LEGISLATIVE UPDATE: EXPANDING LEAVES AND PANDEMIC COVERAGE

Posted On September 28, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

September 28, 2020

 

September has been quite the month for expanding leave benefits, both COVID-19 related and otherwise. Oregon has issued an administrative rule permanently allowing for sick child leave to be taken for school closures, California expanded coverage under the California Family Rights Act (CFRA) as well as creating a supplemental sick leave for some of those left out of the Families First Coronavirus Response Act (FFCRA), Hawaii adds care of grandchild as a covered reason for leave under the Hawaii Family Leave Act (FLA), and the city of Brotherly Love has enacted an ordinance providing a public health emergency paid leave.

Here’s a summary of what you need to know:

School Closures and Unavailable Childcare in Oregon

Back in March of 2020, in response to the COVID-19 pandemic, the Oregon Bureau of Labor and Industries issued a temporary administrative order expanding the scope of sick child leave under the Oregon Family Leave Act (OFLA) to include care of a child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official. On September 11, 2020, the Bureau made the administrative order permanent.  Additionally, the Bureau also issued a temporary administrative order providing clarification with regard to the permanent change. In its temporary order, the Bureau clarified the following:

  • "Child Care Provider" means a place of care or person who cares for a child.
    • A person who cares for a child includes paid (nannies, au pairs, and babysitters) and unpaid (grandparents, aunts, uncles, or neighbors) individuals
    • Place of care means any physical location in which care is provided for a child including day care facilities, preschools, before and after school care programs, schools, homes, and summer camps
  • "Closure" means a closure that is ongoing, intermittent, or recurring and restricts physical access to the child's school or child care provider
 

The Bureau also clarified that an employer may request verification of the need to care for a child due to a school closure, including the name of the child being cared for, the name of the school or child care provider that is closed or unavailable, and a statement that no other family member is willing and able to care for the child during daylight hours. Note that this administrative rule mirrors the recent guidance issued by the Department of Labor with regards to school closures under the FFCRA.  Matrix is already administering OFLA sick child leave in accordance with this new rule, based on the prior temporary administrative order.

California COVID-19 Supplemental Paid Sick Leave

On September 9, 2020 California Governor Gavin Newsom signed AB 1867 into law. While AB 1867 includes a mandate creating a small employer family leave mediation pilot program and a requirement that food sector employees wash their hands every 30 minutes, you’re probably most interested in the expansion of the Healthy Workplaces, Healthy Families Act of 2014 (California’s paid sick leave law). In its relevant part, AB 1867:

  • Expands California’s paid sick leave law to provide a COVID-19 supplemental paid sick leave for food sector workers, health care providers and emergency responders whose employer has excluded them from coverage under the federal FFCRA, and employees of private businesses who employ more than 500 employees.
  • The COVID-19 supplemental paid sick leave is intended to cover employees excluded from the FFCRA, and mirrors the FFCRA with regard to the amount of leave available (2 weeks of leave, up to a maximum of 80 hours).
  • However, unlike the FFRCA, the COVID-19 supplemental paid sick leave does not include provisions for care of others or for school closures and may only be used for the following reasons:
  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19
  • The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19
  • The employee is prohibited from working by the covered worker’s hiring entity due to health concerns related to the potential transmission of COVID-19

These COVID-19 supplemental paid sick leave provisions are set to expire as of December 31, 2020, or upon the expiration of any federal extension of the FFCRA, whichever is later. 

Hawaii Defines Siblings and Covers Grandchildren

On September 15, 2020, Hawaii Governor David Ige signed HB 2148, expanding Hawaii’s Family Leave Act with the following changes:

  • "Sibling," which was previously undefined, is now defined to mean an individual who is a biological, adopted, or foster brother or sister; or a stepbrother or stepsister of an employee
  • The bill added “grandchild” to the list of covered relationships. FLA now provides up to four weeks of family leave during any calendar year to care for the employee's child (biological, adopted, or foster son or daughter; a stepchild; or a legal ward), spouse, reciprocal beneficiary, sibling, grandchild, or parent (defined broadly to include biological, foster, or adoptive parent, a parent-in-law, a stepparent, a legal guardian, a grandparent, or a grandparent-in-law) with a serious health condition.

Although HB 2148 was just signed, its effective date was July 1, 2020. Matrix will begin administering the Hawaii FLA in accordance with these changes immediately.

California Expands CFRA

On September 17, 2020, California Governor Gavin Newsom signed SB 1383 into law. The new law significantly expands CFRA. The following changes take effect January 1, 2021:

  • Expands CFRA to cover any employer with 5 or more employees (currently, employer coverage starts at 50 or more employees)
  • Repeals the New Parent Leave Act (currently the NPLA provides bonding leave for employees of employers with 20-49 employees)
  • Expands covered relationships from child, parent, spouse, and domestic partner to include grandparent, grandchild, and sibling
  • Removes the age limit to care for a child; leave will be available to care for a child under age 18 or an adult dependent child
  • Allows parents who are employed by the same employer to each have the full 12 weeks of bonding leave without sharing the CFRA entitlement
  • Adds as a covered leave reason qualifying military exigencies related to the covered active duty or call to covered active duty of an employee's spouse, domestic partner, child, or parent in the Armed Forces

Matrix will be prepared to administer the expanded CFRA as of January 1, 2021.

Philadelphia Public Health Emergency Paid Sick Leave

On September 17, 2020, Philadelphia Mayor Jim Kenny signed an amendment to Chapter 9-4100 of the Philadelphia Code expanding the city’s existing paid sick leave law by providing a new public health emergency leave to those employees not covered by the FFCRA. Like the FFCRA, the Philadelphia ordinance provides employees with up to 80 hours of paid leave to be used at any time during a declared public health emergency for purposes that closely track FFCRA.  For a detailed discussion of the new Philadelphia ordinance, check out this article from A Better Balance.

Matrix can help!

At Matrix, we monitor state and federal legislation daily to stay on top of these changes as they happen. 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.

MAKING SAUSAGE – AN UPDATE ON CONNECTICUT PAID FAMILY AND MEDICAL

Posted On September 21, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

September 21, 2020

 

We have been closely following the progress – or sadly, the lack thereof – by the Connecticut Paid Family and Medical Leave Authority in the seemingly monumental task of launching the CT PFML program.  Employers of eligible employees in Connecticut will be required to begin deducting the employee contributions of not more than 0.5% effective January 1, 2021, with benefits to begin as of January 1, 2022.  We summarized other aspects of the Connecticut program in a prior blog post here.

While the Connecticut statute allows employers to adopt a private plan in lieu of participating in the state program, the CT PFML Authority has yet to develop the process by which employers can obtain approval of their private plan.  A “proposed employer application process” was published on July 21, 2020, and public comments were accepted through August 20, 2020.  According to Erin Choquette, the General Counsel of the Authority, only 5 (only 5!) entities provided public comments (Matrix was one of those entities) on its proposed process. From Ms. Choquette’s summary of the comments at a recent Board meeting, it is clear that Matrix’s (and other’s) sentiments on the proposed process raised additional questions the Board was not prepared to answer. (Side note:  Ms. Choquette’s summary spreadsheet and other documents mentioned at the Board meeting have just been made available here.)

Private plan approval process . . . or not.

At the Authority Board meeting on September 10, the Board took on the issue of private plans.  The Board’s lack of clarity was apparent over how to interpret the bare-bones statutory requirement that a proposed plan must be approved by a majority vote of the employer’s employees.  The Board has indicated it will hold a special meeting (not yet scheduled, according to the CT PFML website) to make that decision.  The Authority is considering at least 3 employee vote options:  (1) a vote on just an insurance declaration with the basic elements of the anticipated plan (but what about self-funded plans?); (2) a vote only after a full plan has been developed for employee review; and (3) two employee votes, one at each of these stages.  Egads!  This third option was recommended in the Board’s proposed employer application process mentioned above but drew strong objection from the insurance carriers.  

The Authority has yet to articulate when in the process the Authority would approve a private plan and when such approval would be effective – as of the date of the employee vote, the date the plan was filed with the Authority for approval, the date of actual Authority approval, or some other date we haven’t yet imagined.  This makes a difference, as employers must pay employee contributions over to the state for each quarter starting in January 2021 until a private plan is approved, with no chance to recoup these payments to fund the employer’s program after receiving plan approval. 

So while this administrative process has been like watching sausage made, we at Matrix are still watching and learning.  The end product is too important. 

What should employers be doing now?

Suffice it to say, we will continue to follow the Authority’s activities and report updates when available, but we would be remiss if we did not point out to our readers that an ounce of prevention is the best approach. So, at this juncture, we are recommending the following: 

  • Be prepared to make the appropriate payroll deductions starting January 1, 2021.The exact amount of the employee contribution has not been announced but cannot exceed 0.5% by statute – and we predict the Authority will set the contribution rate at that full 0.5% due to concerns about financial viability of the state program.
  • Employers are required to provide notice of CT PFML rights to employees at the time of hire and annually thereafter, but this is not a front-burner issue at this time.The notice requirement is not effective until July 1, 2022 (that’s not a typo here although maybe it is a typo in the statute – 18 months after contributions start and 6 months after benefits start).Nonetheless, in order to keep employees informed and forestall a flood of questions, we recommend employers plan to provide notice to employees about the premium contribution and some basic PFML information before paycheck withholding starts. That’s a fairly simple task and perhaps the Authority will design such a notice for employer use before the end of the year. Keeping our fingers crossed.
  • Be ready to register on the Authority’s website, www.ctpaidfamilyleave.org, which according to the Authority, should be available for this purpose sometime in November.

Matrix Can Help!

As we have done in other recent states that allow private PFML plans, Matrix is preparing a template for self-funded private plans based on the statute itself, in a format that we will be able update once regulations are drafted and finalized.  This way, for those employers interested in having Matrix administer a CT private plan, we will be ready as soon as the approval process is identified.  Our sister company, Reliance Standard Life Insurance, is also standing by, considering offering an insured product.  If you want more information contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.

 

HOW LONG IS TOO LONG? THE CONTINUING SAGA OF LEAVE AS AN ADA ACCOMMODATION

Posted On September 17, 2020  

by Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

& Marti Cardi, Esq. - Vice President, Product Compliance

September 17, 2020

 

Back in July, we celebrated 30 years of the Americans with Disabilities Act of 1990 (ADA). Yet employers still struggle with how long a leave of absence is reasonable as an accommodation.  Two recent employee-friendly cases from the 9th Circuit Court of Appeals teach us that, in the 9th Circuit, at least, there may not be a limit.  Today, we’re going to take a look at these two cases, review what the Equal Employment Opportunity Commission (EEOC) and other courts have said on this issue, and address lessons that ALL employers, wherever located, can take away from the 9th Circuit decisions.

First, some basics

Title I of the ADA prohibits job discrimination on the basis of disability. Specifically, the law prohibits

“Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” [Emphasis added.]

So we have two elements here that employers must consider when an employee requests an accommodation:  Is it “reasonable,” and will it impose an undue hardship on the employer? 

The ADA defines reasonable accommodation as “making existing facilities used by employees readily accessible to and usable by individuals with disabilities;” providing examples such as job restructuring, part-time or modified work schedules, and acquisition or modification of equipment or devices, just to name a few. Out of the 3,351 words in Title I of the ADA, “leave” is not used once.  Yet the EEOC and the courts that have addressed the issue find that as a general principle, leave of absence can be a reasonable accommodation.  As we’ll see below, the devil is in the details – how long is reasonable?  In plain English, how long is too long?  Seems that one factor is, in what federal court district do you have employees?

As to undue hardship, this is defined by the ADA as significant difficulty or expense. Factors to consider include the nature and net cost of the accommodation, resources of the facility involved, overall financial resources of the employer, the type of operation or operations of the employer, and the impact of the accommodation upon the operation.  It is very hard to establish undue hardship (it takes a lot more than just some expense or some difficulty) and so if employers are left with undue hardship as the only possible reason to deny leave of absence, it’s a tough row to hoe. 

 

The 9th Circuit:  Extended leave is not per se “unreasonable”

Back to those recent 9th Circuit decisions that appear to widen the scope of leave as a reasonable accommodation. WAY back in 2019 B.C. (Before COVID), the 9th Circuit held in Ruiz v. ParadigmWorks Group, Inc., that an additional 5 weeks for a broken ankle beyond her initial 12 weeks of FMLA was a reasonable accommodation since the extension was for a finite period and the injury was the type of injury the employee can expect to recover from in the foreseeable future. Likewise, in Kachur v. NAV-LVH, LLC, the court held that a request for an additional 4 weeks of leave, after already taking 16 weeks of leave was, on its face, reasonable. Here, the employee had undergone knee surgery and had exhausted his FMLA entitlement. He had already taken an additional 4 weeks beyond his FMLA entitlement of 12 weeks, and had requested an additional 4 weeks when his employer denied the request and terminated employment. The court held that the employee’s frequent updates could be understood as estimates of his expected return to work. Thus, in each case, the court found the leave extension request was reasonable and the employer was left with that nasty undue hardship argument as its only defense to not giving the employee extra leave.  Not sure what it is about the 9th Circuit . . .

The 9th Circuit handles appeals of decisions of the federal district courts of Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and of course, California. Never mind, I think I figured out what it is about the 9th Circuit.

Good news from other courts and the EEOC (well,  sort of)

Courts other than the 9th Circuit have recognized durational limits on what constitutes a “reasonable” leave of absence.  For example, in 2017, the 7th Circuit Court of Appeals issued an employer-friendly decision in Severson v. Heartland Woodcraft, Inc.  Although the court acknowledged that a brief period of leave to deal with a medical condition could be a reasonable accommodation, it ruled that another 2-3 months after exhaustion of FMLA was not reasonable.   The court underlined that an extended leave of absence does not give a disabled individual the means to work; it excuses his not working.  If “employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute—in effect, an open-ended extension of the FMLA.”

Similarly, in Hwang v. Kansas State University, the 10th Circuit held in 2014 that a 6-month leave of absence was not a reasonable accommodation. So in these circuits, at least, the employer may have an argument that a leave of absence or extension request of significant duration, even if for a finite time, may be unreasonable.  For more on these two cases, check out this past post.

On a related note, in 2016, the EEOC provided guidance on employer-provided leave and the ADA (a must-read document for employers struggling with this issue). The EEOC indicated that “indefinite leave – meaning that an employee cannot say whether or when she will be able to return to work at all – will constitute an undue hardship, and so does not have to be provided as a reasonable accommodation.”  However, the EEOC supported the plaintiff in the Severson case and argued that additional leave requested was a reasonable accommodation. 

Pings for Employees

When looking at these decisions together, perhaps there is some cohesiveness.  At least, we can see a few common lessons that all employers should keep in mind.

  • There’s no “one size fits all”: The courts will look at the particulars of each scenario to make their determination with regard to whether an accommodation is reasonable. Consider every leave request, request for extension of leave, or series of requests individually, each time, for reasonableness and undue hardship.That’s not bad advice for employers even outside of the 9th Circuit.
  • Consider the nature of the impairment: Is this something that you can reasonably expect recovery from? This may cast a more “reasonable” light on the employee’s leave request.Contrast the broken ankle and knee surgery in Ruiz and Kachur with leave needed due to a condition with a less-certain prognosis for near-term recovery.
  • What’s past is past: When making its determination of reasonableness, it appears the 9th Circuit gave little weight to the leave already taken, focusing on the specific pending leave request in isolation instead of the total leave duration. The EEOC, on the other hand, in its guide on employer-provided leave and the ADA, indicated that leave already taken “pursuant to a workers' compensation program, the FMLA (or similar state or local leave law), an employer's leave program, or leave provided as a reasonable accommodation” may be considered when assessing undue hardship.
  • Be generous with your employees.If you find yourself in a gray area as to whether a requested leave or extension is of an unreasonable duration, try to work it out with the employee rather than deny on shaky grounds or rely on an undue hardship defense.The costs of litigation can quickly outweigh the cost of providing more leave.Also, consider alternatives to more leave – can the employee return to work with an on-the-job accommodation(s) such as temporary reassignment, modification of nonessential duties, or assistive equipment?But consult your employment law attorney in any specific case – the facts really matter!
  • Read between the lines: In both the 2019 and 2020 decisions, the additional leave requests were for a finite period of time and the 9th Circuit appeared to give weight to the employees’ frequent updates, indicating that the employers should have inferred return to work plans. The court appears to make a distinction between a series of specific extensions and an indefinite leave with no known or predicted return to work date.The court pointed out that it has never held that leave of any specific duration is in and of itself unreasonable (perhaps thinking of Severson and Hwang without citing them).

Matrix Can Help

Be it modifying work schedules, job restructuring, or leave as an accommodation, our team of ADA Specialists are ready to help you and your employees navigate through the ADA process. While the final decision whether to accommodate lies with you, our team manages claim intake, assesses the medical obtain, maintains records, and facilitates the interactive process, as well as any follow up that may be needed. For more information about our ADA product, please contact your Matrix or Reliance Standard Life Insurance account manager, or reach us at ping@matrixcos.com.

