A year in review, a year ahead: A whole lotta stuff going on!

Posted on: December 19, 2019 0

by Marti Cardi, Esq – Vice President Product Compliance

December 19, 2019

 

Take a deep breath and let’s review what happened in 2019, and what’s coming in 2020. First we will look at legislative activity. In another post we will check in with our favorite federal agencies, the Equal Employment Opportunity Commission and the Department of Labor. 

 

Part 1 – Legislative Activity

In 2019, state legislatures were quite busy on the leave of absence front.  Here is a summary of significant bills that were enacted and developments for those already in place:

PAID FAMILY AND MEDICAL LEAVE

California – CA PFL extended, leave reason added.  Effective July 1, 2020, CA Senate Bill 83 amended California’s existing Paid Family Leave (PFL) to provide for eight weeks (up from six weeks) of paid benefits to eligible employees. The leave is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption.

CA Senate Bill 83 also added a new qualifying reason to the PFL program: Effective January 1, 2021, California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.  The pay benefit is new but the law still won’t provide job protection for such leave.  Rights to reinstatement for all PFL benefits reasons (bonding, care of a family member, and military exigencies) may be available under other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.

More changes may be on the way.  The bill includes a requirement for study and development of a proposal for bonding leave up to 6 months per parent, and an increase in the wage replacement rates from the current 60-70%.

Colorado – Just a study.   Lots of legislative activities that made all of us followers of the paid family leave legislative bandwagon believe Colorado would pass such a bill ultimately resulted in a bill to fund a study to decide whether to enact such legislation in the future.

Connecticut – PFML enacted.  CT paid family leave was signed into law in June by the Governor.  Premium contributions will start on January 1, 2021, with employee benefits payable effective January 1, 2022. To learn more about the significant provisions of CT PFL, please click here  to read our Radar blog post.

New Jersey – changes to existing PFML laws.  In February New Jersey enacted significant changes and expansion of its existing Family Leave Act (FLA), Security and Financial Empowerment Act (SAFE Act), and Family Leave Insurance program (FLI).  Some of the changes were effective immediately upon passage and others are phased in over the next several months:

  • Significant expansion of the types of family relationships for which
    employees can take leave or receive benefits pursuant to the NJ FLA,
    SAFE Act, and NJ FLI, including removal of the age limit for care of
    a covered child with a serious health condition under NJ FLA and
    NJ FLI.  (Effective February 2019.)
  • Lower threshold for covered employers, from employers with 50 or
    more employees to those with 30 or more employees. (Effective July 2019.)
  • Employees who are, or whose family member is, a victim of domestic or sexual violence can now
    receive FLI benefits for leaves covered by the SAFE Act. (Effective February 2019.)
  • Increase in weeks of FLI benefits from 6 weeks to 12 weeks, or from 42 days to 56 days if taken
    intermittently.  (Effective for leaves commencing on or after July 1, 2020.)
  • Elimination of the 7-day waiting period before an employee can receive paid leave. (Effective for
    leaves commencing on or after July 1, 2019.)
  • Increase in benefits payments. (Effective for leaves commencing on or after July 1, 2020.)  These
    changes also apply to the state temporary disability benefits.
  • Increase in “wages” measurement for calendar years beginning on and after January 1, 2020.
  • A NJ employer’s private plan no longer requires approval by a majority of the employees.  (Effective
    in February 2019.)

For the details, including a handy reference chart of all the changes, check out this Radar post.

Massachusetts – Regulations and other developments.   Regulations were finalized in June 2019 and employer/employee contributions started in July, but a lot more information is yet to come.  Employers can opt out of the state plan and provide employee benefits through a private plan.  The Massachusetts Department of Family and Medical Leave issued a bond form for self-funded private plans and, together with the Department of Insurance, approved a declaration form for insured private plans.  Lots of Massachusetts PFML information is available on this blog – just put “Massachusetts” in the search bar.

Oregon – PFML enacted.  Signed by the Governor in August 2019, Oregon creates the most generous (to date) leave and benefits, with employee contributions to start January 1, 2022, and benefits as of January 1, 2023. To read more about the salient provisions of Oregon PFML, please click here.

Washington – Ready, set, go!  Matrix Radar and our WA PFML team have been furiously tracking the regulations promulgated by the State of Washington in anticipation of the January 1, 2020, launch of benefits under WA PFML.  We are ready to administer voluntary plans for clients that elected that route.  Here is the latest post, but pay close attention to Matrix Radar for all the developments! 

