presenting on this important topic with the law’s enforcement agency!  Here is a post from Gail, sharing her presentation and what she learned at the conference. 

 —Marti Cardi – Vice President, Product Compliance

On Thursday, June 21, I had the privilege to serve on a panel at the EEOC Regional Meeting in Phoenix.  My topic was “Reasonable Accommodation – What Works.”  Here  is a link to my presentation materials.  Take a look for a primer on reasonable accommodation and the interactive process – these are the kinds of issues we at Matrix help our clients with on a daily basis.

At the meeting the EEOC addressed some of its current priorities.  Here are some key takeaways from the EEOC that I think will be of interest to our readers:

  • Pregnancy discrimination and accommodations. In June 2015 the EEOC issued its
    Guidance on Pregnancy and Related IssuesA review of the cases filed by the EEOC since then show
    that this continues to be a priority.  Several states have followed suit by passing mandatory pregnancy
    accommodation and nondiscrimination laws.  Click
    here  for Matrix’s latest blog on a new state pregnancy law.
  • ADA compliance. The EEOC’s ADA compliance priority includes ensuring that employers are engaging
    in the interactive process and otherwise complying with their obligations to employees who request
    or have a known need for a reasonable accommodation in order to perform their essential job functions.
  • Medical inquiries. In addition, the EEOC emphasized pre-employment physicals and medical inquiries,
    as well as maintaining the confidentiality of employee medical information. (Did you know that the
    failure to maintain confidentiality is an independent violation of the ADA?)
  • The Importance of mentoring. The EEOC cited a study indicating that having a formal mentorship
    program at your company is one of the best ways to prevent/reduce the occurrence of discrimination.
  • Staffing companies. Another EEOC Priority is a focus on staffing companies, who the EEOC believes
    do not understand their obligations to comply with the laws they enforce, particularly in connection
    with their use of pre-employment testing.  Employers need to scrutinize contracts with staffing and
    temp agencies closely to ensure that legal and compliance responsibilities properly lie with each party.

 

Matrix can help!  Medical inquiries can be tricky under the ADA.  So can knowing how to deal with a challenging accommodation request.  Matrix’s dedicated ADA Specialists, backed up by our compliance and clinical teams, provide top-notch ADA claims management, whether the accommodation request is a simple piece of assistive equipment, multiple workplace adjustments, or a leave of absence.  To learn more, contact your account manager or send us a message at ping@matrixcos.com.

 

Colorado Passes Living Donor Leave Act

Posted on: June 21, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Tax credits to reward good employer policies?  Offering tax credits to encourage paid leaves of absence is cropping up more often recently.  The federal government included a tax incentive in the December 2017 Tax Cuts and Jobs Act for employers providing from 2 to 12 weeks of paid family and medical leave for reasons covered by the Family and Medical Leave Act.  Our blog post on this federal tax incentive can be found here.   Some states, such as Connecticut and Utah, have tried to follow the same path this year, introducing tax incentive bills rather than full-fledged paid family and medical leave laws; but so far none has passed except the limited-purpose law just enacted in Colorado.

Colorado’s donor leave incentive law.  Colorado has passed a law creating a state tax credit for employers who voluntarily provide a paid leave of absence for an employee to serve as an organ donor.   The tax credit is limited to leaves of absence up to 10 working days or the hourly equivalent.   An employer may claim as the tax credit 35% of (1) the amounts the employer pays to the employee during the leave of absence; and (2) costs incurred by the employer, if any, for temporary replacement help during the employee’s leave.

The tax credit does not apply to any period during which the employee uses other paid leave already offered by the employer such as vacation, paid time off, or sick days.  In addition, the tax credit is available only for paid leave provided to employees who receive less than $80,000 in annual wages.

The employer must be able to provide documentation from the employee’s medical provider verifying the organ donation to support the claimed tax credit.  Although not addressed directly, this implies that the employer can (and should) require medical documentation from the employee as a condition of receiving the paid leave of absence.

The law will go into effect for leaves of absence on or after January 1, 2020, and sunsets on December 31, 2024.  You can view the full text here.

Colorado’s law does not require employers to provide time off for organ donation, nor does it provide job protection for the leave of absence; that will depend on the employer’s policies.  Several other states do have laws providing employees with time off for donation of an organ, bone marrow, and blood or its components.  See our previous blog post summarizing those state laws here.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

South Carolina Enacts Pregnancy Accommodations Law

Posted on: June 18, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

South Carolina has joined a legion of other states by passing a law that provides workplace protections and accommodations for women affected by pregnancy, childbirth, or related medical conditions, including lactation.  Each state puts its own stamp of originality on the provisions of such laws, but many common themes carry through – for example, these laws do not require the employee to be “disabled” by pregnancy to be entitled to an accommodation.

The South Carolina Pregnancy Accommodations Act (H 3865) was signed by the Governor on May 17, 2018, and became effective immediately.  Here are some of the key provisions of the law.

Reasonable accommodations.  The law requires employers to provide a reasonable accommodation for medical needs of an employee or applicant arising from pregnancy, childbirth or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s business.  “Reasonable accommodation” is defined to include:

  • Providing more frequent or longer break periods (but the employer is not required to compensate
    the employee for breaks that exceed normal paid breaks in duration or frequency);
  • Providing more frequent bathroom breaks;
  • Providing a private place, other than a bathroom stall, for the purpose of expressing milk;
  • Modifying food or drink policy;
  • Providing seating or allowing the employee to sit more frequently if the job requires the employee to stand;
  • Providing assistance with manual labor and limits on lifting;
  • Temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified;
  • Providing job restructuring or light duty, if available;
  • Acquiring or modifying equipment or devices necessary for performing essential job functions; and
  • Modifying work schedules.

Notice to employees.  Employers must provide written notice to employees of “the right to be free from discrimination for medical needs arising from pregnancy, childbirth or related medical conditions” pursuant to the law.  This notice must be provided to new employees upon hire and to existing employees within 120 days after the effective date of the act.  Such notice must also be posted in the employer’s business at a place accessible to employees.  The state has not yet provided a prototype notice for employers’ use, which is problematic since new hires are entitled to the notice starting on the act’s effective date (which means now).

Miscellaneous provisions.  The law also extends existing nondiscrimination protections for workers to include employees affected by pregnancy, childbirth and related conditions.  In addition, employers must ensure that existing facilities used by employees are readily accessible to employees with medical needs arising from pregnancy, childbirth or related medical conditions (as well as to others with disabilities).

Pings for Employers

  • Develop, post, and start providing the required notice to employees right away. The law was effective upon
    the Governor’s signature on May 17, so any new hires are already entitled to receive the notice and existing
    employees 120 days thereafter.
  • Oddly, the notice requirement, as quoted above, only addresses the right to be free from discrimination,
    not the right to reasonable accommodations for pregnancy and related conditions. Unless and until the
    state provides a prototype notice form, employers should play it safe and include the right to accommodations
    in the notice as well.
  • Unlike some other recent pregnancy protection laws, the South Carolina act does not address what
    documentation an employer can require to verify an employee’s accommodation request.
    Employers should consider providing the simpler accommodations such as a seat, modification of food
    and beverage rules, or more frequent breaks – without the need for medical documentation. Other types
    of accommodations may justify a request for medical support, if the need for the accommodation is not
    obvious and/or is outside of the normal types of pregnancy-related conditions or limitations employees
    may experience.

Matrix can help!  Matrix will assist employers in administering the accommodations provisions of this new law if the client has engaged Matrix for ADA services.

 

 

Vermont Crime Victims Leave Law About to Debut

Posted on: June 13, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

Many states require employers to allow employees to take time off from work for court proceedings in which they are a victim or witness.  Most of these laws are very general and do not provide duration, notice or documentation requirements, or other parameters that are the hallmarks of what we normally think of as “leave of absence” laws.  Indeed, they are more correctly considered “nondiscrimination” laws, with court appearances as the protected classification.  Just as you can’t terminate someone because of age, race, gender, disability and so on, you can’t terminate an employee for absences due to court attendance or related matters as a crime victim.

Vermont has passed a new law that adds crime victims as a protected status under the state’s Fair Employment Practices Act.  It provides a little more substance to the employees’ rights than many typical crime victims’ laws but, in our opinion, it is still primarily a nondiscrimination statute.

The new law allows employees who are crime victims to take unpaid leave only, to attend a deposition or court proceeding related to:

  • Certain criminal proceedings (the covered crimes are defined by the statute and range from
    things like sexual assault, domestic abuse and stalking to murder);
  • Relief from abuse hearings; order against stalking or sexual assault hearings; or
  • Relief from abuse, neglect, or exploitation of a vulnerable adult hearings.

Key provisions:

  • All employers are covered and required to comply.
  • The employee may choose to use accrued sick leave, vacation, or any other accrued paid
    leave to receive pay during the leave.
  • The employer must continue employment benefits for the duration of the leave at the
    level and under the conditions provided during employment.
  • The employer must post in each workplace a notice of the provisions of the law. The
    Vermont Commissioner of Labor will provide a form notice for this purpose, which should
    be accessible here once available.
  • The employee is entitled to job restoration to the same or comparable job at the same level of
    compensation, employment benefits, seniority, or any other term or condition of the
    employment existing on the day leave began.

Not a “domestic violence” leave law.  Many states have laws that specifically provide leave of absence and job protections for employees who are victims of domestic violence, sexual assault and stalking.  These laws provide broader job-protected leave for reasons such as seeking medical attention, counseling or safe living arrangements, as well as attending related court proceedings.  This Vermont law does not go so far, allowing job-protected time off only for depositions and court proceedings.

Who is accountable? Matrix typically does not administer this type of law (one that is primarily a nondiscrimination law). Why? There is nothing to track or assess; no employee eligibility rules, no limits on amount of time of available, no documentation requirements, etc. In the case of this particular Vermont law, the actions required are strictly within the province of the employer: posting the required notice, allowing the use of vacation pay, managing continuation of benefits, ensuring job protection, and so on. However, it’s on our Matrix Radar, and we believe it’s important to provide clients and readers with relevant information on laws impacting our industry and your employees.

The law goes into effect on July 1, 2018.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Washington State Issues First Phase of Paid Family and Medical Leave Regulations

Posted on: June 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

In 2017 Washington State was the fifth state to pass a paid family and medical leave law. 

The law requires employers to provide up to 18 weeks of paid, job-protected leave per 52-week period due to the employee’s own serious health condition, to bond with a new child, to care for a family member with a serious health condition, and for military exigencies.  The benefits are funded by employer and employee payment of premiums.  

Premium payments begin January 1, 2019, and benefits are available starting January 1, 2020.  In the meantime, Washington’s Family Leave Act remains in force to provide employees with up to 12 weeks of unpaid job-protected leaves of absence.  We reviewed the new paid family and medical leave law on this blog when it was passed.  Click here  to read our summary.  

On May 29, 2018, the Washington State Employment Security Department released the first of four sets of rules to implement the Paid Family and Medical Leave Program. Rules become effective 31 days after filing.  Topics will be addressed on the following schedule:

 

Phase One Phase Two Phase Three Phase Four
-Premium liability

-Collective bargaining agreements

-Voluntary plans

-Employer responsibilities

-Small business assistance

-Penalties

-Benefits -Appeals
November 2017 – May 2018 April – November 2018 August 2018 – January 2019 January – May 2019

 

Assessing and Collecting Premiums  [ WAC 192-510-010 et.seq.]:  The new regulations contain many details.  Here is a quick summary, with links to the Phase One regulations if you want to read them yourself.  Matrix will provide more detailed guidance in the near future.

Election of coverage and withdrawal of election by self-employed persons and federally-recognized tribes

Determination of wages earned and hours worked for self-employed persons

Effect of employer’s size on liability for premiums and eligibility for small business assistance grants

How the state will assess the size of new employers

Payment of premiums by employer (paid quarterly; due on the last day of the month following the end of the quarter

This regulation states that the payment must include “the premiums owed on all wages subject to premiums during that calendar quarter.” Although not specified, presumably this includes both the employer’s share of the premiums and the amounts withheld from paychecks for the employees’ share.

How “localization” of an employee’s work in Washington is determined for coverage by the law, and when services not localized in Washington are also subject to the law

Collective Bargaining Agreements  [WAC 192-520-010]:

The effect of collective bargaining agreements (CBAs) in effect before October 19, 2017 – the date the law became effective – and those that expire or are reopened or renegotiated on or after that date.

The manner of determining an employee’s hours worked when the qualifying period includes time worked under a CBA and then hours worked after the CBA expires without renewal or renegotiation (and so is then covered by the act).

The effect on employers of having employee populations subject to one or more CBAs and/or employee populations not subject to a CBA.

Voluntary Plans  [WAC 192-530-010 et seq.]

The required features of voluntary plans:

A voluntary plan must provide at least the same or greater benefits than the state benefits with regard to the duration and reasons for leave.

The amount of benefits available must be the same or greater than benefits offered by the state plan.

The premium paid by the employee cannot be any greater than the employee’s premium for the state plan

Submission of plans for state approval:

Voluntary plans must be submitted for approval through a state portal, expected to be available in late summer 2018. There is a $250 filing fee per plan.

A plan must be submitted for re-approved every year for its first three years.

Thereafter, re-approval is not required unless the employer makes changes to the voluntary plan that are not required by law.

Rules regarding payment of benefits on an accelerated schedule:

An employer can agree to offer benefits payments on an accelerated schedule whereby the employee receives the total amount of the anticipated leave benefit over a shorter time period, but not less than one-half the duration of the anticipated leave.

The employee can choose to return to work earlier than planned and does not have to repay the amounts paid in advance for leave time not taken.

Election of voluntary plans for medical and family leave benefits:

An employer can elect to have paid medical and paid family leave both covered by a voluntary plan, or can have a voluntary plan for just one benefit and use the state plan for the other benefit.

Provisions for how to determine employee eligibility for voluntary plan benefits, how to avoid duplication of benefits paid by the state and by a voluntary plan, and what happens when a voluntary plan ends.

Watch this space!  Matrix will continue to monitor Washington’s regulatory activities and report on the new regulations as Phases Two, Three, and Four are issued.  In the meantime, more materials are available on the state’s Employment Security Department website.

Matrix can help!  As always, we are tracking and analyzing developments regarding the Washington Paid Family and Medical Leave Program.  We will be ready well in advance to advise employers on the premiums beginning in 2019 and benefits beginning in 2020.  If you have questions, contact your Account Manager or ping@matrixcos.com.

“Because I Said So!” – Following the FMLA Late Certification Rule

Posted on: May 11, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Employers now know that they have to follow FMLA regulations “because I said so!”  That was the declaration from Helen Applewhaite, DOL Branch Chief for FMLA, in a moment of levity when I asked why employers had to follow a particular FMLA regulation that I called “nonsensical” and another person called “goofy” (well, we were in Disney territory, after all!).

Last week I was in Orlando for the annual Compliance Conference hosted by the Disability Management Employer Coalition.  I had the honor to co-present a plenary session with Helen Applewhaite entitled FMLA Check-Up:  Red Flags and DOL Recommendations.  After hours of discussion, Helen and I identified 3 categories of issues that the DOL observes employers struggle with:  notifications and communications between employers and employees; recertifications; and protection of the employee’s right to FMLA leave.  Here is an issue we covered in our presentation: 

The late certification rule:  Are you familiar with the late cert rule?  I know from working with Matrix clients that this rule is often unknown to or misunderstood by employers.  Here’s the situation:  An employee fails to return his completed Certification of Health Care Provider within the 15 days allowed by the regulations (or longer if allowed by the employer).  A certification is ultimately provided that supports the requested leave.  Any time off taken for the requested leave reason must be handled by the employer as follows:

  1. Approve FMLA leave during the 15-day period after the certification was requested
  2. Approve FMLA leave during the period that begins with the date of receipt of the certification
  3. Approve or deny FMLA leave during the interim period.

Example:  Terry requests FMLA leave to care for his elderly mother who has a serious health condition.  On June 1, Terry’s employer (or Matrix!) provides Terry with all the required FMLA notices and information, including  Certification of Health Care Provider (CHCP), advising Terry that he must return the CHCP within 15 days (by June 16).  Terry immediately starts taking 1-2 days off per week to care for his mother.  He does not return the completed CHCP until July 1.  The CHCP supports Terry’s usage, saying his mother will need Terry’s care up to 2 days per week.  In this scenario:

  1. Terry’s employer must approve any absences Terry took from June 1 through June 16.
  2. It must approve any covered absences from July 1 going forward.
  3. Terry’s employer has the option whether to approve or deny any leave days taken in the
    interim period from June 17 through June 30.

The late cert rule is found in the FMLA regulations at 29 C.F.R. § 825.313  

Pings for Employers. 

As always with the FMLA, there are related issues for consideration by employers:

  • Adopt a uniform policy regarding whether or not to approve absences that occur in the interim period. Approaching the decision on a case-by-case basis is not only inefficient, but creates a risk of perceived or actual unfairness or discrimination. 
  • Before denying any absences in the interim period, be sure to check with the employee as to whether there are extenuating circumstances that excuse the employee’s late certification. The regulation requires this.
  • If there are no extenuating circumstances and the employer’s policy is to deny FMLA coverage for the interim absences, then the employer can impose discipline in accordance with its attendance policy for those absences.
  • If a certification is never received, the leave is not FMLA protected.
  • If the late certification has deficiencies, follow the correct processes with regard to incomplete or insufficient certs (written notice to employee of deficiencies and 7 days to cure) or for authentication or clarification. See FMLA regulations 29 C.F.R. § 825.305(c) and 825.307. If you ultimately get a satisfactory certification, the leave should be approved as of the date the late but deficient cert was received (plus the initial 15 days).

Discipline that has been imposed for absences that appear unexcused because a certification has not yet been received should be rescinded with respect to any now-FMLA-protected absences.  The tough question is what to do if the employee has been terminated for unexcused absences and then the late certification comes in.  Consult your employment counsel on this one!

USERRA – A Leave Law Like No Other – Part 2

Posted on: April 25, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Our most recent blog post started our review of USERRA – the Uniformed Services Employment and Reemployment Rights Act.  The requirements of USERRA are surprising compared to other leave laws, but the men and women who have served in the military have earned these job protections.  So although we may wonder at some of the provisions of USERRA, let’s embrace the law.

Documentation upon return to work.  In the introduction to our first USERRA post we noted that “[s]upporting documentation comes at the end of the leave, not the beginning.”  USERRA has no provision requiring the servicemember to provide the employer a copy of military orders or other proof of upcoming service.

When the employee returns and applies for reemployment, however, the employer can request documentation (if the employee who was absent for military service for 31 days or more) that shows:

  • the person’s application for reemployment is timely (that is, within the time limits described in our first post);
  • the person has not exceeded the five-year service limitation; and
  • the person’s separation from service was not under disqualifying circumstances.

Circumstances that disqualify the servicemember from the right to reemployment include dishonorable or bad conduct discharge, separation under other than honorable conditions, and a few other situations. 

However, even if the employee does not provide satisfactory documentation because it is not readily available or does not exist, the employer must still promptly reemploy the servicemember.  If documentation is later provided that fails to support the three conditions above, the employer can terminate the employee without violating USERRA.  Unfortunately, the law is silent about the employer’s options if no documentation is ever provided.

Reemployment position.  The returning servicemember must be reemployed as soon as practicable under the circumstances.  Return after weekend duty or two-week annual training should generally be practicable on the next business day.  Reemployment following 5 years of active duty might take longer due to the need to assess the correct position and possibly give notice to an incumbent in the position the servicemember is entitled to hold. 

Generally, the employee must be reemployed as follows, in order of preference:

  1. In the job the employee would have held if the employee had remained continuously employed
    for the duration of his or her service, including promotions and increased seniority, pay, benefits,
    and duties. This is referred to as the “escalator position.”  The employer must make reasonable
    efforts to help the servicemember become qualified, such as by providing refresher or new training
    for the position. 
  2. If the returning servicemember cannot become qualified for the escalator position, he or
    she can be reemployed in the position held at the commencement of the military service or,
    in cases of service longer than 90 days, in a position of like seniority status and pay.  
  3. If the employee cannot become qualified for either of the above positions, then he or
    she must be placed in the position that is the nearest approximation to the above positions,
    in that order of preference.

The escalator goes down as well as up.  Under the escalator principle the employee may also be placed in a lower position or even laid off (for example, if the company went through reorganization or layoffs during the employee’s military service).

Job protection following return.  USERRA modifies the common rule of at-will employment.  Following reemployment, the servicemember may not be discharged without cause for 180 days if the military service was 31 to 180 days, and for one year if the service was 181 days or more. 

Accrued vacation.  A servicemember must be allowed to use accrued paid vacation (or presumable PTO) during military leave but cannot be required to do so.  The employee does not continue to accrue vacation during military leave, but any rights to vacation based on seniority must be provided upon return.  For example, if an employee’s right to vacation time increases from 2 to 3 weeks based on length of employment and the servicemember crosses that threshold during military service, then upon return the employer must award vacation at the higher amount. 

Health benefits.  An employee on military leave for 30 or fewer days can continue with health benefits coverage by paying the employee’s normal share of the premium.  Otherwise, the employee may elect to continue such coverage by purchasing COBRA during service for up to 24 months (or the period of service and return to work, if shorter) and cannot be required to pay more than 102% of the full premium for the coverage. 

Nondiscrimination.  An applicant or employee cannot be discriminated against in hiring, promotion, termination, or benefits on the basis of past, current, or future military obligations. 

Posting.  All employers must provide employees notice of the rights, benefits and obligations under USERRA.  This can be accomplished by posting or distributing to employees the notice available from the Department of Labor, Your Rights Under USERRA.

Impact of USERRA on FMLA rights.  The Family and Medical Leave Act specifically addresses employee FMLA eligibility for returning servicemembers.  The employee must be credited with length of service and hours that the employee would have worked but for the military service.  So for example, an employee who normally works 40-hour weeks and has been employed for 6 months takes a military leave of absence for 8 months, the employee will be FMLA eligible upon return by combining the length of employment and military service for 14 months; and the hours actually worked with the hours the employee would have worked but for military service (which will clearly exceed 1250). 

Other USERRA provisions.  USERRA contains many additional provisions addressing things such as the special rights of a servicemember who returns with an injury incurred or aggravated during service, the servicemember’s rights under pension plans, and undue hardship as a defense to reemployment of the servicemember.  More information is available in the DOL’s Guide to USERRA, available here.

PINGS FOR EMPLOYERS

As you can see, USERRA indeed has many unexpected provisions and protections for military servicemembers that we don’t see in other leave of absence laws.  

  • Provide the required notice, Your Rights Under USERRA, by posting it where employee
    notices are customarily placed, by handing or mailing out the notice, or distributing the
    notice via electronic mail.
  • Be familiar with USERRA generally to understand that your usual expectations about how
    leave laws operate don’t apply to USERRA.
  • Have resources at hand to address and answer questions (yours and those from the
    servicemember!) when the need arises.
  • Provide servicemembers with information about your company’s benefits available
    to employees who are members of the regular armed forces and Reserve/National Guard units.
  • If you have to fill a servicemember’s employment position during his/her absence,
    understand that you might have to bump the replacement from the position upon
    the servicemember’s return. A long military absence might make this unnecessary
    due to the escalator principle, but be ready. 
  • If you are placing the returning servicemember in the same or a lower position after
    a lengthy absence, be sure you can justify that placement by business factors that take
    into account the escalator principle.

MATRIX CAN HELP!  At Matrix we offer a full suite of leave of absence and disability management tools.  These include management of employer-specific leave plans, as well as FMLA, state leave laws, ADA accommodations, disability plans  . . . and of course, USERRA.  To learn more, ping us at ping@matrixcos.com.

Don’t Miss It: THE 2018 DMEC FMLA/ADA EMPLOYER COMPLIANCE CONFERENCE

Posted on: April 24, 2018 0

Join your peers and prepare to confidently tackle your organization’s FMLA/ADA challenges at the 2018 DMEC FMLA/ADA Employer Compliance Conference, Apr. 30-May 3, in Orlando!

This year, Matrix Absence Management is a National Sponsor and I have the privilege of facilitating four sessions! I would love for you to join me and my colleagues at any or all of the below:

Monday, April 30 12:00 pm -2:00 pm
Liability Alert! HR and Supervisor Ethical Missteps:

This session will highlight real ADA and FMLA cases to help you gain a deeper understanding of ethical pitfalls in managing leaves and disabilities, such as misplaced benevolence, relying on stereotypes, what you ask, and how you communicate. Throughout, you will learn best practices to promote ethical ideals.  Join Marti Cardi, Vice President, Product Compliance, Matrix Absence Management, Inc. and Jaclyn Kugell, Partner, Morgan, Brown and Joy, LLP

Monday, April 30 4:30 pm -5:30 Preconference Wrap-Up: Ask the Experts!

Join me and other presenters  as we wrap up the first day of sessions with a chance to ask questions of our experts on the topics covered during the afternoon preconference workshops.

Wednesday, May 2 9:00 am -10:00 am
DOL Red Flags in FMLA Investigations:

Helen Applewhaite, DOL Branch Chief for FMLA will headline in this sessionto help you to identify red flags that could reveal issues with your practices and policies.  I will bring in the practical advice on how you can proactively address these issues to stay in the clear and – occasionally perhaps – will disagree with Ms. Applewhaite and the DOL.

Wednesday, May 2 4:15 pm-5:15 pm
Roundtable Mental Health in the Workplace – The Do’s, Don’ts, and Shoulds:

Join your peers for a small-group discussion and  bring your questions about how to manage mental-health claims in the workplace under the ADA and FMLA:  performance and conduct issues, obtaining medical information, requiring counseling as a condition of continued employment . . .


These sessions with be equally engaging and enlightening, and offer true real-world examples you can put into practice (with the help of Matrix Absence Management, of course).  I hope you decide to join us but if not, stay tuned for my recap of the conference.

To learn more about the 2018 DMEC FMLA/ADA Employer Compliance Conference and to download the full program click here:  http://dmec.org/conferences-and-events/compliance-conference/.   