DOL FACES OFF WITH THE NEW YORK FEDERAL COURT – AND WE HAVE MORE FFCRA GUIDANCE

Posted On September 14, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

September 14, 2020

 

Those fun folks at the U.S. Department of Labor just LOVE releasing important information on a Friday!  I think it displays a cruel sense of humor – they get to relax and enjoy the waning days of summer over the weekend, while the rest of us in the absence management industry get to parse though the new 53-page proposed temporary regulations released by the DOL on September 11. 

 

And on top of that, comments for proposed revisions to the FMLA regulations are due Tuesday September 15. Sure we could have gotten those done earlier if we had known . . . but there have been a few other things going. Can you say “paid family and medical leave”? The ADA and COVID? State COVID laws? California with about a billion pending leave of absence bills approaching governor’s signature deadline? We either have or will report on each of these . . . just watch this space! While we work out a tech issue with the blog, if you or a colleague want to SUBSCRIBE to Matrix-Radar, just email us at ping@matrixcos.com, and our colleagues will make it so!

 

So what happened?  Well, you will remember (I’m sure) the New York federal court’s ruling last month that struck several provisions of the DOL’s temporary regulations regarding the Families First Coronavirus Response Act: 

  • The availability of FFCRA benefits only if the employer has current work for the employee
  • The regulations’ broad definition of “health care provider” for the purposes of FFCRA coverage exemption
  • Requiring employer consent to intermittent leave
  • Requiring documentation prior to taking FFCRA leave

You can read about it in detail on our blog here. The DOL has now come out with revised regulations that will be effective September 16, 2020, barring any further action.

Here’s the gist of the issues and the DOL’s response.  Most of this comes from the DOL’s preamble – explanatory material that precedes the actual revised regulations.  Let me tell you, it is fascinating reading:

  1. Are FFCRA benefits available to employees only if the employer has current work for the employee?

    The court:  The New York court ruled that the DOL overreached when it took the position that FFCRA benefits were available only if the employer has current work for the employee.  The court stated that the DOL had not given sufficient justification for this interpretation and held that if an employee is unable to work due to one of the FFCRA qualifying reasons, that employee is entitled to FFCRA benefits even if the employee is also unable to work because there is no work to be had. 

    The DOL’s response, short answer:  New York court, go fly a kite.  We stand our ground and continue to guide that an employee is not entitled to FFCRA leave if the employer has no current work for the employee.  

    The details:  In the new proposed temporary FFCRA regulations (yes, all those adjectives apply!) the DOL has struck back, defending and maintaining its original position but with greater detail.  As explained by the DOL, the FFCRA’s provisions that an employer must provide FFCRA leave to an employee if the employee is unable to work “because” of or “due to” a qualifying reason for leave under FFCRA establishes a “but-for” causation requirement – the employee would not be able to work but for one of the 6 reasons for leave provided in the statute.  The DOL argues that its continued application of the work-availability requirement is further supported by the fact that the use of the term “leave” in the FFCRA is best understood to require that an employee is absent from work at a time when he or she would otherwise have been working. 

    The DOL actually provides even more justification for the work-availability rule in the preamble to the new regulations, so read away with your cocktail in hand if you like that kind of stuff (I do!).

    And on a side note, the New York court had criticized the DOL for applying the “work-availability” rule only to 3 of the 6 FFCRA leave reasons.  The DOL agrees that there is no reason for differentiation and now takes the position that indeed, the rule applies to all 6 leave reasons.

    Matrix guidance:  This one’s easy.  No need to provide FFCRA leave and benefits to an employee not currently working whether due to a COVID furlough, a pre-planned vacation or sabbatical, or other reasons not caused by one of the 6 leave reasons specified in the FFCRA.  But, remember the anti-retaliation provisions of FFCRA:  Employers may not make work “unavailable” in an effort to avoid FFCRA obligations.  Altering an employee’s schedule in an adverse manner because that employee requests or takes FFCRA leave may be impermissible retaliation.

  2. Was the temporary regulations’ initial definition of “health care provider” too broad for the purposes of FFCRA coverage exemption?

    The court:  FFCRA allows employers of health care providers to exempt such employees from FFCRA entitlements.  The DOL supplied an expansive definition of “health care provider” for this purpose. The court struck the DOL’s definition because it focused on the employer’s business rather than the employee’s role and allowed employers to exempt anyone “employed at” a doctor’s office, hospital, medical school, or a number of other facilities “where medical services are provided,” as well as such facilities’ contractors.

    The DOL’s response, short answer:  The DOL acceded to this part of the ruling and has revised its definition of “health care provider” for purposes of the exemption to focus on the skills, role, duties, or capabilities of the employee rather than the identity of the employer.

    The details: In 29 C.F.R. § 826.30(c)(1) the DOL has adopted a revised definition of “health care provider” for purposes of the employer’s optional exclusion of employees who are health care providers from FFCRA leave.  As explained in the new regulations’ preamble, the revised regulations now define a “health care provider” to include physicians and others who make medical diagnoses.  The revised regulations also identify “additional employees who are health care providers by focusing on the role and duties of those employees rather than their employers.  . . . [An employee is a health care provider if he or she is ‘capable of providing health care services.’  The definition then further limits the universe of relevant ‘health care services’ that the employee must be capable of providing to qualify as a ‘health care provider’—i.e., the duties or role of the employee.  Specifically, a health care provider must be ‘employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.’”

    Matrix guidance:  This really seems reasonable.  The DOL’s original definition would have allowed employers to exempt persons that had nothing to do with the actual application of health care services.  Going forward, employer of any type of health care provider should use discretion in applying the FFCRA exemption only to those who fit the new DOL definition.  Although technically the new regulation is only applicable as of September 16, overbroad application of the exemption after the New York court’s ruling is risky, so we recommend following the new DOL rule immediately.  And remember, you can always be more generous and provide FFCRA benefits to employees you might technically be able to exempt.

  3. Is employer consent to intermittent leave required?

    The court:  Although there may be a legitimate need to limit an employee’s access to the workplace if the employee poses an infection risk, such as when the employee is quarantined; exhibits symptoms and is seeking a diagnosis; or is caring for a quarantined family member, there is no such risk for leave necessitated by an employee’s child’s school closure or unavailability of day care or if the employee is working remotely. As a result, the court held there is no justification for allowing this type of intermittent leave, or intermittent leave from at-home work, only with employer consent. (The regular FMLA does not require employer consent for intermittent leave except for bonding leave, although it is only available for leave due to the employee’s or family member’s serious health condition when medically necessary).

    The DOL’s response, short answer:  The DOL is again standing its ground on this one.  Employer consent is required for intermittent leave for FFCRA reasons that don’t pose a risk of spreading infection if the employee returns to work and for intermittent telework.  But with creative logic, employer consent is NOT required when occasional leave is needed due to a school’s hybrid return to school schedule, with some days of remote learning and alternate days of in-person attendance.

    The details:  Under the regular FMLA, intermittent leave is available without employer consent only when medically necessary for leave due to the employee’s or family member’s serious health condition and for leave due to qualifying military exigencies (which by their nature are likely to occur sporadically).  Long-standing FMLA regulations balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.  See 29 C.F.R. § 825.120(b), 121(b). 

    The DOL explains that the reasons for allowing intermittent leave without employer consent in the above two situations (medical necessity and military exigency) are not applicable to taking leave intermittently under the FFCRA for the only non-medical reason:  school or day care closure.   Long-standing FMLA regulations balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.  See 29 C.F.R. § 825.120(b), 121(b).  The same should apply to intermittent leave under FFCRA for school closures. 

    Further, since employer permission is a precondition under the FFCRA for telework, the DOL maintains it is also an appropriate condition for teleworking intermittently due to a need to take FFCRA leave.

    What about school closures?  In good news for employers, however, the DOL takes the position that employer approval is not required for employees who take FFCRA leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent under § 826.50.  In such cases the employee might be required to take FFCRA leave on Monday, Wednesday, and Friday of one week and Tuesday and Thursday of the next, provided that leave is needed to actually care for the child during that time and no other suitable person is available to do so. For the purposes of the FFCRA, each day of school closure constitutes a separate reason for FFCRA leave that ends when the school opens the next day. The same reasoning applies to longer and shorter alternating schedules, such as where the employee’s child attends in-person classes for half of each school day or where the employee’s child attends in-person classes every other week.  This is distinguished from the scenario where the school is closed for some period, and the employee wishes to take leave only for certain portions of that period for reasons other than the school’s in-person instruction schedule. Under these circumstances, the employee’s FFCRA leave is intermittent and would require his or her employer’s agreement.

    Matrix guidance:  Although based on further defined reasoning, this supports the interpretation of the issue we offered in a previous blog post that employer consent is not needed when the school itself is only open intermittently.  However, hybrid school schedules will almost certainly be regular and predictable, and announced well in advance.  Under the FFCRA, employers can require employees to provide as much advance notice as is practicable of leave needed for school closures.

  4. Can an employer require documentation prior to an employee taking FFCRA leave?

The court:  The original FFCRA regulations stated that documentation to support an FFCRA leave must be submitted to the employer “prior to taking” the leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable. The documentation requirement itself was not stricken, just the requirement that it be provided prior to taking leave.

The DOL’s response, short answer:  The temporary regulations have been revised to comply with the court’s ruling. 

The details:  29 C.F.R. § 826.90(a) now provides that an employee must provide notice of leave for FFCRA paid sick leave as soon as is practicable after the first day of absence, and as soon as practicable for leave under the expanded FMLA for school closures.  At a minimum this will include the employee’s name; the date(s) for which leave is requested; the qualifying reason for the leave; and an oral or written statement that the employee is unable to work because of the qualified reason for leave.  The employer may also require the employee to furnish the additional information set forth in 29 C.F.R. § 826.100(b)-(f) at the same time (generally, more details needed to support the tax credit).

Matrix guidance:  Obviously, employers will want to follow the new regulations regarding employee notice.  However, this portion of the new regulations still leaves some unanswered questions which we posed here when the New York court first issued its decision.  In order to get the federal tax credit for benefits paid under the FFCRA, the employer MUST get detailed documentation from the employee.  So: If the employee takes leave and never provides the required documentation, can the employer go back and deny the leave retroactively? If so, how would the employer recoup wages paid?  (Beware of state and federal laws regarding withholding from employee paychecks!) Or, how would the employer qualify for the tax credit?

In conclusion . . . Hello . . . Are you still with me? 

In addition to the new temporary regs, the DOL issued 3 new FFCRA Q&As addressing the effect and scope of the New York court’s ruling and answering one of the questions about the scope of the court’s ruling – was it applicable only to the parties to the case, only in the Southern District of New York, or throughout the whole country?  In Questions 101 and 102, the DOL explains that the effect of the court’s ruling is nationwide and the new regulations are applicable nationwide.  So there.  The revised regs are, of course, open to another lawsuit challenging them but we find that unlikely.  The DOL’s explanations in the preamble thoroughly address the four provisions stricken by the New York federal court and either adopt the court’s findings in new regs or exhaustively and better explain its reasons for keeping two of the challenged provisions.  Also, remember that the FFCRA is set to expire on December 31, 2020, leaving little time in which to mount a court challenge and get a ruling.  Unless FFCRA is extended  . . .

BACK TO SCHOOL UNDER THE FFCRA – DOL PROVIDES JUST-IN-TIME GUIDANCE

Posted On August 31, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 31, 2020

 

Schools in many parts of the country are back in session and more will be opening daily.  But “back to school” doesn’t look like it used to in most regions.  School districts are reopening with a wide gamut of approaches, including physically re-opening full time, remote learning only, and mixtures of both. 

In other words, there is no “new normal” in school district arrangements and parents are left with an array of questions.  Not the least of these is how the Families First Coronavirus Response Act will apply to these situations, especially in light of prior guidance from the U.S. Department of Labor that FFCRA leave could be taken intermittently for school closures only with employer agreement.  See the DOL’s FFCRA Questions and Answers, questions 20-22.   

 

For employees of companies with fewer than 500 employees, the Families First Coronavirus Response Act provides paid, job-protected time off when a parent can’t work because his child’s school is closed due to COVID-19. You can read our most comprehensive summary here, and find other articles relating to FFCRA by putting that term in the search box of our blog on any page.

 

I posed these questions to the DOL in late July: 

  1. Does an employee need employer consent to intermittent leave when a school is physically open only intermittently?
  2. And what if the school is physically open, but a parent chooses not to send a child to school due to continuing concerns about COVID-19 exposure?

Now we have answers!  On August 27 the DOL issued 3 new Q&As addressing these issues.  In short:

  • If a child’s school is operating on a hybrid schedule and the child is permitted to attend school in person only on certain days, the days the child is at home for remote learning are covered by FFCRA. (Question #98) Although this Q&A does not directly address the issue of intermittent leave and employer agreement, the gist of the guidance is that employer consent is not needed when the school itself is only open intermittently.
  • For any days a child’s school is physically open, a parent cannot use FFCRA leave even if the parent would prefer to keep the child at home. (Question #99) Harsh, perhaps, but that is a strict (and correct, in my opinion!) interpretation of the law.
  • If a school starts the school year with remote learning but later opens to in-person attendance in whole or in part, FFCRA leave is available initially.When the school reopens, FFCRA will not be available on those days the child could attend in person. (Question #100, referring back to #98 and #99)

You can read the full questions and the DOL’s answers here.

And now a word of thanks to my fellow bloggers:  Hey, it’s not just you – I absolutely admit it’s tough keeping up with all the COVID-19 news and other leave, disability, and accommodation developments.  That’s why you come to Matrix-Radar, and for that I am grateful! But that said, where do I go?

Glad you asked. In addition to many technical resources, I get help and validation of my interpretations (although sometimes we disagree!) from my fellow bloggers Jeff Nowak at FMLA Insights (a long-time friend and collaborator), Eric Meyer at The Employer Handbook, and Jon Hyman at Ohio Employer's Law Blog.  I urge you to sign up for each of these blogs (and this one if you haven’t already!). Jeff and I both cover the FMLA and ADA; this blog (Matrix Radar) also addresses state leave laws in detail.  Eric and Jon cover the same topics as well as broader employment law issues – and they blog nearly every day!!!  Eric first encouraged me to send my questions above to the DOL.  And don’t let Jon’s blog title reference to Ohio fool you – his coverage goes well beyond Ohio issues. 

Buckle up, it’s going to be a wild ride!

We are approaching the final quarter of 2020 and I think it’s safe to say my colleagues and I have said and written the word “unprecedented” an unprecedented number of times. Maybe you can commiserate? Nothing like a global pandemic during a presidential election year to pour gasoline on an already-raging national debate on paid family leave! Here are three things to remember, in ascending order of importance:

  1. We are writing history right now; there is no playbook. This is maddening, especially for detail oriented compliance professionals, but it is also exhilarating in a way. Take a breath and think of it as a journey.
  2. Sometimes questions can’t be voiced until change is implemented and systems road-tested. Under the best of circumstances, evolution is fluid and takes longer than you want it to.
  3. And finally, you don’t have to be the expert on everything! Find resources like this blog, and the ones referenced above; stay informed; keep closely aligned with your CEO and legal team; and, in the end, we will be okay.

Not “back to normal,” perhaps, because backwards isn’t an option. But we will be okay.

While we work out a tech issue with the blog, if you or a colleague want to SUBSCRIBE to Matrix-Radar, just email us at ping@matrixcos.com, and our colleagues will make it so!

EMPLOYEE RIGHTS UNDER FFCRA EXPANDED AFTER NEW YORK FEDERAL COURT RULING

Posted On August 06, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 06, 2020

 

As if figuring out all the coronavirus-related laws wasn’t difficult enough, we now have a court ruling that turns some of the FFCRA rules we thought we understood on their heads. On August 3 a federal court in New York struck down parts of the Department of Labor’s Families First Coronavirus Response Act (FFCRA) regulations, holding that the DOL had exceeded its authority by limiting employee rights under the act in four key aspects:

  • The availability of FFCRA benefits only if the employer has current work for the employee
  • The regulations’ broad definition of “health care provider” for the purposes of FFCRA coverage exemption
  • Requiring employer consent to intermittent leave
  • Requiring documentation prior to taking FFCRA leave

The ruling came in a lawsuit filed by the State of New York against the U.S. Department of Labor, case no. 20-cv-3020.

But, before we dive in, I need to raise an alert about two very important and unresolved issues:

  • First, does the New York court’s ruling have nationwide impact or is it only applicable in the Southern District of New York where this court sits? The ruling is by a federal court and it does invalidate some federal regulations. But whether it is binding on the DOL and employers nationwide is, surprisingly, not clear.
  • Second, wherever it applies, is the ruling retroactive to the effective date of FFCRA (April 1, 2020) or will it apply to benefits claims only from the date of the ruling, forward?

