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.

 

 

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.

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.

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.

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.