USERRA – A Leave Law Like No Other

Posted on: April 4, 2018 0

 

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

One of my favorite leave law training topics for employers is USERRA – the Uniformed Services Employment  and Reemployment Rights Act.  As the name implies, this is the law that provides job protections for employees who are absent from work to serve in the U.S. Armed Forces (Army, Navy, Air Force, Marines, Coast Guard, National Guard, Reserves, and others).  USERRA also has protections for job applicants and for servicemembers after they have returned to work.    

Why is this a favorite of mine?  Because USERRA turns all of our usual expectations of a leave of absence law upside down.  Trainees are amazed as they learn about USERRA:  Supporting documentation comes at the end of the leave, not the beginning.  The returning employee might be entitled to restoration to a better position than he or she left.  The employer isn’t required to provide the military employee notice of approval of the leave, because it can’t be denied. 

See what I mean?

Now join us on a journey through the world of USERRA, and learn things you never knew before!

Military protections under FMLA vs. USERRA.  The FMLA provides job-protected time off for “qualifying exigencies” for an employee whose family member is a military servicemember. Exigencies include family matters that need immediate attention due to the employee’s family member’s impending or current military service.  In contrast, USERRA provides job protection and other rights to employees who are themselves the military servicemember. 

Covered service-related activities.  Reemployment rights extend to persons who have been absent from a position of employment because of voluntary or involuntary “service in the uniformed services,” including:

  • Active duty and active duty for training
  • Initial active duty for training
  • Inactive duty training
  • Full-time National Guard duty
  • Fitness for duty exams
  • Funeral honors duty
  • Training for and duty performed by intermittent employees of the National Disaster
    Medical System, relating to a public health emergency

Covered employers and eligible employees.  OK, this part is easy.  All employers are covered regardless of size and all servicemember employees are eligible, regardless of length of employment.  The law also provides protections for applicants who have served or are currently in military service. Required employer notice to employees.  All employers are required to provide to persons covered by USERRA notice of their rights, benefits and obligations.  The DOL has a poster “Your Rights Under USERRA” for this purpose which employers may provide by posting it where employee notices are customarily placed, or by handing or mailing out the notice, or distributing the notice by e-mail.  The poster is available here.

Employee notice of military service.  Employees must provide advance notice of military service to their employers.  However, notice may be either written or oral and there is no time frame within which the employee must give notice. And, no notice is required if:

  • Military necessity prevents the giving of notice (for example, if a mission could be
    compromised by public knowledge); or
  • The giving of notice is otherwise impossible or unreasonable.

Duration of job-protected service and leave of absence.  The general duration of job protection is 5 cumulative years of covered military service, but the many exemptions really swallow the rule.  The 5-year limit will not apply when service is due to factors such as:

  • A service obligation that requires a commitment longer than 5 years
  • Voluntary or involuntary service that is ordered or extended due to a war or national emergency
    declared by the President or Congress. This specifically includes many service obligations
    following September 11, 2001, including service relating to the wars in Iraq and Afghanistan.
  • Service by members who are ordered to active duty in support of a “critical mission or requirement”
    of the uniformed services as determined by the Secretary of the military branch involved.
  • Weekend, annual, and other Reserves training.

Pay and benefits during USERRA leave.  USERRA leave is generally unpaid unless the employer has a company policy that provides pay.  More on that later.  

Servicemembers must be allowed, but cannot be required, to use accrued vacation or other paid time off during military service.  Paid time off does not continue to accrue during the military member’s absence from work, but certain rights based on seniority do accrue during military leave.  See the discussion of “reemployment rights” in the second installment of this topic.

The employee can continue health coverage for up to 24 months (or until the end of service, whichever is shorter) after leaving employment for military service.  The employee cannot be required to pay more than 102% of the usual premium. 

Employee’s time limits for reporting back to work.  To qualify for USERRA’s protections, a service member must report to work or apply for reemployment within certain time limits that depend on the duration of a person’s absence for military service.  Employers must allow a longer time if extenuating circumstances prevented timely reporting to work:

Service of 1 to 30 days:  Employee must report to work by the beginning of the first regularly scheduled work period on the next calendar day following completion of service, after allowance for safe travel home from the military duty location and an 8-hour rest period.

Following a fitness exam:  Same as for service of 1 to 30 days above, regardless of the length of the person’s absence.

Service of 31 to 180 days:  An application for reemployment must be submitted to the employer no later than 14 days after completion of a person’s service.

Service of 180 or more days:  An application for reemployment must be submitted to the employer no later than 90 days after completion of a person’s military service.

__________________________________________

Watch for our second installment on this topic.  We will take on issues relating to the employee’s return to work such as:  what position the employee gets upon completion of service, exceptions, USERRA interaction with company policies, and our recommended best practices for employers.

MATRIX CAN HELP!  At Matrix we offer a full suite of leave of absence and disability management tools.  These include management of employer-specific leave plans, as well as FMLA, state leave laws, ADA accommodations, disability plans  . . . and of course, USERRA.  To learn more, ping us at ping@matrixcos.com.

Washington State Amends Its Personal Protection Leave Law

Posted on: March 19, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

We previously blogged about the rise in the number of state laws protecting victims of domestic violence, sexual assault, stalking, or similar personal crimes.  Such laws typically prohibit employment discrimination against victims and provide leaves of absence for an employee who is a victim or whose family member is a victim.  To read our prior post, please click here.

Washington state’s existing Domestic Violence Leave Law provides these protections, but has recently been amended by House Bill 2661, which enhances the law.  The bill was signed into law by Washington’s governor on March 13, 2018.

The new provision  require employers to make “reasonable safety accommodation(s)” for employees who are victims of domestic violence, sexual assault, or stalking, or who has family members that are victims, absent undue hardship (defined as significant difficulty or expense).  The term “reasonable safety accommodations” includes such actions as changing the employee’s work phone number, email address, or work station; transfer to an alternate work site; reassignment; implementation of locks or safety procedures; and other adjustments to the workplace or employee’s situation. 

The amendments allow an employer to request verification of the need for a safety accommodation like that which is required to take a leave of absence, namely:

  • that the employee or his or her family member is a victim of domestic violence, stalking or
    sexual assault; and
  • that the safety accommodation the employee is requesting is for the purpose of protecting the
    employee or family member because of victim status.

Such verification can be limited to an employee’s written statement.  The amendment also provides for applicants for employment (and not just employees) to bring a lawsuit to recover actual damages from a prospective employer’s violation of Washington state law.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Just when you thought you might be getting the hang of New York Paid Family Leave…

Posted on: March 12, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

The New York state legislature introduced a bill proposing to expand the coverage of paid leave.  See NY S 7723.  As with so much of the NY PFL law and regulations, the proposed bill – if enacted as is – will add more complications and conflicts.  Here’s what is in the bill:

PROVISION

COMMENTS – IF PASSED
Adds as a covered leave reason, matters related to being victim of domestic or sexual violence:

Medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, relocating to a permanent or temporary residence.

This leave will create a category under Paid Family Leave for which the employee can obtain paid leave for personal medical needs.  An employee’s own medical condition is otherwise excluded from PFL coverage due to the availability of disability leave insurance
Available only for employee as victim, not for a family member as a victim.  Almost all existing laws granting leaves for victims of domestic violence and similar crimes provide time off if either the employee or a specified family member is the victim.  The limitation to the employee only is unusual and we might expect to see an amendment in this regard.

 

Employee can use only 2 weeks of paid PFL (out of the 8, 10, or 12 weeks of total PFL entitlement) for the new leave reason, but can also use 2 additional weeks unpaid, and the unpaid weeks have the same PFL protections. The bill provides an employee with 2 additional weeks of leave for matters related to domestic violence (but unpaid).  For example, in 2018 an employee could take 6 paid weeks to care for a family member, 2 paid weeks for matters relating to being a victim of domestic violence, and 2 weeks unpaid for the same – a total of 10 job-protected weeks off, although for all other reasons NY PFL is limited to 8 weeks in 2018.
Benefits are paid at 67% of employee’s average weekly wage, not to exceed 67% of state average weekly wage.  This is an odd provision – why not just follow the same phase-in of PFL percentage benefits over the next 3 years?

 

As you can see, the proposed bill would create some administration challenges, such as tracking the 2-week limitation of PFL for domestic violence reasons and the 2 additional weeks of unpaid but job-protected leave.  As drafted the bill will also require employers to pay different benefit percentages for early years based on leave reason until the benefit percentage for all leave reasons reaches 67% in 2021.  This bill, if passed, will go into effect on the January 1 following passage – so likely January 1, 2019. We hope for some amendments before passage!

The FMLA is 25!

Posted on: February 2, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE

Happy Birthday!  Monday February 5 marks 25 years since the Family and Medical Leave Act was signed into law.  I was in private practice when the law passed, and I recall an associate with our law firm presented a summary of the new law.  My thought was, “This will never amount to anything.”  So much for my predictive talents!  Who knew that 25 years later the FMLA would be such a big part of my job every day and such a challenge for employers?  The law and regulations have gone through 2 major revisions since enactment, adding things like 26 weeks to care for an ill or injured service member and special rules for flight crews. 

If you want to learn more about this milestone event, including a “Thunderclap” scheduled for 1:00 EST on Monday, check out this page on the website for the National Partnership for Women & Families:  25th anniversary of the FMLA activities.

I also want to take this opportunity to say thank you to all of our clients.  You put your trust in Matrix to manage FMLA and state leave requests for your employees and we strive to live up to that trust. 

Matrix can help!
Remember, in addition to our FMLA and state leave of absence services, we also manage ADA accommodation requests, disability claims, workers’ compensation, state paid family leaves, and more.  For information contact your account manager or send us an email at ping@matrixcos.com.

Reassignment as an ADA Accommodation: To Compete or Not to Compete?

Posted on: February 1, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE


Good news for employers: Depending where your employees are located, you might not have to grant reassignment without competition as a reasonable ADA accommodation.

As we administer our ADA management services, we frequently get questions about the employer’s obligation to reassign an employee to a vacant position as an ADA accommodation. Some time ago we addressed reassignment as an accommodation under the ADA. We wrote:

When good faith efforts during the interactive process fail to yield an effective accommodation for the employee’s current position, the ADA requires an employer to consider a possible accommodation that employers frequently overlook or don’t understand well:  reassignment of a disabled employee to a vacant position.  This obligation arises when (1) no other reasonable accommodation will enable the employee to perform the essential functions of his current position without imposing an undue hardship on the employer (thus, the moniker “accommodation of last resort”); and (2) the disabled employee is qualified for the vacant position.

In that blog post we explained the EEOC maintains that if a position is open and the disabled employee has the minimal qualifications, he/she gets the job – he/she does not have to compete or be the best qualified candidate for the position. 

Things have advanced a bit since that post was written and it is time for an update. The issue is still not nailed down in most jurisdictions – and the EEOC has not wavered in its position – but the 11th Circuit Court of Appeals (covering Alabama, Florida, and Georgia) has held that in certain circumstances, an employee with a disability can be required to compete with other candidates for an open position. Although this decision came out several months ago, continued questions from our clients show that they still grapple with the issue.

The Facts. The employee, Leokadia Bryk, was a nurse in the psychiatric ward at St. Joseph’s Hospital in Florida. Due to a developing back problem, Bryk walked with a cane during her shifts. The hospital determined that use of the cane posed a risk as patients in the psychiatric ward might be able to use the cane as a weapon. Bryk was given 30 days to apply for other positions for which she was qualified. St. Joseph’s usual transfer rules required that an internal candidate could not apply for another position if the employee had not been in her current position for at least 6 months and had no final written warnings in her file. Bryk did not satisfy either of these requirements, but St. Joseph waived these rules to allow Bryk to apply for vacant positions. She applied for 3 positions but was not hired because she was not the best qualified candidate for any of the positions.

The Lesson. St. Joseph’s had a “best-qualified applicant” policy – meaning that they had a business policy and practice of hiring the best-qualified candidate for an open position. Relying on an earlier U.S. Supreme Court opinion, the 11th Circuit recognized that an employee’s proposed accommodation must be “reasonable in the run of cases.” The court then affirmatively stated that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases’” and held that the ADA does not require mandatory reassignment:

As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. . . . [T]he ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position . . . [T]he intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities . . . [It] was never intended to turn nondiscrimination into discrimination against the non-disabled.

EEOC v. St. Joseph’s Hospital, Inc. (11th Cir. 12/07/2016).

Lay of the Land. Other courts have addressed the issue of reassignment as an ADA accommodation. In Huber v. Wal-Mart Stores, Inc. (2007) the 8th Circuit came to the same conclusion as the 11th Circuit. The EEOC cites cases from the 7th, 10th, and D.C. Circuits in support of its position. Various district courts (the federal trial courts under the Circuit courts of appeals) in several states have tackled the issue with varying results.

 

Pings for Employers.

  • Employers should not view the St. Joseph’s case as a complete victory. The federal courts of
    appeals are still split on employers’ ADA reassignment obligations, and some haven’t addressed
    the issue at all. It is important to receive legal guidance on the status of the issue where you
    do business; it is likely to vary if you have employees in multiple states. And, if you require a
    disabled employee to compete for an open position in any jurisdiction, you still might find
    yourself wrangling with the EEOC.
  • The St. Joseph’s decision rests heavily on the employer’s “best-qualified applicant” policy. Most
    employers probably believe they have such a policy but now employers should memorialize
    the policy in writing and train hiring managers to ensure it is followed in practice. It might be
    possible to make occasional exceptions but be ready to explain those with business reasons
    that justify the variation.
  • Don’t be inflexible when dealing with the ADA. Even with a best-qualified policy and in the
    11th Circuit, there still may be fact-specific situations that would make reassignment without
    competition a reasonable accommodation.
  • Take a lesson from the way St. Joseph’s handled this employee. Even though it enforced its
    best-qualified policy, it bent other rules in its transfer and hiring policies as accommodations
    to Bryk, enabling her to apply for jobs even though she did not satisfy the company’s rules.

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

 

 

And Now There are Nine – Maryland Passes Paid Sick and Safe Leave

Posted on: January 18, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

On January 12, 2018, Maryland became the ninth state to require employers to provide paid sick and safe leave to employees (joining Arizona, Connecticut, California, Massachusetts, Oregon, Vermont, Washington DC and Washington State). The Healthy Working Families Act (“HWFA”) has had a tortured legislative history. The bill passed in the Maryland legislative session early 2017 but then was vetoed by the Governor in May 2017. The veto was overridden the Maryland legislature on January 12th.

Here is a summary of the HWFA’s provisions:

Effective Date February 11, 2018 (30 days after passage)
Covered Employers Employers with 15 or more employees must provide paid “sick and safe leave” (those with 14 or fewer employees are also required to provide such leave, though it is unpaid).
Eligible Employees- exclusions The Act provides a number of exclusions to “employees” who are eligible to earn HWFA, including temporary employees (i.e. those employed by a staffing agency), and those who regularly work less than 12 hours per week.
Accrual Rate and Caps Employees employed as of January 1, 2018 accrue 1 hour of paid sick and safe leave for every 30 hours worked. Employees hired thereafter begin to accrue paid sick and safe leave from and after their date of hire, in accordance with the hours they work.

 

Employers can cap accrual to 40 hours in a year (any 12-month period as the employer defines it). An employee cannot accrue more than 64 hours of paid leave at any time.

Limits on Employee Use Accrued paid sick and safe leave cannot be used during the first 106 calendar days for which the employee works for the employer.

 

Employers can limit employees’ use to a maximum of 64 hours in a year.

Purposes for which HWFA Hours may be Used For the care or treatment of the employee’s own mental or physical illness, injury or condition.

To obtain preventive medical care for the employee or employee’s “family member.”

To care for a “family member” with a mental or physical illness, injury or condition.

For maternity or paternity leave or

If the employee or employee’s family member is a victim of domestic violence, sexual assault or stalking, leave may be taken:

   o   To obtain medical or mental health treatment

   o   Services form a victim services organization

   o   Legal services or attending proceedings related to or
resulting from domestic violence, sexual assault or stalking

   o   Or during the time that the employee has temporarily
relocated as a result of domestic violence, sexual assault
or stalking.

Covered “family members” Child (biological, adopted, foster or stepchild of the employee, a child for whom the employee has legal or physical custody or guardianship and a child for whom the employee stands in loco parentis).

 

Parent (biological, adopted, foster or stepparent of the employee or employee’s spouse, the legal guardian of the employee or an individual who acted as a parent or stood in loco parentis to the employee or the employee’s spouse when they were a minor).

 

Grandparent (biological, adoptive, foster and step)

 

Grandchild (biological, adoptive, foster and step)

 

Sibling (biological, adoptive, foster and step)

Employee Notice Employees must give advance notice of using HWFA hours if the need for such leave is foreseeable. The employer can require 7 days’ advance notice.

 

If not, the employee still must provide as much notice as is practicable under the circumstances and can require the employee to follow normal notice and reporting procedures for other leaves or time off.

Employer Requirements Notice of Accrual and Balance Employers are required to provide employees with information on paystubs of the amount of HWFA accrued and statement amounts used. This may be satisfied via electronic means.
Employer Posting Obligations The Maryland Department of Labor will post a model notice on its website for employers to use to apprise employees of their rights under HWFA. The notice is not yet available.
Employer Record Retention Requirements Employers are required to retain records of HWFA accrued and used by each employee for at least 3 years.
Payout on Termination of Employment Employer is not obligated to pay accrued but unused HWFA leave upon termination of employment.
Employer Prohibitions Employers are prohibited from taking adverse action (demotion or discharge, or threats of either) or retaliating against an employee who has exercised his or her rights under HWFA, or interfering with an employee’s exercise of those rights.
Enforcement HWFA vests the Commissioner of the Maryland Department of Labor with enforcement authority, including the ability to assess penalties such as payment of the monetary value of any unpaid earned HWFA, as well as an additional amount up to three times that sum and civil penalties of up to $1,000 per violation.

An employee may bring a civil action to enforce an order from the Commissioner if the employer does not comply.   The employee has 3 years from the date the order was entered to file suit.

 

Compromise legislation has also been introduced, aptly named “Paid Leave Compromise Act” (MD H 98/S135), which may slightly alter some of the Act’s provisions. The Radar will keep readers apprised!

DOL Announces ERISA Disability Claims Handling Rules Will Go into Effect AS IS on April 1, 2018

Posted on: January 8, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE 

On Friday, January 5, 2018, the U.S. Department of labor issued a press release announcing that the Final Rule amending the regulations governing claims handling procedures for ERISA disability claims will go into effect on April 1, 2018, without changes from the original.  The Final Rule was originally issued by the DOL on December 16, 2016, with an effective date of January 1, 2018.  That effective date was postponed until April 1, 2018, in order to “solicit additional public input and examine regulatory alternatives” to the Final Rule.  The DOL accepted comments until December 11, 2017.   

The DOL press release states: 

The Department announced a 90-day delay of the applicability date of the final rule – from Jan. 1, 2018, through April 1, 2018 – to give stakeholders the opportunity to submit data and information on the costs and benefits of the final rule.   . . .

The information provided in the comments did not establish that the final rule imposes unnecessary regulatory burdens or significantly impairs workers’ access to disability insurance benefits.

We wrote in detail about the ERISA changes when the final Rule was first issued and provided suggestions for employer actions.  We urge you to read that post here.  Below we provide a brief recap of the changes.

  1. Independence and impartiality of claims adjudicators. Claims and appeals must
    be decided in a manner designed to ensure independence and impartiality of the
    persons involved in making the benefit determination. 
  2. Improvements to disclosure requirements. Benefit denial notices must contain the following:
  • A complete discussion of why the plan denied the claim and the standards
    applied in reaching the decision.
  • The basis for disagreeing with the views of health care or vocational
    professionals whose opinions were provided by the claimant or obtained at
    the behest of the plan.
  • The basis for disagreeing with a finding of “disability” by the Social Security
    Administration (SSA), if applicable.
  • The specific internal rules, guidelines, protocols, standards or other similar
    criteria of the plan relied upon in making the adverse determination or, alternatively,
    a statement that such guidelines etc. do not exist.
  • If the denial is based on a medical necessity or experimental treatment or similar
    exclusion or limit, either an explanation of the scientific or clinical judgment for the
    determination, or a statement that such explanation will be provided free of charge
    upon request.
  1. Claimant’s right to access entire claim file. An initial adverse benefits determination
    must contain a statement that the claimant is entitled to receive, upon request and
    without charge, the documents relevant to the claim for benefits.
     
  2. Notice of new or additional evidence or rationales before adjudication. A claimant
    must be notified of and provided an opportunity to respond to any new evidence or
    rationales developed by the plan during the pendency of the appeal.  However, the new
    regulations do not extend the time deadlines for the plan’s determination (45 days from
    the filing of the appeal, with a possible 45-day extension).
     
  3. Claimant is deemed to have exhausted administrative remedies if a plan fails to
    comply with claims procedure requirements.
    A claimant can seek court review of a
    claim denial based on a failure to exhaust administrative remedies under the plan if
    the plan failed to comply with the claims procedure requirements, unless a detailed
    exception applies.
  4. Expanded definition of “adverse benefit determination” that triggers
    appeals procedures.
    Under the new rule, rescissions of coverage, including retroactive
    terminations due to alleged misrepresentation of fact (e.g., errors in the application
    for coverage) must be treated as adverse benefit determinations, thereby triggering
    the plan’s appeals procedures.  Rescissions for non-payment of premiums are
    not covered by this provision.
     
  5. Notices and denials must be written in a “culturally and linguistically
    appropriate” manner.
    If a disability claimant’s address is in a county where 10
    percent or more of the population is literate only in the same non-English language,
    benefit denial notices must include a prominent statement in the relevant non-English
    language about the availability of language services.  Such services must include assistance
    with filing claims and appeals in the non-English language.  The plan must provide written
    notices in the applicable non-English language upon request.

What is Matrix Doing to Comply with the New Regulations?

Not to worry – Matrix’s disability claims handling procedures will embrace the new rules and will
continue to be best in class!  We will be ready to administer our clients’ disability plans in compliance
with the new regulations by April 1, 2018.  Indeed, we originally marched toward the January 1, 2018,
compliance date. 

If you have questions, please contact your account manager or practice leader, or send us an email at ping@matrixcos.com.

The Needle in the Tax Bill Haystack – A Paid Family & Medical Leave Tax Credit

Posted on: January 4, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE 

 

One might think that the Trump administration would trumpet (ahem . . . ) the supposed family-friendly and employer-friendly provisions of the new Tax Cuts and Jobs Act.  Not so.  A little-publicized provision of the new Act establishes a tax credit for employers who provide paid family and/or medical leave to employees within certain parameters.  Your guess is as good as mine as to why this provision has flown under the radar.  But not under the Matrix Radar!

The tax code provision is based on a bill previously introduced into the House and Senate as the Strong Families Act, which has received strong criticism from pro-family groups.  Google it and you can find websites criticizing and supporting the Strong Families Act.  Politics aside, let’s take a look at what is now the law.  (But please remember, we at Matrix are not tax advisors – consult your own attorneys or tax advisors for specific details!) 

You can review the specific provisions of the law at the link above – the “Employer Credit for Paid Family and Medical Leave” starts at page 221 of the bill (page 223 of the PDF). 

Summary.  The Tax Cuts and Jobs Act (the “Act”) provides employers with a partial tax credit for wage benefits paid to employees during leave taken for reasons covered by the federal Family and Medical Leave Act (“FMLA”).  But note this:  The credit is in effect only for tax years 2018 and 2019, and then automatically sunsets unless Congress takes further action. 

Employee and employer coverage.  The tax credit coverage is not limited to employees and employers covered by the FMLA.  Benefits paid to full time and part time employees are covered by the tax credit.  However, to qualify for the tax credit, payments must be to employees who:

  • Have been employed by the employer for at least 1 year
    • The Act does not specify whether that has to be 12 consecutive months of employment
      or whether, like FMLA eligibility, the employee only needs to have worked an aggregate
      total of 1 year
  • Make no more than $72,000 per year

Employers may voluntarily provide paid family leave to employees who are not eligible for FMLA leave (called “added employees” in the Act) and receive the tax credit for such payments as long as the employer has a policy that complies with the Act.  So, for example, an employer could provide paid leave benefits to an employee who has not worked 1250 hours in the past 12 months, or who has already exhausted their FMLA entitlement, and still get the tax credit.  “Added employers” with fewer than 50 employees or those with small worksites not covered by the FMLA can also make paid leave benefits available to employees and use the tax credit. 

Policy requirements include a minimum of 2 weeks of paid leave benefit, a provision against interference with the employee’s policy rights to paid leave, and a provision against termination of an employee for complaining about a violation of the policy.

Leave reasons.  Leave benefits must be paid for one or more of the leave reasons available under the FMLA – the employee’s own serious health condition, a family member’s serious health condition, birth or placement of and bonding with a new child, military exigencies, and caring for a seriously ill or injured servicemember.  An employer’s policy does not need to cover all of the FMLA leave reasons to qualify for the tax credit.  For example, an employer may provide paid leave only for bonding with a new child and still qualify for the tax credit if all other conditions are met. 

Amount of leave.  The employer’s policy must provide at least 2 weeks of paid leave.  The maximum amount of paid leave that qualifies for the tax credit is limited to 12 weeks per employee in a 12-month period (the same as FMLA leave rights).

Percentage of pay provided.  The employer must provide a paid leave benefit of at least 50% of the employee’s wages (as defined in the tax code – I’m not going there!).