So with those big question marks hanging overhead, let’s look at the court’s ruling in which the judge invalidated four aspects of the DOL’s regulations interpreting FFCRA:

  1. Allowing employers to deny FFCRA benefits to employees on furlough. I’ll say it up front: this is the most nonsensical part of the court’s ruling, in my humble opinion. FFCRA provides paid sick leave and expanded FMLA leave to employees who are “unable to work (or telework) due to a need for leave” because of one of the various covered reasons. The DOL’s regulations exclude employees from these benefits if their employers do not have work for them – the “work-availability” requirement, as it is referred to in the ruling.  This makes sense to me – if the employer has no work available, the employee has no work to take leave from.

    However, the court held that the statutory terms “because” or “due to” do not foreclose an interpretation entitling employees to FFCRA benefits “if the inability to work has multiple sufficient causes – some qualifying and some not.” Moreover, the court observed that the DOL’s explanation of its justification for the work-availability requirement (no work = no work to take leave from) is insufficient to support its position; imposing that requirement “is an enormously consequential determination that may considerably narrow the statute’s potential scope.” So, following the court’s ruling, if an employee is unable to work due to one of the qualifying reasons, that employee is entitled to FFCRA benefits even if the employee is also unable to work because there is no work to be had.

    OK, my head is starting to hurt, but we’ve just started.

  2. As a refresher, FFCRA provides job protected and paid leaves of absence to the workers for employers with fewer than 500 employees –

    • Up to 80 hours of paid sick leave for 6 COVID-related qualifying reasons (employee’s own quarantine due to a governmental order or provider’s recommendation, caring for a family member in quarantine, COVID symptoms plus seeking a diagnosis, school/day care closures, and other similar situations as identified later) and
    • Up to 12 weeks of job protected leave due to the closer of a worker’s child’s school or place of care (2 weeks unpaid but possibly covered by the paid sick leave, and 10 weeks at partial pay).

    You can read our prior blog post covering the details of FFCRA here, our post about the DOL supporting regulations here, and lots of other FFCRA and COVID-19 posts by putting those terms in the blog search box.

  3. Providing a very broad definition of “health care provider” to allow employers to exempt workers from coverage. The FMLA, which supplies the relevant statutory definition for both provisions of the FFCRA at issue, defines a “health care provider” as: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.”  The regular FMLA regulations expand the definition pursuant to (B) to include many additional professionals such as podiatrists, dentists, clinical psychologists, optometrists, nurse practitioners, and physician’s assistants. 

    However, the DOL supplied an even more expansive definition of “health care provider” for the FFCRA under the authority of section (B). According to the court, the DOL’s definition goes much too far as it focuses on the employer’s business rather than the employee’s role and allows employers to exempt anyone “employed at” a doctor’s office, hospital, medical school, or a number of other facilities “where medical services are provided,” as well as such facilities’ contractors. This could include individuals such as “an English professor, librarian, or cafeteria manager at a university with a medical school” or, as was posed to me during a recent COVID webinar, a hospital’s grounds crew. Health care providers?  Methinks not (and neither did the court). 

    So, for the time being, it seems we are left with just “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery” who may be exempted by an employer from entitlement to FFCRA benefits. Whether the additional categories of health care providers under the regular FMLA regulations also applies to the FFCRA exemption is very much in doubt.  Even so, that would leave out a lot of critical roles such as nurses and EMTs, just to name a couple.

  4. Requiring employees to obtain employer consent to take intermittent FFCRA leave.  The court recognized there may be a legitimate need to limit an employee’s access to the workplace if the employee poses an infection risk, such as when the employee is quarantined; exhibits symptoms and is seeking a diagnosis; or is caring for a quarantined family member. But there is no such risk for leave necessitated by an employee’s child’s school closure or unavailability of day care or if the employee is working remotely. As a result, there is no justification for allowing this type of intermittent leave only with employer consent. (The regular FMLA does not require employer consent for intermittent leave except for bonding leave).

    As an aside, this resolves – at least in New York – the as-yet unanswered question of whether taking leave only on at-home days when a child’s school is reopening under a hybrid remote/classroom learning arrangement constitutes intermittent leave requiring employer consent. Employers, this one is pretty easy – just allow intermittent time here if the employee asks.

  5. Requiring employers to provide documentation prior to taking FFCRA leave.  The FFCRA does not address what, if any, documentation can be required of an employee to support a leave request. Rather, it just requires the employee to give such advance notice as “as is practicable” for foreseeable expanded FMLA leave and, with respect to paid sick leave, notice after the first missed workday in accordance with the employer’s usual notice procedures.

On the other hand, the FFCRA regulations have pretty detailed guidance on the documentation an employer can require to support an employee’s request for leave, and the regs state that such documentation must be submitted to the employer “prior to taking” FFCRA leave. The court found this advance documentation requirement to be in direct conflict with the statute and therefore unenforceable.

This leaves employers (at least those in the Southern District of New York!) in limbo. The documentation requirement itself was not stricken, just the requirement that it be provided prior to taking leave. Indeed, in order to get the federal tax credit for benefits paid under the FFCRA, the employer MUST get detailed documentation from the employee. So: If the employee takes leave and never provides the required documentation, can the employer go back and deny the leave retroactively? If so, how would the employer recoup wages paid?  (Beware of state and federal laws regarding withholding from employee paychecks!) Or, how would the employer qualify for the tax credit? You get the idea.

What will happen next? Good question! To be honest, no one is sure when or how we will get clarity on the two big questions I posed above and lots of others.  Just do an internet search and you’ll find scads of law firm blog posts and newsletters with no concrete answers.  Possible next steps?  The DOL may appeal the court’s ruling and request a stay during the appeal.  It may choose to revise the FFCRA regulations to conform to the ruling (temporarily or for the duration of FFCRA). Additional lawsuits may be filed in other federal courts around the country. And on and on. . . . I would hope the DOL will realize the very difficult positon in which this opinion places covered employers, and issue some sort of guidance very soon.

Employers also need to be aware of the possible impact of this decision on similar state and municipal COVID-related laws.  There are some that incorporate the FFCRA to some extent and the impact of the New York ruling on these state and municipal laws is not clear.

What is Matrix doing? Another good question! We’ll be watching all of our sources for further information, obviously, and hoping for a definitive development.  In the meantime we will work with our clients covered by FFCRA to address the issues raised by the court ruling and administer FFCRA in accordance with collaborative consultation.  If you have questions, please contact your Reliance Standard or Matrix account manager.

HAPPY 30TH BIRTHDAY ADA! OH HOW YOU'VE CHANGED OVER THE YEARS!

Posted On July 24, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

July 24, 2020

 

The Americans with Disabilities Act was signed into law by President George H. W. Bush on July 26, 1990.  Here we’ll take a look back on how the ADA has evolved from its passage in 1990 to the present day.

The pace of developments in the ADA and leave of absence world continues at such speed that sometimes our blog posts trip over each other in their haste to get published! To ensure you have seen our most recent information, please scroll down to catch the latest posts – including ones on the new FMLA forms and the Massachusetts PFML regulations! Hot stuff!

 

Radar Guy BirthdayIn the 1990s and early 2000s, court interpretation, particularly at the US Supreme Court, led to a narrowing of an employer’s obligations to provide reasonable accommodation(s).  Specifically, in 1999, the U.S. Supreme Court decided the case of Sutton v. United Airlines, and held that the plaintiffs, who were severely myopic and could not meet the airline’s standard for vision requirements, were not disabled because their condition could be remedied through mitigating measures like prescription eyeglasses or contact lenses.  In 2002, the Court further narrowed the pool of individuals who had qualifying “disabilities” in the matter of Toyota Manufacturing of Kentucky v. Williams.  In Williams, the court determined that the term “disability” should be strictly interpreted and required a showing that the impairment severely restricted the individual from doing activities that are of central importance to most people’s daily lives.  I can tell you firsthand that once the Williams case was decided, employers and their attorneys were focused on whether the employee was “disabled enough” before engaging in any interactive discussion(s) to identify reasonable accommodation(s) to help that individual perform their essential job functions.

The ADA Amendments Act of 2008 (ADAAA) was passed and became effective January 1, 2009 as a direct response to Sutton and Williams.  As stated in the Appendix to the ADA regulations, updated following the ADAAA:

“After the Court's decisions in Sutton that impairments must be considered in their mitigated state and in Toyota that there must be a demanding standard for qualifying as disabled, lower courts more often found that an individual's impairment did not constitute a disability. As a result, in too many cases, courts would never reach the question whether discrimination had occurred.”

 

Consequently, the ADA was amended to, among other things, eliminate the notion that the question of whether someone was disabled is determined by considering mitigating measures.  Instead, the person’s condition is now to be evaluated without the effect of such measures.  Similarly, the ADA was amended to clarify that the definition of disability is to be construed in favor of broad coverage, rejecting the Williams doctrine that a strict standard should be applied to whether an impairment “substantially limits” one or more major life activities.  In general, the expressed intention of the amendment was to require employers to focus more on what they could do to assist disabled employees (now a much larger pool of individuals), rather than whether the employee demonstrated he or she was sufficiently disabled to warrant the employer’s assistance.

At Matrix we have been partnering with clients to help them achieve compliance with the ADA since 2014.  Although the requirement that an employee must be “disabled” was not thrown out completely by the ADAAA, the focus is now on how an employer can help an employee with a physical or mental impairment perform his or her job.  In the last six years, we have seen how well-intentioned, diligent employers can ask the right questions to identify accommodations that succeed for both the employee and the employer.  We have helped clients grant reasonable leaves of absence that allow the employee the time he or she needs to recover or seek treatment to enable a return to work and the gamut of accommodations that enable an employee to remain in the workplace.  Over even this six-year time frame, the nature of requests has changed with the times.

Want to learn more about how our ADA solutions can assist you and keep you compliant?  Click here, and let’s all wish the Americans with Disabilities Act a Happy 30th Birthday!

MASSACHUSETTS FINALIZES PFML REGULATIONS

Posted On July 23, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

July 23, 2020

 

The Massachusetts Department of Family and Medical Leave (DFML) has released its much-anticipated revised, final regulations for its Paid Family and Medical Leave program.  Employees will start receiving paid leave benefits on January 1, 2021. 

Huh?  Much-anticipated regulations?  Well, that speaks volumes about my world – welcome to it!  The regulations are actually critical to understanding the MA PFML law and how Matrix as a Third Party Administrator (TPA) and Reliance Standard as a PFML insurer will administer private plans in Massachusetts.  But don’t get too excited, not all questions are answered.  The final regulations can be downloaded here.

If you need to catch up, you can review our various prior blog posts on Massachusetts PFML by searching for “Massachusetts” in the search box. There have been many updates over the past couple of years. A key post is this summary of the law itself from June 2018. The funding contribution rate and start date for contributions changed (now 0.75% and October 1, 2019) but the basics are the same as to leave reasons, durations, etc.

 

So what’s up?  Here is a rundown of some of the key sections of the regulations, including both prior and new provisions.  Remember, the statute and the regulations talk in terms of “covered individuals” and “covered entities” but for convenience, we are using “employee” and “employer” in this post.

Private plans.  §2.07.  As with the original regulations, the new version has a lot of details about the private plan exemption from participation in the state program.  Not a lot changed. 

One interesting addition is a requirement for a private plan to offer an internal appeals process before the employee can appeal a denial to the DFML.  The only real detail in the regulations is that the process must allow the employee at least 10 calendar days from the receipt of the notice of denial to submit that internal appeal. 

Both Matrix and Reliance Standard offer private plans for our clients who prefer to have their employees’ absences administered through a TPA (self-funded plan) or carrier (insured plan) rather than let the state do it.  We are ready to provide assistance to our employer clients throughout the private plan application process, implementation, and administration.  Contact your account manager for details. 

Serious health condition.  The definition of serious health condition has two significant changes: 

  • Telehealth permitted.§2.02(2).For continuing absence plus treatment, the requirement for treatment by a health care provider means an in-person visit or a “telehealth” visit.A significant development, probably spurred on by the current pandemic.

 

  • Substance abuse treatment.§2.08(10).The new regulations state that substance abuse may be a serious health condition and allow coverage for substance abuse treatment but not for absences resulting from the employee’s use of the substance.

Employee application.  §2.08(4).  The regulations have robust provisions regarding the documentation an employee must submit to support a leave request. The employee’s application must include, among other things:

  • Whether the request is for medical or family leave
  • The start date and expected duration of the leave
  • Whether the leave will be intermittent or continuous
  • Evidence that the required notice of leave was given to the employer (30 days in advance or as soon as practicable – §2.08(2))
  • Any denied, granted, or pending request for leave for a qualifying reasons from the employer during the last 12 months
  • An attestation of family relationship for family leave benefits
  • A certification appropriate to the nature of the leave (e.g., from a health care provider for medical or family care leave).The required contents of each certification are fully described in §2.08(5) of the regulations

Delay in application.  §2.08(4)(h) and (5)(a).  Echoing a provision in the statute, the regulations provide that if an employee fails to submit or complete an application within 90 days of the start of the leave, the employee may receive reduced benefits.  This is problematic because it could leave an employer in limbo for over 90 days (add in processing time!) as to whether an employee’s absence is approved by the DFML and therefore job protected.  And there is no guidance on how much of a reduction the employee may receive, or if benefits could be denied entirely due to the late filing.  And of course, there is a good cause exception to the 90-day limit.

Information provided to employers.  §2.08(2)(f).  In a marked and welcome change from another state that recently implemented paid family and medical leave (guess who?) the regulations require the DFML to provide employers with significant information within 5 business days after an employee applies for benefits under the state plan:

  • The type of leave (medical or family)
  • Expected duration
  • Whether request is for continuous or intermittent leave
  • A copy of the employee’s certification (Woo hoo!This will be really helpful to employers.)
  • “Any other information relevant to the application”

Employer response.  §2.08(6).  Once notified of an employee’s application for benefits, the employer must respond to the DFML within 10 business days (up from 5 in an earlier draft) with information including:

  • The employee’s wages, position, and hours worked
  • Prior requests for or approval of leave for a qualifying reason and the amount of paid leave taken for a qualifying reasons during the employee’s benefit year
  • The employee’s paid leave policies
  • Whether the employee has applied for concurrent FMLA or other leave and whether the employer has approved the application
  • Whether the employee will be receiving any other wage replacement benefits
  • Any other information or records relevant to the claim – including any evidence that the claim may be fraudulent (prior denied vacation, anyone?)

Time frame for processing claims.  §2.08(7).  The DFML (and presumably private plans also) has 14 calendar days from the filing of an application to approve, deny, or ask for more information from the employee or employer.  After approval, the DFML has 14 calendar days to make the initial payment of benefits (unless the leave hasn’t started yet).

Employer/designee ability to filed claim for employee.  §2.08(9).  In what we perceive as good news, the regulations allow an employee or its designee (read: TPA or insurance carrier) to file a PFML claim with the DFML on behalf of an employee.  The employer or designee must be approved by the DFML to do so.  There is very little detail on this yet and we will be working with the DFML to understand and develop the process and requirements.  In our view, this may allow Matrix to be the one-stop-shop for Massachusetts employees filing claims even if we are not administering a private plan for the employer.  More to come, as we look into this excellent possibility for greater services for our Massachusetts clients.

Approval notice to employer.  §2.09.   The regulations recite the factors the DFML can consider in approving or denying a claim, which basically mirrors the information required in the employee application (see above).  Once a claim is approved – and this is really big – notice goes to both the employee and the employer that includes:

  • The reason for the approved leave
  • The duration of approved leave
  • For intermittent leave, the frequency and duration of leave and benefits
  • Expiration of leave benefits
  • Weekly benefit amount – enabling Matrix or RSL to take the appropriate offset against a concurrent STD policy, if applicable.

Fitness for duty after leave.  §2.11.  The regulations allow employers to obtain a general or specific fitness-for-duty note from the employee’s provider.  The process and employer rights are very similar to those under the FMLA, so employers who require FFD notes will be familiar with the process and limitations.  See 29 C.F.R. § 825.312.

Multiple employers.  §2.12(4).  In a completely new provision, the regulations now specify that an employee with multiple employers is not required to take PFML from each employer during a single period of leave.  Thus, an employee could take leave from his day job to care for his ailing mother but still work his night or weekend job.   Or, an employee with a shoulder injury could choose to take leave from her physically demanding job but not from her second job as a bookkeeper.

