Washington PFML Developments Keep Us Hopping

Posted on: April 8, 2019 0

By Marti Cardi, Vice President Product Compliance Gail Cohen, Director Employment Law & Compliance

April 8, 2019

Despite my recent advice to Washington employers to “sit back and relax,” I now have to say: Don’t get too comfortable with all things Washington PFML.  Although employers have been required to withhold premium contributions from employee paychecks (or waive such withholding) since January 1, lots of pieces are still in motion.  We recently blogged about the delay in premium payments and reporting to the state here.  Now:

  • The governor has signed into law some amendments to the PFML statute relating to employee benefits, the
    waiting period, voluntary plans, and more.
  • The Washington Employment Security Department (ESD) has finalized its Phase Three Rules, which relate
    in part to claims handling procedures.

Amendments to Washington PFML

The full bill as passed can be reviewed here. These are some of the more significant changes:

Waiting period

Employees must satisfy a 7-day waiting period before they can start receiving benefits. Prior to the PFML amendments, it was unclear how that waiting period would work. The law now states more clearly that the waiting period consists of “the first 7 consecutive calendar days” (rather than the previous version, “first 7 calendar days of leave”).  The amendments further clarify that the waiting period starts when an eligible employee takes leave for the minimum claim duration of 8 hours.  So, once an employee’s leave for a qualifying reason begins, he can start receiving benefits 7 calendar days later (if the leave continues beyond that) rather than having to take 7 days of leave before getting benefits.

And a reminder:  No waiting period is required for leave for the birth or placement of a child.

Topping off PFML benefits

The original PFML law had a strange provision that prohibited employers from allowing employees to use other pay benefits during a PFML leave. This has been corrected to align more closely with PFML laws in other states. Now, once benefits start in 2020, 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.  Employers are not required to offer supplemental pay benefits.  If offered, the choice whether to use them lies with the employee – the employer cannot force the employee to use such benefits.

Voluntary plans

The PFML amendments affect voluntary plans as follows:

    • Payment of benefits from only one plan. An employee may only receive payment of benefits for
      family leave, medical leave, or both from one approved plan at a time. If an employee is simultaneously
      covered by more than one approved plan, the employee will receive benefits only under the plan for
      which the employee has worked the most hours during the employee’s qualifying period.  From the
      context of this amendment, it appears that this applies whether the simultaneously applicable plans
      are 2 voluntary plans or a voluntary plan and the state plan.

What is NOT clear (and we’ll be asking questions of the ESD) is whether the employee receives benefits limited to the amount attributed to that one plan only, or receives benefits equivalent to his entitlement under all applicable plans, but only paid by the plan of the employer for whom the employee has worked the most hours in the qualifying period.  If that is the case (we hope not), how would the paying plan know how much is owed to the employee under other applicable plans?

    • Waiver of voluntary plan eligibility. To be eligible for benefits under a voluntary plan, an employee
      must have worked both 820 hours within the state during the qualifying period, and 340 hours for
      the employee with the voluntary plan (the 340 hours can count toward/be a subset of the 820 hours).
      An employee who commences work with a new employer with a voluntary plan is eligible for benefits
      immediately if she was eligible under a voluntary plan with her previous employer.  Otherwise, that
      340-hours-of-work for the new employer requirement applies before she can receive benefits.
      Pursuant to the new amendments, however, an employer with an approved voluntary plan may waive
      the 820 and/or 340 hours worked requirements, in whole or in part, to allow an employee to be
      immediately eligible for coverage under the employer’s voluntary plan
      .

Phase Three Final Rules.

A bit of background:  States pass the laws that require employers to provide paid family and medical.    The laws establish the basic structure of employee and employer rights and obligations.  Then the state agency that will be responsible for implementation, administration, and enforcement of the law passes rules or regulations (same thing, basically) that fill in the details needed to administer the law and advise employers and employees how to comply.

The Washington Employment Security Department (ESD) designed a process to draft, revise, and finalize its PFML rules in six phases.  The final version of the Phase Three rules have been released.  These are important because they address the claims handling procedures, including:

  • Defining a claim year
  • Employee notice requirements (timing and content)
  • Process and timing for application of benefits
  • Requirements for documentation of the leave request (certification contents, timing, etc.)

