A “Grand Bargain” – Massachusetts Enacts Paid Medical and Family Leave

Posted on: June 29, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

Governor Charlie Baker signed a bill on June 28 making Massachusetts the seventh jurisdiction to enact paid family and medical leave (PFML).  The paid leave provisions are part of a so-called Grand Bargain between the state legislature and voters that was designed to keep several voter initiatives off the November ballot. 

Here are some key provisions:

Funding.  The benefits will be funded at an initial rate of 0.63% of employee’s average weekly wage (to be adjusted annually):

  • The premium for medical leave (employee’s own serious health condition)
    will be paid 40% by the employee and 60% by the employer
  • The employee pays 100% of the premium for family leave
  • The premium has not (yet) been apportioned between medical leave
    and family leave

Premium contributions.  Employers and employees must begin making premium contributions July 1, 2019.

Paid leave benefits available.  Paid leave benefits for all leave reasons except family member serious health condition begin on January 1, 2021.  Paid leave benefits to care for a family member with a serious health condition begin on July 1, 2021.

Leave reasons.  Leave reasons mirror those of the federal Family and Medical Leave Act (which will run concurrently in most cases):  Employee’s serious health condition, family member’s serious health condition, bonding with anew child, family military exigencies, and care for a seriously ill or injured service member.

Benefit amount.  Benefits are paid based on a percentage of an employee’s wages, with a cap of $850 weekly.

Leave duration.  Leave durations in a 12-month period are up to:

  • 20 weeks for medical leave (an employee’s own serious health condition)
  • 12 weeks of family leave (care of a family member with a serious health condition, bonding, or military exigencies)
  • 26 weeks to care for a seriously ill or injured service member
  • Aggregate maximum of 26 weeks in a 12-month period for all leave reasons

Voluntary plan.  Employers can meet obligations through the state plan or through a private plan(s) for medical and/or family leave that offer benefits at least as beneficial to employees as the state plan

Matrix will administer this leave law for clients: Watch this space for a more detailed summary of the new law in the next day or two. 

Existing PFML laws.  California, New Jersey, New York, and Rhode Island already have paid family and medical leave laws in effect.  In addition, Washington State’s PFML law will require premium payments starting January 1, 2019, and paid leave benefits starting January 1, 2020.   You can check out our prior summaries about Washington State here and hereWashington D.C. is next in the wings with premium payments starting July 1, 2019, and paid leave benefits starting July 1, 2020.

 

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.

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.

 

 

Washington State Issues First Phase of Paid Family and Medical Leave Regulations

Posted on: June 5, 2018 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE & GAIL COHEN, DIRECTOR-EMPLOYMENT LAW/COMPLIANCE

In 2017 Washington State was the fifth state to pass a paid family and medical leave law. 

The law requires employers to provide up to 18 weeks of paid, job-protected leave per 52-week period due to the employee’s own serious health condition, to bond with a new child, to care for a family member with a serious health condition, and for military exigencies.  The benefits are funded by employer and employee payment of premiums.  

Premium payments begin January 1, 2019, and benefits are available starting January 1, 2020.  In the meantime, Washington’s Family Leave Act remains in force to provide employees with up to 12 weeks of unpaid job-protected leaves of absence.  We reviewed the new paid family and medical leave law on this blog when it was passed.  Click here  to read our summary.  

On May 29, 2018, the Washington State Employment Security Department released the first of four sets of rules to implement the Paid Family and Medical Leave Program. Rules become effective 31 days after filing.  Topics will be addressed on the following schedule:

 

Phase One Phase Two Phase Three Phase Four
-Premium liability

-Collective bargaining agreements

-Voluntary plans

-Employer responsibilities

-Small business assistance

-Penalties

-Benefits -Appeals
November 2017 – May 2018 April – November 2018 August 2018 – January 2019 January – May 2019

 

Assessing and Collecting Premiums  [ WAC 192-510-010 et.seq.]:  The new regulations contain many details.  Here is a quick summary, with links to the Phase One regulations if you want to read them yourself.  Matrix will provide more detailed guidance in the near future.

Election of coverage and withdrawal of election by self-employed persons and federally-recognized tribes

Determination of wages earned and hours worked for self-employed persons

Effect of employer’s size on liability for premiums and eligibility for small business assistance grants

How the state will assess the size of new employers

Payment of premiums by employer (paid quarterly; due on the last day of the month following the end of the quarter

This regulation states that the payment must include “the premiums owed on all wages subject to premiums during that calendar quarter.” Although not specified, presumably this includes both the employer’s share of the premiums and the amounts withheld from paychecks for the employees’ share.