PFML interaction with other leave benefits.  MA PFML will run concurrently with several other leave types, both paid and unpaid:

  • Other state and federal leaves.§2.01(3).MA PFL runs concurrently with leave taken under other applicable state and federal leave laws including the Massachusetts Parental Leave Act and the federal Family and Medical Leave Act, when the leave is for a qualifying reason under eitherof those acts.It appears that Massachusetts Paid Sick Time will also run concurrently with PFML to the extent leave reasons converge, as the PST regulations specifically provide it “will run concurrently with time off provided by . . . other leave laws that may allow employees to make concurrent use of leave for the same purposes.”940 CMR §33.01(3).
  • Other employer paid leave policies.§2.12(8).Employees who use accrued paid leave or leave through an extended illness leave bank program provided by the employer will not receive PFML paid leave benefits but the time used will run concurrently with available leave under PFML.Employers must give employee notice of this concurrency.

“Extended illness leave bank” is defined as a voluntary program where employees may donate accrued leave time to fund a bank for the benefit of a co-worker experiencing a qualifying reason under the PFML program.  §2.02.

Employer reimbursement.  §2.12(9).  Employers using the state plan can be reimbursed by the DFML Trust Fund for any benefits they pay for a PFML-covered leave from a temporary disable policy, a paid family or medical leave policy, or an extended illness leave bank.  To be reimbursable, the payments must be from a program separate from and in addition to a typical accrued paid time off policy.

Intermittent/reduced schedule leave.  §2.13.  Intermittent leave or reduced schedule leave is permitted as follows:

  • Bonding – with employee and employer agreement only
  • Care for a family member or injured service member – as medically necessary
  • Military exigencies – as needed for the reason for the leave
  • Employee’s own serious health condition – as medically necessary for the condition and for treatments.The employer and employee have an obligation to attempt to schedule such leave for times that meet the employee’s needs without unduly disrupting the employer’s operations.

Leave must be allowed in increments consistent with the employer’s policy for accounting for other types of leave, but the DFML will only pay in increments of 15 minutes or greater, and will not pay until the employee has accumulated 8 hours of leave time unless more than 30 days has passed since the initial taking of such leave.  §2.02.

Job protection.  §2.02, §2.16.  The MA PFML law and regulations provide several aspects of job protection for employees:

  • Reinstatement.An employee who has taken PFML leave (including leave under other policies that runs concurrently with PFML) is entitled to reinstatement to the employee’s same position prior to leave or to an equivalent position with the same status, pay, employment benefits, length-of-service credit, and seniority as the employee’s prior position.An employer can still terminate an employee who has taken leave pursuant to a legitimate layoff/reduction in force or for cause – but get advice of counsel first in both circumstances!
  • Retaliation.An employer cannot threaten or retaliate against an employee by discharging, firing, suspending, expelling disciplining, threatening, or otherwise discriminating against an employee for (1) exercising any right the employee is entitled to under the PFML law or (2) filing a complaint or participating in any way in a proceeding under or related to the PFML law.

    However, an employer can discipline an employee who has exercised leave rights for (1) failing to comply with the employer’s reasonable attendance and call in procedures; (2) failing to work with the employer to take intermittent leave at times that do not unduly disrupt the employer’s operations; (3) failing to take intermittent or reduced leave during the time the employer and employee agreed; and (4) failing to return to work following expiration of approved leave.

  • Presumption of retaliation.Any negative change in an employee’s terms or conditions of employment within 6 months after taking leave or participated in proceeding related to the PFML law is presumed to be retaliation against the employee that the employer can overcome only by showing the employer had sufficient independent justification for taking the negative action and would have taken the action even if the employee had not taken leave or participated in a proceeding.A “negative change” does not include trivial or subjectively perceived inconveniences that affect de minimas aspects of the employee’s work.This means employers need to train supervisors on employee rights under MA PFML before leaves start on January 1, 2021!

FRIDAY SURPRISE! DOL ISSUES NEW CERTIFICATION FORMS AND SEEKS COMMENTS ON THE REGULATIONS

Posted On July 17, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

July 17, 2020

 

Really?  Couldn’t they have waited until Monday?  We knew these were coming and I guess the folks at the U.S. Department of Labor wanted to free up THEIR weekend.  Anyway, whining aside, this morning the DOL issued two important items:  New FMLA forms and a request for public input on the FMLA regulations and processes in general.

New FMLA Forms

Last year the DOL shared some proposed new FMLA forms and solicited comments from the public.  In a previous blog post we described the initial set of proposed forms. During the request for comment period on the proposed forms, Matrix submitted suggestions and input to the DOL, some of which appears to have been incorporated into those new forms. Now the final – but OPTIONAL – new forms have been released, available for your reading pleasure here. The new forms can be used immediately and are valid through June 30, 2023. 

Here is a quick summary of changes reflected in the new DOL Certification of Healthcare Provider for the Employee’s Serious Health Condition:

  • Check boxes for the employee’s healthcare provider to use to identify which of the five categories of “serious health condition” as well as an option for the provider to check “none of the above,” to indicate the employee does not have a condition that meets this hurdle to qualify for FMLA leave.At Matrix we revamped our SHC certification forms several years ago, adopting the “check the box” style now embodied in the new DOL forms.We also include a “none of the above” option (and made that recommendation to the DOL).This choice is used periodically by providers, validating the need for that option.
  • Additional direction to the healthcare provider, including an explanation that medical facts, including diagnosis, are permissible, absent state or local law prohibition, can be submitted on the form.
  • A better, more structured way for the healthcare provider to supply his or her medical opinion and best estimate regarding the amount of time for which the employee may need to be absent from work for planned medical treatments, continuous, or intermittent leave.

The new DOL certification for a family member’s serious health condition includes a number of what appear to be very helpful improvements, including:

  • Specific instructions to the employee requesting leave and admonitions about his or her responsibility to return the certification to the employer to support the request.
  • Definitions of the family relationships for whom an employee can take leave, including that of “spouse” and in loco parentis relationships.
  • A requirement that the employee describe the type and amount of care they will be providing to the family member, as well as when they will be able to work a reduced work schedule, if applicable.These same questions are asked of the healthcare provider, presenting some risk that the provider will parrot what the employee is saying as far as the amount and type of care he or she will render.
  • Similar to the form for the employee’s own serious health condition, the provider is given check boxes that more easily describe the definitions and the opportunity to opine that none apply.

What is Matrix doing?  The Matrix customized certification forms we currently use are still fully compliant.  Our examiners receive much more complete information from providers using the Matrix forms compared to when we used the prior DOL forms, resulting in fewer incomplete or insufficient certifications, less follow-up, and faster determinations.  Nonetheless, we will review the new forms and seek input from stakeholders as to whether we should adopt the new DOL forms, continue use of our current forms, or make revisions to our current forms. 

The DOL also revamped all the other FMLA forms as well as the serious health condition certification forms.  At Matrix our letters to employees who have filed an FMLA request contain the information required by the regulations, such as eligibility notice and designation of leave approval or denial, rather than using the forms.  Although the new DOL forms do not change any of the regulatory requirements, we will review our letters in light of the new forms to see if any changes are appropriate.

We do use other DOL certification forms, such as for military exigencies and caring for a seriously ill or injured servicemember or veteran.  Although we still need to review the new forms, Matrix is likely to adopt the new certification forms for these leave types.

Request for Information regarding FMLA Regulations

The other big news – and it’s about time! – is a Request for Information from the DOL regarding the FMLA regulations.  While the DOL invites any and all comments, they are specifically soliciting input on certain areas:

  • Challenges with the definition and application of “serious health condition,” specifically with regard to chronic conditions.
  • Challenges with respect to intermittent leave usage (my, we could go on for pages on this one!)
  • Issues relating to employee notice of need for FMLA leave, including timing and content ofnotice and following employer notice procedures
  • Challenges with regard to the certification process.Perhaps the new forms will assist on this somewhat, but what about difficulties in getting timely, complete, sufficient, and clear certifications from providers?
  • Is any additional information or clarification needed as to the 7 opinion letters issued on FMLA topics by the DOL since they resumed in 2018?Opinion letters are available on the DOL FMLA home page, at the “Interpretive Guidance” link.
  • Any other specific challenges that employers experience in administering FMLA leave.We already have a laundry list of suggestions here, including recertifications, 2nd/3rd opinions, variable schedules . . .

The public comment period is open for 60 days, through September 15, 2020.  You can be sure that Matrix will chime in.  If YOU have any questions, comments, or pain points, let us know and we will include them in our submission.

In the meantime, stay close to your favorite web-enabled device.  We’re anticipating a busy week next week (including the next webinar in our Summer Compliance Series) and look forward to bringing you all of the new information as soon as it’s available. 

ADA PRACTICES & PITFALLS IN TODAY’S WORKPLACE – THE SEQUEL!

Posted On July 16, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

July 16, 2020

 

There are precious few truths left in this world anymore.  Two that I think we can all agree on are;

 

  1. The book is ALWAYS better than the movie and;
  2. The original is ALWAYS better than the sequel.

 

Well, we’re going to challenge on these two immutable truths this coming Thursday (July 23rd), as we present ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next – Part II 

 

We are proud to announce the next event in our Summer Compliance Series featuring Matrix VP of Compliance, Marti Cardi, and Gail Cohen Senior Director, Employment Law and Compliance.

 

The webinar is the second of a two part series entitled, ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next?,  that spotlights the Americans with Disabilities Act. We received several questions during our first session, so we’ve decided to answer many of these upfront.  We’ll then round out the session with other common accommodation requests that employers are dealing with, such as:

 

  • Hearing Impairment
  • Medical Marijuana
  • Behavioral Health and Emotional Support Animals
  • Obesity

 

This is a free informational webinar, moderated by National Absence Practice Leader, Tim Suchecki and will be held on Thursday July 23rdth at 2:00 pm EST.  

 

Click here to register for this event and submit questions in advance. Feel free to forward to others in your organization who might be interested. (Note: Once you see a window with your name, you have been successfully registered and can close the window. An email will be sent before the event as confirmation and reminder.)

 

If you were unable to attend ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next? – Part 1 or would like a quick reference, Click to view a recording of the webinar.

DOL PROVIDES MORE GUIDANCE ON KIDS’ SUMMER PROGRAMS AND FFCRA PAID LEAVE

Posted On June 30, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 30, 2020

 

On Friday we posted a legislative update covering the status of pending leave of absence bills throughout the states. This post comes right on the heels of that so if you didn't see it, just scroll down below this post or click here to check on happenings in the states where you do business.

COVID’s not gone, but leave of absence news has slowed to a manageable pace.  The latest update from the Department of Labor is much-needed guidance on how an employee can establish entitlement to paid leave under the Families First Coronavirus Response Act (FFCRA) when their child’s summer care program is closed.  After all, many parents had not yet made summer child care plans when COVID-19 became a thing earlier this year.  On June 26, the DOL addressed this issue in Field Assistance Bulletin No. 2020-4.   (FABs are written by the Office of Regulations and Interpretations to provide guidance in response to questions that have arisen in DOL field operations.)

As a refresher, FFCRA provides certain paid leave for an employee who is unable to work or telework due to a need to care for a child if the child’s school or place of care has been closed or the child care provider is unavailable for reasons related to COVID-19: 

  • The Emergency Paid Sick Leave (EPSL) provisions of FFCRA require employers with 1-499 employees to provide up to 2 weeks/80 hours of paid leave at 2/3 the employee’s usual salary (up to $200 per day, $2000 total).
  • In addition, the Expanded Family and Medical Leave (EFML) provisions require the same employers to provide up to 12 weeks of FMLA leave.The first 2 weeks of such EFML is unpaid (covered instead by the EPSL) and the remaining 10 weeks (or as much as is taken) is paid at 2/3 the employee’s usual salary (up to $200 per day, $10,000 total).

In FAB 2020-4 the DOL reviews the basic principles already established with respect to “school closure” leave under the FFCRA.  A “place of care” is a physical location in which care is provided to an employee’s child while the employee works.  The term includes summer camps and summer enrichment programs.  An employee requesting leave due to a school closure must inform the employer of, among other things, the name of the child, the name of the school or place of care that closed due to COVID-19, and a statement that no other suitable person is available to care for the child.  

Identifying the place of care.  When an employee needs leave due to the closure of a summer program the requirement is the same:  The employee must name the specific summer camp or program that would have been the place of care for the child had it not closed. 

However, unlike regular schools or day care centers, many summer programs closed in response to COVID-19 before any children were in attendance or even before the program commenced enrollment.  As a result, it can be challenging to identify the place the child would have attended but for COVID-19.  Although absolute proof is not required, a parent’s mere interest in a place of care is not enough.  Rather, the parent needs to show that, more likely than not, the child would have attended the specific place now closed.    

According to the DOL, the requirement to identify the program that would have been the child’s place of care but for COVID-19 can be satisfied in various ways.  The simplest is to show that the parent had applied to, submitted a deposit for, or enrolled the child in the program before it was closed. 

The parent can also show that the child attended the program in prior summers and was eligible to attend in 2020.  A child’s attendance at a camp or program during the summer of 2018 or 2019 may indicate that the same program would have been the child’s place of care during summer 2020 as long as the child is still eligible.  For example, a child who previously attended a camp for children ages 12 and under would not be eligible if the child is now 13 in 2020, so the closure of that camp would not be a basis for school closure leave to care for that child.  Moreover, the DOL says the attendance must be fairly recent, so if a child hasn’t attended a program since 2017 that won’t establish, without more, that it is “more likely than not” the child would have attended that program in 2020.

Reduced capacity at the planned place of care that results in no space for the employee’s child will also be considered a “closure” if the parent can otherwise establish that the child would have attended that program.

The DOL recognizes that there cannot be a one-size-fits-all rule to establish that a child, more likely than not, would have attended a specific summer place of care but for a COVID-19 closure.  While actual enrollment or recent prior attendance are valid considerations, neither is required and other factors may be shown.  A parent’s delay in making plans due to uncertainty in whether a specific place would be open, the child attaining an age of program eligibility, or being on a wait list in case the program reopens could all be indicators of a specific summer program the child more likely than not would have attended.

Two more points to remember.  First, for other types of schools or day care providers, the regular rules still apply.  If, for example, the child’s school is usually in session more than the typical 9-10 months per year, the actual closure of the physical place may still support paid leave and job protection under EPSL and EFML.  Same for the unavailability of a usual day care provider such as a nanny, neighbor, or family member. 

Second, it is not clear whether this kind of evidence of an employee’s need for school closure leave will be sufficient to qualify the employer’s FFCRA payments for the tax credits.

For more information.  If you need a refresher on the FFCRA you can review our prior blog post summarizing the act here.  We’ve had many FFCRA updates and have covered other COVID-19 issues in the last several weeks, so just scroll through the blog or search for “COVID” or your state to catch up.  

For more information regarding the school closure paid leave and expanded FMLA, see the DOL’s FFCRA Questions & Answers, particularly Questions 66-70 and 93 – or search the document for “school” to find all related questions and answers.  

LEGISLATIVE UPDATE – WHAT’S GOING ON BESIDES CORONAVIRUS

Posted On June 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 26, 2020

 

Seems like in the past several weeks this blog has been consumed by COVID-19 news – almost every day, at some points.  And before that, it was mostly paid family and medical leave.  Well, the world isn’t all COVID-19 and PFML so we thought we’d take a look at the bigger picture of legislative activity throughout the country. 

At Matrix we track LOTS of pending legislation; currently, we have almost 600 bills on OUR radar.  Many of these were introduced in early 2020 and have seen no activity since COVID-19 took over our lives.  So in order to bring this down to a manageable size, we are focusing here on bills of interest that (1) relate to leave, accommodations, pregnancy, or COVID-19; and (2) have progressed in the applicable legislature in the past few weeks. 

This information is current as of 6/25/2020.

COVID-19 and PFML

There are still bits of COVID and PFML legislative news.  See the blurbs below on Rhode Island and Virginia for some PFML developments; and District of Columbia (an emergency bill already enacted), Massachusetts, Washington, and the U.S. for COVID updates.  No other trends going on that we can see except both California and Massachusetts have introduced bills for bereavement leave.

Passed legislation               

Oh, and one more thing.  Remember that a few previously-passed laws go into effect soon: 

  • The increase in New Jersey Family Leave Insurance benefits from 6 weeks to 12 weeks is effective July 1.
    See our blog post here.
  • The increases in California Paid Family Leave and San Francisco Paid Parental Leave benefits, each going
    from 6 to 8 weeks, are also effective July 1.See our blog post here.
  • Illinois’s School Visitation leave (provides up to 8 hours per school year for school conferences) adds new
    leave reasons relating to a parent’s need for time off due to academic and behavioral issues.
    This is effective August 1, 2020 – helpful if any schools return to in-person education, I guess!

