Still Wrangling COVID-19 News – ERISA, ADA, FFCRA, and NY

Posted on: May 15, 2020 0

by Marti Cardi, Esq. – Vice President Product Compliance

May 15, 2020

 

Every time I think I can write about something other than COVID-19, along comes another new law, regulation, or interpretation that I want to share with you. The roundup seems to be getting smaller, but the rodeo ain’t over yet, pardner. Saddle up, ’cause here are the latest:

ERISA Extensions of Disability Filing Deadlines

There are new deadlines in town. The Employee Benefits Security Administration (Department of Labor) and the Internal Revenue Service (Department of the Treasury) have issued a rule providing beneficiaries of certain ERISA plans with extra time to meet filing deadlines. Extensions are in place with respect to disability plans for claimants to file an initial claim for benefits and to appeal an adverse benefit determination.

ERISA rules do not provide a specific minimum timeframe that must be allowed for an individual to file an initial claim for disability benefits. See 29 C.F.R. § 2560.503-1. Rather, the timeframe is set by the plan. Now, a plan’s deadline for initiating a claim must be extended by the “Outbreak Period” explained below.

For adverse benefit determinations, the regular ERISA rules provide that a disability benefits plan must allow at least 180 days to appeal. 29 C.F.R. § 2560.503-1(h). This period too is now extended by the Outbreak Period.

The President declared a national emergency on March 13, 2020. For purposes of the new ERISA rules, this National Emergency is deemed to have started on March 1, 2020. The “Outbreak Period” is the time from March 1, 2020, until 60 days after the announced end of the National Emergency or such other date announced by EBSA and the IRS in a future notice. Counting to identify the deadline for an initial claim or an appeal of an adverse benefits determination must “disregard” the Outbreak Period. In other words, the time for filing is tolled for the duration of the Outbreak Period.

Here are some examples. For purposes of these examples we need an announced end date of the National Emergency and we will use April 30, 2020. The Outbreak Period ends 60 days later, on June 29.  

Example 1: Marie becomes disabled on March 15 and her employer’s disability plan allows her 30 days to file an initial claim for benefits, or until April 14 under the terms of the plan. However, since her disability occurred during the Outbreak Period, her 30 days to file a claim does not start until June 30. Marie has 30 days from that date, or until July 30, to file her claim.

Example 2: Donnie receives notification of an adverse benefit determination from his employer’s disability plan on January 28, 2020. The notification tells Donnie he has 180 days within which to file an appeal. However, the Outbreak Period is disregarded in calculating this 180 days. Donnie’s last day to file an appeal is 148 days after June 29 (180 minus the 32 days from January 28 to March 1), which is November 24, 2020.

This new rule applies retroactively. Because no time from March 1, 2020, through the end of the Outbreak Period counts toward a filing or appeal deadline, plan administrators will need to review any claim or appeal denials that occurred on or after March 1, and reverse any denial that is solely based on the claimant’s failure to meet the claim filing or appeal deadline.

What is Matrix doing? We are on top of this and ready to comply with the new deadlines. Specifically,

  • Matrix is implementing the new deadlines immediately for clients
    with self-funded ERISA disability plans
  • We are updating our denial letters to reflect the new information about
    the deadline to file an appeal
  • We will conduct an audit of ERISA claim denials and appeals upheld
    since March 1 for adverse determinations based on late filing and take
    steps necessary to correct those determinations.

If you have any questions, please contact your Matrix or Reliance Standard account manager.

NOTE: The new ERISA rules also affect claims for life and health benefits, health plan enrollment, and post-employment continuation of health coverage (COBRA). The Final Rule and supporting materials are available here: Final Rule, FAQs, and EBSA explanation of extensions.

 

ADA Guidance – The EEOC Continues Its COVID-19 Updates

Every few days the EEOC adds some new questions to its Technical Assistance Questions and Answers regarding COVID-19 and the ADA. The latest set provide guidance regarding employees with medical conditions that the Centers for Disease Control have identified as “high risk” – meaning that an individual with one of these conditions is at higher than average risk of developing severe illness from COVID-19. The conditions include chronic lung disease, moderate to severe asthma, serious heart conditions, compromised immune systems, severe obesity (body mass index [BMI] of 40 or higher), diabetes, chronic kidney disease, and liver disease. The EEOC addresses ADA issues and high-risk individuals in its new Questions G.3, G.4, and G.5. [Persons age 65 and older and those living in a nursing home or long-term care facility are also classified as high risk by the CDC but these are not ADA-protected disabilities.]