Amount of tax credit.  An employer providing paid family and/or medical leave benefits can receive a tax credit ranging from 12.5% to 25% of the amount paid to the employee.  The credit starts at 12.5% of benefits paid at the 50% level and caps at a 25% credit for benefits paid at full wage replacement.  For every percentage point over 50% of wages that the employer pays in benefits, the tax credit increases by one-quarter of a percent.  Examples:

Percentage of Paid Leave Benefit Percentage Points above 50% Multiplied by 0.25% Employer’s tax credit percentage
50% 0 0 x 0.25% = 0 12.5%
70% 20 20 x 0.25% = 5% Base 12.5% + 5% = 17.5% tax credit
90% 40 40 x 0.25% = 10% Base 12.5% + 10% = 22.5% tax credit
100% 50 50 x 0.25% = 12.5% Base 12.5% +12.5% = 25% tax credit

 

Applicable tax years.  The paid family leave tax credit is available only in tax years 2018 and 2019, unless extended by Congress.  Otherwise, it expires automatically on December 31, 2019.

Relationship to state/local paid family leave.  The Act provides that any leave which is paid or required by a state or local government is not taken into account in determining the amount of the tax credit.  Thus, the credit applies only to benefits paid voluntarily, not required by state or local law. 

PINGS FOR EMPLOYERS

  • Consult your tax advisor. As with all things tax-related, you should consult with your tax advisor
    to determine whether your existing plan is covered by the new paid leave tax credit.
  • Consult your financial advisor. If you don’t have a paid leave plan for your employees, consult
    with your financial (and tax) advisor to determine whether the incentive provided by the tax credit
    is enough to justify offering a paid leave benefit to your employees.
  • Consider benefits beyond monetary. In this day of strong competition for good employees,
    remember that a superior benefits package can be a lure.  But, with the tax credit scheduled to
    last only two years, also consider whether your company can continue the benefit if the tax
    credit expires on December 31, 2019.  Taking away the benefit might not be a good employee
    relations move at that time.

MATRIX CAN HELP!  At Matrix we offer a full suite of leave of absence and disability management tools.  This includes management of employer-specific leave plans, as well as FMLA, state leave laws, leave (and more) as an ADA accommodation, and disability plans.  To learn more, ping us at ping@matrixcos.com.

Mental Stability & ADA Evaluations – Part 2: “Regarded As” Liability

Posted on: December 26, 2017 1

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

This is our second entry in this series of 3 blog posts on mental examinations and the Americans with Disabilities Act.  For the first article, discussing ADA mental examinations and the employer’s obligation to provide a safe workplace, click here.

Our second case study poses the question, can an employer require a worker to undergo a psychological exam without creating an ADA “regarded as disabled” claim for the employee?

The facts.  Evangelene Monroe had been a job scheduler for her employer Consumers Energy (CE) for 13 years when she started exhibiting aberrant behavior.  Her supervisor noted that Monroe was losing focus and concentration at work, that she had become increasingly secretive, and was not interacting with her co-workers during staff meetings as in the past.  Monroe’s work performance was suffering significantly.

Monroe filed a complaint with CE’s Compliance Department, in which she reported that she was being tracked and surveilled by coworkers by various means:  interception of personal text messages, listening devices on her phone and in her work cubicle, camera surveillance at work and at home, a GPS tracking device on her car, and eavesdropping via the key fob for her vehicle.  Her complaint was investigated by Kathleen Delaney, CE’s director of Human Resources, who did not find any merit to Monroe’s allegations.  Due to the nature of Monroe’s charges, Delaney arranged to have Monroe scheduled for an IME to determine if she was able to perform the essential functions of her job.

Dr. Dutes performed a neuropsychology evaluation and reported that Monroe showed a high degree of interpersonal sensitivity and a tendency toward paranoid thinking.  He recommended 12 sessions of psychological counseling and then a reevaluation of her ability to return to work.  Monroe refused the counseling and in January 2014 she went out on paid sick leave for several months.  She then worked part time elsewhere and collected some unemployment.

In late 2014 Delaney contacted Monroe about returning to work but told Monroe she would still have to undergo the counseling.  Monroe insisted that she was better, which was confirmed by another neuropsychological exam in April 2015.  Nonetheless, Dr. Dutes still recommended 8-12 counseling sessions.  Monroe still objected and filed a charge with the EEOC.  She was not satisfied with the EEOC investigator because, according to Monroe, the investigator told Monroe she needed to undergo the counseling.  Monroe finally agreed to the counseling and returned to work at CE full time in December 2015.  No surprise, Monroe filed suit against CE in January 2016.

Regarded as disabled?  The ADA extends its nondiscrimination protections to include an individual who does not have an impairment but is regarded as having one.  In her lawsuit Monroe did not claim that she had a qualifying mental impairment under the ADA.  Rather, Monroe alleged that by requiring her to undergo the neuropsychological exams, CE showed that it “regarded” her as disabled.  She further alleged that the exams constituted an adverse employment action by CE.

To establish this claim, Monroe had to show that she had been discriminated against because CE perceived that she had a mental impairment.  The court explained that a person is “regarded as” being disabled under the ADA if: (1) an employer mistakenly believes that a person has a physical impairment . . . or (2) an employer mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.  In both cases, the employer’s actions are based on a misperception about the individual.

The employer’s Catch-22.  So Monroe’s charge was that CE regarded her as disabled by virtue of its requirement for her to participate in mental health evaluations.  Wow, that would really be a Catch-22 for employers, wouldn’t it?  The employer has the no-win choice of (1) allowing the employee to continue to work with possible consequences of poor performance or safety risks to the employee or his co-workers or the employer’s property; or (2) requiring the employee to undergo a mental exam at the cost of establishing a claim of regarded-as discrimination against itself.  A third possibility is equally untenable:  terminating the employee on the basis of the employer’s unsubstantiated concerns about the employee’s mental condition and risking a true regarded-as claim.

The court saves the day.  Fortunately for employers, the court ruled that an “employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.”  Relying on an earlier case from the 6th Circuit the court explained that an employer has the right to determine the cause of an employee’s aberrant behavior and doing so is not enough to suggest that the employee is regarded as mentally disabled.  An employer-requested psychological evaluation is in full compliance with the ADA if “restricted to discovering whether the employee can continue to fulfill the essential functions of the job”; in other words, if it is job related and consistent with business necessity.

You can review the court’s opinion here:  Monroe v. Consumers Energy (E.D.Mich., S.D. 2017)

PINGS FOR EMPLOYERS

  • Track behavioral changes. As with our employer in last month’s case study, CE had numerous examples of
    Monroe’s strange behavior, not just a couple of isolated incidents. Moreover, Monroe’s supervisor noted that her
    behavior and job performance had changed over time. That observation of change can be an important factor
    in supporting the need for a mental health exam.
  • Keep consistent. In requiring the neuropsychological exams, CE focused on whether Monroe could perform her
    job functions. This supported that the exam was job-related and consistent with business necessity.  This is
    permissible even though the exam might reveal an ADA-qualifying mental impairment.
  • Maintain communication. This employer was very diligent in staying in touch with the employee and trying to bring
    her back to work. In fact, Monroe did return to work full time due to CE’s efforts.  Although Monroe sued anyway,
    CE had done the right thing.  This did not play a part in the court’s written decision, but CE certainly gets Brownie
    points for good employment practices.

UP NEXT:  One intriguing issue the court did not address directly is whether an employer can require an employee to undergo psychological counseling as a condition of returning to work.  Stay tuned for our 3rd post in this series, which will take on this and other issues related to the ADA and mental health exams.

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination.  You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

 

Mental Stability & ADA Evaluations—Part 1: Safety

Posted on: December 14, 2017 2

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Consider this situation:  Your employee Melvin is exhibiting alarming behavior – aggressive interactions
with coworkers, loud banging of drawers and doors, unfounded suspicions of surveillance, incomprehensible mumbling or rants.  Melvin has not asked for time off or any sort of workplace accommodation, but you are concerned about whether Melvin is capable of performing his job, or worse, whether he presents a threat to the safety of himself or his coworkers. 

Can you make Melvin undergo an independent medical exam (IME) to assess his mental fitness to work?  In two recent lawsuits, coming at the issue from two different angles, the courts each ruled “yes,” as long as certain conditions are met.  This blog post starts a series of 3 articles addressing these new cases and mental health exams under that ADA.  Read on to learn how coworker safety and “regarded as” ADA discrimination meet in the IME examination room (figuratively speaking).

Setting the stage.  Under the ADA, any type of medical examination must be job-related and consistent with business necessity.  According to the EEOC, this is established when the employer has a reasonable belief, based on objective evidence, that:

(1) An employee’s ability to perform essential job functions will be impaired by a medical condition; or

(2) An employee will pose a direct threat due to a medical condition. 

The employer’s reasonable belief must be based on objective evidence obtained prior to requiring a medical examination.  This requires an assessment of the employee and his/her position and cannot be based on general assumptions.  EEOC Enforcement Guidance on Medical Inquiries and the ADA.  

“Preventing employees from endangering their coworkers is a business necessity.”  Our first case study is Painter v. Illinois Department of Transportation.  Deanna Painter was as an Office Administrator for the Illinois Department of Transportation.  Previous coworkers complained about Painter’s behavior, stating that she frequently snapped and screamed at them, gave intimidating stares, ranted, mumbled to herself, and banged drawers in her office.  Her coworkers were concerned she would “go postal.”  Current coworkers reported that she glared and growled at them, kept a log of all their actions, and was angry, abrasive, and threatening.  She also wrote an email to her union representative about a clock that was 30 minutes fast, stating that the clock “was a tell-tale sign for me.  It told me everything I needed to know.”  She then made a comment in the email about something being dead.  The union rep took this as a death threat and refused to communicate with her further.  (That, of course, speaks volumes when even the union rep is afraid to talk with an employee!)

IDOT put her on paid administrative leave and required her to undergo an IME with a psychiatrist.  The psychiatrist concluded that Painter might suffer from a personality disorder but nonetheless cleared her to return to work.  After her return, complaints from coworkers started anew.  Painter was reprimanded but the conduct continued, including argumentative, confrontational, insubordinate, and disruptive behavior. 

IDOT again placed Painter on a paid administrative leave and sent her for another IME with the same psychiatrist.  The psychiatrist reviewed extensive additional notes, emails, and documents regarding Painter’s behavior.  This time he concluded that Painter was unfit for duty because of her “paranoid thinking and highly disruptive behavior which results from her paranoia,” which is a risk factor for violence. 

Painter sued IDOT, alleging that it had violated the ADA by forcing her to attend “unnecessary” medical examinations.  The 7th Circuit Court of Appeals disagreed and found both psychiatric IMEs to be job-related and consistent with business necessity.  The court concluded, “Preventing employees from endangering their coworkers is a business necessity:  a safe workplace is a paradigmatic necessity of operating a business.”  Both exams followed extensive unstable conduct by Painter and numerous complaints by coworkers about concern for their safety due to her conduct.  Importantly, the court noted the choices an employer faces in this situation and came down on the side of the employer:

Employers need not retain workers who, because of a disability, might harm someone; such a rule would force an employer to risk a negligence suit to avoid violating the ADA.

Painter v. Illinois Department of Transportation, (7th Cir. Dec. 6, 2017).

Pings for employers

  • Multiple observers. Numerous coworkers observed and reported Painter’s
    actions over many months leading up to the first IME and then the second exam.
    While some situations may require faster action, in this case the amount of
    information about Painter’s conduct was helpful to the employer’s case.
  • Document, document, document! Painter’s supervisor kept detailed notes of
    her actions and his discussions with her, as well as her odd emails.  He also
    gathered written statements from her coworkers.  These proved very important
    in the court’s analysis of whether IDOT had sufficient grounds to require the IMEs
    as job-related and consistent with business necessity.
  • Level of odd conduct. Don’t order medical evaluations based on minor incidents
    of strange behavior.  As the Painter court observed:  “That an employee’s behavior
    could be described as annoying or inefficient [does not] justify an examination; rather,
    there must be genuine reason to doubt whether that employee can perform
    job-related functions.”
  • Direct threat? Maybe not.  The court did not specifically analyze whether Painter’s
    conduct established that she presented a “direct threat” to coworkers.  The burden
    to prove this element is quite high –the analysis includes consideration of how imminent
    and likely the threat is, as well as the anticipated duration and severity of the threat.
    In the Painter case the court chose to focus on the employer’s obligation to provide
    a safe workplace (and perhaps also believed that the facts and psychiatric diagnosis
    of paranoia spoke for themselves).

UP NEXT:  Watch this space for a discussion of a case where the employee claimed that the employer “regarded” the employee as disabled in violation of the ADA because it required the employee to go through a mental health IME.

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you deal with tough issues like whether you have grounds to require an employee to undergo a mental health examination.  You always retain the final decision, but we aid in the assessment and manage the intake, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

 

DOL Announces 90-Day Delay of ERISA Disability Claims Rules Change

Posted on: November 27, 2017 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance

On Friday the U.S. Department of Labor today announced a 90-day delay – from January 1 to April 1, 2018 – of the applicability date for ERISA plans to comply with the December 16, 2016, “Final Rule” amending the claims procedure requirements applicable to disability benefits.  As explained below, further delay of the applicability date beyond April 1 is not out of the question.  The official notice will be published in the Federal Register on November 29, 2017, but an unofficial version can be reviewed here. 

According to a press release issued by the DOL:

               . . .  [T]he delay of the applicability date announced is intended to give interested stakeholders the
opportunity to submit, and for the Department to consider, data and information related to concerns
by some insurance industry and employer groups, and some members of Congress, that the claims
procedure amendments will drive up disability benefit plan costs, cause an increase in litigation and,
in so doing, impair workers’ access to disability insurance benefits.

The DOL published a notice in the Federal Register on Oct. 12, 2017, seeking comments on the proposed 90-day delay of the applicability date of the Final Rule. That comment period ended on October 27 and on November 24 the DOL announced its adoption of the delay.  Also on October 12 the DOL also asked for comments that “provide data and information germane to a re-examination of the merits of repealing, replacing, modifying, or retaining the rule.”  That comment period ends on Dec. 11, 2017.  Comments can be submitted by clicking on the “Comment Now!” button at this link.

The 108 public comments in support of and in opposition to the 90-day delay can be reviewed here.  Some of the commenters expressed concern that a 90-day delay was not sufficient to allow the DOL to review and consider all data and comments submitted regarding whether any changes (other than the delay) should be made to the Final Rule.  According to the DOL, however:

       . . . [V]arious stakeholders made a commitment to provide such data and information to the
Department. 
 . . .  If the Department receives such supporting data and information, the Department
will provide 
interested stakeholders with a reasonable opportunity for notice and comment on that
data and information.
Only at that point would the Department be in a position to seriously consider
any further delay of some or all of the requirements of the Final Rule beyond April 1, 2018.

We will continue to watch for developments regarding this subject.  However, it took the DOL over four weeks to determine whether to extend the applicability date for 90 days.  Given the more substantive issues now pending regarding the Final Rule and the comment closure date of December 11, it is unlikely that the DOL will make any significant announcements no sooner than late January 2018 at best.

 What is Matrix Doing?  At Matrix we have been working diligently to prepare for the new rules.  Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by April 1, 2018, or other new effective date.  To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  Our practice leaders and account managers will keep clients, producers, and others apprised of our work during the lead-up to the effective date – whatever it is!  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

New York Makes Paid Family Leave “Notice to Employees” Available

Posted on: November 14, 2017 2

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance  

Section 380-7.2.e. of the New York Paid Family Leave law requires employers to post a notice to employees of their rights under the law:

Every covered employer must display or post, and keep posted, a typewritten or printed notice concerning PFL in a form prescribed by the Chair.  The notice must be displayed in plain view where all employees and/or applicants can readily see it.

The state has now issued form PFL-120 for employers to use for this purpose.  It can  be obtained by sending an email to certificates@wcb.ny.gov.

For more information about New York Paid Family Leave, check out our previous blog posts:  October 2017,  October 2017, August 2017, July 2017, May 2017, March 2017, and April 2016.

 

Federal Protections for Victims of Domestic Violence Proposed in US House and Senate

Posted on: November 9, 2017 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance

Identical bills that propose significant leave of absence rights and job protections for victims of domestic violence, dating violence, sexual assault, and stalking were introduced simultaneously in the US Senate and House of Representatives on October 31, 2017.  If passed, the bills (S 2043 and H 4198) will require employers to provide up to 30 days of job protected and partially paid “Safe Leave” for victims – referred to as “survivors” – of these abusive personal crimes.

Startling statistics.  The bills provide some eye-opening Congressional findings regarding the impacts of these crimes:

  • Studies indicate that one of the best predictors of whether a survivor will be able to stay
    away from his or her abuser is the degree of his or her economic independence. However,
    domestic violence, dating violence, sexual assault, and stalking often negatively impact
    a survivor’s ability to maintain employment.
  • Survivors of severe intimate partner violence lose nearly 8,000,000 days of paid work,
    which is the equivalent of more than 32,000 full-time jobs and almost 5,600,000 days
    of household productivity each year.
  • Nearly 1 in 4 women and 1 in 9 men in the United States have suffered sexual violence,
    physical violence, or stalking by an intimate partner.
  • Annual costs of intimate partner violence are estimated to be more than $8,300,000,000
    in direct costs of medical and mental health care and indirect costs of lost productivity.

Based on these statistics and more, the goal of the bills is “to empower survivors of domestic violence,
dating violence, sexual assault, or stalking to be free from violence, hardship, and control, which
restrains basic human rights to freedom and safety in the United States.”

Several states have similar laws for the protection of victims of such personal crimes, although none of them contain pay provisions.  The passage of the most recent of such laws in Nevada prompted our prior blog post on these leave laws, in which we summarized the Nevada law and identified other states with similar laws:  Leave rights for victims of domestic violence:  Growing need, multi-state trend.

Summary of the bills’ provisions.  Here is a rundown of the key provisions of the two bills.  Several key
attributes of the leave rights are not specified in the bills, as noted below.  We would expect that, if passed,
the Department of Labor regulations authorized by the bills would clarify these points.

Keep in mind that these were just introduced and are likely to go through changes as they are considered
by both houses.  We will be watching their legislative journey and will report any updates on this blog.

ISSUE PROVISION
Eligible employees All employees – no eligibility requirements such as length of service or hours worked.

Includes full-time, part-time, and temporary employees.

Covered employers Employers with 15 or more employees.
Persons entitled to leave – “survivor” Employee who, personally or whose family or
household member, is experiencing or has experienced:

  • Domestic violence, dating violence, sexual assault,
    or stalking (“abuse”) (as those terms are defined
    in § 40002 of the Violence Against Women
    Act of 1994 (34 U.S.C. § 12291)).

Collectively referred to as a “survivor.”

“Family or household member” Defined as:

  • A son or daughter, parent, spouse, domestic
    partner, or any other individual related by
    blood or affinity whose close association with
    the person is the equivalent of a family
    relationship; and
  • Is not the abuser involved.
Leave reasons Leave can be used for the following activities related to the abuse, for the employee or the family or household member:

Seek medical attention;

  • to obtain services from a survivor
    services organization;
  • to obtain behavioral health services
    or counseling;
  • to participate in safety planning,
    temporary or permanent relocation,
    or taking other actions, to increase safety; or
  • to take legal action, including preparing
    for or participating in a civil or criminal
    legal proceeding.
Amount of “Safe Leave” 30 days in a 12-month period.

COMMENT:  The bills do not specify whether
the 30 days are work days or calendar days,
which could result in either 6 weeks or 4.3
weeks of leave respectively.  The most likely
interpretation is 30 work days, but we will
watch for clarification.

Leave year calculation method Not specified.

COMMENT:  The applicable 12-month period for 30 days
of leave is not defined.  FMLA permits 4 methods
(calendar year, fixed year, measured forward, rolling back).

Leave usage methods Not specified.

COMMENT:  The FMLA allows usage as a continuous/ block
leave, as a reduced schedule, and as intermittent periods
of leave of varying increments.

Pay provisions
  • Employees will accrue up to 56 hours of paid
    Safe Leave at an accrual rate of 1 hour of paid
    leave per 30 hours worked.
  • Exempt employees (those not subject to
    overtime pay requirements) are assumed to
    work 40 hours per week for accrual purposes;
    if they normally work a shorter week, the hours
    worked in that normal shorter week are used for accrual.
  • Accrual and carryover are maxed at 56 hours
    of paid leave.
  • Employees start accruing paid Safe Leave upon
    hire, but cannot use accrued time until the 60th
    calendar day of employment.
  • Accrued paid leave used by the employee
    counts toward the total 30 days per 12 months
    of Safe Leave
Employee request for Save Leave
  • Must be provided to the employer orally or in
    writing as soon as practicable after the employer
    is aware of the need for leave; and
  • Must inform the employer of the expected
    duration of the leave [and, presumably, the dates].
  • The employee must schedule the requested
    leave at a time that does not unduly disrupt the
    employer’s operations, unless such scheduling
    is not practicable.
Documentation
  • The employer can require documentation
    from the employee to support the leave.
  • Several types of documentation
    are acceptable, including a police
    report, court order, sworn statement
    from the employee or family/household
    member, documentation from an
    attorney or medical professional, and more.
  • The employer cannot specify the type of
    documentation that is acceptable for the
    requested leave.
  • The employee must submit documentation
    within 30 days of the first date of Safe Leave,
    but an employer cannot deny leave while
    awaiting documentation.
Employer notice to employees None required.

COMMENT:  The bills do not require any form of
notice to employees, either in general such as
posting or with respect to a specific Safe Leave request.

Job protection An employee must be reinstated to the same
or an equivalent job upon return to work from
Safe Leave.
Benefits Employers must maintain employees’ coverage
under any group health plan or employee welfare
benefit plan during Save Leave.
Interaction with FMLA Safe Leave under the proposed laws will be
“in addition to any leave taken (directly or indirectly)”
under the FMLA, not to exceed 30 days in
a 12-month period.

COMMENTS:

  • The bills are not clear whether leave for a
    reason that qualifies under both FMLA and
    these bills (e.g., leave for a serious health
    condition of the employee or a family member
    that results from domestic abuse) would count
    toward both.
  • It does appear that this leave is in addition to
    leave taken under the FMLA for reasons not
    covered by the Safe Leave law – not just
    additional leave reasons under the existing
    FMLA 12 week entitlement.
Interaction with other leave laws or employer policies An employee may substitute other leave available
pursuant to state or local law, a collective bargaining
agreement, or an employer program or plan for an
equivalent period of Safe Leave.
Other provisions The bills are quite detailed.  At present some additional provisions include:

  • Prohibitions against discrimination, retaliation,
    and interference with rights.
  • Federal and state entitlement to unemployment
    compensation when an employee is separated
    from employment due to circumstances related
    to being a survivor of domestic violence, dating
    violence, sexual assault, or stalking.
  • Key employee provision enabling employers
    to deny job restoration to certain employees
    in limited circumstances, similar to FMLA.
  • Enforcement by the DOL and by the employee,
    including civil actions.
  • The “Survivors’ Employment Sustainability Act,”
    which protects employees and applicants from
    discrimination, harassment, and retaliation based
    on the individual’s status as a survivor of domestic
    violence and other personal abuse (including a
    survivor of an unauthorized communication of an
    intimate image of the individual).
  • Prohibitions against insurers and employers
    who self-insure employee benefits from
    discriminating against survivors of domestic violence,
    dating violence, sexual assault, or stalking and
    those who help them in determining eligibility,
    rates charged, and standards for payment of claims.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

More ERISA: Update on the DOL’s Proposed Delay of the Disability Claims Handling Rules

Posted on: November 3, 2017 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance

Hello, all you ERISA folks.  How many of you are losing sleep over the new ERISA rules for disability claims handling?  As we previously discussed here, the DOL has proposed delaying the effective date of these rules (the “Final Rule”), which are currently scheduled to go into effect for claims filed on or after January 1, 2018.  But, as we previously reported, the US Department of Labor announced that it is “reviewing these amendments for questions of law and policy” and solicited public comments on its proposal to delay the effective date of the Final rule by 90 days (until April 1, 2018).

The public comment period on this proposal ended on October 27, and today the DOL posted the 108 comments received.  They can be reviewed here.  Not surprisingly, comments from claimants and attorneys for claimants oppose the delay, and claims handling and insurance companies  favor the extension.

Also today, I had a discussion with a DOL representative working on this issue to inquire when we could expect the DOL’s decision on the delay.  I was unable to obtain any specific information (not surprised!) but received assurances that the DOL is aggressively reviewing and considering the comments received.  They are very aware that affected parties are waiting eagerly – or anxiously – for the ruling.  We will provide immediate updates of any new developments on this blog.

For a refresher on the requirements of the changes to ERISA disability claims handling requirements, as set forth in the Final Rule, review our prior blog post http://matrix-radar.com/2017/01/a-game-changer-ERISA-releases-new-ERISA-disability-claims-rules/.

Tired of reports on ERISA, NY Paid Family Leave, and all things California?  Check out our recent blog posts on other topics:

The Headless Horseman – An ADA Halloween Tale

Lucky Employer Skates on ADA Liability

7th Circuit Rules that Extended Leave is not a Reasonable ADA Accommodation

And feel free to suggest any FMLA, ADA, disability, or other absence management challenges as topics for future blog posts!

What is Matrix Doing?  At Matrix we have been working diligently to prepare for the new rules.  Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018, or other new effective date.  To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  Our practice leaders and account managers will keep clients, producers, and others apprised of our work during the lead-up to the effective date – whatever it is!  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

The Headless Horseman – An ADA Halloween Tale

Posted on: October 31, 2017 1

By Marti Cardi, VP-Product Compliance Gail Cohen, Director-Employment Law/Compliance

Business was great and Ichabod decided to expand his company, Crane’s Daylight Deliveries, to include Midnight Messengers.  Tired of whiling away his nighttime hours as a ghoul, Harry the Headless Horseman applied for a night messenger position with Crane’s – dropping off his résumé at midnight, of course.  In a hurry to get the new service off the ground, Ichabod hired Harry sight unseen on the strength of his résumé, which touted Harry’s many years of experience as a nighttime horseman familiar with the trails and roads around Sleepy Hollow.   He sent Harry a letter by his Daylight Deliveries service and asked him to start work that night.

Headless Harry’s gig called for him to pick up packages and letters for delivery, after dark, from the hollowed out oak tree next to Crane’s offices.  Nervous about those nighttime phantoms, Ichabod left work before dark and did not meet Harry right away.