Washington news flash!  Here is an unsettling piece of breaking news:  the WA Employment Security Department, charged with administering the state plan benefits, just released its form for use when an employee seeks leave for his/her own or a family member’s serious health condition.  The form does not contain any questions for the provider about intermittent leave usage – no request for estimated frequency and duration.  I ask, how will the ESD monitor intermittent leave usage and gauge whether an employee is taking appropriate intermittent leave?  We all know that is hard enough under the FMLA and other laws that require this information.  The ESD will be administering intermittent leaves in a vacuum. 

 

ORGAN DONATION

California amended its existing organ and bone marrow donation law effective January 1, 2020.  Current law provides for 30 days’ paid leave of absence for organ donation and 5 days of paid leave for bone marrow donation.  Under the new law, employees are entitled to an additional 30 days of unpaid leave for organ donation. To read more, please click here.

Oregon.  Effective January 1, 2020, Oregon’s companion to FMLA, the Oregon Family Leave Act (OFLA) has been amended to allow employees to take leave for “[a]ny period of absence for the donation of a body part, organ or tissue, including preoperative or diagnostic services, surgery, post-operative treatment and recovery.”   In reality most situations where an employee is serving as an organ or tissue donor are already covered as a serious health condition under OFLA but this removes any doubt that such absences are covered, as well as appointments in preparation for such donation. 

New York.  Similarly, New York passed a law to include organ donation in the definition of serious health condition under the NY PFL law.  We summarized the law, passed in 2018 and effective February 3, 2019, on Matrix Radar here.  

 

LEAVE FOR VICTIMS OF DOMESTIC VIOLENCE

New York.  Effective November 18, 2019, this new law requires employers to grant reasonable leave to victims of domestic violence.  To read our blog about this important new law and its requirements, please click here.

Puerto Rico.  In July, the Governor of Puerto Rico signed legislation effective August 1, 2019, affording employees who are, or whose family members (very broadly defined) are victims of domestic violence, sexual abuse, sexual harassment, or stalking to take up to 15 days of unpaid leave in a calendar year (on a “fractioned” or intermittent basis, too). That law also requires PR employers to provide reasonable accommodations to such individuals, which includes changes in work schedule or location and provides that requested accommodations can only be denied if “unreasonable.”

 

FLIGHT CREWS

California.  Clients in the airline industry are used to the FMLA regulations specific to flight crews, which historically have not applied under the California Family Rights Act (“CFRA”).  Assembly Bill 1748, signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, amends CFRA to address airline flight deck or cabin crew employees. The bill closely follows the FMLA rules regarding leave eligibility for flight crews.  It provides that the Department of Fair Employment and Housing may promulgate regulation(s) to assist employers with calculating the hours worked requirement of this CFRA amendment. As of this writing, no such regulations prescribing the method for employers to do so have been made publicly available.

 

PREGNANCY ACCOMMODATIONS

Kentucky.  Effective June 27, 2019, SB 18 requires Kentucky employers to consider reasonable accommodations for their employees with “limitation(s)” (but not necessarily disabled in the fashion employers have come to expect) as a result of pregnancy and related conditions. To read more about that law, please click here.

Oregon.  Effective January 1, 2020, Oregon employers must grant reasonable accommodations to employees with known limitations as a result of pregnancy, childbirth and related conditions.  The Oregon law also requires employers to provide the notice of rights to all employees by July 1, 2020, and within 10 days of an employee providing notice of her pregnancy.  Click here  to read more.

 

MATRIX CAN HELP!  Matrix will administer all of the above new or expanded leave laws for our clients using Matrix’s FMLA/Leave of Absence services.  No client action needed!  The laws have been or will be implemented in our system as of the effective date, along with any other updates to scripts, packets, etc. that are needed due to the changes. 

Matrix manages pregnancy accommodation laws for clients with our ADA services.  The above two new laws will likewise be added to our suite of state and federal pregnancy accommodation laws managed by our ADA Specialists.

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, provided extensive training for our claims staff, and held educational webinars for our clients with voluntary plans administered by Matrix.  If the thought of the state administering your employees’ claims has you concerned – especially in light of the inadequate medical certification form the state plans to use – contact your Matrix or Reliance Standard account manager to learn more about our voluntary plan offering or send a message to us at ping@matrixcos.com.

 

Keeping up with California – 2019 Legislative Recap

Posted on: November 22, 2019 0

Gail Cohen, Director, Employment Law and Compliance

November 25, 2019

California employers perennially face challenges keeping up with the Golden State’s legislative developments, and the 2019 legislative session was certainly no exception! At Matrix Absence Management we monitor pending and enacted legislation to assist our clients in preparing for those developments, particularly in the leave of absence, disability claim, and ADA/state disability law arenas.