How “localization” of an employee’s work in Washington is determined for coverage by the law, and when services not localized in Washington are also subject to the law

Collective Bargaining Agreements  [WAC 192-520-010]:

The effect of collective bargaining agreements (CBAs) in effect before October 19, 2017 – the date the law became effective – and those that expire or are reopened or renegotiated on or after that date.

The manner of determining an employee’s hours worked when the qualifying period includes time worked under a CBA and then hours worked after the CBA expires without renewal or renegotiation (and so is then covered by the act).

The effect on employers of having employee populations subject to one or more CBAs and/or employee populations not subject to a CBA.

Voluntary Plans  [WAC 192-530-010 et seq.]

The required features of voluntary plans:

A voluntary plan must provide at least the same or greater benefits than the state benefits with regard to the duration and reasons for leave.

The amount of benefits available must be the same or greater than benefits offered by the state plan.

The premium paid by the employee cannot be any greater than the employee’s premium for the state plan

Submission of plans for state approval:

Voluntary plans must be submitted for approval through a state portal, expected to be available in late summer 2018. There is a $250 filing fee per plan.

A plan must be submitted for re-approved every year for its first three years.

Thereafter, re-approval is not required unless the employer makes changes to the voluntary plan that are not required by law.

Rules regarding payment of benefits on an accelerated schedule:

An employer can agree to offer benefits payments on an accelerated schedule whereby the employee receives the total amount of the anticipated leave benefit over a shorter time period, but not less than one-half the duration of the anticipated leave.

The employee can choose to return to work earlier than planned and does not have to repay the amounts paid in advance for leave time not taken.

Election of voluntary plans for medical and family leave benefits:

An employer can elect to have paid medical and paid family leave both covered by a voluntary plan, or can have a voluntary plan for just one benefit and use the state plan for the other benefit.

Provisions for how to determine employee eligibility for voluntary plan benefits, how to avoid duplication of benefits paid by the state and by a voluntary plan, and what happens when a voluntary plan ends.

Watch this space!  Matrix will continue to monitor Washington’s regulatory activities and report on the new regulations as Phases Two, Three, and Four are issued.  In the meantime, more materials are available on the state’s Employment Security Department website.

Matrix can help!  As always, we are tracking and analyzing developments regarding the Washington Paid Family and Medical Leave Program.  We will be ready well in advance to advise employers on the premiums beginning in 2019 and benefits beginning in 2020.  If you have questions, contact your Account Manager or ping@matrixcos.com.

New York Releases Application and Certification Forms for Paid Family Leave

Posted on: October 18, 2017 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance

They’re out!  The long-awaited, much anticipated application and certification forms for New York Paid Family Leave (NY PFL) have been posted on the NY PFL website HERE!  I have reviewed the forms quickly but there is much to absorb and ponder.  Such as, how many claims management systems will be able to handle an employee’s choice to answer the gender question with the third option, “Not designated/Other”?

As a reminder, NY PFL goes into effect on January 1, 2018, to provide leave to eligible New York employees for three reasons:  to bond with a new child, to care for a family member with a serious health condition, and to attend to matters necessitated by a family member’s active military duty.  Leave starts at 8 weeks in 2018 and tops off at 12 weeks in 2021 and subsequent years.  Similarly, the pay benefit starts at 50% and caps at 67% in 2021.  The benefit is funded by employee payroll contributions.

Watch this blog for further analysis down the road.  In the meantime, we want to share some basics.  Here are the new forms that have been released, and a few notes:

Applying for Paid Family Leave.  New York has provided this “cover page” to accompany each certification form.  It gives very basic instructions on the steps the employee must take to apply for NY PFL for each of the three leave reasons.

Request for Paid Family Leave (Form PFL-1).  This form is not posted as a stand-alone document.  Rather, it accompanies each of the certification forms on the New York website, so no matter the reason for the employee’s leave, the request form is at the same link.  The form is 4 pages and also has 2 pages of instructions (PFL-1 Instructions), which should prove helpful in answering many employee questions about NY PFL and the process.

Bonding Certification (Form PFL-2).  This short form (again, with instructions) provides very helpful direction on the documentation required to support a request for bonding leave, categorized for the birth mother, other parent, foster parent, and adoptive parent.

Release of Personal Health Information Under The Paid Family Leave Law (Form PFL-3 – Release of PHI).  Designed to accompany an employee’s request for leave to care for a family member, this form may be helpful in obtaining the medical information necessary for managing this type of leave.  As an observation, however, Matrix has not had trouble getting FMLA certifications for care of a family member without such a release.