Harry started work and loved the job – riding the familiar lanes, but with purpose; speeding important packages and messages to the local citizenry as soon as possible.  No more “delivered next day” if a package wasn’t dropped off at Crane’s before 3 pm!  Crane’s received accolades for being on the cutting edge of package delivery, and praise for the horseman who silently left packages by the doorstep and rode away into the night without so much as a “how do you do.”

Unfortunately – due to having to hold his head with one hand as he rode – Harry only had one hand to hold onto the parcels.  Although he delivered his bailments safely, it took him more trips to accomplish his nightly mission than if he could carry several items at once.  He sometimes failed to complete his essential task of making all deliveries before sunrise.  After a few days of work, and following Crane’s personnel policies, Harry asked for an accommodation to assist him in performing the essential functions of his job: saddlebags to tie onto his horse to put the packages in.  He would then be able to finish his work in the dark, as promised by Crane’s Midnight Messengers – boxes with breakfast!  It was more than a catchy tagline; it was a requirement of the position!

Ichabod received Harry’s request with alarm.  How much would these saddlebags cost?  None of his other couriers had these bags.  What was Harry’s problem, and would saddlebags really enable Harry to do the job?  Ichabod arranged to meet Harry at dusk on Hollow Bridge – very close to Ichabod’s abode so he could get home before dark – to discuss his request.

Imagine Ichabod’s panic when Harry showed up with his head resting on his saddle, held in place with one hand!  Why, no one could deliver packages without his head attached!  How could he read the addresses on the packages and find the destinations?  How could he ask directions if needed?  Ichabod almost fell out of his saddle when Harry greeted him loudly by name and held his head up (in his hands) to look Ichabod in the eye (as his mother had taught him to do when speaking with someone).

As you might have guessed, the rest of the story reads like an ADA nightmare.  Ichabod stuttered and spluttered but told Harry he could not grant the accommodation – the cost was too high, other messengers would want the same, and he could not treat Harry differently by giving him saddlebags.  And besides, Ichabod said, a horseman without a head simply could not do the job.  “You’re fired!”

Not surprisingly, Harry filed an EEOC charge against Crane’s Midnight Messengers, alleging discrimination based on disability and failure to accommodate.  Ichabod initially refused to settle Harry’s charge but, after the EEOC’s investigation, entered into a consent decree in Night Court.  Amid much publicity and expense, which Ichabod could have avoided if he had followed the  Boos! for Employers below, Ichabod and Crane’s Midnight Messengers paid Harry a 2-year supply of corn and pumpkins, plus another few bushels of each for Harry’s attorneys.

Pings (we mean Boos!) for employers:

Where did Ichabod and Crane’s go wrong?  Let’s count the ways:

  • Wisely, Ichabod did not contest that Harry had a disability: that was pretty open and obvious to all.
    But, he did not engage in the interactive process with Harry.  Had he done so, Harry could have clearly explained
    how the saddlebags would help him do his job (if that wasn’t obvious to anyone with a sound head on his
    shoulders . . . ).  If Ichabod still wasn’t convinced the bags would be a reasonable and effective accommodation,
    he should have explored other possible accommodations with Harry.
  • Moreover, Ichabod hadn’t taken the time or done the research to find out whether the cost of the saddlebags
    would be an undue hardship. Mere cost alone is often not an adequate “hardship” for a thriving business like
    Crane’s to deny an accommodation.
  • Ichabod fired Harry based on a myth or stereotype assumption about what a person with Harry’s disability
    – a detached head – couldn’t do instead of looking at what he could. Perhaps this is unusual for someone with
    a dismembered head, but Harry was still able to see and speak, as Ichabod had seen and heard for himself.
    Moreover, except for a few delayed deliveries which the bags would prevent in the future, Harry had been
    doing the job successfully for several days – proof that he was “qualified” for the job and could meet the nighttime
    drop off requirement with the aid of the saddlebags.
  • Ichabod rejected Harry’s requested accommodation for fear that others would want the same job aid. But how
    many headless workers does Crane’s have?  And sometimes under the ADA employers DO have to treat workers
    with a disability differently than others.
  • Even though Crane’s Midnight Messengers had good ADA policies in place, directing employees how to ask for
    an accommodation, the company failed to train its managers – including Ichabod himself – on the requirements
    of the ADA and how to handle an accommodation request. Investing in training is relatively inexpensive compared
    to the costs and business disruption caused by a single ADA lawsuit!
  • Finally, Ichabod failed to engage Matrix to help him through the tangle of ADA accommodations. (Obviously!)

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, spook to us at ping@matrixcos.com.

Lucky Employer Skates on ADA Liability: Complaints about Noisy Workplace Not Enough to Put Employer on Notice of Need for ADA Accommodation.

Posted on: October 30, 2017 1

By Marti Cardi, VP-Product Compliance Gail Cohen, Director-Employment Law/Compliance

Despite the common feeling that employers have the ADA deck stacked against them, a recent case shows that courts will still closely compare the facts of an ADA failure to accommodate claims against the legally required elements of such a claim.  It was a close call, but the co-employers prevailed when the employee did not raise enough racket about his mental condition to put the employers on notice of the need for an ADA accommodation.

Timothy Patton was an employee of a staffing company, Talascend.  He was assigned to work at its client, Jacobs Engineering.  He claimed to have been subjected to mockery and name-calling by co-workers and his supervisor because of his stutter.  He also complained about the noise in his work space to his supervisor and asked that he move him to a quieter area “so that [his] nerves would not affect
[his] stuttering.”  Patton also complained to Talascend (which offered to reassign him; he declined)
and emailed a lead engineer at Jacobs about taking time off from work due to his stress.

As a result of his stress, Patton had a panic attack while driving and caused a car accident.  He did not
return to work at Jacobs and instead, filed a complaint with the EEOC and the Louisiana state equivalent,
accusing Jacobs and Talascend of harassment and failure to accommodate his disability in
violation of the ADA.

The trial court granted summary judgment in favor of co-employers Jacobs and Talascend, and
the 5th Circuit Court of Appeals upheld this ruling.  It strikes me, however, as a lucky call for the
employers.  Let’s focus on Patton’s claim that Jacobs failed to accommodate him under the ADA.
The ADA requires an employer to make reasonable accommodation[s], absent undue hardship,
“to the known physical or mental limitations of an otherwise qualified individual with a disability.”
The question was whether Jacobs knew that Patton had a “disability” and was asking for an
accommodation when he complained about noise in his work area.

Patton had made numerous complaints linking his nerves and stuttering to the noise in the workplace
and asked to be moved to a quieter work location.  The court did not find this to be sufficient.
Rather, Patton needed to show that the limitations he experienced were the result of his disability,
and that Jacobs knew it.  In particular, in the case of a mental disability like Patton’s, “specificity in
attributing a work limitation to a disability is particularity important.”  Jacobs and Talascend could
not be expected to know of or understand Patton’s “childhood onset fluency disorder” without more
specific information from him.

With respect to the ADA hostile work environment claim, Jacobs again dodged a bullet.  The 5th Circuit
found there was enough evidence of harassment about Patton’s stuttering by quite a number of people
and over an extended period of time to allow the claim to be sent to a jury.  However, Patton had failed
to avail himself of both defendants’ anti-harassment policies and thus could not maintain his claim for
hostile work environment.

Patton v. Jacobs Engineering Group, Inc. and Talascend, LLC (5th Cir. October 24, 2017).  

Pings for employers:

  • There are no “magic words” for an employee to request an accommodation, but as the Patton
    case makes clear, the employee still needs to provide enough information for the employer to
    understand he is seeking an adjustment in his work conditions for a reason related to his disability.
  • Be wary, though! The outcome of this case was a lucky one for the employers.  If Patton had phrased
    his complaints just slightly different, or provided a bit more information about his condition or his
    need – or if the case had been determined by a different court – the outcome could have been
    a jury trial.  In that case, the evidence of harassment based on Patton’s stuttering could have
    had an impact on the entire case.
  • When in doubt about whether an employee is requesting an ADA accommodation, ask the employee,
    “How can I help?” This opens the dialog without assuming the employee has a disability or
    needs an accommodation.  Then, with someone like Patton, you can then explore what is causing
    his problem and what impact it has on his ability to work.
  • Make sure your policies provide employees with clear avenues (more than one!) of complaint in
    the event of discrimination, harassment, or retaliation – and that employees know about them.
    Although this case does not give us much factual detail, this type of policy saved the employers
    from liability because, apparently, Patton did not register his complaints in the correct manner
    or with the correct persons – probably the HR department.
  • Finally, as we always advise, train your supervisors so they know when someone might be asking
    for an ADA accommodation and to whom they need to direct the employee to start the
    interactive process.

 

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, contact us at ping@matrixcos.com.

California Expands CFRA Bonding Leave Coverage

Posted on: October 18, 2017 0

By Marti Cardi, VP-Product Compliance Gail Cohen, Director-Employment Law/Compliance

California has enacted the New Parent Leave Act to amend the California Family Rights Act (CFRA).  Effective January 1, 2018, employers with 20 or more employees will be required to provide 12 weeks of leave for bonding following the birth, adoption, or foster placement of a child.  To be eligible, an employee must have worked for the employer:

  • For 12 months of service;
  • For 1250 hours in the 12 months immediately prior to the start of the requested leave; and
  • At a worksite with 20 or more employees within 75 miles.

Currently, CFRA applies only to employers with 50 or more employees, and the third eligibility requirement is employment at a worksite with 50 or more employees within 75 miles.  The new law will extend coverage to employees of smaller employers and to employees of large companies who work at smaller worksites.

The law does not apply to an employee who is subject to both CFRA and the federal FMLA, so an employee cannot double-dip on leave rights just because the employee is employed at a worksite that qualifies by having both 20 or more and 50 or more employees within 75 miles.

Regulations Pending.  The Act does not yet have supporting regulations.  However, it directs the Fair Employment and Housing Council (which promulgates regulations that implement CFRA and other California anti-discrimination laws) to incorporate existing CFRA regulations by reference to govern leave under the Act to the extent that those regulations are within the scope of, and not inconsistent with, the Act.

This means that topics on which the Act is silent are likely to be interpreted and governed by existing CFRA regulations.  Examples include CFRA regulations that require employees to take bonding leave within one year of the new child’s birth or placement and that require employers to allow intermittent bonding leave in minimum two-week increments plus two instances of shorter leave.

Additional details:

  • As with CFRA, the New Parent Leave Act requires employers, upon or before the commencement
    of leave, to provide the employee a guarantee of reinstatement to the same or a comparable position
    after the leave.
  • If both parents work for the same employer:

o   The employer can limit the total amount of bonding time for the parents to a
combined 12 weeks; and

o   The employer may but is not required to permit the employees to take bonding leave
at the same time.

  • The employee may elect to use accrued vacation pay, paid sick time, other accrued paid time off,
    or other paid or unpaid time off negotiated with the employer, during the period of parental leave.
  • The employer must maintain and pay for coverage under a group health plan at the same
    level and under the conditions that coverage would have been provided if the employee had
    continued to work rather than take leave.
  • The New Parent Leave Act does not affect an employee’s ability to take pregnancy disability
    leave is the employee is otherwise qualified for that leave.
  • The new law authorizes a parental leave mediation pilot program. Under the program, within
    60 days of receipt of a right-to-sue notice related to an alleged violation of the new Act, an
    employer may request all parties to participate in the department’s Mediation Division Program.
    In such case, the employee cannot pursue a civil action until the mediation is completed.  The pilot
    program is set to expire on January 1, 2020.

The text of the New Parent Leave Act (California Government Code § 12495.6) can be viewed here.

MATRIX CAN HELP! Questions about how legislative changes or court opinions could impact your business?
Want to learn more about our benefits and absence management solutions? Matrix provides leave, disability,
and accommodation management services to employers seeking a comprehensive and compliant solution
to these complex employer obligations. We monitor the many leave laws being passed around the country,
watch the courts and governmental agencies, and specialize in understanding how they work together.

For leave management and accommodation assistance, contact your Account Manager or local
Reliance Standard Sales Representative or contact us at ping@matrixcos.com.

New York Releases Application and Certification Forms for Paid Family Leave

Posted on: October 18, 2017 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance

They’re out!  The long-awaited, much anticipated application and certification forms for New York Paid Family Leave (NY PFL) have been posted on the NY PFL website HERE!  I have reviewed the forms quickly but there is much to absorb and ponder.  Such as, how many claims management systems will be able to handle an employee’s choice to answer the gender question with the third option, “Not designated/Other”?

As a reminder, NY PFL goes into effect on January 1, 2018, to provide leave to eligible New York employees for three reasons:  to bond with a new child, to care for a family member with a serious health condition, and to attend to matters necessitated by a family member’s active military duty.  Leave starts at 8 weeks in 2018 and tops off at 12 weeks in 2021 and subsequent years.  Similarly, the pay benefit starts at 50% and caps at 67% in 2021.  The benefit is funded by employee payroll contributions.

Watch this blog for further analysis down the road.  In the meantime, we want to share some basics.  Here are the new forms that have been released, and a few notes:

Applying for Paid Family Leave.  New York has provided this “cover page” to accompany each certification form.  It gives very basic instructions on the steps the employee must take to apply for NY PFL for each of the three leave reasons.

Request for Paid Family Leave (Form PFL-1).  This form is not posted as a stand-alone document.  Rather, it accompanies each of the certification forms on the New York website, so no matter the reason for the employee’s leave, the request form is at the same link.  The form is 4 pages and also has 2 pages of instructions (PFL-1 Instructions), which should prove helpful in answering many employee questions about NY PFL and the process.

Bonding Certification (Form PFL-2).  This short form (again, with instructions) provides very helpful direction on the documentation required to support a request for bonding leave, categorized for the birth mother, other parent, foster parent, and adoptive parent.

Release of Personal Health Information Under The Paid Family Leave Law (Form PFL-3 – Release of PHI).  Designed to accompany an employee’s request for leave to care for a family member, this form may be helpful in obtaining the medical information necessary for managing this type of leave.  As an observation, however, Matrix has not had trouble getting FMLA certifications for care of a family member without such a release.

Health Care Provider Certification For Care Of Family Member With Serious health condition (Form PFL-4).  Unlike California and a few other states, New York allows the employer/carrier to obtain the diagnosis of the family member’s health condition.  The form requires the provider to identify his/her credentials and specialty.  The form is 2 pages and the instructions are 1 page.

Military Qualifying Event (Form PFL-5).   Not much to say about this simple form.  It requires the employee to identify for which of the 8 reasons the employee needs leave, and directs the employee to attach supporting documentation.  A companion form (PFL-5-T) is a template for supporting the leave request when other documentation is not available for leave to meet with a 3rd party.

Early Observations – Some Concerns.  As noted above, we have not completed our analysis of these newly released forms, but we have already spotted some potential challenge areas.  For example:

  • Neither the Request for Paid Family Leave (PFL-1) nor the certification form for caring for a family member (PFL-4)
    provides a definition of “serious health condition” In fact, the provider is never required to certify that the employee’s
    family member has a serious health condition.
  • Also, neither the employee nor the provider is required to identify what kind of “care” the employee will be providing
    to the family member. We at Matrix know from experience that many employee requests under the similar FMLA
    provision do not meet the requirement for taking this kind of job-protected leave – and now it will be
    paid. A challenge to verify proper usage, to say the least.
  • The forms refer to the employer’s insurance carrier, but some employers will be self-funded. This could create
    a problem in getting forms properly completed and the correct information provided to the correct party.
    For example, as written, the form for release of a family member’s health information (PFL-3) authorizes release
    to the insurance carrier, but not to the self-funded employer.  While this can be corrected by including the employer’s
    name instead of the carrier’s name, we question how many times this will be done correctly on the
    first go-round.  Can you say “delay”?

For more information about New York Paid Family Leave, check out our previous blog posts: October 2017, August 2017, July 2017, May 2017, March 2017, and April 2016.

MATRIX CAN HELP!

Matrix is honing processes, training teams, and taking other steps to be ready to administer New York Paid Family Leave starting January 1, 2018.  This is a natural extension of our leave, disability, and accommodation management services for employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.  For leave management and accommodation assistance, contact us at ping@matrixcos.com.

DOL Proposes to Delay the Effective Date of ERISA Disability Claims Handling Rules and Seeks More Public Comment

Posted on: October 10, 2017 0

By Marti Cardi, VP-Product Compliance& Gail Cohen, Director-Employment Law/Compliance

 

It’s a moving target, but we’re watching!  The amended ERISA disability claims handling rules  (the “Final Rule”) are set to go into effect for claims filed on or after January 1, 2018.  But, as we previously reported, the US Department of Labor announced in July that it is “reviewing these amendments for questions of law and policy.”  Today the DOL issued a Proposed Rule that will be published in the Federal Register on October 12, 2017.  You can read an advance copy of the Proposed Rule here.

The DOL proposes to delay the effective date of the ERISA disability claims handling rules by 90 days, to April 1, 2018 (some irony there).  The reason for the delay is to allow the DOL time to “solicit additional public input and examine regulatory alternatives” to the Final Rule.  Here are some important dates:

  • Comments on the proposal to extend the applicability date for 90 days must be submitted to the Department
    on or before October 27, 2017 (15 days after publication of the Proposed Rule in the Federal Register)
  • Comments providing data and otherwise germane to the examination of the merits of rescinding, modifying,
    or retaining the rule must be submitted to the Department on or before December 11, 2017
    (60 days after publication of the Proposed Rule in the Federal Register)

We will provide immediate updates of any new developments on our blog, http://matrix-radar.com/ – please sign up!

For a refresher on the changes to the ERISA disability claims handling requirements, as set forth in the Final Rule, review our prior blog post http://matrix-radar.com/2017/01/a-game-changer-dol-releases-new-erisa-disability-claims-rules/.

What is Matrix Doing?  At Matrix we have been working diligently to prepare for the new rules.  Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018, or other new effective date.  To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  Our practice leaders and account managers will be in touch with clients during the lead-up to the effective date – whenever it is! – to discuss changes to plan notifications, procedures, and more.  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

 

New York Releases First Wave of Paid Family Leave Forms

Posted on: October 6, 2017 0

By Marti Cardi, VP-Product Compliance& Gail Cohen, Director-Employment Law/Compliance

 

In something of a stealth move, the New York Workers’ Compensation Board has released three forms for employers’ use in administering and complying with the Paid Family Leave Law that provides benefits starting January 1, 2018.  Those of us who check the NY PFL website daily and are signed up for news feeds received no word, but had to learn of the new forms through back channels.  The released forms include the following:

Employee Paid Family Leave Opt-Out of Benefits (PFL-Waiver, 9-17)

If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.  Eligibility requires 26 weeks of 20 or more hours per week, or 175 days of work averaging fewer than 20 hours per week, with a covered employer.

This form contains some interesting news.  The employee’s waiver can be revoked by the employee or automatically because the employee has or will work more than the time needed for eligibility.  Per the regulations, the employee then has the obligation to catch up on contributions that would have been made during the eligibility period but for the waiver, but the regulations do not specify how the employer can recoup these amounts.  The form appears to authorize additional deductions from the employee’s pay to catch up for missed contributions:

I also understand if this waiver is revoked (either by me or by a change in my work schedule), my employer may take retroactive deductions for the period of time I was covered by this waiver, and this period of time counts towards my eligibility for paid family leave.  [Emphasis added.]

Employer’s Application for Voluntary Coverage (No Employee Contribution) (PFL-135, 9-17)

Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).

Employer’s Application for Voluntary Coverage (Employee Contribution Required) (PFL-136, 9-17)

Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).

The NY PFL regulations also calls for forms for employee use to request NY PFL, and certifications to support leave taken to care for a family member with a serious health condition, for military exigencies, and to bond with a new child due to birth or placement for adoption or foster care.  Employers and insurance carriers still working to get ready for the January 1, 2018, effective date have been begging the WCB for these other forms, which will be critical in getting the information the employer is entitled to for consideration of leave requests.  Employers and carriers are permitted to use their own forms, but clearly it is safest and easiest to use NY-sanctioned forms, especially at the beginning of this uncharted leave law.

The new forms, and additional forms as they are released, can be found at this link: https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-employer-and-employee-forms-0

For more information about New York Paid Family Leave, check out our previous blog posts: August 2017, July 2017, May 2017, March 2017, and April 2016.

Hat tip to Marjory Robertson who provided early information about the new forms in an industry NY PFL call group!

 

Rhode Island Joins the Paid Sick and Safe Leave Bandwagon

Posted on: October 5, 2017 0

By Marti Cardi, VP-Product Compliance
& Gail Cohen, Director-Employment Law/Compliance

Rhode Island has joined the plethora of states that have passed paid sick and safe leave legislation for the state’s workers. The Rhode Island “Healthy and Safe Families Workplace Act” (H5413/S290) was signed into law by the Governor on September 28, 2017.

The basics. Effective July 1, 2018, Rhode Island employees of an employer with 18 or more employees in Rhode Island will earn one hour of paid leave time for every 35 hours worked, up to a maximum of 24 hours of accrued paid sick and safe leave in 2018, 32 hours in 2019, and 40 hours in 2020 and thereafter. Employees can carry over any unused, accrued paid time; however, the use of such time is still subject to the maximums (i.e. 24 hours in 2018, etc.). Accrued but unused sick and safe time is not payable to the employee upon termination.

Employees begin to accrue leave as of July 1, 2018, or their date of hire, whichever is later. While employees can begin to earn and accrue leave, employers can impose a waiting period of up to 90 days for new hires before they can take any accrued time. Temporary employees must wait up to 180 days to use any accrued leave (unless the employer agrees otherwise).

Leave reasons.  Employees may use sick and safe leave for any of the following reasons:

  • The employee’s own mental or physical illness, injury, or health condition; need for preventive care, diagnosis,
    or treatment of a mental or physical illness, injury, or health condition.
  • Care of a family member for the same reasons as the employee’s own needs.
  • When an employer’s business or the employee’s child’s childcare facility or school is closed
    due to a public health emergency.
  • When the employee or his or her family is a victim of domestic violence, sexual assault or stalking.

Covered relationships. “Family member” is broadly defined under the Act to include: child (biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or a son or daughter of an employee who stands in loco parentis to that child), parent, spouse or domestic partner, parent-in-law, grandparent, grandchild, sibling, care recipient, or member of the employee’s household. A “care recipient” is a person for whom the employee is responsible for providing or arranging health or safety related care.


Employee notice and documentation.
Employees are required to provide notice (in the means designated by the employer in its policy) where the need for leave is foreseeable. Employer may also require documentation (again, as long as the employer has a policy that says so) for leaves of 3 or more consecutive work days. The documentation requirement is quite limited and only allows for documentation that the leave is for a permissible purpose. The employer may not require documentation regarding the nature of the illness or details of the domestic violence, sexual assault or stalking.


Permitted employee discipline.
This Act also incorporates a few safeguards for employers:

  • An employer may discipline, up to and including termination of employment, an employee who is committing
    fraud or abuse by engaging in an activity that is not consistent with an allowable purpose for paid sick and
    safe leave;
  • An employer may also discipline an employee (again up to termination) who exhibits a clear pattern of taking
    leave just before or after a weekend, vacation, or holiday if the employee is unable to provide reasonable
    documentation that the leave has been taken for a permissible purpose.

 

Pings for Employers with Rhode Island Workers:

 Ensure that your pay practices are in order and ready to provide for the necessary accruals and usage accounting starting July 1, 2018

Draft a clear policy governing Rhode Island paid sick and safe leave. At a minimum, be sure to specify the means by which employees must give notice of the need for Rhode Island paid sick and safe leave (e.g., by email, other written request, verbal to supervisor, a call-in line, etc.) and your documentation requirements within the parameters of the law. Be sure your employees know about these policies by special notice, new hire notice, including in your employee handbook, and/or posting in areas in which workers congregate like lunch or break rooms.

 

Pushing Back on the “Inadvertent Leave Law” – Court Rules that a Multi-Month Leave of Absence is not a Reasonable ADA Accommodation

Posted on: September 26, 2017 0

By Marti Cardi, VP-Product Compliance
& Gail Cohen, Director-Employment Law/Compliance

“How long of a leave of absence do I have to grant as an accommodation under the Americans with Disabilities Act?”

I get this question frequently.  I have long advised that employers must consider a new or extended leave of absence as a possible accommodation.  In assessing an employee’s ADA leave request, employers need to look at what the employee will be doing during that leave: Rehabilitative therapy?  Trying new medications?  Learning to work with an assistive device or a support animal?  Maybe recovery from surgery or an injury? 

The Equal Employment Opportunity Commission agrees with me – or rather, I have come to agree with the EEOC.  EEOC Commissioner Chai Feldblum is often quoted as calling the ADA an “inadvertent leave law.”  And indeed it is – the ADA was not designed to be job-protected medical leave of absence.  Rather, the basic goal is to enable the disabled employee to work – with a reasonable workplace accommodation if needed.  But for years, the Commission’s guidance has been that leave is a reasonable accommodation as long as it is of a (somewhat) definite duration and will enable the employee to perform his essential functions upon return to work.  

The 7th Circuit Court of Appeals begs to differ.  In a recent case, the court ruled that an employer did not fail to provide a reasonable accommodation when it denied an employee’s request for a 2-3 month continued leave of absence after exhaustion of FMLA.

The Facts.  Raymond Severson worked for Heartland Woodcraft, Inc., a fabricator of retail display fixtures from 2006 to 2013.  His position was physically demanding, often requiring him to lift 50 pounds or more.  Raymond had a back problem that first manifested itself in 2005.  During flare-ups, the condition made it difficult or impossible for Raymond to walk, bend, lift, sit, stand, move, and work. 

Raymond had generally performed well and received promotions over the years but was having difficulty in his latest position.  He met with management on June 5, 2013, and accepted a demotion to second-shift lead, but never commenced work in that position.  Earlier the same day, Raymond wrenched his back at home exacerbating his back condition and was in obvious pain as a result.  He left work after the meeting with managers and then requested continuous FMLA leave due to his back. 