Individuals with high-risk medical conditions may request an accommodation to reduce the risk of exposure to COVID-19. As with all ADA requests, the employee does not need to mention the ADA or the word accommodation specifically, but merely has to make the employer aware that she needs a change in her work situation due to a medical condition. The employer may then ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship,that can be provided. Question G.3.

An employee with a high-risk disability who has never needed an accommodation may now need one as a result of the pandemic:

  • Due to a changed work environment, location, equipment, schedule, etc., and/or
  • To reduce the chance of exposure, if the employee is classified as high risk

Example: An employee with controlled diabetes normally functions at work without any accommodation, or with an accommodation not tied to COVID-19 (e.g., breaks for insulin monitoring and injections). Then, because the employee has a high risk disease, the employee requests an accommodation to reduce the risk of exposure, such as a separated work station or work from home.

So do what you always do: engage in the interactive process with the employee to see if you can meet her needs. The EEOC suggests the following accommodations to help minimize the risk of exposure (Question G.5.):

  • Additional or enhanced protective gowns, masks, gloves, or other gear
    beyond what the employer may generally provide to employees returning
    to its workplace
  • Additional or enhanced protective measures, such as erecting barriers or
    creating greater spacing between work areas
  • Elimination or substitution of the employee’s “marginal” job functions
  • Temporary modification of work schedules (if that decreases contact with
    coworkers and/or the public when on duty or commuting) or
  • Moving the location of where one performs work (for example, moving a
    person to the end of a production line rather than in the middle of it if
    that pro
    vides more social distancing).

The Job Accommodation Network (www.askjan.org) also may be able to assist in identifying possible accommodations. The EEOC encourages employers and employees to be creative and flexible. And employers, don’t worry about creating a “permanent” accommodation – the EEOC supports trial or temporary accommodations.

Finally, what about the employee who you know has a high-risk medical condition but doesn’t ask for an accommodation to reduce risk of exposure? Do you force the employee to stay home or accept other accommodations for his own good? Be careful there, cowboy. First, without a request for such an accommodation, you have no obligation to provide it. Second, that path requires an in-depth analysis to show that by working without appropriate accommodations, the employee poses a direct threat – a “significant risk of substantial harm” – to his own health. If you really want to follow this trail, read the EEOC’s Question G.4. for more guidance.

What is Matrix doing? Thanks to our already robust processes for managing ADA accommodations, Matrix has not had to make changes to provide our ADA clients with compliant accommodation services. However, our ADA Specialists have all been trained in the changing accommodation needs and analysis due to COVID-19. We’re here for you!

 

FFCRA – The DOL Adds More Questions & Answers

The latest set of Questions and Answers from the Department of Labor (#89-#93) includes a potpourri of topics. Here are the ones we find of greatest interest:

Employees from temporary agencies. Question #90 addresses how FFCRA paid leave rights apply to temporary workers when an employer (the “second employer”) has under 500 employees but the temporary agency has more than 500. In many temporary worker situations the second employer is a joint employer of the temp worker. In that case, in general, the second employer (under 500 employees) must provide the temporary worker with FFCRA rights and the temporary agency (more than 500 employees) must not interfere with the employee’s use of those rights to take leave of absence. But the determination of whether the second employer is a joint employer of the temp employee requires legal analysis of all the facts of the relationship. [Can you say, “Call my lawyer?”] And here’s an unanswered question: what do you pay the employee? The amount you pay through a temp agency probably includes the agency’s fee, so can you pay only what the employee actually pockets? And how do you handle tax and other withholding?

Wait, while you’ve got that lawyer on the line . . .

School closures – now and in the summer. Employers appear to be struggling with when an employee is entitled to the FFCRA emergency paid sick leave (EPSL) and/or expanded FMLA (EFML) due to a school or day care closure. Question #91 asks, What if my employee has been working at home for weeks with children present and now wants to take EPSL or EFML? Can I deny that? The DOL says, “not necessarily.” You need to ask questions about why the employee needs that leave now. Perhaps conditions at home have changed, or the employee is finding that he isn’t effective working with the kids at home 24/7. Or, the employee’s spouse has already used EPSL and EFML from her employer and now it is your employee’s turn. You can require that the employee to provide the information and documentation that is permitted under FFCRA and the IRS tax rules. You may also ask the employee to note any changed circumstances in his statement as part of explaining why the employee is unable to work, but the DOL warns, “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” (I’m not really sure what that means but thought I would share the warning with you!)

And finally, the DOL answered my pending question about EFML and summertime! After a school closure due to COVID-19 and distance learning, your employee’s child’s school closes for summer vacation. Can your employee now take EPSL or EFMLA? Sorry, no. If the school closes for summer vacation or any other reasons not related to COVID-19, the benefits of FFCRA are not available. But, if the anticipated summer day care provider, summer camp,, etc., is closed or won’t open due to COVID-19, the employee may be able to use EPSL and/or EFML. Just have the employee follow the usual notice and documentation rules. (Question #93)

Also covered: FFCRA and casual domestic workers (Question #89) and permissible documentation for an employee taking leave to obtain testing (Question #92).