Here is a summary of California’s 2019 enacted legislation relevant to our industry:

CA PFL extended, leave reason added.  Effective July 1, 2020, Senate Bill 83 amended CA Paid Family Leave (“PFL”) to provide for eight weeks (up from six weeks) of paid benefits to eligible employees. The leave is available to care for a seriously ill family member (broadly defined to include child, spouse, parent, grandparent, grandchild, sibling, or domestic partner), or to bond with a minor child within one year of its birth or placement for foster care or adoption.

CA Senate Bill 83 also adds a new qualifying reason to the PFL program: Effective January 1, 2021, California employees will be able to receive wage replacement benefits during leave taken to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

Currently, these leaves are not job protected under the paid family leave program. Rights to reinstatement may come from other unpaid leave laws, such as the California Family Rights Act and the federal Family and Medical Leave Act.

More changes may be on the way.  The bill includes a requirement for study and development of a proposal for bonding leave up to 6 months per parent, and an increase in the wage replacement rates from the current 60-70%.

CFRA amendment to address flight crews. Clients in the airline industry are used to the FMLA regulations specific to flight crews, which historically have not applied under the California Family Rights Act (“CFRA”).  Assembly Bill 1748, signed by Governor Newsom on October 10, 2019, and effective January 1, 2020, amends CFRA to address airline flight deck or cabin crew employees. The bill closely follows the FMLA rules regarding leave eligibility for flight crews.  It provides that the Department of Fair Employment and Housing may promulgate regulation(s) to assist employers with calculating the hours worked requirement of this CFRA amendment. As of this writing, no such regulations prescribing the method for employers to do so have been made publicly available.

CA organ donation. Current California law requires private employers to give employees up to 30 business days of paid leave for organ donation and up to 5 business days of paid leave for bone marrow donation in a one-year period. Effective January 1, 2020, an amendment to the CA donor law (Assembly Bill 1223will require private employers with 15 or more employees to give eligible employees an additional 30 business days of unpaid leave in a one-year period (measured from the date the employee’s leave begins over the continuing 12 months) for the purpose of donating an organ to another person.  You can find more details about the new CA law in our prior blog post here.

Matrix can help!

Matrix will be ready to administer these California changes as they go into effect.  At Matrix we monitor state and federal legislative developments daily and report on any new or advancing leave- and accommodation-related laws to keep our clients and business partners up to date.  If you ever have questions about leave and accommodation laws – current or just introduced! – please contact your account manager or send an email to ping@matrixcos.com.

Oregon Becomes the 10th (9th?) State to Enact Paid Family and/or Medical Leave Legislation

Posted on: August 7, 2019 0

By Marti Cardi, Vice President Product Compliance

August 8, 2019

 

It’s getting hard to come up with creative captions for articles about these new state paid family and medical leave laws.  And darn it, can we say Oregon is the 10th state when one of the jurisdictions counted is the District of Columbia?

Well that’s my rule and I’m stickin’ to it.

You can see our tally of the states in our recent blog post on Connecticut’s leave law (we get to our number by including Hawaii, which has a paid medical/disability law but not aid family leave – yet!).  What has Oregon passed, and how does it compare to other recent PFML laws?  Glad you asked: read on!

The Best Paid Leave Law?

Recently, each new state to join the PFML bandwagon proclaims that it has just passed the “best” or “most generous” paid leave law, and Oregon is no exception.  But how do you measure that?  If it’s by the top percentage a low-wage worker can receive, then Oregon does take the cake, proposing to pay benefits up to 100% of earnings in the case of a worker who earns at or below 65% of the state’s average weekly wage.  Just last month Connecticut had claimed that honor with a benefits formula that will pay some workers up to 95% of their wages during leave.  (See our Connecticut blog post.) And based on the current AWW for Oregon at $1044.40 (through June 30, 2020), that puts Oregon’s maximum benefit at over $1250 per week – also beating out the competition by that measurement.

Duration of Benefits.  But there are other ways to measure which state offers the “best” benefits to employees, such as length of paid leave and the reasons for which an employee can take paid leave under the law.  Oregon will provide up to 14 weeks of paid leave per benefit year (12 weeks total for all leave reasons plus another 2 weeks if an employee is incapacitated by pregnancy or related conditions).  That 2-week baby bump is becoming common – Connecticut and Washington are doing the same, for example.  But Massachusetts beats Oregon overall with up to 20 weeks of leave for the employee’s own serious health condition; and both Massachusetts and Connecticut provide up to 26 weeks for care of an ill or injured servicemember.