 During his FMLA leave Raymond stayed in touch with Heartland’s HR representatives.  He received periodic extensions of his leave based on medical reports that showed he had multiple herniated and bulging discs in his spine.  In mid-August, after steroid treatments yielded little improvement, Raymond informed HR that he was going to have back surgery on August 27 – the last day of his FMLA entitlement – and would need 2-3 more months of leave as an ADA accommodation.  Heartland denied this request but told Raymond he was welcome to reapply when he was able to return to work.  

Raymond never reapplied for work.  Instead, he chose to sue Heartland for failure to accommodate.  Oh, Raymond!  You should have taken a different path!

“The ADA is an antidiscrimination statute, not a medical-leave entitlement.”  So says the 7th Circuit.  After analyzing the relevant sections of the ADA, the court stated:

A “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.”  If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.

Simply put, an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  [Citations omitted.]

And this:  

A multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.

The court acknowledged the possibility that a brief period of leave to deal with a medical condition could be a reasonable accommodation in some circumstances, such as occasional flare-ups of arthritis or lupus.  

Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule, two of the examples listed in [the ADA].  But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job. [Citations omitted.]

Of interest and some degree of persuasion, the court compared the FMLA and the ADA as “leave of absence” statutes: 

If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term “reasonable accommodation.”

So there we have it.  According to the 7th Circuit, a leave of absence as an ADA accommodation is not reasonable if it is expected to last more than “a couple of weeks,” or if it will “span[ ] multiple months.”  

Employers have some similar comfort from the 10th Circuit in the case Hwang v. Kansas State University (2014).  In that case, the court ruled that a 6-month leave was not a reasonable accommodation:

 It’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.  Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

As the court said, ADA accommodations are “all about enabling employees to work, not to not work.”  You can read a great summary of the Hwang case on Jeff Nowak’s FMLA Insights blog here

Other than these two decisions, we are not aware of any other federal appellate court that has addressed how long of a leave is a reasonable accommodation under the Amendments Act (ADAAA).  [The 7th Circuit includes the states of Illinois, Indiana, and Wisconsin within in its jurisdiction; the 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.]

Employers, continue to tread softly and act wisely.  Don’t throw caution to the wind just because one or two courts have issued a reasonable opinion.  See our Pings below for recommendations on how to assess requests for leave under the ADA Amendments Act (ADAAA). 

Severson v. Heartland Woodcraft, Inc. (7th Cir. Sept. 20, 2017) 

Pings for Employers

Don’t ignore the possibility of leave as a reasonable accommodation.  Nothing in the 7th Circuit’s ruling changes the employer’s obligation to consider more leave of absence as a reasonable accommodation following the exhaustion of other job-protected leaves such as FMLA or a company policy of allowing a set amount of medical leave.  Any inflexible leave policy could still be an ADA violation.  Read more on this topic at our blog post regarding an EEOC/Lowe’s $8.6 million consent decree. 

Don’t forget the interactive process.  Although the ADA does not require an employer to engage in the interactive process (check out footnote 1 in the Severson opinion), that is still the best way to ensure that you are fulfilling your ADA obligations to consider a reasonable accommodation upon request by a disabled employee.

Review the EEOC’s resource document on leave as an ADA accommodation.  It is always a good idea to understand the EEOC’s thinking on a tough issue, and they have shared with us in their resource document, Employer-Provided Leave and the Americans with Disabilities Act, issued May 9, 2016

 If you are thinking of denying an ADA request for leave as an accommodation, consult with your employment counsel.  Even in the 7th and 10th Circuits, this is still a tricky issue.  And, the EEOC will likely reject this case in its own proceedings.

 MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation decisions, including leave assessment of leave of absence requests.  You always retain the final decision whether and how to accommodate, but we manage the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialist is at the ready with practical advice and expert guidance.  To learn more, contact us at ping@matrixcos.com

A Lesson in FMLA Damages: FMLA Retaliation in Layoff Costs Verizon Big Money

Posted on: September 20, 2017 0

By Marti Cardi, VP-Product Compliance
& Gail Cohen, Director-Employment Law/Compliance

Employers, when was the last time you asked the question “What could an FMLA suit potentially cost?” For Verizon, the answer was “a lot,” including a judgement that awarded $800,000+ to a former employee as well as:

    Substantial attorneys’ fees and costs (almost always more than the fees incurred by the plaintiff)

Business disruption and loss of productivity by its employees who had to prepare and serve as witnesses, locate and review documents and assist with other inevitable litigation-related tasks

Here’s the entire story and your opportunity to learn an important lesson.

Facts. Suzette Walker worked for Verizon for over 36 years, starting as an intern and working her way up to a position paying over $93,000.  Walker had a history of good reviews with the exception of 2013, when she was dinged for being absent from work. Her absence was attributed to an FMLA leave taken to recover from a shoulder injury.  In 2015, that review cost Walker her job.

Verizon’s employee evaluation system had 4 ranking levels:  Leading (the top score and rarely given); Performing (employee met and periodically exceeded expectations); Developing (employee had not met objectives and requirements, and improvement was needed) and New (employee had not worked long enough to be evaluated).

In 2013, Walker was assigned to a new position but then had to take FMLA leave for shoulder surgery and recovery.  Walker’s manager, Brian Magee, wrote in her mid-year evaluation:

Suzette [Walker] was moved to Conduit/Highway in the first half of the year due to existing knowledge of conduit and the City Permit process. GPIS review has been a positive transition, but conduit design has been hard to transition.  Suzette has missed time due to an injury, which has made the transition difficult.  The conduit area is still setup for the former Conduit Engineer and I have received complaints about the conduit mailbox being full. We are not where the Conduit/Highway Team needs to be at this time.  [Emphasis added.]

This was written when Walker had been out on FMLA leave for nearly 2-1/2 months and back to work at her new position part time for only about 3 weeks.  In the 2013 year end performance review, which built upon the mid-year review, Magee gave Walker a “Developing” rating, although she had always received a “Performing” score in past years (and was also rated as “Performing” in 2014).

The layoff.  In 2015 Verizon instructed Magee and another manager to eliminate one person from their two teams as part of a reduction in force.  The managers were trained on a “rate and rank” process and instructed to use that process to determine who to terminate, looking back at each employee’s performance over the last two years.  Instead, they spoke by telephone and agreed to select Walker for layoff.  Magee then contrived rate and rank scores that justified the decision.  Walker ended up on the bottom of the rankings, in part because of her “Developing” score in 2013 which counted as only 1 point in the rate and rank process.  A “Performing” score counted as 3 points.  Walker received a total score of 13 and would have tied with the other lowest employee, who received a 15, but for the hit on her 2013 evaluation.  Moreover, the other employee had been on a recent performance improvement plan that, according to the rate and rank process, should have cost him 3 points.  These points were not deducted from his overall rate and rank score.

In support of his bogus rate and rank score, Magee wrote that Walker “received a D[eveloping] rating in 2013 as she hadn’t learned the core engineering role as quickly as expected . . . ”

The verdict.  After a five-day trial, the jury returned its verdict.  Although some of Walker’s claims were dismissed, the jury found that Verizon had committed age discrimination against Walker and had retaliated against her for taking FMLA leave in 2013.  The jury awarded $188,000 in damages in Walker’s favor for back pay (and $10,000 on that age discrimination claim).  We’ll get to the rest of that $800,000 judgment in a bit.

The ruling.  The court affirmed the jury verdict and added other damages that are within the court’s province (see table below).  In its opinion affirming the jury verdict, the court recognized that Magee didn’t really conduct a rate and rank to reach his decision to select Walker for termination.  However, in the fake 2015 rate and rank form, Magee wrote that Walker was slow to learn her job responsibilities in 2013.  The judge stated that a jury could reasonably infer from this that Magee decided to fire Walker in 2015 because she hadn’t learned quickly enough in 2013 due to her FMLA time off.  The judge also stated the jury could believe that Magee’s comments on the rate and rank form were evidence of the reasons he had in mind in selecting Walker for termination.

Insights from the winning trial attorney.  Curious about this case, your intrepid reporter spoke with Christine E. Burke (Karpf Karpf & Cerutti), the attorney who represented Walker.  One fact of particular interest to me was that Verizon’s retaliation (the layoff) took place two years after Walker’s FMLA leave. Usually, the protected FMLA leave and the act of retaliation occur much closer together, making it easier to infer the retaliation.  Ms. Burke explained that because the rate and rank only required a 2-year performance look back, the 2013 “Developing” evaluation took on greater significance than her other 30+ years of good performance – thus allowing Magee to jerry-rig the rate and rank to achieve his desired outcome.

Ms. Burke also explained that the jury was swayed by the lack of fairness in Magee’s supposed rate and rank.  Not only did Magee’s 2013 evaluation work to Walker’s detriment, but Magee did not follow the company’s rules.  His failure to charge the other employee with a 3-point deduction for the PIP probably just stunk to the jury.

Finally, and perhaps most important, Ms. Burke acknowledged that the case would probably not have made it to a jury – meaning never filed, or dismissed by the court pre-trial – but for that comment in Walker’s 2013 mid-year evaluation:  “Suzette has missed time due to an injury, which has made the transition difficult.”

How much?  So how big was the judgment in favor of Suzette Walker?  Here is rundown of the types damages that can be awarded in an FMLA case and the amounts awarded to Walker:

 

FMLA DAMAGES ITEM DESCRIPTION AMOUNT
Back pay Common award in termination case – lost wages up to date of judgment $188,000

 

Front pay Awarded if employee has not yet become re-employed at time of judgment – lost wages looking forward $256,000

 

Pre-judgment interest – on back pay only Always awarded if back pay is awarded, at the “prevailing rate” $6,001

 

Liquidated damages** Similar to punitive damages – equal to amount of back pay plus pre-judgment interest (see **below) $194,001

 

Plaintiff’s attorney’s fees Employer pays if employee wins $153,356
Plaintiff’s costs Employer pays if employee wins $6,213
TOTAL FMLA AWARD TO PLAINTIFF   $ 803,571
Employer’s estimated attorney’s fees and costs

 

Employer always pays (and is usually larger than employee’s attorney’s fees) $ 160,000 est.
TOTAL COSTS TO VERIZON

 

  $963,571

** Liquidated damages are routinely awarded in FMLA cases.  The employer can avoid liquidated damages only if it proves that it had a good faith belief that its act or omission was not a violation of the FMLA.  An explanation for the employer’s actions is not enough; the employer must also prove it took affirmative steps to ascertain the requirements of and comply with the FMLA in the particular situation.  As the Walker court ruled in awarding liquidated damages against Verizon:

The court must award liquidated damages unless the employer proves to the satisfaction of the court that the act or omission which violated the FMLA was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of” the FMLA.

This, Verizon was unable to do.

Pings for Employers

   We sound like a broken record, but you must TRAIN YOUR SUPERVISORS AND MANAGERS on employee rights and employer obligations under the FMLA. Without that ill-advised comment in Suzette Walker’s 2013 mid-year review, Verizon might have succeeded in defeating her FMLA claim.

Training might also have enabled Verizon to avoid the liquidated damages by being able to show a good faith effort to educate its supervisors on employee rights and employer obligations under the FMLA.

In all your processes, treat employees who have taken or are taking FMLA leave consistently with employees who have not.

    Follow your established procedures when applying discipline, assessing layoff, or otherwise affecting the employment of an employee who has taken or is taking FMLA leave.

 

Walker v. Verizon Pennsylvania, LLC (E.D.Pa. August 25, 2017)

Tax Implications of New York Paid Family Leave Addressed

Posted on: August 28, 2017 0

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

 

The state of New York has released much-needed guidance on the tax implications of employee premium contributions and benefits under the state’s new Paid Family Leave (PFL), slated to go into effect on January 1, 2018.  According to the New York Department of Taxation and Finance:

Benefits paid to employees will be taxable non-wage income that must be included in federal gross income.

Taxes will not automatically be withheld from benefits; employees can request voluntary tax withholding.

Premiums will be deducted from employees’ after-tax wages.

Employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld.

Benefits should be reported by the State Insurance Fund on Form 1099-G and by all other payers on Form 1099-MISC.

The Department released this guidance upon consideration of applicable state and federal laws and regulations, and after consultation with the federal Internal Revenue Service (IRS).  The Department warns, however, that every employee, employer and insurance carrier should consult with its own tax advisor.

The Department’s Notice can be found here:  https://www.tax.ny.gov/pdf/notices/n17_12.pdf.

We have written about the New York Paid Family Leave law in previous blog posts in July 2017, May 2017, March 2017, and April 2016.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

DOL Announces it will Review ERISA Claims Disability Handling Rules Slated for 1/1/2018

Posted on: August 3, 2017 0

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

 

As we all know, the ERISA disability claims handling rules were revised by the US Department of Labor, to be effective for claims filed on or after January 1, 2018.  As part of the ever-changing governmental landscape under our current President, the DOL has now announced it is “reviewing these amendments for questions of law and policy.” 

The DOL announcement indicates it will issue a Notice of Proposed Rulemaking in September (09/00/2017 to be exact!), but there is no indication as to the scope of its review or potential subjects within the amended rules that will be reviewed.  Possibilities include repealing the amendments entirely, modifying or repealing parts them, and/or simply delaying the effective date.  

A Notice of Proposed Rulemaking (NPRM) is a public notice issued by law when one of the independent agencies of the United States government (like the DOL) wishes to add, remove or change a rule or regulation as part of the rulemaking process. It is a process for announcing proposed regulatory changes and subsequently taking public comment.  So, we may be in limbo for a while.  Even once the NPRM is issued, there will still be unanswered questions as we go through the period of public comment and await any revisions and finalization.

For a refresher on the requirements of the new ERISA rules, review our prior blog post http://matrix-radar.com/2017/01/a-game-changer-dol-releases-new-erisa-disability-claims-rules/.

So what to do now?  If the rules go into effect in their present or similar form for claims filed on or after January 1, there is not enough time to put all preparations on hold.  Moreover, we need to remember that many of the changes made to the ERISA claims handling rules are based on federal court rulings in cases where claimants challenged the plan’s decision and procedures.  As a result many aspects of the new rules, as currently written, are still good guidance on how to manage disability claims. 

Employers with ERISA disability plans should consult with their legal counsel for advice with respect to their specific plans and procedures.  In the meantime, here are some suggestions on where employers might want to place focus while the regulatory process runs its course:

Revamp denial letters to clearly and adequately explain why the employee’s medical condition (or other factors) does not qualify the claimant for disability benefits under the employer’s plan.

Review claims handling procedures and revise as necessary to ensure impartiality and avoid conflicts of interest.

Provide updated refresher training for claims management personnel to ensure good practices and consistency in determining claims.

WHAT IS MATRIX DOING?

At Matrix we have been working diligently to prepare for the new rules.  Regardless of the outcome of the DOL review and NPRM, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018; or a new effective date.  To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  Our practice leaders and account managers will be in touch with clients during the remainder of 2017 to discuss changes to plan notifications, procedures, and more.  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

 

Hat tip to Megan Holstein for breaking the news about this hard-to-find announcement, which you can link to here:  https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201704&RIN=1210-AB39 .

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Massachusetts Enacts Pregnant Workers Fairness Act

Posted on: July 31, 2017 0

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

 

The move toward significant workplace protections for pregnant employees continues state by state.  On July 27, 2017, Massachusetts Governor Charlie Baker signed House Bill 3680 establishing the Massachusetts Pregnant Workers Fairness Act.

Massachusetts joins 15 other states and Washington, D.C. with similar protections for pregnant employees.  These laws typically provide protections well beyond existing protections under the Americans with Disabilities Act, in that they do not require the employee to be disabled by the pregnancy in order to receive a reasonable accommodation.

The Massachusetts Act, effective April 1, 2018, provides broad protections for employees and prospective employees who are pregnant or have conditions related to pregnancy.  Key provisions include the following:

Employers cannot deny an employee’s request for a reasonable accommodation due to an employee’s pregnancy or condition related to pregnancy, including lactation or expressing breast milk.

Employers must engage in a timely, good faith, and interactive process to determine effective reasonable accommodations to enable employees to perform the essential functions of their jobs.

Employers can require documentation to support a request for a reasonable accommodation. The Act identifies a broad list of types of health care providers who can supply the documentation, including not just physicians but also a variety of other medical professionals, assistants, and therapists.

Documentation cannot be required for employee requests for: (1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

The employer can deny an employee’s request if it can show that the accommodation would impose an undue hardship, defined as significant difficulty or expense. Factors to consider include the nature and cost of the requested accommodation, the financial resources, size, and facilities of the employer’s business, and the impact of the requested accommodation on the employer’s expenses, resources, or other impact on the employer’s business.

Employers cannot require an employee to accept an unnecessary accommodation, including a forced leave of absence.

The Act prohibits discrimination and retaliation against a pregnant employee or prospective employee in hiring and in terms and conditions of employment, or for requesting an accommodation.

Employers must provide written notice of employees’ rights under the Act, including the right to reasonable accommodations for conditions related to pregnancy. Required notices include a notice of the rights under the Act in an employee handbook, notice to all new employees upon starting employment, notice to existing employees on or before January 1, 2018, and notice to an employee within 10 days of notification to her employer of her pregnancy and/or her need to express breast milk for a nursing child.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

New York Paid Family Leave – Final Regulations Out but No Surprises

Posted on: July 20, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

On July 19, the New York Workers’ Compensation Board issued its final regulations in support of the state’s Paid Family Leave law (NY PFL), which requires employers to provide paid leave benefits to employees starting January 1, 2018.  The final regulations follow a public comment period on the proposed rules issued on May 24, 2017.   The Board received 58 comments and has also issued an Assessment of Public Comment on Revised Proposed Regulations which provides a summary of the comments receive and the Board’s response.   Few substantive changes were made as a result of the comments, but the Assessment provides helpful clarifications on many provisions – even those for which it did not make any changes.

Here is a summary of the more noteworthy (or more interesting) changes and clarifications.

Coverage of employees outside the state of New York

Several comments requested the Board to change the regulations so that employees who do not live and work in New York are not covered by NY PFL.  The Board declined to make this change and clarified that an employee is entitled to NY PFL leave and benefits if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) lives in New York.

In addition, the Board received a request to amend the regulations to allow employers to include non-New York employees in their coverage under NY PFL .  The Board pointed out it does not have authority to regulate employees or insurance outside the state of New York and declined to amend the regulations per this request.

Multiple or extended leaves under NY PFL and other programs

The Board confirmed that an employee may be able to take leave in 2017 under company policies (or the FMLA) and then be entitled to leave and benefits under NY PFL for the same qualifying event in 2018.  Examples:

  • An employee who receives a new child on August 1, 2017, could take bonding leave under company policies

(which may provide a pay benefit) and/or FMLA in 2017, then take up to 8 weeks of bonding leave under NY PFL any time from January 1 through July 31 in 2018.

  • An employee could take up to 12 weeks of FMLA leave in late 2017 to care for a covered family member

with a serious health condition, then take up to 8 weeks of leave starting January 1, 2018, to continue care for the same family member.

Fortunately, this anomaly will only occur for certain leaves in 2017 and 2018, and not for subsequent years.

Notice of payroll deductions to employees

There is no requirement in either the statute or the regulations for employers to give notice to their employees of NY PFL payroll deductions.  However, Matrix recommends that employers should, in fact, provide notice of the employees’ contributions and other aspects of NY PFL so that employees have the facts and appropriate expectations.  Matrix has prepared a sample introductory communication to employees for consideration, and will work with clients to craft additional messaging in Q4 2017. Employers should consult with employment counsel to ensure employee communications are appropriate to the law as well as their own corporate policies and practice.

Military exigency leave

NY PFL provides leave to care for several defined family members with a serious health condition, including the employee’s child, spouse, domestic partner, parent, grandchild, and grandparent.  However, the Board has confirmed military exigency leave under NY PFL (which adopts the provisions of the FMLA for this leave) is NOT available for leave necessitated by the military service of a grandparent or grandchild.

Leave and benefits under both New York disability and paid family leave laws

The Board received inquiry about an employee’s ability to receive both disability (DBL) and PFL benefits for the same birth of a child.  The Board pointed out that the regulations clearly state an employee can collect both disability benefits and paid family leave in the post-partum period, but not at the same time.  Thus, a new mother could receive disability benefits for some period of time following giving birth, and then take paid family leave within the one year period following the date of birth.

The Board did not address the possibility of using NY PFL for the week following birth during the 7-day waiting period for disability benefits, then switch to disability benefits followed with more paid family leave for bonding.  There appears to be nothing in the statute or the regulations that would prohibit this, since NY PFL can be taken in increments of one day or more.

The NY disability and PFL laws limit an employee’s total benefits under both programs to 26 weeks in a 52-week period.  The Board clarified that because the employee’s use of benefits is calculated retroactively backward from each day of usage, this will bridge the 52-week period back into year 2017 during 2018.

Employee waiver of NY PFL coverage and deductions

NY PFL allows an employee who expects that his/her term of employment will be less than 26 weeks for employees working 20 hours per week or more (or 175 work days for employees working fewer than 20 hours per week) can elect to waive coverage and payroll deductions.  In response to a request for clarification, the Board has amended the regulations such that employers MUST provide notice to employees of their right to waive coverage.  The waiver must be in writing and if the employee’s term of employment exceeds 26 weeks or 175 work days, the employer must start payroll deductions and can collect back premiums from the employee.  The regulations do not address how the employer is allowed to collect the back premiums, but other provisions make it unlikely that additional deductions from the employee’s paycheck would be permissible.

Employers will not be permitted to automatically waive PFL coverage for short-term workers.  According to the Board, it is the employee’s election to make.

Notice to employee of completed pre-filed claim

The draft regulations required carriers to provide employees who pre-filed a claim a confirmation of receipt of the completed claim within one business day.  Due to objections about the practicality of processing and assessing a claim for completeness within one day, the regulations have been changed to allow a carrier or self-insured employer three business days to send the confirmation.  The payment must still be made within 18 days of receipt of the complete claim.

Inconsistency between carrier’s and employer’s determination of NY PFL benefits and leave rights

The Board received a comment recognizing that “there could be a disconnect between the carrier’s determination and the employer’s determination about whether or not leave should be denied.”   I’m quoting here because I’m not sure how else to explain this issue:  The Board’s less-than-satisfactory response is, “Because the employer does not decide whether to approve or deny a paid family leave claim, and if the employer suspects fraud it is free to contact the carrier, no change to the regulations has been made.”  The Board did not address the question whether the employer would be acting properly if it chooses to use the carrier’s benefits determination as a proxy for the leave determination, thus eliminating the possibility of such inconsistency.

Rights of employees with more than one job

An employee working simultaneously for more than one New York employer will have NY PFL contributions deducted from their pay from each employer.  The Board confirmed that yes, an employee can take NY PFL leave and receive benefits from multiple employers at the same time for the same leave reason.  The Board acknowledged that this might result in the employee receiving total benefits in excess of the statutory cap available from employment with a single employer.  However, the Board confirmed that the total number of weeks of NY PFL leave and benefits available to an employee in a 52-week period is still subject to the 8-week limit in 2018 (increasing to 12 weeks by 2021).

WHAT IS MATRIX DOING NOW?

Whew!  That is about all I can bring to light in the 24-ish hours since the final regulations were published.  But we are FAR FROM DONE!

In June Matrix presented webinars, FAQs, and other materials to help employers and brokers understand and prepare for New York Paid Family Leave.  Over the coming days and weeks, we will use the final regulations and comments to update all materials, and develop additional ones as warranted. In August we will host another round of webinars.

In the meantime you can always learn more about the law as follows:

  • Check out these prior blog posts (but remember some information has changed due to revisions to the

regulations, including those discussed above):

May 2017

March 2017

April 2016

great introductory primer).

  • Ask a question OR sign up for our NY PFL Tip-Of-The-Week by emailing nypfl@rsli.com.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Hawaii adds siblings as a covered relationship for family leave

Posted on: July 13, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

 

On July 10, 2017, the governor of Hawaii signed an amendment to the state’s family leave law, adding siblings as a family member for whom an employee can take leave.  The amendment took effect immediately.

Under the Hawaii law, employees who have worked for an employer for at least 6 consecutive months are entitled to 4 weeks of unpaid, job-protected leave per 12-month period:

 

  • To bond with a newborn biological child or newly adopted child (a newly placed foster child is not covered); and
  • To care for the employee’s child, spouse, reciprocal beneficiary, sibling, or parent with a serious health condition.

The terms “child” and “parent” are defined broadly by the Hawaii statute for the purpose of caring for a family member with a serious health condition:

  • Child: biological, adopted, or foster son or daughter, a stepchild, or a legal ward of an employee.
  • Parent: biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law.

Employers with 100 or more employees must comply with the law.

The Hawaii family leave law does not provide leave for an employee’s own serious health condition.  However, the state does have a pregnancy disability leave law; temporary disability benefits for up to 26 weeks per year through an employee/employer funded state program; and leave to donate an organ, bone marrow, or peripheral blood stem cells.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Leave rights for victims of domestic violence:  Growing need,  multi-state trend

Posted on: July 13, 2017 0

By Marti Cardi, VP-Product Compliance

& Gail Cohen, Director-Employment Law/Compliance

 

If you don’t think you need to know about state leave laws that protect victims of domestic violence and similar crimes, consider this:

  • More than 27% of women and 11% of men have experienced contact sexual violence, physical violence, and/or stalking by an intimate partner in their lifetime. Commonly reported negative impacts were feeling fearful, concern for safety, and symptoms of post-traumatic stress disorder.
  • Significantly more women and men with a history of sexual violence or stalking reported asthma, irritable bowel syndrome, frequent headaches, chronic pain, difficulty sleeping, and limitations in their activities compared to those without a history of these forms of violence.

Centers for Disease Control 2010-2012 State Report fact sheet, accessed July 12, 2017.

In other words, many of your employees are among these victims.