The Phase Three rules are available here.

What Matrix is doing:

  • Employers can still file for approval of a voluntary plan at any time. Matrix has a template for
    voluntary plans and a complete process for submitting plans for approval on behalf of clients.
  • Now that the Phase Three rules are finalized, Matrix is developing claims handling procedures,
    employee 
    communications, training for our employees, and other necessary processes. We will
    be ready for claims 
    management for our clients with voluntary plans when benefits are available,
    starting January 1, 2020.
  • Matrix continues to pose questions to the Washington ESD for provisions of the law and rules that are
    still not clear.

MATRIX WILL BE READY ON JANUARY 1, 2020.  WILL YOU?

If you want to learn more contact us at ping@matrix.com or through your Account Manager.

 

MASS-ive developments in Paid Family Medical Leave law

Posted on: March 21, 2019 0

By Marti Cardi, Vice President Product Compliance Gail Cohen, Director Employment Law & Compliance

March 21, 2019

 

Big dates are ahead in Massachusetts relating to its paid family and medical leave program.  The Department of Family and Medical Leave (DFML) has announced two key developments:

Massachusetts PFML regulations. The second draft of the PFML regulations will be issued on March 29.  You may recall that the first draft was issued on January 23, 2019.  These were a start but many key topics were not addressed.  The DFML conducted over 10 listening sessions around the state, soliciting comments from attendees on the draft regulations.  The DFML also accepted written comments through March 13.

Now the DFML has announced that the next draft of the regulations will be published on March 29, followed by another public comment period. We expect these to be near final due to the extensive outreach the DFML conducted to gather input. Final regulations will be published and effective no later than July 1, 2019.

Private plan applications.  Employers can begin filing private plan applications on April 29, 2019.  The only detail we have been able to find so far is that applications may be filed through MassTaxConnect We have submitted over 20 questions to the DFML to identify information that Matrix and employers will need to know in deciding whether to file for a private plan.  These address application details, approval process and turnaround time, details on the bond requirement, and much more.

Based on our prior communications with key personnel at the DFML, we anticipate that the application process will be more employer-friendly than our experience in Washington.  In fact, there are indications that, unlike Washington State, employers may be able to submit existing plans that meet or exceed the Commonwealth’s requirements rather than designing and submitting a new, Massachusetts-specific plan.

We are currently developing templates for employer-sponsored private plans to satisfy the medical leave benefit, the family leave benefit or both requirements, and will make these available to our Massachusetts clients as soon as they are completely vetted.

Need to catch up? You can read our prior review of the Massachusetts PFML here. Below is a timeline of the Massachusetts PFML journey from inception to launch, as currently represented by DFML.

Matrix has you covered! We’ve been watching for these developments and know employers have many questions that – we are hopeful – will be answered in the next few weeks.  In anticipation, we have scheduled webinars to be held on Tuesday, April 23 and Wednesday, April 24. Both webinars begin at 2:00 PM Eastern time. Click the day you prefer to attend and REGISTER today!

 

 

 

 

 

 

We can help!  At Matrix Absence Management, we administer FMLA, state leaves, the ADA, and related company policies for employers every day, day in and day out.  If you would like more information contact us at ping@matrix.com or through your Account Manager.

Sit back and relax! Washington PFML reporting and payments to the state delayed by 3 months.

Posted on: March 14, 2019 0

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

 

We know employers have been on the edge of their seats wondering when and how they can begin their required Washington paid family and medical leave reporting for Q1 slated for April 1-30.

Well, calm yourself. 

The state just announced that first quarter employer reporting is being delayed until July 1-31, 2019.  Likewise, Q1 payments to the state for employer and employee premium contributions for those employers using the state PFML plan have been delayed.  At that time, employers will make 2 separate reports, and payments if applicable, for 2019 Q1 and Q2.

More information can be found on the state’s website, particularly the rollout FAQs and the email notice to employers.  One point of note: The delay in the reporting and payment deadlines for Q1 does NOT affect the start of PFML benefits on January 1, 2020.