Now, let’s take a cruise together to see what’s happening in your state:

 

CALIFORNIA:      CA A 2399

  • Introduced:           02/28/2020
  • Status:                   05/26/2020 – Passed Assembly, to Senate
  • Subject:                 Amends CA Paid Family Leave law
  • Provisions:
    • For purposes of military exigency leaves under Paid Family Leave, revises definitions of “care recipient,”
      “care provider,” and “family care leave”
  • Proposed effective date:01/01/2021

CALIFORNIA:      CA S 1383

  • Introduced:           02/21/2020
  • Status:                   06/09/2020 – In Senate Committee on Appropriations: To Suspense File
  • Subject:                 Amends CA Family-School Partnership Act
  • Provisions:
    • Removes the employer size limitation of 25 or more employees in one worksite
    • Clarifies that leave to address a child care provider or school emergency includes a school closure
      due to a federal, state, or local government declaration of a state of emergency
    • Removes the limitation of 40 hours per year for leave due to a child care provider or school emergency
    • Leave to enroll a child in school or a child care facility and to attend school activities remains limited to
      40 hours per year and 8 hours per calendar month
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2992

  • Introduced:           02/21/2020
  • Status:                   06/11/2020 Passed Assembly; to Senate
  • Subject:                 Amends laws relating to leave for victims of domestic violence, stalking, and sexual assault
  • Provisions:
    • Expands leave of absence and other protections to include victims of a crime or that caused physical injury
      or that caused mental injury and a threat of physical injury.
  • Proposed effective date:01/01/2021

 

CALIFORNIA:      CA A 2999

  • Introduced:            02/21/2020
  • Status:                    06/10/2020 – Passed Assembly; to Senate
  • Subject:                 Bereavement leave
  • Provisions:
    • Requires employers to provide up to 10 business days of unpaid bereavement leave due to loss
      of a family member (parent, child, spouse, domestic partner, sibling, grandparent, grandchild); leave
      need not be taken consecutively;
      must be used within 3 months of date of death
  • Proposed effective date:01/01/2021

 

COLORADO:       CO S 205 

  • Introduced:           05/26/2020
  • Status:                   06/11/2020 – In House, to second reading
  • Subject:                 “Healthy Families and Workplaces Act” – creates paid sick and safe leave law
  • Provisions:
    • Requires employers to provide up to 48 hours of paid leave per year to employees for the following reasons:
    • Employee’s or a family member’s medical needs
    • Employee or a family member is a victim of domestic abuse, sexual assault, or harassment
    • Closure of a child’s school orplace of care, or the employee’s place of business, due to a public health
      emergency
    • Provides an additional 14 days of paid sick leave (up to 80 hours) due to a public health emergency for
      leave reasons similar to the Families first Coronavirus Response Act
  • Proposed effective date:
    • Paid sick &safe leave – 01/01/2021
    • Public health emergency leave – upon passage through 12/31/2020

 

DISTRICT OF COLUMBIA               DC B 757 and DC B 759

  • Introduced:           05/18/2020
  • Status:                   Enacted – Emergency Law – Signed by Mayor
  • Subject:                 Amends DC FMLA and DC Accrued Sick and Safe Leave Act
  • Provisions:
    • Adds DC FMLA leave for quarantine, caring for family member with COVID-19, or school closures;
      applies to all employers regardless of size; employee eligibility is 30 days; included in DC FMLA total
      16-week entitlement
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:
    • DC B 757 & 759: In effect immediately, through 09/06/2020
    • NOTE:DC B 758:Identical. 758 is pending as a “temporary bill,” so if it passes will go into effect following
      a 30-day congressional review and then remain in effect for 225 days.

 

DISTRICT OF COLUMBIA:              DC B 734

  • Introduced:           05/21/2020
  • Status:                   05/21/2020 – ENACTED
    • TEMP LAW Signed by Mayor 05/21/2020; pending 30-day Congressional review period
  • Subject:                 Amends DC Accrued Sick and Safe Leave Act to provide COVID-19-related leave
  • Provisions:
    • Adds 2 weeks/80 hours paid sick leave for same reasons as FFCRA EPSL; employee eligibility is 15 days;
      applies to employers with 50-499 employees (not a health care provider); payments are deducted from
      employee entitlement to FFCRA or company policy paid leave
  • Effective date:30 days after Mayor’s signature (06/20/2020) if no Congressional action – but may
    cover leaves starting with public emergency declared on 03/11/2020; expires 225 days after going into effect

 

ILLINOIS:                              IL H 4871

  • Introduced:           02/11/2020
  • Status:                   03/05/2020 – In House Committee on Labor & Commerce: To Subcommittee on Business
    and Industry Regulations
  • Subject:                 Amends Victims’ Economic Security and Safety Act
  • Provisions:
    • Adds protections for victims gender violence (violence based at least in part on individual’s actual
      or perceived gender)
  • Proposed effective date:If passed before July 1, 2020, effective date is January 1, 2021; if passed July 1, 2020,
    or after, effective date is June 1, 2021

 

MASSACHUSETTS:           MA S 2713

  • Introduced:           05/21/2020
  • Status:                   05/21/20 – To Senate Ways & Means Committee
  • Subject:                 Bereavement leave
  • Provisions:
    • Leave up to 10 business days per 12-month period to grieve or make arrangements due to the death of a
      family member (child, parent, guardian, spouse, or person in a substantive dating or
      engagement relationship who lived with the employee);
      • Must be taken within 30 days of employee’s notice of death
      • Covers employers with 25 or more employees in Massachusetts
  • Proposed effective date:01/01/2021

 

MASSACHUSETTS:           MA H 4566

  • Introduced:           03/12/2020
  • Status:                   06/22/2020 – To House Ways & Means Committee
  • Subject:                 Employment protections for contract workers subject to abuse
  • Provisions:
    • Provides up to 15 work days of leave in any 12-month period to contract workers (not employees)
      who are victims of abuse (including domestic violence, sexual assault, stalking, and kidnapping)
      for numerous related reasons, including medical care, victim services or legal counseling, court appearances,
      relocation, etc.
  • Proposed effective date:90 days after approval

 

MASSACHUSETTS:           MA H 4738

  • Introduced:           05/14/2020
  • Status:                   05/22/2020: Filed as House Docket 5071
  • Subject:                 Provides workplace procedures for manufacturing and factory workers
  • Provisions:
    • Provides up to 14 days of paid sick leave for manufacturing and factory workers who self-report potential
      COVID-19 symptoms or close contact, even if testing availability is limited or workers are awaiting result
    • Includes other workplace safety procedures related to COVID-19
  • Proposed effective date:90 days after approval
NEW HAMPSHIRE:          NH S 759

 

  • Introduced:           02/13/2020
  • Status:                   03/12/2020: Passed Senate; to House
  • Subject:                  Reasonable Accommodations for Pregnant Employees
  • Summary:
    • Requires an employer to provide reasonable accommodations to an employee related to the employee's
      pregnancy or childbirth and makes the failure to provide such accommodations an unlawful discriminatory
      practice
  • Proposed Effective Date:90 days after passage

 

NEW YORK:                        NY A 10466/NY S 8292

  • Introduced:           05/22/2020
  • Status:                   05/24/2020 – amended in Assembly Committee on Labor
  • Subject:                 Amends NY paid sick/quarantine leave law related to COVID-19
  • Provisions:
    • Adds coverage for individuals subject to quarantine who voluntarily participate in a precautionary quarantine
      or pursuant to a health care provider’s recommendation
    • Makes paid benefits available “in each instance” the employee meets the qualifications for
      quarantine or isolation due to COVID-19 under the act
  • Proposed effective date:Immediately upon passage

 

RHODE ISLAND:                RI S 2831

  • Introduced:           03/12/2020
  • Status:                   03/12/2020 – to Senate Committee on Labor
  • Subject:                 Temporary Caregiver Insurance Benefits
  • Provisions:
    • Increases TCI benefits per year from 4 weeks to 6 weeks (effective 01/01/2021)
      and 8 weeks (effective 01/01/2022)
  • Proposed effective date:01/01/2021 and 01/01/2022
TENNESSEE:                        TN S 2520 (same as TN H 2708)

 

  • Introduced:           02/05/2020
  • Status:                   06/11/2020 – to Governor
  • Subject:                 Tennessee Pregnant Workers Fairness Act
  • Provisions:
    • Requires employers to provide workplace accommodations to employees for medical needs
      arising from pregnancy, childbirth, or related conditions; prohibits employer from requiting employee to take
      leave if a workplace
      accommodation is available and won’t impose an undue hardship
  • Proposed effective date:07/01/2020

 

UNITED STATES:               US H 6800

  • Introduced:           05/15/2020
  • Status:                   06/01/2020 – passed House; second reading in Senate
  • Subject:                 Amendments to Families First Coronavirus Response Act
  • Provisions:
    • Numerous expansions of existing FFCRA including:
      • Changing expiration date to 12/31/2021
      • Changing employer coverage to all employers with 1 or more employees
      • Expanding leave reasons under Emergency FMLA to include same leave reasons as under Emergency
        Paid Sick Leave Act
      • Increasing cap for EFML benefits to $12,000
      • Providing expansive definitions of “parent” and ”family member”
      • Creating a separate 12-week bank of leave entitlement for EFMLA
      • Creating job restoration rights to same or equivalent position following EPSL
  • Proposed effective date:Not stated

 

VIRGINIA:                           VA H 30

  • Introduced:           01/08/2020
  • Status:                   Enacted 05/21/2020
  • Subject:                 Paid family and Medical Leave
  • Provisions:
    • Requires Chief Workforce Development Advisor and Secretary of Commerce and Trade to conduct a
      study and deliver a report to Governor by September 30, 2020, regarding development, implementation,
      and costs of a statewide PFML program for all employers in VA
  • Effective date:July 1, 2020

 

WASHINGTON:                 PROCLAMATION 20-46.1

  • Introduced:           06/09/2020
  • Status:                   Signed by Governor 06/9/2020
  • Subject:                 Protections for workers with high risk of COVID-19 complications per CDC guidelines
  • Provisions:
    • Continues provisions of Proclamation 20-46 “ . . . to prevent all employers, public or private, from failing to
      provide accommodation to high-risk workers, as defined by the Centers for Disease control and Prevention,
      that protects them from risk of exposure to the COVID-19 disease on the job. If an employer determines
      that alternative work arrangements are not feasible, the employer is prohibited from failing to permit
      an employee to utilize all available accrued leave options free from risk of adverse employment action.”
  • Effective date: Effective immediately, through 08/01/2020

Whew! That was a ride, wasn’t it? Don’t worry, there’s a lot going on but you don’t need to keep track of every single thing because, frankly, you have us! So sit back, pour a cold one and enjoy the summer in Future-Post-COVID World, and let us keep you informed and prepared.

ADA PRACTICES & PITFALLS – A TIMELY WEBINAR!

Posted On June 15, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 15, 2020

 

You know, some people vacation in the summer. Some work on their tans. Here at Matrix Radar, we like to dive in the deep end…of leave related compliance!

Don’t judge us, you know you’re interested. Which brings us to our point:

JOIN US for the first of a two part overview of the Americans with Disabilities Act: ADA Practices & Pitfalls in Today’s Workplace – Do You Know What to Do Next?

In Part 1, we will explore using industry ADA benchmark data to manage resources and expectations. Learn about bringing employees back to work after COVID closures; how to identify a suitable accommodation without setting a precedent; and that Accommodation of Last Resort.  And, get comfortable with what medical info you can (and cannot) ask for to support an accommodation:  When?  How?  How often?  What if it’s not enough?

This is a free informational webinar, starring yours truly along with Senior Director, Employment Law & Compliance, Gail Cohen; and moderated by National Absence Practice Leader, Tim Suchecki.

Click here to register for this event and submit questions in advance. Feel free to forward to others in your organization who might be interested. (Note: Once you see a window with your name, you have been successfully registered and can close the window. An email will be sent before the event as confirmation and reminder.)

Oh, and hey: If you missed our May 28th webinar on Paid Family and Medical Leave – To Massachusetts and Beyond! well, first of all, shame on you! But you can still Click to view a recording. Because we’re nice! 

See you Thursday.

COVID-19 AND WORKERS’ COMPENSATION

Posted On May 27, 2020  

by Mark Antonson - AVP, Workers Compensation Administration

& Jose Reynoso - Director, WC Administration

May 27, 2020

 

Did you know that Matrix Absence Management administers workers’ compensation claims? We do and, in fact, workers’ comp was Matrix’s original line of business back in the day! Yet for all the COVID-19 coverage we have provided, this is a topic we haven’t covered yet.

I’m not a workers’ compensation expert so I turned to my Matrix colleagues, AVP Mark Antonson and Director Jose Reynoso, for assistance. Thanks, guys!

If Matrix isn’t your workers’ comp claims administrator, I think this article will still be helpful – be sure your administrator is following the best practices outlined below.


The Impacts of COVID and WC Administration

Several states have enacted or by Executive Order adopted presumptions of compensability for Workers’ Compensation benefits for certain classifications of workers, typically healthcare workers and first responders. Some of these states have also expanded or are considering widening access to workers compensation coverage for COVID-19 beyond health care workers and first responders to include all workers labeled as essential. The National Council on Compensation Insurance provides regularly updated legislative and presumption activity by state as a useful reference.

Although administering claims in jurisdictions with presumptive rules places the burden on the employer to prove the virus was not contracted at work, it is still important to remember these are rebuttable presumptions and employers/claims administrators should still be diligent in investigating each claim thoroughly to overcome the presumption.

At Matrix, in conjunction with our defense counsel and Special Investigations Unit vendor, we have tailored our investigative practices involving COVID exposure claims to include gathering the appropriate information and unique circumstances of an employees exposure to ensure we have a full understanding of the exposure event in an expedited manner.

Continuity of Care

A lot of attention has been focused on the virus and whether it is workrelated, what the cost impacts will be to the industry, what are the long term effects if any, etc. In addition, there is still a number of open claims for individuals without COVID who are impacted by the pandemic, such as those who require treatment for other work-related conditions or whose care has been interrupted or delayed as a result of the pandemic.

The importance of continuity of care is essential for employees to remain on the path to recovery and return to work. At the start of the shutdown, Matrix began coordinating with employee’s treatment providers to explore alternatives to in-person care via tele-medicine and tele-rehab. Staying active in providing alternatives for ongoing care has allowed us to maintain closing ratios at pre-COVID levels through April. We have seen delays in treatment for those requiring surgical procedures that were re-scheduled as they were deemed non-essential procedures.

Slowdown in Claims Resolution

Where we have seen a slowdown in moving claims to resolution are in jurisdictions whose Workers’ Compensation Hearing Divisions are only hearing certain types of cases or have rescheduled all hearings to later in the year. Although hearings in some states are delayed, it does provide us with the opportunity to reach settlement agreements amenable to both parties.

Return to Work

As the shutdown lightens, return to work in a number of industries – notably airlines, retail, restaurant, and hotel/hospitality – for both regular and modified/alternate work will be challenging. Using vocational counselors for outside job placement may be equally challenging given the number of employers who are not operating at capacity. Matrix continues to partner with our clients to find innovative return to work solutions based on our clients’ and their employees’ unique situations.

Impact on Disability Claims

Many short term and long term disability plans have an exclusion for claims covered by workers’ comp. Matrix’s disability claims examiners are well aware of this exclusion and which of our clients’ plans have such a provision, and will administer the disability claims accordingly.

Matrix can help!

If you are interested in learning more about Matrix’s workers’ compensation claims management services, please contact your Matrix or Reliance Standard Life Insurance account manager, or ping us at ping.matrixcos.com .

TENDING TO THE MASS-ES – AND OTHERS!

Posted On May 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 26, 2020

 

It’s been a long, cold Spring, what with COVID-19, quarantines and a plethora of related legislation to unpack. If there’s anything to help remind us that time – and regular, good old leave legislation – marches on, it’s the steady approach of Massachusetts PFML, with benefits starting in January, 2021. Webnair Invite

Join my colleague Gail Cohen and me for our next market webinar: Paid Family and Medical Leave – To Massachusetts, and Beyond! We’ve weathered the storms of New York and Washington State. Massachusetts is still a shifting landscape as the state continues to release new regulations and information just a few months out.

Our last few webinars attracted more than a thousand friends and colleagues each – we hope you’ll be one of the faithful for this important splash of non-COVID-related reality!

This Thursday, May 28, 2 PM Eastern. Click here to register for this event and submit questions in advance!

 

STILL WRANGLING COVID-19 NEWS – ERISA, ADA, FFCRA, AND NY

Posted On May 15, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 15, 2020

 

Cowboy Radar

 

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

ERISA Extensions of Disability Filing Deadlines

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

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

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

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

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

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

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

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

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

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

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

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

 

ADA Guidance – The EEOC Continues Its COVID-19 Updates

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

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

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

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

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

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

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

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

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

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

 

FFCRA – The DOL Adds More Questions & Answers

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

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

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

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

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

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

 

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

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

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

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

READY FOR REGULAR OL’ FMLA?

Posted On May 12, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 12, 2020

 

So enough with the coronavirus already, right? Let’s get back to basics and one of the most challenging FMLA issues: employee abuse and misuse.

