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.

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.

 

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.

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!

 

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.