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.

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.

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.