We at Matrix have been watching the WA PFML website and announcements regularly for information about procedures for employers to fulfill their requirements for reporting and premium payments for Q1.  I’m guessing the state needs more time to get the technology in order.  Not a big surprise, considering they can’t even accept electronic payments yet for voluntary plan application fees.

The employees of the Washington Employment Security Department (ESD) who answer our calls and emails have been very kind to deal with and offer as much assistance as the statute allows.  But I hope other states in the process of implementing or considering paid family and medical leave are watching.  The PFML law passed by the state legislature did not allow ESD enough time to develop the program procedures, regulations, and technologies.  The ESD staff is left with tough questions and, sometimes, no good answers.  Hang in there ESD folks, and thanks for what you do!

Matrix can help!  At Matrix we offer administration of Washington voluntary plans for paid family and medical leave.  These include providing a plan template, filing the plan with the state, fielding ESD questions, and seeing the plan through to approval.  Then Matrix will administer the PFML leave and benefits for your Washington employees, along with other Washington statutory leaves, the FMLA, and your company policies.  For assistance and more information, contact us at ping@matrix.com or through your Account Manager.

Massachusetts PFML Again – But Not Yet

Posted on: February 14, 2019 0

BY MARTI CARDI, VP-PRODUCT COMPLIANCE 

In our last blog post about Massachusetts Paid Family and Medical Leave (MA PFML), we boldly announced we would be holding Session 2 of our webinars on the law soon, targeting late February.  Well, it turns out that the draft regulations issued on January 23 by the Massachusetts Department of Family and Medical Leave (DFML) are very preliminary and the end of February is much too soon.  We have very little concrete information at this point so discussing the regulations would be quite speculative.  At the end of this post is a summary of the key provisions of the Massachusetts law itself.  In between, let’s share what we do know.

Status of the regulations:  The DFML is holding listening sessions on the draft regs around the state through February, during which they take questions and comments about the draft but do not answer any questions.  I attended the first listening session in Boston and came away with more questions than I started with!  However, I have the good fortune of meeting telephonically periodically with the state Deputy Attorney General who is leading the effort to draft the regulations, so I have been able to share all of my questions, suggestions, and concerns.  The DFML anticipates final regulations by the end of April, with an interim 2nd draft sometime between now and then. 

Employee and employer contribution rates:  One point that seems to be fairly settled is the contribution rates for PFML premiums, which start July 1, 2019. 

Here’s a rundown of what we know:

  • Total premium for both family and medical leave is 0.63% of employee’s wages up to the Social Security taxable amount ($132,900 in 2019)
  • Of that, 0.52% is for medical leave and 0.11% is for family leave
  • The employee pays all of the premium for family leave
  • The premium for medical leave is paid 40% by employee, 60% by employer
  • The net result is that the employer and employee each pay approximately 50% of the total premium
  • Employers can opt to pay for the employee’s share of premiums for the public plan or, in the case of a private plan, not collect premiums

That 0.52%/0.11% split between medical and family leave premiums is contained in the draft regulations so it’s still subject to possible revisions, but the DFML seems pretty set on those numbers.

Private plans:  Sometimes called voluntary plans in other states, the Massachusetts statute does allow employers to opt out of the state “public” plan and instead comply with the law via a private plan administered by the employer, TPA or insurance carrier.  Here is what we know so far:

A private plan must confer all of the same rights, protections and benefits provided to employees under the PFML law, including but not limited to:

  • Providing family leave to a covered individual for the reasons and for the number of weeks required by the law
  • Allowing family or medical leave to be taken intermittently or on a reduced schedule
  • Providing a wage replacement rate during all family and medical leave of at least the amount required by the law
  • Imposing no additional conditions on the use of family or medical leave beyond those explicitly authorized by the law or regulations
  • Using the same employee eligibility requirements as set by the law, and
  • Providing that the cost to employees covered by a private plan shall not be greater than the cost charged under the state program. 

An employer can choose to provide greater employee rights and benefits than those set by the law – e.g., a higher benefit rate or more weeks of paid leave.

Matrix is on it:  Watch this blog for updated information and dates for the next MA PFML webinar as things develop with state procedures and the regulations.  As we did in Washington, Matrix will prepare a Massachusetts private plan template for use by our clients who engage Matrix as their Massachusetts PFML TPA.  One advantage to working with the state on developing the regulations is that Matrix has been able to suggest regulations that will make having a private plan easier for employers and more beneficial to both employers and employees.