On Thursday, May 21 at 12:00 Eastern/9:00 Pacific I will join Angie Brown, ClaimVantage Absence Practice Leader, in presenting a Disability Management Employer Coalition webinar.Martidmec

As an employer, suspected abuse of the Family and Medical Leave Act (FMLA) can present many challenges. Leave abuse can increase an employer’s costs and deplete resources, while also greatly decreasing employee productivity and morale. However, there are ways to effectively navigate the leave abuse landscape, especially considering the court’s support of the honest belief defense.

In this session, we will discuss scenarios where the honest belief defense has been effective in defending FMLA decisions. We will contrast these examples with highlights of areas where employers failed to make their case, and examine the differences. Attendees will leave with an understanding of what elements are critical to substantiate an honest belief defense.

You can register here or just go to http://dmec.org/ and click on the Conferences & Events tab. We invite you to use this discount code for free registration: 20CLAIMVANTAGE1

And of course, keep watching this blog for COVID-19 updates – we have more waiting in the chutes!

WRANGLING ALL THAT COVID-19 NEWS – THE LAST (NOPE…) WE MEAN NEXT ROUND-UP

Posted On April 29, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

April 29, 2020

 

Cowboy Radar

COVID news just keeps coming. In our last Roundup we covered the DOL’s latest FFCRA Q&As, USERRA and COVID-19, and orders from the governors of California and Washington. Today we saddle up with:

  • More ADA guidance from the EEOC
  • OSHA – employer obligations to provide a safe workplace
  • COVID goes to court
  • COVID in the city
  • Colorado joins the rodeo

More ADA Guidance from the EEOC

As we previously reported here and here, the EEOC offers employers assistance regarding the COVID-19 pandemic and compliance with the Americans with Disabilities Act in its document What You Should Know About COVID-19 and the ADA. The agency has lately added more questions and answers to the guidance. In short, all the usual ADA rules and requirements continue to apply but they may take on a new hue in a request related to COVID-19.

Here are some of the key takeaways, but be sure to consult the full document – this is a summary and the EEOC has much more info for you!

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

Yes. Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. However, employers should ensure that the tests are accurate and reliable and should still require – to the greatest extent possible – that employees admitted to the workplace observe infection control practices to prevent transmission of the virus. (And see the OSHA segment below.)

D.6. [See also D.5] During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed?  (4/17/20)

Yes, even during COVID days, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee, now and in any ADA case, may include: (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).  

D.7. If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes. Employers may choose to forgo or shorten the “interactive process” and grant the request. In addition, employers may wish to set an end date for an accommodation expected to be temporary or approve it on a trial basis. This may be pertinent while awaiting medical documentation in order to allow an accommodation that provides protection due to an employee’s heightened risk due to the pandemic. If circumstances change the employer should consider an extension of a temporary accommodation or whether a different accommodation is needed.

D.10. and D.11. What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” or “significant expense during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace. Examples include increased difficulty due to the pandemic in obtaining special equipment, providing temporary assignments, or removing marginal functions.

As to “significant expense,” the employer can consider sudden loss of some or all of an its income stream because of this pandemic and when current restrictions on an employer’s operations may be lifted. An employer cannot simply reject any accommodation that costs money but must weigh the cost of an accommodation against its current budget and current constraints created by this pandemic. Even under current circumstances, there may be many no-cost or very low-cost accommodations.

If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems. 

D.12. Does the ADA apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes. All employees continue to be covered under the ADA and employers must consider accommodation requests during the pandemic, engage in the interactive process, and provide an effective reasonable accommodation if it doesn’t pose an undue hardship.

Coronavirus Goes to Court

The first known COVID-19 lawsuit has hit the courts! (Can a Movie-of-the-Week be far behind?) Plaintiff Amy Reggio lives in Dallas County, TX. According to the complaint, Dallas County Judge Clay Jenkins, who is in charge of Dallas County’s coronavirus response, issued orders requiring all individuals anywhere in Dallas County to “shelter in place.” Reggio worked as general counsel for a real estate development and investment firm which, she alleges, is not an “essential business” under the Dallas County stay-at-home order. Reggio informed her boss Mark Tekin of the order and of her inability to leave home and go to work as a result. Reggio told Tekin she could perform all of her job duties from home, but claims Tekin said “working from home did not work for him and it would not be allowed or considered.” Reggio explained to Tekin that if she violated the Dallas County order she could be subject to criminal prosecution, including imprisonment. Tekin terminated Reggio on March 27 when she continued to refuse to violate the Dallas County order and go to work.

Reggio’s claim is based on a legal theory known as “public policy wrongful discharge.” An employee may assert this claim when (1) her employer required her to commit an illegal act that carries criminal penalties; (2) the employee refused to engage in the illegality; (3) the employee was discharged by employer; and (4) the sole reason for the employee’s discharge was her refusal to commit the unlawful act. Reggio’s allegations check all four of these boxes, so game on! She is asking for $1 million in damages, include lost wages and benefits, other compensatory damages, and punitive damages. It’s very early yet in this litigation but my bets are on Reggio and a quick settlement – although probably not a million bucks.

The case is Reggio v. Tekin & Assoc., LLC (Dallas County Court, Texas No. CC-20-01986 B).

Lessons for employers. These tough times call for new ways of doing things. Employers need to be flexible and approach difficult situations with an open mind. Remember, special measures imposed as a result of COVID-19 are temporary, so allowing something that is not usually done can also be temporary. This was not a situation where the employee, on her own, decided not to go to work because she was uncomfortable or concerned about being exposed to the virus. In that case the employer might be able to require the employee come to work, but it needs to take appropriate measures in the workplace to ensure a safe environment – and for that issue, read on!

OSHA, COVID-19, and the Employer’s Obligation to Provide a Safe Workplace

As we look forward to a return to the usual workplace and routines, understanding an employer’s OSHA obligations with respect to COVID-19 is especially important. Employers are required to provide a safe workplace and appropriate safety equipment for workers. Employers outside of a manufacturing, processing, or other heavy industry may not regularly think about OSHA requirements. The occasional office paper cut just doesn’t stir much concern.

But now we are in COVID-land. The federal Occupational Safety and Health Administration administers laws that regulate worker safety, which will take on new significance as employees go back to the office. Two provisions of the Occupational Safety and Health Act are particularly applicable to COVID-19 in the workplace:

The General Duty Clause, Section 5(a)(1) requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), requires using gloves, eye and face protection, and respiratory protection when job hazards warrant it.

So, new measures like spacing of desks, ample supplies of hand sanitizers and wipes, and limitations on use of common spaces and facilities may become necessary to fulfill an employer’s OSHA obligations. OSHA recently issued a booklet, Guidance on Preparing Workplaces for COVID-19. Recommendations include the now-familiar handwashing and covering coughs and sneezes, but also an important reminder that employees should not use each other’s workspace, telephone, and other work tools and equipment. You can find more information at the OSHA COVID-19 website, and there are loads of on line resources with ideas.  

In addition, states may have their own workplace safety laws and regulations. There are twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA’s and may have different or more stringent requirements.

In these days of increasing work from home, there is one bit of good news: OSHA will not conduct inspections of employees’ home offices, will not hold employers liable for employees’ home offices, and does not expect employers to inspect the home offices of their employees. For more information see OSHA’s Directive on Home-Based Worksites.

As we move toward returning employees to the workplace, employers should develop a plan for what that will look like. Just be safe and be smart.

COVID in the City

OK, that doesn’t have the same ring as that TV show title – and it’s not nearly as much fun. Still, several cities are making news with their very own COVID-19 leave of absence laws. California seems to be the hotbed of such activity (Who saw that coming?). These COVID-19 ordinances vary by city (of course) but most have some common features:

  • Employer coverage picks up where FFCRA left off – most apply to employers with 500 or more employees.
  • Leave reasons mimic FFCRA, although some add new leave reasons as well, such as closure of a family
    member’s senior care facility or if the employee is age 65 or older or has an underlying high-risk
    health condition
  • Amount of paid sick leave also mimics FFCRA, with 80 hours of paid leave for full-time employees and
    the equivalent of two weeks’ pay for part-time employees, often capped at $511 per day or $5,110
    total per employee.
  • Health care workers are often exempted, at least as to leave for any reason other than their own
    COVID-19 diagnosis or quarantine.

San Francisco’s Public Health Emergency Leave Ordinance is in effect from April 17 through June 16, expiring on June 17, 2020 or when the Public Health Emergency is terminated, whichever is first.  Guidance from the Office of Labor Standards Enforcement is available here.

Los Angeles’s ordinance for Supplemental Paid Sick Leave has been superseded by an Emergency Order signed by Mayor Garcetti, cutting back on the scope of the ordinance. The Emergency Order will remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period.

San Jose’s Urgency Ordinance providing temporary paid sick leave for COVID-19-related reasons is in effect from April 7 through December 31, 2020. Guidance and additional resources from the San Jose Office of Equality are available here.

Remember that many municipalities (and states) have existing paid sick leave laws that are likely to cover a variety of COVID-related needs for time off. My go-to resource is A Better Balance for a chart of paid sick leave laws across the country.

Colorado Joins the Rodeo

Colorado originally passed its Health Emergency Leave with Pay (Nominee for Best Acronym in a COVID-related program: HELP) rules on March 11 but has since significantly increased the scope of industries covered and the duration of paid leave. The rules are effective for 30 days after adoption (presently through May 27) or the duration of the State of Disaster Emergency declare by the Colorado governor, but with a maximum of 120 days after April 27. Including amendments adopted through April 27, here’s what the rules now provide:

All employees of a covered industry and working in a covered position are eligible for HELP. (Heehee, that totally works in a sentence! Good job, Colorado!)

Covered employers include those engaged in, or employing workers in, numerous industries, with no employer size limitations (coverage was effective as of March 11 unless a different date is indicated). Examples: leisure and hospitality, retail, real estate, office work, elective health services, personal care services, food and beverage manufacturing and services, education, and various elder or community care services. For details see the Colorado HELP website.

Paid leave is available for up to two weeks, with a maximum of 80 hours. Pay is at 2/3 of the employee’s usual rate, with no dollar caps. Paid sick leave ends following certain periods of being symptom free.

HELP provides leave for only one reason, to an employee:

  • with flu-like or respiratory illness symptoms and
  • who is (1) being tested for COVID-19 or (2) under instructions from a health care provider or
    authorized government official to quarantine or isolate due to a risk of having COVID-19.
A employer who already provides as much paid sick leave as required by the rules is excused from compliance. An employer who provides less paid sick leave than required by the rules must provide additional paid sick leave up to the amount required by HELP.

However, if an employee has exhausted all paid sick leave allotted by the employer, then the employer must provide additional paid sick leave up to the amount required by HELP.

The employer can require documentation to support the leave but with certain limitations:

  • Documentation can be required only after the employee’s return from leave, not as a precondition
    of taking or remaining on leave. An employee may not be terminated for failure to provide
    documentation during the illness.
  • If documentation is not available from a health care provider or the provider of the employee’s
    COVID-19 test, the employer must accept a written statement from the employee providing the
    pertinent information.

In an odd provision that is likely to give small employers heartburn, the rules provide, “To the extent feasible, employees and employers should comply with the procedures of the federal Family [and] Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules . . . ” This leaves a whole lot of open range as to exactly what that means and to what extent it is mandatory.

Employees must provide advance notice of the need for leave as soon as possible, unless they are too ill to communicate, and notice within 24 hours of getting a COVID-19 test or receiving instructions to quarantine or isolate.

Additional information is available on the Colorado HELP website.

Just When You Thought It was Safe: COVID Webinar II: The Revenge

Hopefully you joined my Reliance Standard colleague Karen Joseph a couple weeks ago for our webinar on COVID related federal and state leave legislation and how to apply it. If you didn’t, or even if you did and you want to prepare for the follow-up, you can access the slides as well as the recording. And while it’s no Season 3 of Ozark, I would say it’s required if you want to join us for the sequel:

On Thursday, May 7 at 2 PM Eastern, Karen and I will get back in that saddle and peel back some of these new developments at the national (OSHA), state and even local levels – plus we’ll incorporate some of your awesome questions from the first round. Plan to attend! Click here to register. Once you see the screen pop up with your name, go ahead and close the box: We will email you a confirmation before the event. (If you don’t get your email confirmation, note the date and time, because the link to join is the same as the registration link.)

See you there!

WRANGLING ALL THE COVID-19 NEWS – THE LATEST ROUNDUP

Posted On April 28, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Armando Rodriguez, JD - Law Clerk, Compliance And Legal Department

April 28, 2020

 

Cowboy Radar

As we all work to acclimate to the new normal that is the current COVID-19 world, state, local, and federal governments and agencies have been working tirelessly to respond to this unprecedented situation. Although we hope things will settle down soon, we have seen more developments in just the last few days.

Well don’t fret none, pardner: We’ve lassoed the most important news for you, which we will provide in two parts. Here is our roundup for today:

  • More DOL Questions and Answers on the FFCRA
  • USERRA and COVID-19-related military service
  • California’s Executive Order providing paid sick leave to food
    sector workers
  • Washington’s Proclamation requiring accommodations for
    employee in COVID-19 high-risk categories

Saddle up and hold on – here we go!

More DOL FFCRA Questions & Answers. Every few days the DOL adds to its Questions & Answers addressing numerous issues employers face in trying to comply with the Families First Coronavirus Response Act. The latest release includes new Questions 80-88. Most of these (Questions 80-85) address how an employer is to calculate an employee’s hours worked and rate of pay, both crucial to determine the appropriate benefits payable to the employee. Various pay scenarios are addressed (e.g., salaried, hourly, variable hours). One answer with good news (85) explains that an employee’s rate of pay, which must be calculated based on pay over the prior six months, must only be calculated at the time of the employee’s first FFCRA leave usage, even if the employee uses the benefit intermittently over multiple weeks or months.

Our personal favorite question is 87, which addresses whether stay-at-home and shelter-in-place orders qualify as quarantine or isolation orders to entitle an employee to take leave under the FFCRA for reasons relating to one of those orders. (See also Question 60.) The answer is YES. To illustrate, the DOL provides the example of an employee who was on a cruise ship on which there was an outbreak of COVID-19 and then must be quarantined for 14 days after getting FINALLY disembarking, even though the employer has work for the employee.

A common challenge for employers is understanding when they can require an employee to use other paid leave benefits and when the employee gets to choose. Question 86 addresses this (as well as prior Questions 31-33). This gets complex so if you are struggling with this issue please read Question 86 in full. That said, here’s a quick summary:

  • Paid sick leave under the Emergency Paid Sick Leave Act (EPSL) is in addition to any form of paid
    or unpaid leave provided by an employer, law, or an applicable collective bargaining agreement.
    An employer may not require employer-provided paid leave to run concurrently with – that is, cover
    the same hours as – paid sick leave under the EPSLA.
  • If the employer and employee agree, an employer may supplement 2/3 pay under the Emergency
    Family and Medical Leave Expansion Act (EFMLA) with other paid leave benefits so that the employee
    may receive the employee’s normal compensation.
  • Under EFMLA, an employer may require any paid leave available to an employee under the employer’s
    policies that would also cover the EFMLA school closure leave reason (either specifically or generally)
    to run concurrently with paid leave under EFML. The employer can top off the employee’s 2/3 pay to
    full pay until the employee has exhausted available paid leave under the employer’s plan—including
    vacation and/or personal leave (typically not sick or medical leave).
  • In both cases (topping off EPSLA and EFMLA 2/3 pay), the employer may only obtain tax credits for
    wages paid at 2/3 of the employee’s regular rate of pay, up to the daily and aggregate EPSLA or EFML limits.
  • An employee may elect—but may not be required by the employer—to take any available paid sick leave
    under the EPSLA or paid leave under the employer’s plan for the first two weeks of unpaid EFMLA, but not both.
  • If an employee has used some or all paid sick leave under the EPSLA, any remaining portion of that
    employee’s first two weeks of EFMLA may be unpaid, or the employee may choose—but the employer
    may not require the employee—to use other paid leave available for the reasons under the employer’s policies.

The last new Question (88) warns employers that if the employer fails to pay an employee in accordance with the requirements of FFCRA, the employee can recover the full amount of wages that should have been paid under the FFCRA. What am I missing here? Pay me the amount owed as I take leave, or pay me the same amount later? Here’s the thing – once the DOL decides to investigate an employer for noncompliance with ANY of the laws under its jurisdiction the DOL has authority to investigate the employer’s compliance with pretty much everything it is responsible for (including FFCRA and FMLA and the Fair Labor Standards Act). You don’t want that. So not only is paying the wages as they are due under the FFCRA the right thing to do, it is also the prudent thing to do. And I’m not a wage & hour attorney, but I’ll bet there may be other things lurking, like paying interest and the employee’s attorneys’ fees.

We’ll be watching for more DOL FFCRA questions and answers – I have it on good authority the staff is working round the clock and I just in person submitted an unanswered question to my sources at the DOL today!