At Matrix we see a comparatively small number of domestic violence leave requests.  As a good employer, are you educating your employees on their rights to this type of leave in certain states or under company policies?  We have no statistics for this, but it seems logical that leave taken early, when needed, may reduce the need for more extensive time off later.  And as an employer you’ve done the right thing.

Some of the victims’ needs, such as treatment for and recovery from physical and mental injuries resulting from the violence, may be eligible for job-protected leave under the federal Family and Medical Leave Act and similar state laws.  However, these victims often require time off for other related issues such as protecting their families by moving to a new location, obtaining counseling, and obtaining a court-issued protective order.

For these reasons, the number of states enacting or expanding laws that provide leave of absence specifically for victims of domestic violence is increasing.  Nevada is the latest to join the ranks, and California has expanded its notice requirements effective July 1 (see story below).

Nevada enacts leave for victims of domestic violence

Effective January 1, 2018, Nevada employers will be required to provide leave to eligible employees who are a victim of domestic violence or whose “family or household member” is the victim of domestic violence.

Under the Nevada law, an employee must have been employed for at least 90 days to be eligible for the leave. Eligible employees may take up to 160 hours of leave (equivalent to 20 8-hour days) in a 12-month period, continuously or intermittently, within 12 months of the date of the act of domestic violence that necessitated the leave.  The Nevada leave will run concurrently with FMLA if taken for an FMLA-qualifying reason (for example, to get treatment for and recover from incapacitating injuries or care for a family member).

Domestic violence is defined as an act committed by a spouse, former spouse, person with whom the victim has a dating relationship or shares a child, and other relationships, and includes acts such as assault, battery, sexual assault, stalking, larceny, compelling an unwanted action, and trespassing.

Following any immediate leave necessitated by the incident of domestic violence, an employee must provide at least 48 hours’ advance notice to the employer of leave for any of the following reasons:

  • For the diagnosis, care or treatment of a health condition related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;
  • To obtain counseling or assistance related to an act which constitutes domestic violence committed against the employee or family or household member of the employee;
  • To participate in any court proceedings related to an act which constitutes domestic violence committed against the employee or family or household member of the employee; or
  • To establish a safety plan, including, without limitation, any action to increase the safety of the employee or the family or household member of the employee from a future act which constitutes domestic violence.

Employers may require documentation supporting the need for leave, such as a police report, copy of an application for an order for protection, an affidavit from an organization which provides services to victims of domestic violence or documentation from a physician.

“Family or household member” means a: (1) Spouse; (2) Domestic partner; (3) Minor child; (4) Parent; (5) other adult person who is related within the first degree of consanguinity or affinity to the employee; or (6) other adult person who is or was actually residing with the employee at the time of the act which constitutes domestic violence.

The law also requires Nevada employers to make reasonable accommodation(s) to employees who are victims of domestic violence or whose family or household member is a victim of domestic violence.  Accommodations may include transfer or reassignment; a modified schedule; a new telephone number for work; or any other reasonable accommodations which will not create an undue hardship deemed necessary to ensure the safety of the employee, the workplace, the employer or other employees. 

The Nevada bill protects employees from adverse employment actions based on taking leave as permitted by the act.

Employers are required to maintain records of leave taken for 2 years and to post a notice of employee rights. The Nevada Department of Labor is working on a form of notice for employers to post.

To read the full text of the Nevada law, click here: https://legiscan.com/NV/text/SB361/id/1628891

Domestic violence leaves in other states

With this law Nevada joins the following states that have similar domestic violence leave laws (although they vary in details by state):  California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, New Jersey, New Mexico, North Carolina, Oregon and Washington.

In addition to these specific “personal protection” leaves, virtually all states have laws that provide job protection for victims or witnesses for time spent testifying in court or assisting prosecuting attorneys with respect to various crimes, not just crimes relating to domestic violence.  These laws generally do not have any employee eligibility requirements, notice requirements, or duration limitation.

Reminder:  California employers must start providing notice of domestic violence leave rights July 1

California law requires employers to provide leave of absence rights for victims of domestic violence, sexual assault, and stalking.  Leave reasons including taking time off from work to get help to protect the employee’s and employee’s children’s health, safety or welfare, including time off to get a restraining order or other court order.  The text of the law can be viewed at this link.

Effective July 1, 2017, employers must provide a notice of employee rights under the law to all new workers upon hire and to other employees upon request.  The Labor Commissioner has developed and posted a form that employers may use to comply with the notice requirements.

Pings for employers.   Employers should copy the form and distribute it to all current employees and add it to their new-hire packets.  In addition, although the law does not specifically require this, a great extra step is to post the notice on bulletin boards in employee break rooms and wherever other employment-related notices are posted.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Ten Years Later, Washington State Makes Its Paid Family Leave Dream a Reality

Posted on: July 6, 2017 0

By Marti Cardi, VP-Product Compliance

Gail Cohen, Director-Employment Law/Compliance

The state of Washington has enacted a law requiring paid family and medical leave for eligible employees.  The state was on the forefront of the paid family leave movement when it passed a paid parental leave law in 2007, but the law never went into effect because the legislature was unable to fund the benefit.  Now, a paid family leave bill much broader than the 2007 law was signed into law by Governor Jay Inslee on July 5, 2017.  The law will begin providing paid leave benefits to eligible employees on January 1, 2020.*

States with paid family leave programs currently in effect are California, New Jersey and Rhode Island, plus New York (benefits beginning January 1, 2018), and the District of Columbia (benefits beginning January 1, 2020).  The groundswell is huge, with more than 25 states introducing some sort of paid family leave bill so far this year!

Here is a summary of key provisions of the Washington law:

Effective date Employees can start taking paid family leaves January 1, 2020.

Employers can begin employee payroll deductions on January 1, 2019.

Eligible employees Must work 820 hours in the “qualifying period,” defined as the first 4 of the prior 5 calendar quarters; OR, if the employee is not yet eligible, the preceding 4 calendar quarters.  Equates to about 15.75 hours per week.
Covered employers An individual or entity with one or more employees; includes private companies, the state and subdivisions, and local governments.
Leave benefits reasons Employee’s own serious health condition.

Bonding with a newborn or newly placed or adopted child.

Care for a family member with a serious health condition.

Military exigency (leave necessitated for various reasons due to a family member’s active duty deployment).

Duration of leave benefits Employee’s own serious health condition  – 12 weeks per 52 consecutive calendar weeks.

Bonding with a new child, to care for a family member with a serious health condition, or due to a military exigency – 12 weeks total per 52 consecutive calendar weeks.

Limited to 16 weeks total per 52 consecutive calendar weeks for employee’s leave and family leave reasons; plus additional 2 weeks if needed for pregnancy complications.

Maximum total leave benefit is 18 weeks per 52 consecutive calendar weeks.

Increments of leave benefits Minimum of 8 hours, rounded down to the next full hour.
Waiting period for benefits There is no waiting period for bonding leave benefits following the birth or placement of a child.

For other types of leave benefits, there is a waiting period of 7 calendar days.

Family members for whom leave can be taken Child (any age), parent, spouse, state-registered domestic partner, sibling, grandparent, grandchild.
Benefits Maximum of $1000 per week starting in 2020, subject to adjustment by the state for each subsequent calendar year.

Employees who make 50% or less than the state’s average weekly wage (AWW) will receive 90% of their AWW.

Employees who make greater than 50% of the state’s AWW will receive:

o   90% of their wages up to 50% of the state’s AWW; PLUS

o   50% of their AWW in excess of 50% of the state’s AWW (subject to the $1000 cap)

Funding For 2019 and 2020, the total premium is 0.4 percent of the employee’s wages, capped at the state’s AWW, beginning on January 1, 2019. Annual adjustments may be made thereafter.

An employee pays about 2/3 of the total premium through payroll deductions.

The employer pays about 1/3 of the total premium.

An employer may elect to pay all or a portion of the employee’s share of the premium.

Self-funded plans The law authorizes employers to operate their own equivalent voluntary plans.
Miscellaneous Includes special provisions for small businesses with fewer than 50 employees.

Allows tribes and self-employed individuals to opt in.

Job protection Following leave and benefits, an employee is entitled to restoration to the same position held before the leave; or to an equivalent  position with equivalent benefits, pay, and other terms and conditions of employment at a workplace within 20 miles of the employee’s original workplace.

What’s next?

There are many unanswered questions about this law and how it will interact with the existing Washington Family Leave Act and the federal Family and Medical Leave Act, which provide unpaid job-protected leave for many of the same reasons.  We expect robust regulations to be passed before the effective date of January 1, 2020.  In the meantime, for your reading pleasure we provide this link to the full text of the Washington law.

*Please be patient!  We have over 2 years to implement this law.  In the meantime, we are working diligently to be ready for the New York paid family leave law and the ERISA disability claims handling rules changes, both effective January 1, 2018!  You can find prior posts on the New York law here  and here.  A primer on the new ERISA regulations is available here.

 

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Welcome Back, FMLA Opinion Letters: A Good Move by the DOL

Posted on: July 5, 2017 0

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

 

One of the challenges of administering leaves under the Family and Medical Leave Act is dealing with issues not well addressed by the law and the regulations – and there are many.  How long can an employer rely on an FMLA third opinion certificate?  How does an employer deal with an employee’s fluctuating work week when it doesn’t have historical information regarding the employee’s work schedule?  How late is too late for an employee to return an FMLA certification?  The list goes on.

In years gone by, the Wage and Hour Division of the DOL (responsible for enforcement of the FMLA) issued opinion letters as guidance on the murky issues submitted in inquiries by employers or employees.  In 2010 the Division stopped this practice and instead issued occasional “Administrator Interpretations” – broad, general interpretations of a select FMLA provision applicable to all employers or broad groups.  These Administrator Interpretations were few and far between (only 2 specifically for the FMLA from 2010 through the present) and gave little more than a regurgitation of information found in the regulations themselves.  As a result, in the absence of opinion letters, employers and FMLA administrators had no resource for requesting official DOL guidance on the tough and tricky FMLA issues.  Oh sure, we could call our local DOL office for help, but experience has shown that you can get different answers from different offices, or even from different Wage and Hour personnel within the same office.   (Who answers the phone on Tuesdays?)  And, the answers are verbal, never in writing, so hard to rely upon with accuracy.

Now, the DOL has announced  that it is reinstating opinion letters as assistance to employers and employees.  Hurray for the DOL!  As the DOL explains, “An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion.”  Thus it provides an official, reliable interpretation of the FMLA and its regulations.  We may not always agree with the Division’s opinion, but at least we know where the agency stands.

I can provide a recent example of the value of opinion letters.  In researching a thorny issue relating to FMLA leave to care for an “adult son or daughter” and the in loco parentis relationship, I discovered two opinion letters that will assist me in my interpretation of a specific fact situation for one of our clients.  There were no court opinions that helped with my issue, so I was glad to get this guidance from the Division’s library of FMLA opinion letters.  I feel another blog post coming on!

The Division has established a website  where users can review existing guidance (including opinion letters, Administrator Interpretations, and other materials) and submit a request for an opinion letter.  As explained on the website, “The Wage and Hour Division exercises discretion in determining which requests for opinion letters will be responded to and the appropriate form of guidance to be issued in response (i.e., Administrator-signed opinion letter, non-Administrator opinion letter, Administrator Interpretation).  The Wage and Hour Division processes requests for guidance as expeditiously as possible.”

Time will tell how actively the agency will resume this practice and how long it may take to receive a response.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

FMLA Breaking News – DOL Withdraws 2016 Broad Interpretation on Joint Employment

Posted on: June 7, 2017 0

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

Many employers might be in a joint employment relationship with a business partner and not realize it.  Joint employment can create or increase employer liability under the FMLA.

On January 20, 2016, the U.S. Department of Labor (DOL) released an Administrator’s Interpretation 2016-1 (AI) on the responsibilities and obligations of joint employers.  The DOL concurrently issued a new Fact Sheet #28N, which focuses on joint employer responsibilities under the FMLA.

Today – June 7, 2017 – the DOL announced that it is withdrawing AI 2016-1.  This is consistent with other Trump administration initiatives to pull back on governmental regulation of businesses as employers. The withdrawal does not change the existing law, but does eliminate the AI as the DOL’s broad interpretation of the law.  The AI is no longer available on the DOL website.

So far the DOL has not taken action to withdraw FMLA Fact Sheet #28N.  We’ll be watching!  In the meantime, employers should review that Fact Sheet to gain an understanding of their possible FMLA obligations as a joint employer.

As a side note, the DOL has also withdrawn a 2015 Administrator’s Interpretation on independent contractors.

For more background on AI 2016-1 on joint employers, check our prior blog post http://matrix-radar.com/2016/01/caution-joint-employers-the-dol-is-looking-for-you/.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

NEW YORK HONING IN: Paid Family Leave Revised Regulations are Out, but Still Not Final

Posted on: May 29, 2017 0

By Marti Cardi, VP-Product Compliance

 

The New York Workers’ Compensation Board has issued revised regulations interpreting and supporting the state’s Paid Family Leave law that will start providing employees with pay benefits on January 1, 2018.  This revised version of the regulations, published on May 24, 2017, is still not final.  The Board is accepting comments for 30 days, or until June 23, 2017.

As a reminder, the law phases in from 2018 through 2021.  Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021.  Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member.    A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here.

Along with the revised proposed regulations, the Board published a summary of the 117 comments received during the public comment period from advocacy groups, individual employees, and associations representing businesses, insurance carriers, law firms, unions, and employees.   Here are a few interesting issues raised by the comments and the Board’s responses:

Employee Eligibility. NY PFL requires employees to become eligible for family leave after either 26 weeks or 175 days of work, depending on their schedule. The original regulations applied the 175-day eligibility rule only to part-time employees who worked fewer than 5 days per week.   Section 380-2.5 has been amended to apply the 26 week eligibility criteria to employees who work 20 or more hours per week, and the 175-day eligibility criteria to those who work less than 20 hours per week.  380-2.5(a) and (b).

Employer’s Lack of Cooperation. Some insurance carriers requested clarity around their obligations if an employer refuses to cooperation in the PFL benefits process.  The Board responded that the regulations then require the carrier to communicate directly with the employee, and the employer’s lack of cooperation is not grounds for denial of benefits.   380-5.4(e).

ICD-10 Code. The proposed regulations originally required that certifications from medical providers of a family member’s serious health condition include the ICD-10 code for the diagnosed condition.  Commenters identified various concerns, ranging from possible delays caused by incomplete forms, to health privacy concerns. In light of these comments, this section has been amended to remove the provision requiring that the ICD-10 code be included as part of the family member’s certification.  380-4.2(a)(3).

Employee Language Preference.  The original proposed regulations required an insurance carrier or self-insured employer to make all communications with an employee in the language identified by the employee on the Request for Paid Family Leave.  The Board received several comments expressing concern that complying with this requirement will be overly burdensome and prohibitively expensive. As a result, the Board has indicated that it will translate the request for paid family leave forms and instructions into seven languages (not identified), and has revised the regulation to state that insurance carriers or self-insured employers must make all reasonable efforts consistent with the principles set forth in Executive Order 26.”  §380-5.4(h).

Denial of Claim. Any denial of a claim for PFL benefits must be issued within 18 days of receipt of a completed claim.  The revised proposed regulations have added a section specifying that the notice to the employee must state the reason for the denial, repeat any relevant information filed in the request for PFL, and include any other information considered by the carrier in making the denial decision.  380-5.4§(a)(1).

Employer Size for Coverage. Several small employers and individuals expressed concerns about the adverse effect of paid family leave on small employers. The statute defines a covered employer as an employer with one or more employees, and this cannot be modified by regulation. Therefore, no change has been made.

Employee Contributions during Leave. The Board has revised the regulations to clarify that an employer can continue to deduct PFL contributions while an employee is receiving disability or PFL benefits.  380-7.2(b)(4).

The full text of the revised proposed regulations, a summary of all comments received, and other NY PFL information is available on the Paid Family Leave page of the Workers’ Compensation Board website:  http://www.wcb.ny.gov/PFL/pfl-regs.jsp.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

High Points in Recent FMLA Case Law

Posted on: May 11, 2017 1

By Marti Cardi, VP-Product Compliance

 

Last week I had the distinct pleasure of co-presenting one of the opening general sessions at the Disability Management Employer Coalition Compliance Conference with my buddy and fellow blogger, Jeff Nowak. Those of you who know Jeff and me will understand sharing the stage with him is tough duty: He’s cuter, funnier, and a better singer than me! Nonetheless, I soldiered through and together we provided updates on key FMLA cases decided by the courts in the past 12 months or so. Although there were no headline-making court decisions (think Escriba v. Foster Poultry Farms from a couple of years ago) there is still plenty to learn, and important reminders to gain, from recent FMLA cases. Here are some highlights:

Year of the Third Party Administrator. (Jeff’s title, not mine.) The past few months brought us a spate of cases dealing with an employer’s ability to require employees to provide notice of FMLA leave to both the employer and the employer’s third party administrator. For example, you can require your employees to call one number to report the absence for operational and attendance purposes, and another number (like Matrix!) to comply with and benefit from FMLA processes and protections. The key is to ensure that your employees are aware of the required two-notice process.

What employers should do: Enact a policy and distribute it to your employees spelling out the two-notice requirement, providing both numbers, and – while you’re at it – include time limits within which employees must report to each number. Some of the cases: Scales v. FedEx Ground Package Sys. (N.D. Ill. Jan. 2017); Alexander v. Kellogg USA, Inc. (6th Cir. Jan. 2017); Perry v. American Red Cross (6th Cir. 2016)

Employer’s duty to inquire for more information. The FMLA regulations provide that if an employer is on notice of an employee’s possible need for FMLA leave, the employer has the duty to ask for further information if needed to determine whether the employee’s leave request is for an FMLA-qualifying reason. 29 C.F.R. § 825.3(c); 825.303(b). This rule came up in two different contexts in recent cases.

In Reeder v. County of Wayne (E.D.Mich. Apr. 2016), employee Yasin provided a doctor’s note that identified his health conditions, stated he was under treatment, and directed that he should not work more than 8 hours per day – and thus no overtime (which was frequently required to ensure security at the county jail where he worked). The County did not provide Yasin with an FMLA certification form or a notice of rights and responsibilities. After missing many overtime shifts and receiving discipline, Yasin was terminated. The court ruled that a jury could find the information in the doctor’s note sufficient to put the County on notice that Yasin might need FMLA leave, thus giving rise to the County’s duty to inquire further if it needed more information.

EPILOGUE: The case indeed went to a jury that found the County had interfered with Yasin’s FMLA rights. He won over $187,000 in damages, $125,000 in attorneys’ fees, interest, and costs for a total in excess of $325,000.

Coutard v. Municipal Credit Union (2d Cir. Feb. 2017) reinforces the employer’s duty to inquire but this time in a situation that might surprise employers. Frantz Courtard asked for a leave of absence to care for his grandfather. MCU summarily denied the leave request, stating that the FMLA does not cover leave for grandfathers. Frantz took time off anyway due to his grandfather’s need for home care following hospitalization. Frantz was terminated for unexcused absences. Turns out, Frantz‘s grandfather had cared for him from age 4 when Frantz’s father died to age 14, providing a home, food, clothing, schooling, and other support typical of a parent – in short, a classic in loco parentis relationship. MCU argued that Frantz should have volunteered the information to establish the in loco parentis relationship. The court disagreed, holding instead that MCU had a duty to inquire whether Frantz’s grandfather qualified as ILP. Thus, Frantz’s termination constituted interference with his FMLA rights.

What employers should do: Always follow up with an employee if he or she provides information that a leave request might qualify under the FMLA, depending on additional facts. The regulations clearly state that merely “calling in sick” is not enough, but beyond that (and maybe even in that situation, depending on other facts) you should ask informally for more information to assess whether you should initiate the FMLA notice certification process. You will still be able to deny FMLA protections if the certification does not support the leave under the FMLA.

Beware the FMLA mandatory overtime rules! They can get you coming and going, as tire maker Bridgestone learned. Under Bridgestone’s overtime process, workers were not required to sign up for overtime, but if an employee did sign up and was selected for an OT shift, the employee had to work the assigned shift or be assessed an attendance violation. Employee Lucas was approved for intermittent leave to care for his son, who had asthma. Over time Lucas missed many OT shifts he had signed up for. Bridgestone applied FMLA to excuse most of the missed shifts, but ultimately Lucas exhausted his FMLA and was terminated for attendance violations.

The questions before the court included whether the OT shifts were mandatory, and whether Bridgestone had properly accounted for those shifts under the FMLA. Lucas argued the shifts were not mandatory because an employee could choose to sign up; as a result, they should not have been counted against his FMLA usage – and hence, he would not have exhausted his FMLA. Bridgestone countered that the shifts were mandatory once the employee signed up and was selected for a shift; as a result, Bridgestone argued, it was correct in deducting FMLA hours for the mandatory OT shifts Lucas missed to care for his son.

The court agreed that the shifts were mandatory due to Bridgestone’s OT sign-up, selection, and discipline process. But, Bridgestone had it only half right: The company was in compliance with the FMLA regulations when it deducted missed OT shifts from Lucas’s FMLA entitlement, but the company should also have included Lucas’s mandatory OT hours in its calculation of his “workweek” for FMLA purposes, using the variable workweek method permitted by the regulations. 29 C.F.R. § 825.205(b)(3). By failing to do so Bridgestone shorted Lucas on entitlement. Hernandez v. Bridgestone (8th Cir. Aug. 2016).

Lesson learned: Mandatory overtime counts toward both FMLA entitlement and FMLA usage.

Certification from a treating specialist? Maybe yes. Good news! A court has approved an employer’s request for an initial certification from a treating specialist. Erica was a difficult employee, to say the least. Her many complaints and ultimate termination landed her employer, City of Milford, in court. Lucky us! Erica’s groundless FMLA claims yielded a court ruling that is good news for employers. Erica was a community outreach employee for the City and requested FMLA leave for severe anxiety. She provided an FMLA certification from her primary care provider, who indicated that she was under treatment with a psychiatrist. The City asked for a new certification from the treating psychiatrist, which Erica provided. She received all the leave she requested but later – lots going on in the background, folks – she was fired. She sued and claimed, among many other things, that the City’s requirement that she provide a certification from her specialist was FMLA interference. Au contraire, said the court. Under these facts (a treating specialist referenced on the provider’s certification) the employer was justified in asking for a cert from that specialist.

But there are limits to how far we can rely upon this court decision. If the initial certification does not reference treatment by a specialist, a court may not be as willing to support an employer’s request for a certification from a specialist. After all, who would that specialist be if the employee is not treating? This is a reminder of the advantages of reviewing an employee’s initial certification carefully. The DOL prototype forms have questions to identify whether the employee/patient is receiving treatment from any other provider (WH-380-E and 380-F):

Was the patient referred to other health care provider(s) for evaluation or treatment (e.g., physical therapist)? ____No ____Yes. If so, state the nature of such treatments and expected duration of treatment: ___________________________________.

If the form is blank in this regard, follow the incomplete process spelled out in the regulations. If the form is filled in and indicates no other treatment, the second/third opinion process may be appropriate because the employee’s provider has given a certification on a specialty condition not within his/her practice. Either way, the employer ends up with more precise information about the employee’s need for leave – always a good thing!

The FMLA continues to be a challenge for employers – there seems to be no end to the fact situations employers face in managing employee leaves. If you have questions about the cases above other leave management issues, please contact us for help.

MATRIX CAN HELP!

Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

 

ADA Views – Direct from the EEOC!

Posted on: May 8, 2017 0

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

 

Q:   What do attendance, a deaf lifeguard, and an “accidental leave law” have in common?

A:    They are all topics addressed by an EEOC representative at Matrix’s recent Client Advisory Board meeting.

Pierce Blue is Attorney-Advisor to EEOC Commissioner Chai Feldblum.  We invited Pierce to a meeting of a cross-section of our clients to talk all things ADA – that’s the Americans with Disabilities Act, of course.  Here are a few snippets of information Pierce shared with attendees:

Attendance – is it an essential function of a job? The EEOC says no, in most cases.  In the EEOC’s view, an essential function is a key outcome or task. Attendance is not usually the “task” an employee needs to accomplish in the job, hence it is not an essential function.  (Exceptions might include a receptionist or a security guard where physical presence is one of the expected outcomes.)  Pierce noted that courts have disagreed with the EEOC on this point and have held that attendance can be an essential function.  See, for example, EEOC v. Ford Motor Co. (6th Cir. 2015)  (regular and predictable on-site job attendance was both an essential function of, and a prerequisite to perform other essential functions of, the employee’s job; due to her repeated absences, she was not qualified for her position).
Reduced Schedules. Ever have an employee who asked for no overtime, intermittent leave or reduced schedule as an accommodation?   Is this a reasonable accommodation that an employer must consider?  The EEOC say yes, in most cases.  But how does this square with the EEOC’s own pronouncement that an employer does not have to lower production quality or quantity standards as an accommodation?  Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.   Pierce explained the EEOC wants to see employers have the interactive discussion with the employee, address job performance expectations, and perhaps give the employee’s request a trial.  As a benefit, a trial run will put the employer in a defensible position if the accommodation is later withdrawn because it simply isn’t working – the employee is not getting her work assignments done while avoiding mandatory overtime or taking intermittent leave.

Don’t act on unfounded fear and speculation. This brings us to the lesson learned from the Case of the Deaf Lifeguard.  A typical initial reaction to this scenario is that, of course, a deaf person cannot be a lifeguard.  Pierce discussed the case to remind employers not to act on unfounded assumptions and stereotypes.  Rather, the ADA requires an individualized assessment of a disabled employee’s ability to perform the essential functions of the position.