Leave Reasons.  Oregon is neck and neck with other states as to who offers the “best” benefit when measured by covered leave reasons.  Oregon’s PFML will not cover leave specifically to care for an ill or injured servicemember (although that could form the basis for leave to care for a family member with a serious health condition, generally).  Nor will it cover leave for military exigencies, although that type of job-protected but unpaid leave is available under another Oregon statute.

On the other hand, Oregon will provide “safe leave” for reasons related to the employee or the employee’s minor child being a victim of domestic violence, harassment, sexual assault, or stalking.  Currently only New Jersey offers such paid leave (due to amendments to their law earlier this year, but with a very broad class of family members for whom the employee can take such leave – see our blog post here).  Connecticut will also offer paid leave relating to family violence, but only when the employee is the victim.

Family Members. Finally, Oregon is on the forefront when it comes to the family members with a serious health condition for whom an employee can take paid leave.  The latest trend (and there will be more states doing the same) is to include a broad list of the specific family relationships that are covered by the law (see the chart below) AND include coverage for someone who is “like a family member” to the employee.  Under Oregon’s law this is defined as:  “Any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.”  This is in recognition of the changing nature of families in the United States, but it will surely present some administrative challenges to both the state and an employer in trying to interpret and apply this language.  Connecticut and New Jersey have similar covered relationships, and Colorado (expected to pass a PFML law next year) also included this broad category.

The Oregon PFML Law

Here are the key provisions of the Oregon PFML law.  There are many more details, of course, but with contributions over 2 years out and benefits another year after that, we’ll take some time before burying you with all the nitty gritty (much of which we don’t even have yet).  Following the chart are a few more observations, if you are still reading at that point!

 

Issue Provision Bill Sections
Employee Eligibility During the Base Year or Alternate Base Year:

  • Earned at least $1000 in wages AND
  • Contributed to the state PFML Insurance Fund

 

Base Year: first 4 of the last 5 completed calendar quarters
preceding the benefit year (not yet defined)

 

Alternate Base Year:  Last 4 completed calendar quarters
preceding the benefit year

 

Other covered individuals include, under certain circumstances,
self-employed individuals and employees
of a tribal government

§§ 2(1), (3), (5), (8) & (11)

 

Covered Employers All private employers §§ 2(14)(a) & (b)
Total Leave Entitlement
  • 12 paid weeks for all covered
    leave reasons in a benefit year
  • 2 additional paid weeks for
    limitations related to pregnancy,
    childbirth, or a related medical
    condition (including lactation)
  • 4 additional weeks UNPAID for any
    reason covered by Oregon Family
    Leave Act (employee’s SHC, family
    member SHC, mildly ill child,
    bonding, bereavement)

MAXIMUM TOTAL:  18 weeks per
benefit year (14 paid, 4 unpaid)

·        §4
Leave Reasons
  • Employee’s own serious health condition
  • Family member serious health condition
  • Bonding (birth adoption, foster care)
  • Safe Leave (matters related to
    employee or minor child being a
    victim of domestic violence,
    harassment, sexual assault, or
    stalking)

Specifically excludes other leave reasons
covered by OFLA (sick child, bereavement,
military exigencies)

·     §§ 2(17), (19) & (21)
Family Members Spouse or Domestic partner

The following relations to the employee
or employee’s spouse or domestic
partner (includes biological, adoptive,
step, foster, legal ward/guardian,
in loco parentis):

  • Sibling
  • Child
  • Parent
  • Grandparent
  • Grandchild

Any individual related by blood or
affinity whose close association with
the employee is the equivalent of
a family relationship

·     § 2(6), (18) & (20)
Leave Year Calculation Methods “Benefit year” – a 12-month period
to be defined by regulations
§ 2(5)
Leave Increments Benefits payable for leave taken in
increments equivalent to 1 work day
or 1 work week

  • Not clear if employee can take
    shorter increments and add them up
    to equal 1 day or 1 week
  • Increments of 1 work day may be
    taken in nonconsecutive periods of
    leave
§ 12(3) & (4)
Employee Documentation Not yet determined; Director will
establish rules for submitting claims
§ 12(1)(a)
Employee Notice to Employer
  • Written notice 30 days in advance
    for foreseeable leave
  • Less than 30 days’ notice if leave is
    not foreseeable (examples:
    unexpected serious health condition
    of employee or family member,
    premature birth, unexpected
    placement for adoption or foster
    care, or safe leave)
  • If employee commences leave
    without prior notice, must give oral
    notice within 24 hours and written
    notice within 3 days
  • Advance notice for safe leave not
    required if not feasible
§ 9
Employer Notices to Employees
  • Employer must provide written
    notice to employees of the duties
    and rights of an eligible employee
  • Notice must be in the language the
    employer typically uses to
    communicate with the employee
  • Director shall provide a model notice
    for employers’ use
§ 8
Employee Rights
  • For employees employed 90 days
    or more before leave,
    reinstatement to same or
    equivalent position