Health Care Provider Certification For Care Of Family Member With Serious health condition (Form PFL-4).  Unlike California and a few other states, New York allows the employer/carrier to obtain the diagnosis of the family member’s health condition.  The form requires the provider to identify his/her credentials and specialty.  The form is 2 pages and the instructions are 1 page.

Military Qualifying Event (Form PFL-5).   Not much to say about this simple form.  It requires the employee to identify for which of the 8 reasons the employee needs leave, and directs the employee to attach supporting documentation.  A companion form (PFL-5-T) is a template for supporting the leave request when other documentation is not available for leave to meet with a 3rd party.

Early Observations – Some Concerns.  As noted above, we have not completed our analysis of these newly released forms, but we have already spotted some potential challenge areas.  For example:

  • Neither the Request for Paid Family Leave (PFL-1) nor the certification form for caring for a family member (PFL-4)
    provides a definition of “serious health condition” In fact, the provider is never required to certify that the employee’s
    family member has a serious health condition.
  • Also, neither the employee nor the provider is required to identify what kind of “care” the employee will be providing
    to the family member. We at Matrix know from experience that many employee requests under the similar FMLA
    provision do not meet the requirement for taking this kind of job-protected leave – and now it will be
    paid. A challenge to verify proper usage, to say the least.
  • The forms refer to the employer’s insurance carrier, but some employers will be self-funded. This could create
    a problem in getting forms properly completed and the correct information provided to the correct party.
    For example, as written, the form for release of a family member’s health information (PFL-3) authorizes release
    to the insurance carrier, but not to the self-funded employer.  While this can be corrected by including the employer’s
    name instead of the carrier’s name, we question how many times this will be done correctly on the
    first go-round.  Can you say “delay”?

For more information about New York Paid Family Leave, check out our previous blog posts: October 2017, August 2017, July 2017, May 2017, March 2017, and April 2016.

MATRIX CAN HELP!

Matrix is honing processes, training teams, and taking other steps to be ready to administer New York Paid Family Leave starting January 1, 2018.  This is a natural extension of our leave, disability, and accommodation management services for employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together.  For leave management and accommodation assistance, contact us at ping@matrixcos.com.

New York Releases First Wave of Paid Family Leave Forms

Posted on: October 6, 2017 0

By Marti Cardi, VP-Product Compliance& Gail Cohen, Director-Employment Law/Compliance

 

In something of a stealth move, the New York Workers’ Compensation Board has released three forms for employers’ use in administering and complying with the Paid Family Leave Law that provides benefits starting January 1, 2018.  Those of us who check the NY PFL website daily and are signed up for news feeds received no word, but had to learn of the new forms through back channels.  The released forms include the following:

Employee Paid Family Leave Opt-Out of Benefits (PFL-Waiver, 9-17)

If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.  Eligibility requires 26 weeks of 20 or more hours per week, or 175 days of work averaging fewer than 20 hours per week, with a covered employer.

This form contains some interesting news.  The employee’s waiver can be revoked by the employee or automatically because the employee has or will work more than the time needed for eligibility.  Per the regulations, the employee then has the obligation to catch up on contributions that would have been made during the eligibility period but for the waiver, but the regulations do not specify how the employer can recoup these amounts.  The form appears to authorize additional deductions from the employee’s pay to catch up for missed contributions:

I also understand if this waiver is revoked (either by me or by a change in my work schedule), my employer may take retroactive deductions for the period of time I was covered by this waiver, and this period of time counts towards my eligibility for paid family leave.  [Emphasis added.]

Employer’s Application for Voluntary Coverage (No Employee Contribution) (PFL-135, 9-17)

Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).

Employer’s Application for Voluntary Coverage (Employee Contribution Required) (PFL-136, 9-17)

Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).

The NY PFL regulations also calls for forms for employee use to request NY PFL, and certifications to support leave taken to care for a family member with a serious health condition, for military exigencies, and to bond with a new child due to birth or placement for adoption or foster care.  Employers and insurance carriers still working to get ready for the January 1, 2018, effective date have been begging the WCB for these other forms, which will be critical in getting the information the employer is entitled to for consideration of leave requests.  Employers and carriers are permitted to use their own forms, but clearly it is safest and easiest to use NY-sanctioned forms, especially at the beginning of this uncharted leave law.

The new forms, and additional forms as they are released, can be found at this link: https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-employer-and-employee-forms-0

For more information about New York Paid Family Leave, check out our previous blog posts: August 2017, July 2017, May 2017, March 2017, and April 2016.

Hat tip to Marjory Robertson who provided early information about the new forms in an industry NY PFL call group!