 

California Executive Order Protecting Food Sector Workers

On April 16, California Governor Gavin Newsom issued an Executive Order mandating a supplemental paid sick leave related to COVID-19 to “Food Sector” workers employed by employers with 500 or more workers. The Order covers a wide spectrum of workers under the title “Food Sector Worker” ultimately including everything from agricultural workers to food manufacturing, stopping just shy of food wholesalers and distributors. Specifically, the Order provides sick leave in the following limited instances:

  • When a worker is unable to work due to federal, state, or local quarantine or isolation orders due
    to COVID-19;
  • When the worker is advised to self-quarantine or self-isolate by a health care provider due to
    COVID-19 related concerns; or
  • When the worker is sent home by the employer over concerns of possible COVID-19 transmission.


Workers who are scheduled for 40 hours a week, or who have worked 40 hours per week in the two weeks prior to taking the leave, are eligible for 80 hours of leave, while workers who do not
work 40 hours are eligible for a prorated leave based on average hours worked over the past 6 months. The rate of pay matches the emergency paid sick leave provisions of the Families First Coronavirus Response Act (FFCRA), with caps of $511 per day and $5,110 in total per employee.

The Executive Order is in effect from April 16 for the duration of any state-wide stay-at-home orders issued by the State Public Health Officer. A Food Sector Worker who has commenced the supplemental paid sick leave prior to the termination of all stay-at-home orders may complete the necessary leave.

 

Washington State Proclamation Protecting High-Risk Workers

On April 13, Washington Governor Jay Inslee issued a COVID-19-related Proclamation regarding workers at high risk, as defined by the Centers for Disease Control and Prevention. Specifically, the Proclamation protects employees who are at a heightened risk for complications with COVID-19, as defined by the CDC, by prohibiting all employers from failing to provide accommodations to high-risk employees. In essence, this proclamation provides ADA-esque protection to those who meet the CDC definition of being high risk for COVID-19, such as age 65 or older and having serious health conditions. Employers must first try to keep high risk employees working by providing alternative work assignments, including but not limited to telework or remote work locations, when possible. If alternative work assignments are not possible, the employer must allow the employee to take leave as an accommodation, free from risk of adverse employment action, using any accrued leave, or, if exhausted, unemployment insurance at the discretion of the employee. Additionally, should the employee exhaust paid leave while on an accommodated leave, the employer must maintain employer-provided health benefits until the employee is deemed eligible to return to work.

The Proclamation is in effect from April 13 through June 12, 2020, unless extended.

 

DOL Guidance Regarding Reemployment of Service Members under USERRA

The Department of Labor released a COVID-19-specific fact sheet with regard to the Uniformed Services Employment and Reemployment Rights Act. This fact sheet does not create new rights or obligations under USERRA; rather it addresses specific scenarios to ensure uniform application of USERRA in the context of the pandemic. The fact sheet provides the following important information:

  • National Guard members or Reservists called to duty under federal authority are covered
    under USERRA.
  • National Guard members called to duty under state authority are not covered under USERRA.
    That being said, the service member may be entitled to protection under similar state statutes.
    In addition, authority over National Guard members called to duty may shift from state authority
    to federal authority depending on circumstances.
  • Service members can be furloughed or laid off upon return from uniformed service if it is reasonably
    certain that the service member would have been furloughed or laid off even if he or she had not
    been absent for uniformed service.
  • An employer cannot delay reemploying a service member due to concerns that the service member
    had been deployed to a COVID-19 high risk area. When reemploying an infected or potentially exposed
    service member, an employer must make reasonable efforts in order to qualify the returning employee
    for his or her proper reemployment position. This can include temporarily providing paid leave, remote
    work, or another position during a period of quarantine before placing the individual in his or her
    proper reemployment position.

For more information on the details of National Guard service, see National Guard Assists Response to the COVID-19 Pandemic published by the National Conference of State Legislatures.

Next Up

Rest up, y’all – here is what we have in store for you after the break:

  • More ADA guidance from the EEOC – yes, they really have new stuff to say
  • OSHA – employer obligations to provide a safe workplace
  • COVID-19 lawsuits – here they come!
  • Cityscape – what are municipalities doing?

And watch for your personal invite to our next webinar, where we will dig into all this good stuff!

Welcome

With this blog post we welcome a new contributor, Armando Rodriguez.  Armando has been with Matrix Absence Management since 2017 and previously served as a Claims Examiner Supervisor.  We are delighted to welcome Armando to the Compliance & Legal team as he finishes law school and moves toward a legal career.  Armando’s experience in Operations as an examiner and supervisor makes him uniquely qualified to provide realistic compliance guidance to Matrix, our clients and all of you!

NEW JERSEY DEVELOPMENTS: ENHANCED LEAVE OF ABSENCE AND JOB PROTECTION UNDER NJ FLA TO CARE FOR FAMILY MEMBERS

Posted On April 17, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

April 17, 2020

 

At Matrix and Reliance Standard, we have been tirelessly keeping up with the explosion of legislation that has been introduced and enacted to address COVID-19 related leaves of absence, disability plans, paid sick leave, and accommodations. We previously told you about New Jersey legislative activity related to COVID 19 just 2 weeks ago. Here is a link to that blog post.

On April 14, Governor Phil Murphy signed NJ SB 2374, further amending the New Jersey Family Leave Act (“FLA”) to expand leave rights for employees who need to care for family members due to known or suspected exposure to COVID-19. These amendments were made effective retroactively to March 25, 2020.

Here is a summary of the important changes:

Expansion of the Definition of Family Leave: The amendment broadens the bases for which an eligible employee can take FLA to include leave from employment. Employees can now use the FLA’s job-protected 12 weeks in a 24-month period for leave needed due to an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease, when made necessary by a state of emergency declared by the Governor or public health authority. New leave reasons include:

  1. In-home care or treatment of a child due to school or daycare closing by order of a public health official;
  2. Quarantine from a public health authority of a family member in need of care due to known or
    suspected exposure to a communicable disease; or
  3. A recommendation by a healthcare provider or public health authority that a family member in need
    of care voluntarily self-quarantine due to suspected exposure to a communicable disease.

Certification. For leave due to school or day care closing, the employer may only request documentation of the date and reason for closing. Similarly, for reason #2, the only documentation required is the date of issuance of the determination and probable duration. For reason #3, voluntary self-quarantine, the employee certification is limited to the date of the recommendation, its probable duration and any “medical or other facts known to the healthcare provider or authority.”

Intermittent leave. Family leave for the new reasons can be taken intermittently if the employee: 1) provides notice as soon as practicable; 2) makes a reasonable effort to schedule that time to limit the disruption to the employer’s operations; and 3) if possible, gives the employer an advance regular schedule of the day(s) of the week on which intermittent leave will be taken.

This seems odd in that the law allows an employee to work intermittently even if the reason for leave is quarantine of a family member due to known or suspected exposure to the communicable disease – which means the employee himself may also have been exposed. There is no limitation such as intermittent leaves being available only for an employee who is able to work remotely.

Expansion of NJ Family Temporary Disability Benefits. In addition to expanding FLA, the amendment expanded NJ Family Leave Insurance (FLI). The definition of “disability” now allows benefits for an employee to care for a family member who requires in-home care or treatment because he or she is subject to a quarantine order issued by a public health authority or healthcare provider.

 

Matrix can Help!

At Matrix we don’t just track all this state and federal legislation – we jump into action!  We are constantly updating our leave administration practices and staff training to apply each new COVID-19-related provision. So, reach out to your account manager with specific questions and make sure to continue to read our blog for the latest updates and developments. Stay safe!

NEW YORK’S EMERGENCY PAID QUARANTINE LEAVE FOR COVID-19 – AN UPDATE

Posted On April 15, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 15, 2020

 

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

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

Here are the specifics: 

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

Covered employers. All employers are covered.

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

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

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

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

Employee quarantine:

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

Child quarantine:

  • PFL benefits under new quarantine reason

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

Employers with 11-99 employees

Employee quarantine:

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

Child quarantine:

  • PFL benefits under new quarantine reason

Employers with 100 or more employees

Public employers of any size

Employee quarantine:

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

Child quarantine:

  • PFL benefits under new quarantine reason
 

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

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

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

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

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

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

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

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

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

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

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

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

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

Other details.

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

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

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

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

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

Matrix can Help!

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

 

WHAT ABOUT ME? THE PLIGHT OF THE 500+ EMPLOYER GROUP

Posted On April 14, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 14, 2020

 

FFCRA

At Matrix and Reliance Standard we receive questions about COVID-19-related issues daily – no, hourly. Since the passage of the Families First Coronavirus Response Act (FFCRA), many of these questions have revolved around a big  issue for big(ger) employers: What about companies that have 500 or more employees? These larger employers are not covered by the Emergency Paid Sick Leave Act (EPSL) or Emergency Family and Medical Leave Expansion Act (EFML) provisions of FFCRA. So what does apply and what can/should a large employer do?

Let’s take on that topic now. 

On April 9 Matrix and our sister company Reliance Standard Life Insurance presented a webinar on current
federal and state COVID-19-related legislation. I was joined by my RSL colleagues Karen Joseph and Tim Suchecki. We reviewed:

    • The Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave
      Expansion Act (EFML), both part of the
      FFCRA
    • State paid leave responses to COVID-19
      (including New York, of course)
    • Benefits and leave scenarios in various states
      that have state-mandated paid family and/or
      paid disability programs

You can obtain a copy of our presentation deck  here, and listen to a recording of the  session here.

My company has more than 500 employees. Does the “regular” FMLA apply to COVID-19?

Yes! The regular FMLA may come into play if an employee or employee’s family member is experiencing COVID-19 symptoms. BUT, the individual’s medical condition still must meet one of the FMLA definitions “serious health condition.A COVID-19 diagnosis, in and of itself, does not do this. Some individuals who have COVID-19 are asymptomatic or have very mild symptoms that will not rise to the level of a serious health condition.

Two specific definitions of serious health condition may be applicable here (29 C.F.R. §§ 113-115):

  • Inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility plus
    any subsequent
    period of incapacity or treatment); or
  • Incapacity of more than 3 consecutive, full calendar days, that also involves 2 or more in-person
    treatments by a health care provider or 1 in-person treatment followed by a regimen of
    continuing care
    .

The FFCRA made no changes whatsoever to the rules and procedures for regular FMLA claims. Despite the difficulty in getting an in-person medical appointment, an employer may still require in-person treatment by a health care provider and a written certification. Employers do have the ability to waive this requirement and accept a certification following a telemedicine appointment or waive the certification requirement altogether. Employers should consult with their legal counsel on whether, in that case, the employer should take the same approach to certification requirements for all serious health conditions, not just COVID-19 claims. Maybe this makes sense, as employees will have an even tougher time get an appointment and medical certification for non-coronavirus health conditions.

All other regular FMLA rules also continue to apply, including employee eligibility, total 12-week entitlement, required employer and employee notices, and so on.

My Company has more than 500 employees. Should we provide EPSL and EFML benefits to our employees?

Employers need to approach this decision with eyes wide open. If an employer with 500 or more employees elects to provide the EPSL and/or EFML benefits to its employees, there are two key things to understand:

  1. EFMLA is available when an employee’s child’s school or daycare has closed, or a day care
    provider is unavailable, due to COVID-19.
    This leave counts toward an employee’s 12-week
    FMLA
    entitlement per 12-month period. For employers with 500+ employees, any time
    taken by an employee that fits the parameters of EFMLA is not FMLA leave and cannot be
    counted toward the employee’s 12
    weeks of FMLA. Doing so could be considered
    interference with the employee’s FMLA rights by charging the employee’s FMLA bank
    with leave that is not covered by the FMLA or EFML.
  2. Paid leave provided to non-covered employees for EPSL or EFML reasons will not qualify for
    the 100% tax credit available for wage and related payments made pursuant to the acts.

With those two factors in mind, employers with 500 or more employees can certainly offer the same type of benefits to its employees as a new company policy or benefit. And, any employer can allow (but often cannot require!) employees to use existing company-paid sick leave, PTO, and other paid leave benefits for COVID-19-related reasons not normally covered, such as quarantines or school closures.

My Company has more than 500 employees. Do we need to post notice of the EPSL and EFML?

No. You are not a covered employer so no need to put up the DOL-approved poster (available here in several languages for those who DO need to post or share electronically!). In fact, posting the notice if your company is not covered might just add confusion to an already confusing situation for employees.

My business is made up of multiple companies, some over and some under 500 employees. Should we provide EPSL and EFML benefits to ALL employees?

The previous question provides the answer here: be aware of the two key factors in making your decision. But there is an additional consideration: If you provide EFML benefits to the employees of the 500+ companies you are in effect giving those employees greater benefits than the employees of smaller companies. That’s because, for the employees of the larger companies, the paid time off cannot count toward the employee’s FMLA 12-week entitlement, but such usage for an employee of a smaller company does count toward FMLA. So the employees of the larger companies may be able to take more leave in a 12-month period, paid or unpaid, than employees of the smaller companies. Be ready for employee dissatisfaction with perceived inequities in benefits among the companies!

My company has ABOUT 500 employees, depending on the day. Should we provide EPSL and EFML benefits to our employees regardless of each day’s headcount?

Whether an employer has fewer than 500 employees is determined as of the first day of leave of EACH employee requesting leave. That means, for example, that an employer with 510 employees today does not have to grant leaves that will start today; but a week later, if the employee headcount drops to 495, the employer does have to grant leaves requested to start that day. (This may include leave for the employees denied today.)

In light of this moving target it may be tempting to simply grant the paid leave for all employees regardless of a specific day’s employee count. But any EPSL or EFML benefits provided while the company has 500 or more employees on the leave start date won’t count toward the employer’s paid leave obligations to an employee for the leaves that ARE covered, won’t qualify for the tax credits, and can’t be counted toward the employee’s FMLA entitlement. Feeling like a broken record here, but there are so many permutations on that 500 rule!

My business is made up of several related entities. Should we provide EPSL and EFML benefits to our employees?

Generally, each legal entity, such as a corporation, is a separate employer for purposes of counting employees for EFMLA (and FMLA) coverage. However, in some cases related entities may constitute a single employer and therefore all employees of the related entities are counted to determine the under/over 500 count.

Here is guidance from the FMLA regulations, which are incorporated into the EFML regulations:

A corporation is a single employer rather than its separate establishments or divisions. Where one corporation has an ownership interest in another corporation, it is a separate employer unless it meets the “integrated employertest. Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility. A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. Factors considered in determining whether two or more entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

(29 C.F.R. §§ 825.104 and § 826.40)

This assessment is important because, if your company is part of an integrated employer with a total of 500 or more employees, any benefits provided cannot be counted toward an employee’s FMLA usage and won’t qualify for tax credits, as discussed above. On the other hand, if your under-500 corporate entity is affiliated with other companies but does not satisfy the integrated employer test you may be covered by FFCRA without realizing it.

SAFE BET: If you have questions about whether your company is part of an integrated employer, consult your legal counsel. The determination depends on a legal analysis your company’s specific facts and circumstances.

My company usually has more than 500 employees, but we have had to furlough hundreds and now have fewer than 500 active employees. Are we covered by FFCRA?

Yes. Those remaining active employees are entitled to EPSL or EFML paid benefits and job-protected leave. Employees on furlough or laid off are not counted toward the company’s number of employees. Likewise, they are not entitled to FFCRA benefits. However, furloughed or laid off employees may be entitled to unemployment benefits, which vary from state to state.

My company has more than 500 employees. Are there any other COVID-19-related laws we need to comply with?

Yes. Specifically, New York passed a law, effective March 18, 2020, which provides paid leave to employees of all employers when the employee or a minor dependent child is subject to an order of quarantine or isolation. The type and amount of paid benefits available to employees depends on employer size. Employers with 100 or more employees must provide 14 calendar days of paid leave due to an employee or minor child quarantine (that is, pay for the number of days the employee would normally work in a 14-day period). For details on the New York law, check out our New York FAQs and our webinar presentation  and recording.

In states with paid family leave and/or paid disability benefits, many changes have been made to afford benefits to employees for COVID19-related leaves. These too are covered in our recent COVID-19 webinar.

Matrix can help!  

Look, there are obviously a number of factors in play surrounding the recent COVID-19 laws, particularly as they relate to providing benefits voluntarily to companies with more than 500 employees. It’s a sad, but unavoidable truth that well-meaning employers must nonetheless be cognizant of the unintended consequences that could result without careful examination of ALL the laws that apply to them. We are here to offer information and illumination – that’s our jam! But remember, consulting with legal counsel and a tax expert is always advisable if employers with over 500 employees choose to provide benefits more generous than those required under the law.