    • Based on business necessity,
      employers with fewer than 25
      employees may restore
      employee to a different
      position with similar duties
      and same benefits and pay
  • Maintenance of health benefits
    during leave under same conditions
    as if actively working
§ 10
Employee/employer  Contributions
  • Start January 1, 2022
  • Contribution rate to be set by
    Director of OR Employment
    Department
  • Total rate for employer and
    employee contributions may not
    exceed 1% of employee wages

    • Subject to maximum of
      $132,900 of employee’s wages,
      subject to annual adjustment
  • Of total rate, employer pays 40%
    and employee pays 60%
  • Employers with fewer than 25
    employees are exempt from paying
    employer contribution

    • But if a small employer elects
      to pay the employer
      contribution, is eligible for
      grants from the state
§§ 16, 42, 62
Benefits Benefits start 01-01-2023

  • Maximum benefit = 120%
    of state AWW
  • Minimum benefit = 5% of
    state AWW
  • Employees who make 65%
    or less than the state AWW
    are paid 100%
  • Employees who make greater
    than 65% of state AWW are
    paid:

    • 100% of 65% of the
      state AWW     – PLUS –
    • 50% of the employee’s AWW over 65% of the state AWW
§ 7
Private plan “Equivalent plan” that provides equal or
greater benefits and protections
§ 43
Concurrency with Other Leave Laws Leave taken under PFML is

  • Concurrent with FMLA and OFLA
  • In addition to paid sick time under
    ORS §653.606
§§ 5, 6
Interaction with Other Employer Benefits
  • Leave taken under PFML is in
    addition to paid vacation or other
    paid time off earned by the
    employee
  • Employer may allow employee to
    use paid sick time, vacation leave or
    other paid leave earned by the
    employee to replace wages up to
    100% of employee’s AWW
§ 6

 

Other Points of Interest

Here are some additional details that are laid out by the Oregon PFML law.

Localization of Employee Wages – §21.  In some states an employee’s eligibility for PFML benefits is based in the first instance on whether the employee is employed primarily within the state (Washington, for example).  Then other eligibility factors kick in, such as hours worked in the state or earnings of a specified amount.  Under the Oregon law it is possible for an employee who only works a very small amount per year in Oregon to receive benefits.  The statute addresses what employee wages are subject to contributions and count for determining eligibility and benefits:

An employee’s wages shall be used to make determinations under sections 1 to 51 of this 2019 Act if the wages are earned for service:

  1. Performed entirely within this state; or
  2. Performed both within and outside this state, but the service performed outside this state
    is incidental to the employee’s service within the state.

As noted in our chart above, it only takes $1000 in earnings in a base year to be eligible for benefits, but of course benefits will be proportionally small as well.

Counting Employees – § 35.  The method for counting employees for such purposes as the small-employer exemption for paying employee contributions will be determined by the Director.  However, the law requires that the determination be based on the average number of employees employed by the e in the 12-month period immediately preceding the date on which the determination is made.

Equivalent Plans – §§ 43-48.  The Oregon PFML law will allow employers to adopt an “equivalent” plan to provide benefits to employees rather than using the state mechanism.  This option is called voluntary or private plans in other states.  Here are some of the key provisions spelled out in the statute:

  • As is common, the plan must offer benefits that are equal to or greater than the state benefits.
  • The employer may impose a 30-day waiting period for a new employee before offering plan coverage.
  • Employee contributions collected by an employer with an equivalent plan must be used for
    plan expenses and are not considered to be a part of an employer’s assets for any purpose.
  • An approved equivalent plan must remain in effect for at least one year. The employer must submit
    an approved plan for reapproval annually for 3 years after initial approval.
  • Benefits for an employee who is covered under more than one plan will be prorated under each plan.
  • The Director must adopt rules to establish the process by which employers may apply for approval of
    an equivalent plan by September 1, 2021.

Administration by a Third Party – § 34.  Following a competitive bid process, the Director may engage a third party to implement the PFML law and to administer the program thereafter.  This bodes well, as so many of the challenges with the programs in states like Washington and Massachusetts seem to be attributable to the fact that the state staff lacks leave of absence management knowledge and experience.  Use of a third party is not mandatory, however.

MATRIX CAN HELP!  It’s early days yet for Oregon 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 Connecticut, 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.

 

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!