Keith, the lifeguard, has been deaf since birth.  He took and passed a lifeguard certification program and Oakland County’s water safety test and lifeguard training program.   The County offered Keith a lifeguard position contingent upon the County’s usual requirement of passing a medical examination.  The doctor who conducted the physical expressed concern about Keith’s ability to perform the job due to his hearing impairment, and the County withdrew the job offer.  In court (yes, he sued!) Keith argued that the County failed to conduct an individualized assessment of his ability to perform the essential functions of the lifeguard position.  The 6th Circuit agreed.  The examining doctor had merely looked at Keith’s file and declared, “He’s deaf; he can’t be a lifeguard.”  No one for the County asked Keith to demonstrate performance of the job or otherwise made an individualized assessment of his lifeguard abilities.  Keith, on the other hand, had experts in deaf lifeguards and aquatic safety willing to testify that a deaf person can perform the functions of a lifeguard position.  The experts explained that persons in danger exhibit visual signs of distress, and individuals deaf since birth have better peripheral vision than hearing persons.  According to the court, the doctor’s “cursory medical examination is precisely the type that the ADA was designed to prohibit.”  Keith v. County of Oakland (6th Cir. 2013).

Accidental leave law. Pierce shared thoughts from Acting Chair of the EEOC, Victoria Lipnic, about leave of absence as a reasonable accommodation under the ADA.  Pierce explained that Acting Chair Lipnic – and others – call the ADA an “accidental leave law.”  The basic intent of the law is to keep employees working, not to provide leaves of absence.  In Acting Chair Lipnic’s view, Congress passed a separate law – our beloved FMLA – to address leaves of absence, while the ADA has a separate purpose:  to prevent disability discrimination and help disabled individuals obtain and keep jobs.  Well, we’ve come a long way, haven’t we?  For more guidance on leave as an ADA accommodation, see the EEOC’s 2016 resource document, Employer-Provided Leave and the Americans with Disabilities Act.

The topics addressed by Pierce at our client meeting present significant ADA challenges for employers.  Please let Matrix know if you would like to learn more about any of these topics or others relating to leaves of absence and accommodations.  You can leave a message below or contact marti.cardi@matrixcos.com.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Walking the walk on service dogs in the workplace

Posted on: April 12, 2017 2

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

Bradley Arndt v. Ford Motor Company, 2017 WL 1196442 (E.D. Michigan March 29, 2017)

If you’ve been in a shopping center or an airport lately then you know that the prevalence of service dogs is on the increase (I love those vests!).  For employers, however, there are still many challenges in addressing an employee’s request for a service dog (or other animal) as an accommodation in the workplace.  In the case of Bradley Arndt v. Ford Motor Company, Ford applied sound ADA practices to maneuver through unfamiliar territory.

Bradley Arndt was a Supervisor at Ford’s Van Dyke Transmission Plant.  He suffers from PTSD following his extensive military service, which included several combat deployments.  In February 2013, after about six months of tenure, he approached his then-direct supervisor indicating he was having issues with his PTSD at work, and mentioned bringing his service dog, Cadence, to work (I love that name!).  While his supervisor initially expressed enthusiasm for the idea, he became concerned about potential safety and quality issues.  Shortly after Bradley mentioned bringing Cadence to work, he emailed an HR representative for Ford and reported that he had missed work due to his PTSD and asked if could bring his service dog to work.  The HR rep thanked him for his email and told him she would look into his request.

HR provided Bradley with a Disability Reasonable Accommodation Request form to complete, and he did so, also providing a letter of the functions his service dog could provide to him in the workplace, which he described as sensing when he is having an anxiety attack, calming him down, and keeping people away from him.  Bradley indicated that just having the dog nearby “provide[d] a great deal of comfort and security… thus giving me the utmost confidence to perform my job.”

Shortly after submitting his request form, Bradley met with the physician at the plant regarding his request.  The doctor asked Bradley to provide a release to facilitate communication with the VA personnel treating his PTSD and told Bradley that the doctor would be working with HR to determine whether accommodation could be made, but also noted health and safety concerns with a dog in the manufacturing facility.  The very next day, Bradley withdrew his request.  Apparently, the doctor mentioned the possibility of a transfer to the Dearborn location. Bradley informed the HR rep that he did not want to go to Dearborn because he understood that the city had a large population of Arabs and that seeing women ”walking around in burkas”  might trigger his PTSD.  He also told HR that he was withdrawing his request because he “didn’t want to be a bother.” HR told him it wasn’t a bother and that they needed to engage in the interactive process.  After he insisted on withdrawing the request for accommodation to bring Cadence to work, HR told him to put the withdrawal of his request in writing, which he did on March 15, 2013.

Bradley took medical leaves for his PTSD. Upon his return from a second such leave, on February 21, 2014, he submitted a return to work note from his treating physician indicating he could return to work as of February 20, 2014 “with the presence of a service dog, Cadence.”  That same day, he completed another Disability Accommodation Request Form asking for a “service dog at work.”  The form invited him to specify the job functions he was having difficulty performing, as well as limitations his condition posed which interfered with his ability to perform his job.  Bradely’s answers did not, however, provide that information.

Because the plant had not previously dealt with a request to bring a service dog to work, HR placed Bradley on a “no work available” or “unfit to work” status so that he could continue to receive his fully salary and benefits while Ford looked into his request.  On March 4, 2014, HR and Bradley’s supervisor met with him to discuss his request.  They asked Bradley to identify the aspects of his job he could not perform without his service dog.  In this meeting, Bradley insisted that he could perform all of the aspects of his job and that he just needed to have his dog to “alleviate environmental factors.”    After the meeting, HR wrote a letter to Bradley’s doctor asking clarifying questions, provided the doctor with a job description, and posed very specific questions:  which job functions were rendered difficult for Bradley to perform due to his condition, how the requested accommodation helped him perform his job, and whether there were other accommodations that might be offered.  On April 4, 2014, Bradley returned the completed information from his physician. The doctor opined that she was unaware of any job functions he couldn’t perform, though she believed that having his service dog under his desk at work might calm him so he could complete his job duties.

HR arranged a second meeting with Bradley to discuss his request to bring his service dog to work.  That meeting took place on May 13, 2014.  Bradley brought his dog to the meeting. Humes asked him what job functions he felt he could not perform without accommodations.  Bradley insisted he had already answered the question several times, placed his Ford badge on the desk and said that if Humes could not give him an answer by the following Monday morning, he was quitting.  Bradley filed a lawsuit, accusing Ford of failing to reasonably accommodate his PTSD.

Ford won this lawsuit on summary judgment. In its decision, the court emphasized that Bradley failed to show that having his service dog with him at all times in the manufacturing facility would enable him to perform his job.  In addition, the court rejected Bradley’s contention that a three-month interactive process demonstrated that Ford failed to participate in good faith. In doing so, the court acknowledged that Ford had legitimate concerns about Bradley bringing his dog to work and whether doing so would enable him to perform his job and effectively calm him if his PTSD were triggered at work.  Ford was able to show that, during that three-month timeframe, they were actively engaged in investigating the possibility of accommodating Bradley’s request, including asking other facilities whether and how they had successfully allowed a service animal accommodation at their plants  and walking the plant floor with the safety manager to have her identify any safety or health concerns.  Ford also put Bradley on a fully paid leave (which is itself a reasonable accommodation) while they were doing that important research.  Ultimately, the court concluded, by quitting instead of continuing the interactive discussion, it was Bradley who was responsible for the breakdown in the interactive process.  Because of this, Bradley could not show that Ford failed to engage in the interactive process nor that Ford had violated the Americans with Disabilities Act by not providing his requested accommodation to bring Cadence to work with him.

Pings for Employers:

The Arndt case provides a great outline for what employers should do when an employee requests to bring a service animal to work as an ADA accommodation:

  • Get information. When an employee asks for an ADA accommodation, the employer has the right to certain information, including how the employee’s condition limits his ability to perform his essential job functions and how the requested accommodation(s) is going to help him do so.
  • Follow the usual ADA process. A service dog is like any other accommodation in this regard – if your employee says he needs to bring his dog to work, you can and should start the interactive process to understand what job functions are impacted by his condition and how the dog will help him perform his job.
  • Conduct and individualized assessment. It is understandable that an employer’s first reaction to a request for a service dog as an accommodation would be to balk – but it is imperative to conduct an individualized analysis and keep an open mind in the process.
  • Accommodation must be effective. Like any accommodation, granting the employee the right to bring a service dog to work requires not only that it be reasonable, but that it is effective.  This is where Bradley failed in communicating with Ford.
  • A caveat. Ford and the court seemed to focus on whether the service dog Cadence enabled Bradley to perform any specific essential functions of his position.  This was a tall order.  Perhaps Bradley could have made an argument that by keeping him calm, Cadence enabled him to perform his job overall by being present and functional.  Another court, another time, might have found Bradley’s evidence in this regard sufficient to support a claim of failure to accommodate.  Of course, Bradley still had the problem of walking out before the interactive process was complete.
  • Give it a try. One of the best things an employer can do in the accommodation process is to give the employee’s request a trial.   In the case of a service animal, if the presence of the animal causes problems or the accommodation isn’t effective to enable the employee to perform the essential functions of the position, you have tried and you have solid evidence – not just speculation – that the accommodation isn’t effective.Then restart the interactive process to determine whether an alternate accommodation might be reasonable and effective.
  • Other concerns. Sometimes a service animal in the workplace can create additional problems, such as complaints from other employees with animal allergies, fear of dogs, etc.  If the co-worker’s issue is also a disability, you may need to seek a compromise, such as designating restricted areas where the service animal cannot go or providing air purifiers.  Also, the employer can establish ground rules – like keeping the dog on a leash, and having the employee be responsible at all times for its care and behavior.
  • Ask JAN! For more assistance always remember to work with the Job Accommodation Network at http://askjan.org/ .   JAN is a free, not-for-profit organization that focuses on assisting employees and employers with navigating the ADA – and you can talk with a live person if you call the number on the website.

MATRIX CAN HELP!

Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.

Don’t Forget About Accommodation Obligations during the Application Process – The EEOC is On It!

Posted on: March 24, 2017 2

By Gail Cohen, Director-Employment Law/Compliance

& Marti Cardi, VP-Product Compliance

It appears the Equal Employment Opportunity Commission has added a new focus to its enforcement efforts.  In its latest Strategic Enforcement Plan, the EEOC announced that one of its national priorities is for “the Commission to address . . .  issues involving hiring barriers and the ADA.”  Many of the recent settlements by the EEOC highlight just how seriously the EEOC is taking this strategic priority, in particular regarding applicants who request a reasonable accommodation in the pre-employment processes.  Here are a couple of examples:


EEOC Settlement on Behalf of Trucking Applicant for Failure to Accommodate

An applicant for a truck driver position with Covenant Transport sought accommodation, on the basis of his medical condition, to have a blood test instead of providing a urine sample in connection with the company’s pre-employment drug screening.  The EEOC filed suit, alleging that the company initially agreed to this request for accommodation, but ultimately reneged and declined to hire him because he could not submit a urine specimen for testing.

The oddest part of the settlement is that it requires Covenant to develop a written drug testing policy (surprised they did not have one already!) and to provide 90-minute trainings annually on the policy (that’s a long time to discuss one policy!) to its recruiters and head of safety. Covenant also agreed to pay $30,000 to the applicant.

EEOC Press Release 02-24-2017

Cell Phone Repair Facility Settles EEOC Lawsuit on Behalf of Two Applicants Denied Reasonable Accommodation.

As part of its hiring process, S&B in Fort Worth, Texas, required applicants to participate in a “group interview” with prospective supervisors. During this interview, the EEOC contended that the two applicants on whose behalf it brought this lawsuit were observed to be engaging in American Sign Language to communicate with each other. They asked that the supervisors provide them with written questions.  The lawsuit alleged that the supervisors initially did so, then declined to continue and told both applicants the company would not hire them.

This lawsuit cost S&B $110,000 but, as you no doubt can guess by now, the EEOC imposed additional requirements on S&B to settle.  The company is also required to maintain a written log of all disability-related complaints and report semi-annually to the EEOC.  In addition, managers, supervisors, and HR personnel are required to attend a training conducted by a Dallas advocacy center for deaf individuals on the use of sign interpreters in interview and employment settings.

EEOC Press Release 02-23-2017


Pings for Employers:

Remember that the ADA applies to applicants as well as current employees. The prospective employer must provide reasonable accommodation(s) to applicants for known disabilities to assist them through the application process.

Train internal recruiters and interviewing personnel on the requirements of the ADA, so that they recognize and respond appropriately to a request for an accommodation during the application process.

Establish a culture of disability acceptance and recognition of each individual’s capabilities, not their disabilities.

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

New York Paid Family Leave – Proposed Regulations Announced

Posted on: March 2, 2017 0

By Marti Cardi, VP-Product Compliance

The New York Paid Family Leave act goes into effect on January 1, 2018.  This law provides both job protection similar to the FMLA, and also provides a pay benefit to employees during covered leaves of absence.  Now, New York Governor Cuomo has announced that the proposed regulations in support of the law have been published in the State Register and are open for public comment for 45 days.  Links to the text of the proposed regulations and related materials can be found on the New York State website here.

The law phases in from 2018 through 2021.  Job-protected leave starts at 8 weeks per 12-month period and increases to 12 weeks; pay benefits start at 50% and increase to 67% in 2021.  Leave is available to bond with a new child, care for a family member with a serious health condition, and tend to matters due to the active duty military deployment of a family member.    A more detailed review of the law’s provisions is available on our prior Matrix Radar blog post here and in the state’s announcement of the proposed regulations.

The state has also created a new helpline (844) 337-6303 and a new website to answer questions and provide more information about the paid leave program.

Part of a Trend

Three other states – California, New Jersey, and Rhode Island –  also have state programs for paid family leave, and Washington, D.C., has passed such a program to go into effect in 2020 (subject to review by the U.S. House and Senate).  These states and also Hawaii, New York, and Puerto Rico offer separate programs for disability insurance for an employee’s own health condition.

But that’s not all!  As of February 28, the following 10 states have also introduced legislation for paid family leave:  Connecticut, Hawaii, Illinois, Missouri, Oklahoma, Oregon, South Dakota, Tennessee, Texas, and Virginia (died in committee within 3 weeks of proposal – that was quick!).  Some of these also include pay benefits for leave due to the employee’s own health condition.  In addition, the state of Washington passed paid family leave legislation in 2007 but it never went into effect due to lack of funding.  Washington has introduced new bills this year to provide that funding and implement its paid leave law.

Matrix and Reliance Standard Can Help!

At Matrix we have been waiting for this development. We will closely review the proposed regulations, inform our clients, business partners, and readers of any significant provisions, and submit comments to the state if appropriate. We’ll do the same when the regulations – as is or revised – become final.

In the meantime, Matrix’s compliance and product leaders are guiding a team with representatives from all affected functional areas in preparing to administer the job-protected leave provisions of the law effective January 1, 2018.  Our sister company, Reliance Standard Life Insurance Company, has likewise assembled a team of representatives from all functional areas to design the product offering.  In order to be ready by the effective date, Reliance Standard has already created system requirements and is preparing to start development.

If you have questions or want more information, contact us at ping@matrixcos.com or salesandmarketingHQ@rsli.com.

Pregnancy Issues Continue to Expand: Company Fired Pregnant Employee For Her Own Good

Posted on: February 17, 2017 1

By Marti Cardi, VP-Product Compliance

Enforcement and legislative attention continue to increase around pregnant employees and pregnancy-related conditions in the workplace.  The message to employers?  Treat a pregnant employee poorly – or differently – at your peril.  Rooms to Go learned this lesson recently, even though the pregnant employee’s manager seemed to be acting in the employee’s best interest.

The Case.  RTG Furniture Corp. (RTG) operates a chain of Rooms to Go furniture stores and distribution centers nationwide.  After being sued by the Equal Employment Opportunity Commission (EEOC), the company has agreed to pay $55,000 and provide other relief.

According to the EEOC’s complaint, the company hired Chantoni McBryde on June 1, 2015, and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde. The EEOC said that McBryde was then told that because she was pregnant, she could no longer work at the facility.  If true, this conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits employers from terminating workers because they are pregnant.

As is common in settlements of EEOC lawsuits, the company agreed to other provisions in addition to providing monetary relief to McBryde.  The three-year consent decree between RTG and the EEOC requires RTG to develop and implement a policy that prohibits pregnancy-based discrimination; to conduct annual pregnancy discrimination training for employees, supervisors, and managers at certain facilities; to post a notice about the lawsuit and employee rights under federal anti-discrimination laws at those same facilities; and to provide periodic reports to the EEOC.  Thus, while the $55,000 judgment may seem like something your company could handle, this type of extensive oversight and training obligation is far more intrusive and onerous.

According to the EEOC, “Pregnant women have the right to make their own decisions about working while pregnant, including the risks they are willing to assume.  If there may be a potential health concern, it is up to the woman and her doctors to evaluate. Companies must not impose paternalistic notions on pregnant women, as doing so can result in unlawful discrimination.”  EEOC Press Release 02-03-2017

Sources of Pregnancy Protections.  Here are some of the state and federal laws that provide protections for pregnant workers:

  • The federal Pregnancy Discrimination Act, passed in 1978 as an amendment to Title VII, prohibits sex discrimination on the basis of pregnancy. Pregnant women who are able to work must be permitted to work under the same conditions and must be treated the same as non-pregnant employees.  The EEOC will broadly interpret when pregnancy-related conditions are considered disabilities under ADA.
  • The federal Family and Medical Leave Act defines a “serious health condition” to include pregnancy and provides up to 12 weeks of leave for prenatal care and pregnancy-related conditions.
  • Under the Americans with Disabilities Act, a “normal pregnancy” is not a disability – but a “pregnancy-related impairment that substantially limits a major life activity” can be a disability.
  • State laws – as of 2016:

Virtually all states have provisions similar to the Pregnancy Discrimination Act in their civil rights laws.

Approximately 12 states have laws specifically requiring employers to grant a leave of absence for pregnancy disability.

Approximately 17 states have laws requiring accommodation of pregnancy-related conditions in the workplace – even if not a “disability.” “Common conditions of pregnancy” must be accommodated.  Accommodations can include leave of absence as well as breaks, equipment, modified schedules or duties, light duty, etc.

Many more state pregnancy leave and accommodation laws have already been introduced in 2017. Watch this blog for announcements if/when they pass.

Pings for Employers

Treat pregnancy the same as other temporary disabilities – unless a law specifically requires more favorable treatment.

Consider whether your policies and practices provide equal treatment for pregnant employees with regard to:

  • Amount of paid/unpaid leave for a temporary disability.
  • Availability of light duty – it is NOT just for worker’s compensation claimants.
  • Workplace accommodations (equipment, modified duties or schedule, breaks, leave of absence, food or drink at a workstation, etc.).
  • Any other term, condition, or benefit of employment.

Also, be familiar with the federal laws identified above and the laws of your state. What protections do they provide for pregnant employees?  What do you need to do to be compliant?

Review the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues. Issued in 2014 and revised in 2015; this is a comprehensive guidance regarding treatment of pregnant employees under various federal laws.


UPCOMING EVENT!  I will be presenting at the DMEC Denver Chapter Meeting on the topic “Employers: Beware of Caregiver Protections!” Thursday February 23 at 2:30.  I will address the pregnancy issues discussed above and much more.  Please join me!  Click on the link for more details and to sign up.

For more information on the caregiver topic, see our post What Employers Need to Know about Caregiver Protections under the ADA, FMLA, Title VII… and in California.

                                                           

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Paid Parental Leave 2017:  It’s Not Your Mama’s Maternity Leave

Posted on: January 31, 2017 0

By Marti Cardi, VP-Product Compliance

We’ve all seen the headlines over the past two years:  “XYZ Company Adopts Expansive Paid Parental Leave Policy.”  News coverage of paid parental leave (PPL) increased tremendously in 2015-2016 over prior years, fueled by the numerous PPL implementations by big-name companies.

Key questions that arise in assessing the increase in company PPL plans include: Why now…finally? What motivates employers to adopt PPL plans? What lessons can employers learn from the trailblazers’ experiences? What’s next for PPL? We’ll do our best to answer these below.

In mid-January the Integrated Benefit Institute (IBI) hosted an event in San Jose to present the findings of its 2016 study of the tech industry’s burgeoning PPL policies.  The study, “. . . And Baby Makes Three (Months Off)”, attempts to answer the above questions and more.  At the event, representatives from Facebook, Intuit, and Adobe participated in a panel discussion of their companies’ PPL programs and provided their thoughts and experiences on these issues as well.  (And many thanks to Facebook and Intuit for sharing their positive experiences with Matrix as their third party administrator!)

The following information is based on IBI’s report (well worth a read in its entirety) and input from the panel and other employers at the conference.

Why Now?
Social and economic factors explain only so much.  Yes, tech industry players have been competing fiercely for talent in recent years, but data show that the NASDAQ was booming in 2009, signaling the end of the recession.  Along with this came declining unemployment rates overall and specifically in the tech industry.  Yet that was not enough to set off a huge jump in PPL as an employee benefit.

Several events from 2009 forward may have created or contributed to the momentum:

  • In 2009, the New Jersey paid family leave program took effect. (California’s paid family leave program took effect in 2002.)
  • In 2012 Marissa Meyer was hired as Yahoo! CEO – while she was pregnant.
  • In 2013 Sheryl Sandberg, Facebook’s COO, published Lean in: Women, Work, and the Will to Lead.
  • The White House Summit on Working Families was held in June 2014, which brought together advocates for such issues as paid family leave, paid sick time, flexible scheduling, and equal opportunities in the workplace.
  • In July 2014, the EEOC released its Enforcement Guidance on Pregnancy Discrimination and Related Issues, which made clear that parental leave policies that favor one gender over the other violate federal laws that prohibit discrimination on the basis of sex or pregnancy.

Whatever the cause, U.S. employers are embracing paid parental leave – and in some cases paid family leave – in ever greater numbers and with increasingly generous plans.

What Motivates Employers?
With these events as a backdrop, IBI conducted interviews with 15 established tech companies to discover the motivations driving their adoption of paid parental leave.  These fell into four broad categories:

  • Compete for talent – most companies have no drive to be #1 in PPL offerings, but want to be competitive by offering a reasonable amount of PPL.
  • Support existing corporate social values – companies want a policy that comports with other expressed corporate values, such as being “family friendly”.
  • Formalize and coordinate myriad and conflicting local, state, federal, and company leave policies.
  • De-stigmatize females in workplace – make parental leave equally available to men so women won’t be viewed as taking their jobs less seriously by taking leave.

At the conference, employers also indicated they were motivated by recent legislation requiring paid parental or paid family leave, specifically San Francisco (effective 1/1/17) and New York State (effective 1/1/18).

Key Lessons for Employers
The IBI interviews and the conference participants provided three key lessons for employers considering adopting a paid parental or paid family leave program.  Undoubtedly there are many more but here’s a start:

First, design a policy for what YOUR business is trying to accomplish.  Don’t feel pressured just to do what everyone else is doing.  Carefully analyze your company’s philosophies, strategies, operational needs, and other factors.   Then, design a plan that will mesh with and support those factors.  This is not a cookie cutter, one-size-fits-all issue.

Second, leverage your company’s FMLA and disability experiences to design and manage a program that will help maintain business performance.  You probably already have a lot of experience in similar leave issues – FMLA, state leaves, disability plans, company policies, etc.  Use that experience to understand your employees’ leave usage and its impact on business operations.

Finally, focus on improving the employee’s return-to-work experience after an extended leave.  A new parent may have difficulty going from parental bonding leave on Sunday to full and productive engagement upon return to work on Monday.   Consider easing the employee back to work with a part-time return schedule.  Make sure the supervisor doesn’t have an impossible list of tasks waiting for the employee the first day back.  On the other hand, ensure that the supervisor and co-workers don’t exclude the returning employee from ongoing projects; rather, design a means to bring the employee up to speed and start contributing.

What’s Next for PPL?
Many questions remain as the United States tries to join the rest of the industrialized world to provide adequate paid parental and family leave. There is no “standard” PPL program at this point.  Employer discussions at the IBI event revealed numerous plan variations, including:

  • Paid maternity leave for the birth mothers only, funded by disability plans.
  • Equal paid parental leave for all parents, with birth mothers also getting the disability/maternity leave.
  • Equal total leave for all parents, with the birth mother’s leave being partially funded by a disability plan.
  • Paid family leave that includes both bonding leave but also time off to care for other family members.
  • Paid parental time off ranging from 6 weeks to 12 months.
  • Different amounts of paid leave depending on whether the employee self-identifies as the primary or secondary caregiver.
  • Intermittent bonding leave – disallowed completely by some employers, while others allow intermittent leave in as small as one-day increments.
  • Pay provided at a percentage of the employee’s compensation or fully paid at 100%.
  • Coverage extended to assist with adoption proceedings and/or infertility treatments, or to care for foster children.

Other challenges and questions for the future of PPL in the United States include:

  • How can companies keep up with and comply with state and local laws?
  • Can paid family leave programs solve the issue of perceived unfairness, such as birth mothers getting more time than other new parents under most plans?
  • The IBI study is based on tech industry. What are the implications and likely trends for other industries?
  • Will today’s plan designs suit the upcoming parenting years of the Millennials, or will changes be needed?
  • Will the Trump presidency have any impact on the future of PPL in the United States? Trump’s campaign platform included a belated and tepid paid leave proposal – up to 6 weeks for the birth mother only, funded and administered by the existing federal unemployment program, and available only if the employer does not provide other maternity leave benefits.

What is YOUR company doing or considering in the world of paid parental and family leave?  Please share with us in the comments section below.

My thanks to IBI and its Director of Research and Measurement, Brian Gifford, Ph.D, for hosting the event and sharing such valuable information with the employer community.

MATRIX CAN HELP!  We closely track the trends and legislation relating to paid parental and family leave, and will keep you posted on legislative, agency, and court developments through this blog and our monthly On Your Radar update.

Matrix Absence Management provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. At Matrix we monitor the many state and municipal family and sick leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

A Game Changer: DOL Releases New ERISA Disability Claims Rules

Posted on: January 4, 2017 2

By Marti Cardi, VP-Product Compliance

Claimants under ERISA disability plans will soon have a better chance to understand and contest any denial of disability benefits.  After years of litigation flowing from disability benefits denials, the U.S. Department of Labor decided it was necessary to re-examine the ERISA regulations governing the handling of disability benefits claims. Section 503 of the Employee Retirement Income Security Act (ERISA) requires every employee benefit plan to:

  • Provide notice in writing in understandable language explaining the specific
    reasons for the denial of a claim, and
  • Provide an individual with an opportunity for a full and fair review of the denial.