Summary of the PFML law

Here are the basic elements of the MA PFML, subject to elaboration and further development through the regulations:

Effective Date:                 

  • Premium contributions: 07-01-2019.
  • Benefits: Family member SHC: 07-01-2021.
  • All other reasons: 01-01-2021.

Administration:               

  • By state; private plans permitted; insurance permitted.

Employee Eligibility:    

  • Employee has been paid wages in the 4 quarters prior to leave amounting to at least 30 times the weekly benefit rate.
  • Includes former employees if eligibility is met at end of employment and leave commences within 26 weeks

Covered Employer:        

  • All; no minimum number of employees

Job Protection:                

  • Same or equivalent position

Leave Reasons:                

  • Employee’s SHC
  • Family member’s SHC
  • Bonding/parental leave
  • Military exigencies (same as FMLA)
  • Care for ill or injured servicemember

Covered Relationships:

FMLA and MA PFML

  •  Spouse
  •  Child
  • Parent

Additional MA PFML Family Members

  • Domestic partner
  • Parent-in-law (including parent of domestic partner)
  • Grandchild
  • Grandparent
  • Sibling

Duration (12 months):                  

  • Employee’s SHC (medical leave): 20 weeks
  • Family leave (bonding, care for family member, or military exigency): 12 weeks
  • Care for service member: 26 weeks

Maximum in 12-month period:

  • 26 weeks

Leave Calculation Method:         

  • “Benefit Year” — measured forward 52 weeks from the Sunday preceding the first day of the EE’s covered leave

Leave Use Increments:                 

  • No minimum increment
  • Continuous, intermittent, reduced

Funding:                                             

  • Family leave premium fully paid by EE
  • Medical leave paid 40% by EE, 60% by ER
  • Total premium = 0.63% of EE’s wages
  • Cap on wages subject to premium determined by Social Security program limit ($132,900 for 2019)
  • Split between family and medical leave premiums:
  • 52% for medical and 0.11% for family = 0.63%
  • Comes out to about 50/50 split in total between employer/employee

Benefits:                            

  • 80% on portion of employee’s Average Weekly Wages (AWW) equal to or less than 50% of state AWW, plus
  • 50% on portion of employee’s AWW greater than 50% of state AWW
  • State AWW is currently $1107.48 (Dec 2019)

https://ycharts.com/indicators/massachusetts_average_weekly_earnings_of_all_employees_private_service_providing_unadjusted

  • Maximum based on 64% of state AWW
  • Statutory cap of $850/week if 64% of AWW is higher

Voluntary Plans:              

  • Permitted for medical leave and/or family leave
  • Must be approved by state
  • Insurance permitted (but no details in law)

Effect on other laws:     

  • Concurrent with FMLA
  • There is no existing MA family/medical leave law
  • MA Parental Leave still in effect – 8 weeks for bonding

Draft regulations:           

  • Released 01-23-2019 – lots of work to be done yet!

Massachusetts PFML Rolls Forward – Draft Regulations Released!

Posted on: January 25, 2019 0

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

 

You know you are a compliance geek when the bright spot of your week is the release of new leave law regulations!  Yes, I’m guilty as charged – but I know I’m not alone.  Here’s the scoop:

On January 23 the Massachusetts Department of Family and Medical Leave (DFML) released draft regulations that start to flesh out the how-to’s of the Massachusetts Paid Family & Medical Leave law (PFML).  The regulations can be accessed from a link on the DFML home page.

 

We know you are eager to learn all about MA PFML, the new draft regulations, and what they mean for your business.  That’s why we will be holding webinars soon – presently targeted for February 27 and 28.

For more information and an invitation to the webinars, watch this blog, contact your sales or account manager, or send us an email at ping@matrixcos.com.

 

 

Kudos to the DFML for getting this document out somewhat early.  The MA law doesn’t require draft regulations until March 31 and final regs until July 1, 2019 – very late in the game, considering employer and employee contributions start on July 1.  However, the DFML is cognizant of the challenges employers will face getting ready for this new leave and benefits law so, truly, the sooner the better.  The Department also expects to finalize the regulations prior to that July 1 deadline.