 

NY PFL – A new WCB Position on PFL for Child Quarantine

The new New York law providing paid quarantine/sick leave and related benefits has been a real challenge – a poorly written law rushed through with lots of unclear provisions and little high-level understanding of how it would work in reality. Recently the NY Workers Compensation Board, which administers the law, came out with a new interpretation of one of the benefits: a total flip-flop from its prior position. We previously summarized the law here and have kept that post up to date, including this change. But because the new interpretation affects employees of companies with 100 or more employees, we want to draw attention to it.

Under the law (as we thought it was written) employees of small companies (those with fewer than 100 employees) seeking paid sick leave (if any) provided by the law, could take NY Paid Family Leave for a new leave reason, to care for a child under an order of quarantine or isolation; but employees of large companies (those with 100 or more employees) did not have this entitlement. The WCB now says that was wrong, and employees of those larger companies can also take PFL for a child’s covered quarantine. If you thought riding that bucking bronco for the full 8 seconds was challenging, try your hand at trying to stay on top of the NY paid sick leave law! Yee haw! 

Next out of the chute!
At some point, COVID related questions and issues will subside – though probably not soon enough. Meanwhile the world turns and the sun rises and sets, and there are other laws, regulations and accommodations to be considered – in most cases, ones that will outlast the killing power of the coronavirus bug. Fortunately, we can multitask (which is good, because you have to, too!) and will be picking up our Legislative Update series with some good, ol’ fashioned, wholesome state Paid Family and Medical Leave updates on Thursday, May 28. So watch your email, and this space, for your invitation and registration link.
If you’d like a copy of our presentation or recorded webinar from last week’s update, you can click the links provided.

New York’s Emergency Paid Quarantine Leave for COVID-19 – An Update

Posted on: April 15, 2020 0

by Marti Cardi, Esq. – Vice President Product Compliance

April 15, 2020

 

On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for employees affected by COVID-19 who are subject to mandatory or precautionary orders of quarantine or isolation. The law was effective immediately.

We originally posted a summary of the New York law on March 19. There are still some open questions and no regulations, but the dust is settling somewhat so we provide this updated post with today’s best information about the New York law. Many thanks to Kimberly Dunn, my colleague at Reliance Standard Life Insurance, for her review and valuable input on this update – keeping me straight and accurate!

Here are the specifics: 

Covered employees. All employees are covered; no eligibility requirements for paid sick leave; regular eligibility requirements for paid family leave and disability benefits.

Covered employers. All employers are covered.

Leave reasons. Despite being called “paid sick leave” the New York law does not provide any paid leave for illness, COVID-related or otherwise. Rather, employers are required to provide paid leave for absences due to a COVID-19-related mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any governmental entity duly authorized to issue such order due to COVID-19. An order from a medical provider to stay home or in quarantine will not suffice.

Amount and type of benefits: The law provides 3 types of paid leave and benefits. Availability of the benefits depends on employer size (and in some cases, net worth), and whether the employee or a dependent minor child is the subject of the quarantine order. However, benefits are not available if the employee is able to work during the quarantine through remote access or through other means. The type of benefits are:

  • Paid sick leave, paid directly by the employer;
  • Enhanced combination of statutory paid family leave (PFL) and disability benefits; and
  • Regular PFL benefits with an added leave reason relating to quarantines.

Employers with 1-10 employees and net income less than $1m

Employee quarantine:

  • No required paid sick leave
  • Enhanced PFL and disability benefits

Child quarantine:

  • PFL benefits under new quarantine reason

Employers with 1-10 employees and net income greater than $1M

Employers with 11-99 employees

Employee quarantine:

  • 5 calendar days of sick leave paid by employer
  • Enhanced PFL and disability benefits

Child quarantine:

  • PFL benefits under new quarantine reason

Employers with 100 or more employees

Public employers of any size

Employee quarantine:

  • 14 calendar days of sick leave paid by employer
  • No enhanced PFL/disability benefits

Child quarantine:

  • PFL benefits under new quarantine reason

Enhanced PFL/disability benefits. After using the mandated paid leave (if any), employees of the smaller employers (1-99 employees) can apply for enhanced New York PFL and disability benefits for the employee’s own order of COVID-19 quarantine (not a child’s order). These enhanced benefits consist of:

  • PFL benefits paid at 60% of wages, up to a maximum of $840.70 per week and
  • Disability benefits paid simultaneously, up to $2,043.92 per week

Total combined maximum weekly benefit of $2,884.62, but capped at 100% of the employee’s actual average weekly wageThere is no waiting period for these enhanced PFL/disability benefits.