On December 16, 2016, the DOL issued a Final Rule amending the regulations governing claims handling procedures for ERISA disability claims filed on or after January 1, 2018.  The Final Rule allows plans a year to conform their claims handling procedures – and a good thing that is!  The new rule and its explanatory preamble are heavy slogging indeed – measuring a full 28 pages in the Federal Register’s typical small print – and will require plans to revamp their denial procedures and communications, and likely the terms of the plans themselves.

The revised regulations themselves are a short 3 pages, but the preamble is a must-read for those deeply involved in disability claims administration.  The preamble discusses the comments received by the DOL during the public comment period and the Department’s rationale for the positions it has taken in the Final Rule.  Thus, it provides significant assistance in understanding the new rules and how the DOL will interpret them.

Key Changes at a Glance
Here is a summary of the major changes to the ERISA regulations, which will apply to new disability claims filed on or after January 1, 2018.

  • Independence and impartiality of claims adjudicators. Claims and appeals must be decided
    in a manner designed to ensure independence and impartiality of the persons involved in
    making the benefit determination.  For example, employment decisions regarding
    compensation, promotion, or similar matters cannot be made based upon the likelihood
    that an individual will support the denial of disability benefits.
  • Improvements to disclosure requirements. Benefit denial notices must contain the following:

A complete discussion of why the plan denied the claim and the standards
applied in reaching the decision.

The basis for disagreeing with the views of health care or vocational professionals
whose opinions were provided by the claimant or obtained at the behest of the plan.

The basis for disagreeing with a finding of “disability” by the Social Security
Administration (SSA), if applicable. A disability plan is not bound by an SSA determination,
but in the past a failure to explain the plan’s reason for disagreement has been one
ground for court scrutiny of the plan’s denial decision.  Now that explanation will
be mandatory.

The specific internal rules, guidelines, protocols, standards or other similar criteria
the plan relied upon in making the adverse determination or, alternatively, a
statement that such guidelines etc. do not exist.

If the denial is based on a medical necessity or experimental treatment or similar
exclusion or limit, either an explanation of the scientific or clinical judgment for the
determination, or a statement that such explanation will be provided free of
charge upon request.

  • Claimant’s right to access entire claim file. A claimant must be given timely notice
    of his or her right to access to the entire claim file and other relevant documents and
    be provided the right to present evidence in support of his or her claim during the
    review process.  For this reason, an initial adverse benefits determination must contain
    a statement that the claimant is entitled to receive, upon request and without charge,
    the documents relevant to the claim for benefits.  Currently, this is only required in
    notices of adverse benefits determinations on appeal.
  • Notice of new or additional evidence or rationales before adjudication. According
    to the DOL, a full and fair review of an adverse determination requires that a claimant
    has a right to review and respond to new evidence or rationales developed by the plan
    during the pendency of the appeal.  This allows the claimant the opportunity to fully
    and fairly present his or her case at the administrative appeal level, as opposed to having
    a right to review such information on request only after the claim has already been denied
    on appeal. The evidence or rationale must be provided to the claimant as soon as possible,
    and sufficiently in advance of the date on which the notice of adverse benefit determination
    on review is required of the plan, in order to give the claimant a reasonable opportunity
    to address the evidence or rationale prior to that date.  However, the new regulations
    do not extend the time deadlines for the plan’s determination; the notice of a new
    rationale or evidence, the claimant’s opportunity to respond, and the plan’s
    determination must all be accomplished within the existing time for an appeal
    determination (45 days from the filing of the appeal, with a possible 45-day extension).
  • Claimant is deemed to have exhausted administrative remedies if a plan fails
    to comply with claims procedure requirements.
    Plans cannot prohibit a claimant

    from seeking court review of a claim denial based on a failure to exhaust administrative
    remedies under the plan if the plan failed to comply with the claims procedure
    requirements.  The new regulations provide an exception to this rule when the violation
    was (i) the result of a minor error; (ii) nonprejudicial to the claimant; (iii) attributable
    to good cause or matters beyond the plan’s control; (iv) in the context of an
    ongoing good-faith exchange of information; and (v) not reflective of a pattern or
    practice of noncompliance by the plan.
  • Expanded definition of “adverse benefit determination” that triggers
    appeals procedures.
    The current ERISA regulations provide that the term ‘‘adverse

    benefit determination’’ includes any denial, reduction, or termination of, or a failure
    to provide or make full partial  payment for, a benefit. Under the new rule, rescissions
    of coverage, including retroactive terminations due to alleged misrepresentation of
    fact (e.g., errors in the application for coverage) must be treated as adverse benefit
    determinations, thereby triggering the plan’s appeals procedures. This will apply whether
    or not, in connection with the rescission, there is an adverse effect on any particular
    benefit at that time.  Rescissions for non-payment of premiums are not covered
    by this provision.
  • Notices and denials must be written in a “culturally and linguistically appropriate”
    manner.
    If a disability claimant’s address is in a county where 10 percent or more of the

    population is literate only in the same non-English language, benefit denial notices must
    include a prominent statement in the relevant non-English language about the availability
    of language services. Such services must include assistance with filing claims and appeals
    in the non-English language.  The plan must provide written notices in the applicable
    non-English language upon request.

Pings for Employers

Here’s what employers should be working on during 2017 to be ready on January 1, 2018, with the top of the
list being a review of your disability benefits plans to determine if changes are needed. Most disability
plan procedures will have to undergo changes to comply with the new regulations.  Even if no changes are
necessary for that reason, this is a good time to consider whether your plans need revisions or updates.

  • Review your current claims handling procedures.
    This is also an opportune time to take a deep dive into your disability
    claims practices start to finish. Are they compliant with current existing
    regulations that will remain in effect in 2018?  What changes do you

    need to make to comply with the new regulations?
  • Review your internal rules, guidelines, protocol, or other similar criterion
    that are relied upon in making adverse determinations. These will now become

    public documents in the case of every denial.  Better polish them up and ensure
    that they accurately reflect your procedures. The new regulations do allow a plan
    to state that no such internal rules exist, but question
    whether that is a wise approach.
  • Prepare new templates for denial letters – for both initial denials and
    upholding a denial on appeal. A template will guide your claims examiners
    through the correct considerations and elements required by the new
    (and existing) regulations in the denial.
  • Provide training to claims examiners. Make sure your examiners are
    well-schooled onthe new processes – old practices may not be compliant.
  • Analyze the language make-up of your work force. If you will be
    required to provideinformation in one or more non-English languages,
    engage a language service for phone calls, translation of denial notices,
    and other claims assistance.

What is Matrix Doing to Comply with the New Regulations?
Not to worry – Matrix’s disability claims handling procedures will embrace the new rules and

will continue to be best in class!

We will be ready to administer our clients’ disability plans in compliance with the new regulations
by January 1, 2018.  We have assembled a task force of experts in disability plans, claims handling
procedures, ERISA, and customer service.  We will undertake the steps recommended for employers
above, and will review and update our claims handling software as needed.

Our practice leaders and account managers will be in touch with clients during 2017 to discuss
changes to plan notifications, procedures, and more.  If you have questions in the meantime,
contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

 

EEOC Heightens Focus on Mental Health and the Workplace with New Employee Q&A

Posted on: December 14, 2016 1

mental-health-brain-shutterstockAt Matrix Absence Management, we are seeing an increase in workplace accommodation requests due to mental health impairments, including modified work schedules and work-from-home arrangements.   The U.S. Equal Employment Opportunity Commission has long focused on mental health impairments in the workplace and is noticing increases in mental health issues as well.  On December 12, 2016, the EEOC stepped up its game with a new employee-centered resource document, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.  The document is brief – only 2 pages – and doesn’t break any  new ground, but pulls together in Q&A format some basic ADA and mental health information that can be helpful to employees and employers alike.

Continue reading

NEW!  San Francisco Issues Draft Rules for Paid Parental Leave

Posted on: November 23, 2016 1

By Marti Cardi, VP-Product Compliance

untitled-1For those readers who do not have California employees, I have 2 things to say:  First, lucky you!  Second, hang in there with me – I promise some non-California blog posts in the near future. 

Late on Friday, November 18, the San Francisco Office of Labor Standards Enforcement (OLSE) posted draft Rules to support the Paid Parental Leave ordinance (SF PPL) effective January 1, 2017.

OLSE is taking comments on the proposed Rules until 5:00 p.m. PST Friday, December 2, 2016, and will hold a public hearing on December 2.  Details and copies of the ordinance, an amendment, and the draft Rules are available on the OLSE website: http://sfgov.org/olse/paid-parental-leave-ordinance.  We at Matrix will be listening for further developments.

Here are a few of the highlights from the draft Rules:

  • An explanation of how prior employment with a covered employer counts toward the 180-day eligibility requirement (Rule 1)
  • How to count employees to determine whether the employer is a “covered employer” (it can be complicated!) (Rule 2)
  • How to calculate an employee’s SF PPL entitlement when the employee becomes eligible during a parental leave (Rule 3)
  • The relationship between CA PFL and SF PPL, and what documents or information the employer can require to ascertain the employee’s CA PFL coverage (Rules 4 and 5)
  • SF PPL calculation for tipped employees (Rule 6)
  • Ability to use SF PPL intermittently, and how to calculate the employee’s intermittent pay benefit (Rule 7)
  • Employer appeal and hearing procedures (Rule 8)

Still unanswered: 

  • Forms and the notice required by the ordinance are mentioned in the proposed Rules but are not yet available.
  • There is no explanation of the interaction or overlap in the employer’s ability to require employees to use 2 weeks of vacation pay for CA PFL and/or SF PPL purposes.
  • Can the employer apply accrued but unused PTO toward PPL obligation – or only time off designated as “vacation” as stated in the ordinance?
  • What is the statute of limitations for employee to bring a civil action against employer for PPL violations?
  • If an employee is continuing health and other benefits during parental leave, can the employer withhold the employee’s share of premium payments from the PPL Supplemental Compensation?  How about other voluntary deductions authorized by the employee (e.g., 401(k), loan repayment, voluntary life insurance buy-up . . . )?

As a refresher, the SF PPL is available for leave taken to bond with a new child.  It applies to employers with total employees in any location as follows (Covered Employers):

  • 50 or more employees: January 1, 2017
  • 35 or more employees: July 1, 2017
  • 20 or more employees: January 1, 2018

Eligible employees must meet 5 eligibility requirements:

  1. Work for a Covered Employer
  2. Has worked for the employer for at least 180 days prior to start of leave
  3. Works at least 8 hours  per week within San Francisco
  4. Works at least 40% of employee’s total hours within San Francisco
  5. Is eligible for and receiving paid family leave from California for bonding

The employer’s obligation is to top off paid family leave benefits the employee is receiving from the state of California to 100% of the employee’s regular compensation, subject to a cap.   The benefit is paid fully by the employer with no contribution or payroll deduction from employees.

More details about the SF PPL ordinance are available in our prior blog post here.

UPDATE (January 23, 2017) 

The City of San Francisco has finalized the Paid Parental Leave ordinance, rules, and related documents.  Here is the PPL website, where you can access the documents described below.

  • Paid Parental Leave Ordinance, as passed on April 12, 2016.
  • Technical amendment to the Paid Parental Leave Ordinance passed on September 6, 2016.
  • Paid Parental Leave Ordinance Poster – Covered Employers must post the required Paid Parental Leave Ordinance Poster at every work place and job site. The poster should be printed on 8.5″ x 14″ paper.
  • SF Paid Parental Leave Ordinance RulesRules Implementing the Paid Parental Leave Ordinance on December 23, 2016 (with a technical amendment December 29, 2016).
  • SF Paid Parental Leave Form – posted December 23, 2016. Covered Employers must provide the SF Paid Parental Leave Form to employees in San Francisco, and employees must complete the form to receive Supplemental Compensation.
  • Calculation Instructions– Step-by-step instructions on calculating the amount of Supplemental Compensation a Covered Employer must pay to a Covered Employee.   Several different pay scenarios are included.

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MATRIX CAN HELP!  Matrix Absence Management provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. At Matrix we monitor the many state and municipal family and sick leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Employee Reports FMLA for One Workday in the Middle of Vacation

Posted on: November 16, 2016 0

By Marti Cardi, VP Product Compliance

Plaintiff Masoud Sharif and his wife were employed by United Airlines at the Dulles Airport in Washington, D.C.  He and his wife took vacation to South Africa from March 16 to April 4, 2014.  Mr. Sharif, however, was scheduled to work on March 30 and 31. He was able to get a co-worker to cover his shift on the 31st, but was not able to get coverage for his shift on the 30th.

Sharif suffered from anxiety and panic attacks and had previously been approved by United to take intermittent FMLA for his condition.  On March 30 he called in to report FMLA for that day.  HR noticed that he had reported FMLA for his only scheduled workday during an extended vacation period and launched an investigation.  Sharif was interviewed and gave conflicting explanations – at one point claiming he did not think he had to work that day, then claiming he could not locate a flight home in time for his shift, though he and his wife flew to visit a niece in Milan from March 31 until April 4.

As a result of these conflicting explanations, United notified Sharif of its intent to discharge him from employment for fraudulent use of FMLA and violating a United policy requiring truthfulness in communications. As a union employee, he was entitled to a hearing, but when the union advised him he would be unlikely to prevail, he elected to retire.

Sharif then sued United, claiming the airline fired him in retaliation for taking FMLA leave.  According to the 4th Circuit, the facts developed as follows:

  • At 7:00 a.m. Cape Town Time (1:00 a.m. Eastern Standard Time) on March 30—the day of his scheduled shift—Sharif called United Airlines to take medical leave under the FMLA.
  • He had not made any advance reservations for a return flight.
  • The next day, Sharif and his wife flew from Cape Town to Milan, Italy, where Sharif’s niece lived.
  • On April 3, Sharif and his wife finally departed for Washington and arrived just in time for his wife’s next shift.
  • On April 23, 2014, United representatives interviewed Sharif with a union representative present. When asked about his vacation and March 30 absence, Sharif sat in silence for a period of minutes before he gave a series of inconsistent answers.
  • Sharif first replied that he was not scheduled to work on March 30, and when asked why he had taken FMLA leave if he did not have a shift, Sharif responded that he “d[id] not recall being out sick this day or calling out sick.”
  • After another pause, Sharif clarified that he began trying to return home flying standby (as airline employees often do) beginning March 29 but was unable to find any available flights.
  • Sharif’s story later evolved to claim he actually arrived at the airport on March 28 to begin looking for a flight, and that he and his wife obtained the additional days off in April to gather with family in Pittsburg for the Persian New Year.
  • As a result of his repeated unsuccessful attempts to find any means to return to Washington in time for his shift, Sharif explained that he grew anxious and was eventually seized by a panic attack which then led to his use of FMLA leave.

The district court had granted summary judgment in favor of the airline – meaning United won and the case would not go to a jury trial.  The 4th Circuit agreed with the district court and affirmed summary judgment for United.   In particular, the court emphasized that Sharif had to prove that United’s explanation for its determination that he had violated its policies and that his conducted warranted termination was a pretext for retaliating against him for taking leave.  Sharif failed to present sufficient evidence, and quite to the contrary, the evidence supported that United had “ample reason to believe it had been lied to,” citing to the FMLA regs. “An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s . . . provisions.”  29 C.F.R. § 825.216(d).

Sharif v. United Airlines, __ F.3d ___, 2016 WL6407391 (4th Cir. Oct.31, 2016).

PINGPings for Employers: The FMLA offers a few tools for employers to curb suspected abuses, including prompt action to investigate to support the suspicion of improper FMLA usage. United did a number of things well, beginning with noticing there was an issue. When someone reports leave in the middle of pre-planned vacation, that is understandably cause, at a minimum, for inquiry. Also:

  • United kept to the facts. They did not draw conclusions, but rather, asked Sharif to provide an explanation in interviews and invited him to submit a written statement;
  • The airline did not take adverse employment action until they had the objective facts to support that not only did Sharif report FMLA on a day that did not appear to be for a covered reason; and
  • United also pursued Sharif’s violation of the Company’s policies governing dishonesty – a reason for termination independent of FMLA usage (although the dishonesty related to FMLA usage). This kind of policy should be part of every employer’s code of conduct.

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations.  We are experts on ways to minimize FMLA misuse and can help your company implement practices that will achieve this goal.

We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Election 2016 – What Happens With Paid Family and Medical Leave?

Posted on: November 9, 2016 1

By Marti Cardi, VP Product Compliance

The party’s over
It’s time to call it a day…

Whew!  Whether you’re nursing an electoral hangover or still on an adrenaline high, it is a relief to have the election over with and return to normal life – but what is “normal” now?  What are we likely to see in the next few months or years of a Donald Trump presidency, with respect to family and medical leave and related issues? What or who will SNL parody next?  (OK, that’s beyond the scope of this blog, but I’ll be watching.)

Bottom line, no one knows yet. But we can make some guesses based on platforms and promises.

Trump’s Plan for Paid Maternity Leave.  During his candidacy Trump proposed a plan that would provide up to six weeks of paid maternity leave.  Note that term – “maternity” leave.  Trump’s proposal does not include paid bonding time for fathers, paid time off due to an employee’s own health condition, or paid time to care for an employee’s ill or injured family member.  Trump proposes to fund this benefit by amending the existing unemployment insurance companies are required to carry. The benefit would apply only when employers don’t offer paid maternity leave, and would be paid for by reducing fraud in the program so taxes are not raised.  It is questionable whether there is enough fraud that can be identified and eliminated year after year to sustain funding of this plan.

Moreover, Trump’s support for paid leave of any kind has been tepid at best.  He did not announce his plan until mid-September 2016, past the primary contests and well into the election campaign.  With both houses of Congress controlled by Republicans, it is unlikely he will receive any pressure from the legislature to move forward on this issue.  We’ll be watching closely.

Trend: Increasing Paid Leave.  No doubt, there is a trend on many fronts in favor of paid family and medical leave.

The FAMILY Act.  The Family and Medical Insurance Leave Act is pending in the U.S. House and Senate (H.R. 1439/S. 786).  This Act would provide up to 12 weeks of partial wage payment during a leave of absence for reasons that dovetail with job-protected but unpaid leaves available under the federal Family and Medical Leave Act (FMLA): an employee’s or family member’s serious health condition, bonding with a new child, and certain family military-related absences.

The FAMILY Act was introduced in March 2015, has not made it out of its first committee (House Ways and Means), and will die at the end of this Congressional session (officially, January 3, 2017) – barring unlikely extraordinary action in both houses.  Bills are often reintroduced in the next congressional session, so there is a good chance of more action on this issue in the 115th Congress.  Support among the American public and advocates is strong.  A letter of support for the FAMILY Act was submitted to members of Congress on June 29, 2016, endorsed by over 350 family-friendly organizations.  Is it possible that U.S. legislators will finally see the light and take us off the list of the few countries in the world (among them, Liberia, Suriname and Papua New Guinea) that do not provide some sort of paid family or medical leave?  Stay tuned.

State/municipal paid leave programs.  An increasing number of state governments are requiring employers to provide paid family leave, all funded by employee payroll deductions.  Here is a snapshot:

  • California: Effective in 2004; provides 55% income replacement for up to six weeks (in 2018 increasing to 60% or 70% depending on income level)
  • New Jersey: Effective in 2009; provides 67% of wages (up to $524/week) for up to 6 weeks
  • Rhode Island: Effective in 2014; provides a maximum of $752 per week, based on earnings, for up to 4 weeks
  • New York: To be effective in 2018; implementation is phased from 2018 to 2021; will ultimately provide 67% income replacement for up to 12 weeks

In addition, San Francisco has passed a paid family leave ordinance effective January 1, 2017, that requires employers with San Francisco employees to top off employees’ California paid family leave benefits to 100% of their income (subject to a cap) for 6 weeks.  In contrast to the state paid family leave plans, San Francisco requires employers to pay for this supplemental compensation without any employee contribution.

Private Company Paid Leave Plans.  The trend toward paid family leave is most notable in the policies adopted by many companies throughout the country.  A recent analysis by the National Partnership (an organization that promotes paid leaves of absence for American workers) indicates at least 46 major U.S. companies have adopted or increased paid family leave benefits in the past two years.  Most of these provide only paid parental leave, but a few – notably Adobe, Deloitte, and Discovery Communications –  include paid time off for the employee’s own health condition or to care for a family member.  The results of this analysis, which includes summaries of the 46 paid leave plans, can be found here.

MATRIX CAN HELP!  Matrix tracks state and federal legislation daily to stay on top of leave, disability, and accommodation developments.  Contact us if you have questions about what’s happening in capitol buildings and courthouses around the country, or what’s on the ballot in the next cycle.

We provide leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Lowe’s to pay $8.6 million in yet another EEOC case involving inflexible leave policies

Posted on: May 23, 2016 3

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director, Compliance & Employment LawCartoon Animal Eyes Under Big Stone

Employers, if you haven’t fixed this issue yet, get out from under that rock!

If an employee with a disability exhausts leave time provided by company policy or by a law such as the FMLA, you have two obligations.

First, consider even more leave as a reasonable accommodation. 

Second, consider reasonable workplace accommodations to allow the employee to return to work

It’s that simple.

As announced by the EEOC on May 13, 2016, home improvement giant Lowe’s has agreed to pay $8,600,000 to affected employees as part of a consent decree entered into with the EEOC in a federal district court in California. The EEOC claims that Lowe’s violated the ADA by terminating employees with a disability after failing to provide them reason­able accommodations when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.

And it’s not just about the money.  The consent decree agreed to by Lowe’s in this case includes some very typical additional requirements, all enforceable by court order.  The four-year consent decree settling the suit requires that Lowe’s:

  • Retain a consultant with ADA experience to review and revise company policies as appro­priate;
  • Implement effective training for both supervisors and staff on the ADA;
  • Develop a centralized tracking system for employee requests for accommoda­tion;
  • Maintain an accommodation log;
  • Post documentation in its workplaces related to the settlement; and
  • Submit regular reports to the EEOC verifying compliance with the decree.

Thus, Lowe’s ends up not only paying the agreed-upon amount of damages, but also incurs significant expenses (for example, attorneys’ fees) and business disruptions during the EEOC’s investigation and in complying with the terms of the consent decree for four years.

Two types of policies are on the EEOC’s radar.  An employer’s obligation to provide more leave than offered by company policies or required by law has received much recent attention.  Why, just this month the EEOC released a new Resource Document entitled Employer-Provided Leave and the Americans with Disabilities Act.  While the Resource Document did not break any new ground (no, the EEOC still won’t say how long a leave can be before it becomes an unreasonable accommodation), it does pull together in one handy place all existing EEOC guidance on the issue, including assessment of extra leave as an undue hardship.  Our blog post on the Resource Document can be found here.  Meantime, the EEOC is focusing on the following:

Maximum or inflexible leave policies (sometimes referred to as “no fault” leave policies) take many different forms.  A common policy, especially for entities covered by the FMLA, is a flat limit of 12 weeks for both continuous and intermittent leave.  Some employers not covered by the FMLA set lower overall caps. Others tie the maximum leave to the duration of short-term disability benefits.  Any inflexible cap may result in an ADA violation because it does not allow for the interactive process and individualized consideration of whether additional leave or some other reasonable accommodation will enable the employee to return to work.

100% recovered or healed policies are those that require an employee with a disability to have no medical restrictions – that is, be “100%” healed or recovered – before returning to work.  These also have huge potential to violate the ADA because the employer does not engage in the interactive process to discover whether the employee can perform essential functions with on-the-job reasonable accommodation(s).

Lots of companies got it wrong in the past.  Many employers have been the subject of EEOC investigations and, ultimately, a pricey consent decree.  Here are some of the bigger-ticket resolutions:

Company Date Amount Policy /Practice in Violation of ADA
Lowe’s 2016 $8.6 million Terminating employees whose
need for medical leaves of
absence exceeded Lowe’s
maximum
leave policy (180 days,
subsequently 240 days)
Pactiv LLC 2015 $1.7 million Assessing attendance points
for medically-related absences; not allowing use of intermittent
leave or extension of a leave
of absence as an ADA reasonable accommodation
Princeton HealthCare System 2014 $1.35 million Limiting medical leave of absence to maximum of 12 weeks:

  • employees FMLA-eligible
    terminated after 12 weeks\
  • employees not FMLA-eligible terminated
    after short absence

Requiring certification of
100% recovery upon return
to work rather than
considering return to
work with a reasonable ADA accommodation

Dillard’s 2012 $2.0 million
  • Maximum-leave policy
    limiting the amount of
    medical leave an
    employee could take
  • Policy requiring all
    employees to disclose
    personal and confidential
    medical information in
    order to be approved
    for sick leave
Interstate Distributor Co. 2012 $4.85 million
  • Limiting medical leave
    of absence to maximum
    of 12 weeks
  • Requiring certification
    of 100% recovery upon
    return to work rather than considering return
    to work with a reasonable
    ADA accommodation
 Verizon Communications   2011  $20 million Failing to make
exceptions to “no fault”
attendance plans for
individuals with disabilities
as an ADA accommodation
 Supervalu, Inc., Jewel Food Stores, Inc. etc.  2011  $3.2 million Terminating employees
with disabilities who were
not 100% recovered at the
end of medical leaves of
absence rather than
considering return to
work with a reasonable
ADA accommodation
 Sears, Roebuck and Co.  2009  $6.2 million Terminating employees
following exhaustion
of workers’ compensation
leave without engaging
in the interactive
accommodation process
to consider workplace
accommodations or
leave extension as an
accommodation

PINGPings for employers:  We provided pointers for employers in our last blog post so we won’t repeat, but given the size of the potential price tag we suggest that you go back and read again.

MATRIX CAN HELP! Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our services.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.