Be aware, however, this version is very likely to change before being finalized.  For that reason, I am not going into much detail here about what the draft regulations contain.  The document itself states in a header on every page, “DRAFT – REGULATIONS UNDER DEVELOPMENT – FOR THE PURPOSE OF EARLY PUBLIC INPUT ONLY – 1/23/19.”

To this end, the DFML has scheduled 7 public listening sessions to gather comments on the draft regulations.   The sessions run from January 30 through February 19 at various locations around the state.  Dates and locations are available on the DFML home page.

At Matrix we are actively involved in keeping current on MA PFML developments, but we are also helping to shape these and similar regulations.  I lead a small group that has periodic conferences directly with the Massachusetts Undersecretary of Labor/General Counsel for the Executive Office of Labor and Workforce Development, who is leading the development of the MA regulations.  In addition I will attend the January 30 listening session in Boston while other Matrix representatives will attend other sessions around the state.

DRAFT REGULATIONS

Much of the content of the draft regulations is a repeat of provisions of the PFML law itself.  There are some details about claims documentation, time limits, and employer reporting obligations.  Much more is needed to define how to apply for and operate a private plan and how to administer claims.  I will be vocal in at the listening session and in my meetings with Commonwealth personnel.

KEY PROVISIONS OF MA PFML

High level, here are the key provisions of the MA PFML law:

Private plans.  Employers can meet their MA PFML obligations through a public plan administered by the Commonwealth or through a private plan for medical and/or family leave that offers benefits at least as beneficial to employees as the state plan.  The law also specifically recognizes that employers can obtain private insurance to cover their benefit obligations under a private plan.

 

Matrix can help!  We anticipate developing a model private plan to meet employers’ MA PFML obligations and assisting in administration once benefits go into effect starting January 1, 2021.  Many details are yet to be developed by the Commonwealth for such plans, so stay tuned.

 

Covered employers.  All employees of any size must comply with the law, although an employer with fewer than 25 employees in the Commonwealth is not required to pay the employer portion of the premiums.

Eligible employees.  An employee is eligible for leave benefits if he or she has been paid wages in the “base period” amounting to at least 30 times the weekly benefit rate.  The base period is the last 4 completed calendar quarters immediately preceding the first day of an individual’s benefit year.  Coverage includes benefits for former employees within 26 weeks of separation and independent contractors if the employee or contractor meets the eligibility requirement.

Funding.  The benefits will be funded at an initial rate of 0.63% of an 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.  Employers can, of course, choose not to withhold premium from employee paychecks and instead pay the employee share themselves.

Benefit amount.  Weekly benefits are paid based on a percentage of an employee’s wages:

  • Wages equal to or less than 50% of the state average weekly wage (SAWW) will be paid at 80%
  • Any portion of wages in excess of 50% of the SAWW will be paid at 50%
  • Initially, benefits will be capped at $850 per week. Thereafter, benefits are capped at 64% of the SAWW,
    to be adjusted annually.

Paid leave benefits start dates.  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 (FMLA), which will run concurrently if both laws are applicable:

  • Employee’s serious health condition
  • Family member’s serious health condition
  • Bonding with a new child
  • Family military exigencies
  • Care for a seriously ill or injured service member

One difference employers will notice is that the list of family members for whom employees can take leave includes not just the employee’s parent, child, or spouse like FMLA, but also domestic partners, parents-in-law, grandparents, grandchildren, and siblings.  Any MA PFML taken to care for these additional family members will not count toward usage of the employee’s FMLA entitlement.

Leave duration.  Leave durations in a “benefit year” 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
  • An aggregate maximum of 26 weeks in a benefit year for all leave reasons

Benefit year.  All leave entitlements and usage are measured forward 52 weeks from the Sunday preceding the first day of the employee’s covered leave.  (Rolling forward, get it?)

Still geeking out?  Matrix held national webinars last year to help introduce and explain the Massachusetts PFML law.  If you can’t wait until the next round, you can do all your preparation here and be at the very front of the class!

 

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.