And Now . . . Washington D.C. PFML

Posted on: January 24, 2020 0

by Marti Cardi, Esq – Vice President Product Compliance

January 23, 2020

The next paid family and medical leave program to go live with payment of benefits – in the District of Columbia – is on the horizon.  D.C.’s Universal Paid Leave (UPL) program was passed in 2017, and employers with employees in the District started paying contributions to the program on July 1, 2019. The District will start paying benefits on July 1, 2020.

First Up – Employer notice obligations.

Under DC UPL, employers have several notice obligations:

  • By February 1, 2020, employers must post a physical notice of the UPL program in a conspicuous
    place in each workplace. In addition, employers must send the notice to remote workers so they
    can post it in their individual workplaces.  (Right, like that will happen.)  The notice form is available here.
  • In addition, this notice must be provided in electronic or physical form to:
    • All employees at least once between February 1, 2020 and February 1, 2021 and at least
      once a year every following year;
    • All new employees hired after February 1, 2020, within 30 days after the date of hire; and
    • Individual employees when the employer receives direct notice after February 1, 2020,
      of the employee’s need for leave for an event that could qualify for PFL benefits.
Matrix can help its clients with DC employees to satisfy this individual notice requirement.  We will update the informational packet sent to DC employees to include the required notice when any leave is requested. 

Summary of Universal Paid Leave provisions:

As a reminder, here’s what’s coming your way as an employer with D.C. employees:

Covered Employee
During some or all of the 52 weeks immediately preceding leave:

  • Spends more than 50% of work time in DC or
  • Spends a substantial amount of work time in DC and not more than 50% of work time
    in another jurisdiction
Covered Employer All employers with one or more covered employees except:

  • The United States
  • The District of Columbia, and
  • Any employer that the District of Columbia is not authorized to tax under federal law or treaty
Leave Reasons
  • Employee’s own serious health condition (defined very similar to FMLA)
  • Family member’s serious health condition
  • Bonding with new child (birth, adoption, foster placement)
Covered Family Members
  • Son or daughter (any age)
  • Parent (including step, in-law, and others)
  • Spouse / domestic partner
  • Sibling
  • Grandparent
Duration in a 52-week period
  • Employee’s serious health condition:  2 weeks
  • Parental/bonding leave:  8 weeks
  • Family member serious health condition:  6 weeks
  • TOTAL may not exceed 8 weeks of paid leave benefits in 52-workweek period
Leave Use Increments
  • Continuously or
  • Intermittently in increments of no less than one day
Benefit Amount

 

 

  • Employees who make 150% or less than the District’s minimum wage multiplied by 40
    will receive 90% of their average weekly wage.
  • Employees who make greater than 150% of the District’s minimum wage
    multiplied by 40 will receive:

    • 90% of 150% of the of the District’s minimum wage
      multiplied by 40; PLUS
    • 50% of the amount by which the eligible individual’s
      average weekly wage exceeds 150% of the District’s minimum wage multiplied by 40
Maximum Benefit
  • $1,000/week thru 9/30/2021
  • Adjusts annually as of October 1 each year thereafter
Waiting Period
  • One week for first qualifying event per 52-week period
  • No waiting period for subsequent qualifying events in same 52-week period
    regardless of type or number
Funding Mechanism Employers pay a tax of 0.62% of their payroll to the District to fund the program
Administration
  • Office of Paid Family Leave (a division of the DC Department of Employment Services)
  • No voluntary plans or private insurance permitted
Existing Employer Paid Leave Benefits
  • An employer can adopt or retain paid-leave policies that supplement or
    otherwise provide greater benefits than are required by UPL
  • But doing so does not exempt employer from paying UPL contributions or
    preclude employee from receiving UPL benefits
Job Protection

 

  • ONLY IF employee works for an employer with 20 or more employees and is
    eligible for concurrent leave under the existing DC FMLA (see below)
  • Employees of smaller employers can take paid leave but do not have job protections

 

EMPLOYERS BEWARE:  The broader D.C. FMLA law is still in effect

Unlike the state of Washington, which repealed its unpaid Family Leave Act to coincide with the effective date of Washington PFML, the D.C. UPL does not affect the District’s existing unpaid Family and Medical Leave Act.  That Act applies to employers with 20 or more employees and provides job-protected leave for the same reasons as UPL but in much greater amounts:  Up to 16 weeks each in a 24-month period for employee medical leave and family leave reasons.  Leaves will run concurrently if the leave qualifies under the two laws.  However, because the thresholds for covered employers and employee eligibility are lower under UPL, some employees may be entitled to UPL leave but not DC FMLA leave and thus be without job protection.  As always, the federal FMLA will run concurrently with either law if it applies.

For more information, check out these resources: 

Universal Paid Leave Amendment Act of 2016

Paid leave regulations:

D.C. Office of Paid Family Leave

Department of Employment Services

Poster

 

 

Hello Again, Washington Paid Family and Medical Leave

Posted on: December 3, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

December 3, 2019

 

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

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

Notices to employees #1

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

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

Notices to employees #2

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

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

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

Weekly claim filing

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

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

Minimum claim duration – 8 consecutive hours

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

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

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

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

Possible stacking (or consecutive use) of multiple leave benefits

Consider this from the WA PFML statute:

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

And this from the WA PFML rules:

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

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

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

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

Pings for Employers

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

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

MATRIX CAN HELP!

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

Massachusetts PFML Update – Now What’s Going On?

Posted on: August 27, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

August 27, 2019

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

Private Plans – A Quick Reminder

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

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

Private Plans and Insurance Policies

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

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

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

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

More Private Plan Information

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

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

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

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

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

Employee Notices

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

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

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

What are Matrix and Reliance Standard doing?

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

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

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

Connecticut Joins the Paid Family and Medical Leave Club!

Posted on: June 28, 2019 0

By Marti Cardi, Vice President Product Compliance

June 28, 2019

 

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

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

 

Connecticut Paid Family and Medical Leave – the Details

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

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

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

 

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

Does not cover:

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

 

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

 

§18(a)(1)

§18(i)

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

 

§§18(a)(2)(A)-(F)

§3(c)(1)

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

 

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

 

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

§18(c)

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

As soon as practicable if not foreseeable

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

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

No employer contribution

Weekly Benefits Start 01-01-2022

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

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

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

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

§3(e)(2)

 

Private Plan Option

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

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

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

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

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

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

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

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

(E) Provide for the inclusion of future employees;

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

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

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

 

What’s Interesting?

Health Care Provider Obligations

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

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

Like a family member . . .” 

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

Existing Connecticut family and medical leave law

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

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

 

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

 

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

 

 

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

Posted on: June 25, 2019 0

By Marti Cardi, Vice President Product Compliance

June 24, 2019

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

Final PFML Regulations

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

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

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

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

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

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

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

The final regulations can be found here.

 

The Bond Requirement for Private Plans

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

 

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