Measuring 5 or 14 days. During a covered quarantine leave the employee is entitled to pay for the number of days the employee would normally work in 5 or 14 calendar days. For example, an employee who works for a company with 60 employees is entitled to 5 calendar days of paid leave. If that employee works a regular Monday-Friday work week and starts a quarantine leave on a Thursday, that employee would get 3 days of pay: Thursday, Friday, and Monday.

The order of quarantine. The “mandatory or precautionary order of quarantine” required for the NY COVID paid sick leave and enhanced DBL/PFL benefits must be issued by state of New York, the Department of Health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19.  The order must be “individualized” meaning that it must be directed specifically to the employee or employee’s minor dependent child. Gov. Cuomo’s order for nonessential workers to work from home/shelter in place (“pause”) does NOT qualify.

The employee is responsible for providing the employer with a copy of the order justifying the quarantine leave. New York has published a document Obtaining an Order that gives employees directions on how to obtain the relevant order and what to do if an order is not immediately available.

Some normal PFL and disability rules still apply. Employees entitled to the enhanced PFL/disability benefits must still meet the usual eligibility requirements (employees who work 20 or more hours per week: 26 weeks of work for the employer; employees who work fewer than 20 hours per week: 175 days for work for the employer).

In addition, usage of the enhanced PFL/disability benefits counts toward an employee’s entitlement in a 52-week period (10 weeks of PFL in 2020, 26 weeks of disability, combined total of 26 weeks). What is not yet clear is whether use of the enhanced benefits counts as weeks of both PFL and disability. For example if an employee uses 2 weeks of enhanced PFL/disability benefits, does that count as only 2 weeks of benefits total (and if so, do they count toward PFL or disability usage?) or does that count as 4 weeks of benefits total, 2 weeks of PFL and 2 weeks of disability?

Multiple quarantines. The 5 or 14 days of paid leave is a single entitlement. The employer is not required to provide additional paid leave if the employee exhausts her 5 or 14 days and then experiences a subsequent quarantine event. However, any unused time can be carried over to another quarantine event.

On the other hand, all PFL and/or disability benefits are available up to the limitations for use in a 52-week period, so can be used if an employee or the employee’s child is subject to a covered order of quarantine.

Regular statutory disability and PFL benefits. An employee of a larger employer (100 or more employees) does not get enhanced PFL/disability benefits. The employee can, however, apply for regular disability benefits if he is ill with COVID-19 and meets the definition of “disability” under the statute. Likewise, the employee can apply for regular PFL for any of the usual leave reasons, including to care for a family member with a serious health condition.

Note that public employers of any size are not covered employers for purposes of disability and PFL benefits, so unless an entity has opted into coverage, its employees cannot receive these benefits for any purpose.

Determining employer coverage. Employer size is determined by the number of employees the company had on January 1, 2020. This includes all of the company’s employees, not just those in New York. So, an employer could have 750 employees total and only one employee in New York; that one employee would be entitle to the 14 days of paid sick leave. The company’s net income for employers with 1-10 employees is its 2019 net income.

Other details.

The 5 or 14 days of paid sick leave are in addition to an employee’s other accrued sick leave provided by the employer. The employer cannot require an employee to use other paid leave prior to the new statutory paid sick leave.

The New York paid sick leave will run concurrently with any benefits required by federal law for the same reason (for example, the paid sick leave provided by the Families First Coronavirus Response Act for an employee’s or family member’s order of quarantine). The New York law specifically provides that its benefits are secondary to such federal requirements, so the New York benefits described above serve only as a top-off if needed during an employee’s receipt of federally-required paid leave, up to the limits provide by the New York bill.

Employers of all sizes must provide job-protected leave for the duration of the quarantine, regardless of whether the employee is receiving pay or PFL/disability benefits. Following such leave, the employee must be restored to the position held prior to the quarantine.

In addition to new paid sick/quarantine leave: For PFL leave to care for a family member, the definition of “serious health condition” has been expanded to include specifically a diagnosis of COVID-19. This change is effective for 90 days from March 27, 2020 (until June 25, 2020).

State Website Resources. The state’s new COVID-19 website is quite robust, with lots of information, additional links, and forms: 

Matrix can Help!

Something new happens every day in Coronaville! Stay tuned here for more developments and contact your Matrix or Reliance Standard account manager if you have any questions.

 

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 the New York Human Rights Law amendments HERE.

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.  Victims may take a reasonable amount of time off for the following reasons:   

  • 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.