COVID CATCH-UP: NEWS FROM THE DOL, CDC, AND EEOC

Posted On April 13, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 13, 2020

 

The best thing about the just-concluded long weekend is that it gave me a chance to catch up on the latest Coronavirus guidance issued by various entities. Top of the world, Ma! Here are 3 for today’s reading pleasure:

COVID-19 QUESTIONS AND ANSWERS: ROUND 4 FROM THE DOL
The U.S. Department of Labor has issued the fourth set of questions and answers relating to the Families First Coronavirus Response Act’s Emergency Paid Sick Leave Act (EPSL) and Emergency Family and Medical Leave Expansion Act (EFML). This edition has 20 new questions, starting with #60. There are no surprises but some of the answers do provide helpful interpretive information. As you read, remember this guiding principle:

In order to receive EPSL and/or EFML benefits, (1) the employer must have work available for the employee; and (2) the employee must be unable to perform the work (or telework) due to the COVID-19 reason. So, for example, if an employee must stay home to care for a small child due to a school closure but the employer has closed its place of business and has no work the employee could otherwise perform, the employee is not entitled to pay benefits.

Quarantine orders (Question 60). For purposes of EPSL, a quarantine or isolation order includes a shelter-in-place or stay-at-home order issued by any federal, state, or local government authority as well as a specific order directed at an individual employee or family member.

Self-quarantine (Questions 61-62, 65). An employee may receive benefits during a self-quarantine only when acting pursuant to the advice of a health care provider. The employee’s own opinion that he should stay away from others will not support a claim for FFCRA pay benefits. The same applies for leave to care for an individual in self-quarantine.

Care for others who are quarantined (Questions 63-65). An employee may be able take EPSL to care for another individual who is under a governmental order of quarantine or isolation or who is quarantined pursuant to the advice of a health care provider, but must meet the following criteria: (1) the individual is unable to care for herself (2) the individual depends on the employee for care; and (3) providing the care prevents the employee from working or teleworking.

An “individual” for whom an employee may provide care is limited to a member of the employee’s immediate family (not defined), someone who regularly resides in the employee’s home, or someone with whom the employee has a relationship that creates an expectation of care. There must be a personal relationship between the employee and the individual.

Age of child; care of child (Questions 66, 71-72, 40). Both EPSL and EFML are available to care for a child in quarantine or whose school or place of care has closed if the child is under age 18 or is 18 or older and in capable of self-care because of a disability.

An employee may take EFML only to care for his own son or daughter due to a school or day care closer or other unavailability of daycare. “Son or daughter” is defined for this purpose the same as under the regular FMLA: Biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stands in loco parentis.

On the other hand, an employee may take EPSL to care for an “individual,” which is defined much more broadly than “son or daughter” (see above, Question 64) and therefore might include a child who is not the employee’s own son or daughter.

School or “place of care” closure, unavailability of “child care provider” (Questions 67-70). A “place of care” is a physical location in which care is provided for a child. It does not have to be dedicated solely to this purpose. Traditional day care facilities and preschools are included, as well as before and after school care programs, homes, and summer camps. This leads us to wonder, what will happen when summer hits if school closures are still in effect? Will parents be able to take leave when a different place of care that they would then have relied on is still closed? Remember, 12 weeks of leave staring April 1, for example, will extend to June 23.

A “child care provider” is defined to include both (1) paid individuals such as au pairs, nannies, and babysitters, and (2) individuals who regularly provide care at no cost, such as family members, friends, or neighbors.

An employee can take leave to care for a child due to a school closure, etc., only when the employee is actually needed to care for the child and is unable to work as a result. Leave is not available if another provider such as a co-parent is available.

A school is considered closed even if it is offering online instruction or other at-home schooling resources. Closure of the physical location is what counts.

Workers’ compensation and temporary disability benefits (Question 76). An employee currently receiving workers’ comp and disability benefits through a state- or employer-provided plan is not eligible to receive paid leave under EPSL or EFML. Such benefits are paid because the employee is unable to work due to an injury or illness. The DOL has not addressed how the EPSL and EFML benefits interact with paid family leave, if the employee’s reason for leave is covered by each.

FFCRA benefits and current leaves of absence (Question 77). An employee on a current leave of absence is not entitled to EPSL or EFML benefits because they are not working and in need of leave. However, an employee on a voluntary leave of absence (for example, bonding with a new child or on sabbatical or vacation) can chose to end the leave and take FFCRA benefits for a qualifying reason that then prevents the employee from working. On the other hand, if an employee is on a mandatory leave of absence (e.g., a disciplinary suspension), it is that mandatory leave that is preventing the employee from working, not a FFCRA-qualifying reason, so no benefits are available.

DOL enforcement (Questions 78-79). The DOL has stated it will not bring an enforcement action against an employer for violations of EPSL or EFML occurring within 30 days of enactment (from March 18 through April 17). This does not mean employers don’t need to comply until April 18. Rather, the DOL will expect employers to use good faith efforts to comply, correct any violations that occur during that period, and commit to ongoing compliance. Otherwise, the DOL will retroactively enforce violations back to April 1, 2020.

Other topics covered in Round 4 include counting employees of a staffing company (Question 74) and calculating pay for seasonal employees (Question 75).

CDC GUIDANCE FOR EXPOSED CRITICAL WORKERS
Recognizing the need to keep employees in certain key industries working, the Centers for Disease Control has issued an Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19. (#mouthful!) The Guidance applies to these employees:

  • Federal, state, & local law enforcement
  • 911 call center employees
  • Fusion Center employees
  • Hazardous material responders from government and the private sector
  • Janitorial staff and other custodial staff
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing,
    informational technology, transportation, energy and government facilities

Workers who have had a potential exposure are permitted to keep working provided they are asymptomatic and take additional workplace precautions:

  • Pre-Screen for temperature and symptoms before entering a facility or starting work
  • Regular Monitoring under the supervision of the employer’s occupational health program.
  • Wear a Mask
  • Practice social distancing
  • Disinfect and clean work spaces routinely, such as offices, bathrooms, common areas, and
    shared electronic equipment

More information is available in the Interim Guidance.

EEOC UPDATED ADA COVID-19 GUIDANCE
Ages ago (well, it was early March – how time flies!) we blogged about the Equal Employment Opportunity Commission’s guidance on COVID-19 and the Americans with Disabilities Act. The information in that post is still accurate and provides the answers to many workplace questions relating to the ADA and COVID-19.

On April 9 the EEOC came out with an updated guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. The update covers several topics such as medical inquiries, confidentiality, hiring and onboarding, and furloughs. Of greatest to us in the absence and accommodations business are the new questions and answers about COVID-19 and accommodations.

The update starts with a recommendation to consult with the Job Accommodation Network (JAN) for assistance with accommodations, a suggestion with which we at Matrix heartily agree. JAN’s materials specific to COVID-19 are here In the meantime, here is the new guidance. (I borrowed liberally from the EEOC document itself rather than reinvent the wheel.)

D.1. If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (4/9/20)

Yes. Some of these “accommodations” may have already been implemented for all employees but consider:

  • Changes to the work environment such as designating one-way aisles; using
    Plexiglas, tables, or other barriers to ensure minimum distances between customers
    and coworkers
  • Temporary job restructuring of marginal job duties
  • Temporary transfers to a different position
  • Modifying a work schedule or shift assignment.

D.2. If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Yes. Employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty than other employees handling the disruption to daily life that has accompanied the COVID-19 pandemic. Employers may ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

D.3. In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily. An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now. The employer may be able to acquire all the information it needs to make a decision. If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship. The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

As an additional resource, check out the transcript of the webinar held on March 27 regarding the laws EEOC enforces and COVID-19.

Matrix can Help!  

Sure, we are your one-stop shop for COVID-19 leave information, but we are so much more! At some point, hopefully soon, we will all be focusing less on coping and more on growing; and you will see we continue to shine! Subscribe (now! do it!),  and keep us in mind as you ready your Company programs for tomorrow and the many days after. We can, and will, help.

WHOOPEE! MORE FFCRA GUIDANCE! DOL ISSUES TEMPORARY REGULATIONS

Posted On April 03, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 03, 2020

 

Perhaps I shouldn’t be flippant, but seems like every other day brings more guidance from the U.S. Department of Labor on the new paid leave benefits available to many employees under the iStockFamilies First Coronavirus Response Act.  Oh, wait, it doesn’t just seem like every other day…!

But, the latest DOL offering – the FFCRA Temporary Regulations – is very important. In a mere 124 pages (in all fairness, double spaced) the DOL sets out its official interpretation of what is, by general consensus, a very confusing law. I have read the regulations and found some degree of clarity from them. Now it’s time to offer my learnings to you, my faithful readers.  Taking metaphorical pen in hand, I begin our journey:

 

 

 

 

 

 

Oh, sorry, I was daydreaming that I worked for a company with hundreds of employment lawyers, with whom I could share the load.

But wait – I don’t, but Jeff Nowak does!  So, my friends, rather than reinventing the wheel on a Friday evening in April, I am going to point you to Jeff’s blog FMLA Insights for his thoughtful analysis and summary of the FFCRA regulations.  Thank you, Jeff and colleagues!

But don’t think I have nothing to do now!  At Matrix, we are training our folks, creating new intake procedures and new forms, answering client questions (we get tons, and they get more granular every day!).  We are Mission-Ready to administer the expanded FMLA and all the new COVID-19-related state laws and regulations that are also coming at us fast and furious.  And the rest of Matrix’s compliance team is working to hold down the fort and handle all of our other compliance responsibilities. Even in these challenging times, we are committed to providing our clients with top notch leave, disability, and accommodations services in all regards.

And as a final note, in case you need a little light reading for the weekend, here are some links to a DOL COVID-19 webinar you might find useful – both for yourself and your employees:

DOL Webinar: The Families First Coronavirus Response Act (FFCRA)

DOL Webinar Slides (PDF)

AND THE BEAT GOES ON . . . IRS INFO ON THE COVID-19 TAX CREDIT; DOL ISSUES TEMPORARY REGULATIONS

Posted On April 02, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 02, 2020

 

And the beat goes on, the beat goes on
Drums keep pounding a rhythm to the brain
La de da de de, la de da de da*

Sonny & Cher

Bet that song will be in your brain all day now – you’re welcome! 


We are getting pounded daily with new guidance on the Families First Coronavirus Response Act (FFCRA).  Here’s the drumbeat from the last couple of days – FFCRA tax credits guidance and Department of Labor temporary regulations (124 pages!) explaining the Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA).  (For our prior COVID-19 posts you can just scroll down in this blog.  But remember, things keep changing so always look here for the latest!)

DOL Temporary FFCRA Regulations

I have to admit, I have not yet read all 124 pages of the temporary regulations and won’t try to summarize them yet.  That will be part of my fun weekend.  It will be an easy way to keep appropriate social distance!  But the regs have arrived and you can enjoy them yourself here.

COVID-19-Related Tax Credits

First, a refresher. The FFCRA is applicable to employers with fewer than 500 employees. The act requires covered employers to provide paid leave through two separate provisions: (i) the EPSL, which entitles workers to up to 80 hours of paid sick time when they are unable to work for certain reasons related to COVID-19, and (ii) the EFMLA, which entitles workers to certain paid family and medical leave when their child’s school is closed or daycare is unavailable due to COVID-19.

Covered employers can claim tax credits for wages paid as required by EPSL and EFMLA. These tax credits also include any qualified health plan expenses and the employer’s share of Medicare tax on the FFCRA wages paid.  Details on how to claim the tax credit are available in the IRS guidance.  Be sure to share it with your tax advisor (I’ll bet they already have it)!

Documentation is Really Important!  Kind employers may be inclined to take an employee’s word for the reason they need paid leave under EPSL and/or EFMLA, but doing so may be kissing the 100% tax credit goodbye. You can’t get the tax credit without some pretty detailed documentation.  The following information is found in Questions 44 and 45 of the IRS guidance:

For all paid leave reasons, the employee must make a WRITTEN request for paid leave that includes:

  1. The employee’s name;
  2. The date or dates for which leave is requested;
  3. A statement of the COVID-19 related reason the employee is requesting leave and written support
    for such reason; and
  4. A statement that the employee is unable to work, including by means of telework, for such reason.

And:

In the case of a leave request based on a quarantine order or self-quarantine advice for the employee or a family member, the written statement from the employee should include:

  1. The name of the governmental entity ordering quarantine or the name of the health care professional
    advising self-quarantine; and,
  2. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s
    name and relation to the employee.

In the case of a leave request based on a school closing or child care provider unavailability, the written statement from the employee should include:

  1. The name and age of the child (or children) to be cared for;
  2. The name of the school that has closed or place of care that is unavailable; and
  3. A representation that no other person will be providing care for the child during the period for which
    the employee is receiving family medical leave; and
  4. With respect to the employee’s inability to work or telework because of a need to provide care for a
    child older than fourteen during daylight hours, a statement that special circumstances exist requiring
    the employee to provide care.

In other words, an employee cannot get paid EPSL or EFMLA during a school closure or unavailability of day care due to COVID-19 if someone else is providing care to the child(ren) during the time for which the employee is claiming paid leave. Does this mean that if one parent is home due to a business closure, the other parent cannot take paid leave to care for the child?  It would seem so, and that seems fair. There is no guidance as to what would constitute special circumstances that make an employee unable to telework even though his children are over 14. Special needs come to mind. Or, “My child is a pyromaniac and must be watched at all times!” (Another song reference – any Def Leppard fans out there?)

And the beat goes on!  In addition to the above documentation, the employer must create and maintain records that include the following information:

  • Documentation to show how the employer determined the amount of EPSL an EFMLA wages paid to
    employees that are eligible for the credit, including records of work, telework and qualified sick leave
    and qualified family leave.
  • Documentation to show how the employer determined the amount of health plan expenses being claimed.
  • Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, that the
    employer submitted to the IRS.
  • Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted
    to the IRS (or, for employers that use third party payers to meet their employment tax obligations,
    records of information provided to the third party payer regarding the employer’s entitlement to the
    credit claimed on Form 941).

Matrix Can Help!

Where else can you get COVID-19 leave news, insightful interpretations and the occasional music throwback? Sure, everyone says “We’re all in this together,” but admit it – it’s more fun together with us. Stay informed, stay loose and reach out to your Matrix or Reliance Standard account manager for help making your program make sense. 

 

*The Beat Goes On written by Sonny Bono. © Warner Chappell Music, Inc.

THE DOL ON A ROLL – MORE FFRCA Q&AS ISSUED

Posted On March 31, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 31, 2020

 

In the fast-paced COVID-19 world, the U.S. Department of Labor (DOL) has issued more Questions and Answers about the Families First Corona Virus Reponses Act (FFCRA).  And not only are we now up to 59 questions (a good indicator of how tough it is to understand the FFCRA), but in the latest issue the DOL went back and revised some of the answers given just the day before!!  You can find the current full set of Q&As, the gift that keeps on giving, here.

This discussion includes material revisions to DOL answers previously provided in earlier versions of the Q&A, and coverage of Questions 15 through 59.  For even more information, see my post about the act itself as passed, and this post with analysis of the first 14 questions. (How cute that seems now – it seems like just yesterday!)   

Even though this is a lengthy post, persist! And I encourage employers to read the actual Q&As for more details on topics of interest to them. 

As used here, EPSL refers to the Emergency Paid Sick Leave Act and its benefits.  EFMLA refers to the Emergency Family and Medical Leave Expansion Act and its benefits.

Documentation (Questions 15-16):  Employers, don’t be lax on the documentation requirements if you want to get those tax credits.  An employer must obtain appropriate documentation for an employee’s paid leave (whether sick leave or EFMLA) if the employer intends to claim a tax credit under the FFCRA for such payments.  Unfortunately, the DOL provides little guidance regarding what is sufficient documentation, punting instead to the IRS.  (“You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit.”)   As of this writing the IRS has yet to  publish any such materials.

There is a little more help with respect to documentation for paid leave under EFMLA, which covers only leaves necessitated by the employee’s child’s school closure or unavailability of child care due to COVID-19.  Employers may require documentation for this leave reason “to the extent permitted under the certification rules for conventional FMLA leave requests,” whatever that means! But the DOL does provide examples, such as a notice that has been posted on a government, school, or day care website, or published in a newspaper; or an email from an employee or official of the school, place of care, or child care provider. 

An employer is not required to provide EPSL or paid EFMLA leave if materials sufficient to support the applicable tax credit have not been provided by the employee.

Telework (Questions 17-19).  If an employer offers and an employee is able to work from home, then the employee is not entitled to EPSL or EFMLA leave and benefits. The answer to Question 19 states, “Of course, to the extent you are able to telework while caring for your child, EPSL and expanded family and medical leave is not available. Thus, it appears that if an employee declines telework arrangements although he is able to work from home (at least during normal work hours) he is not entitled to the FFCRA pay benefits. This might arise, for example, when the employee is staying home due to a school closure but the employee’s child is old enough to care for himself at home during the day; or when the employee is quarantined but has not developed COVID-19.

Intermittent leave (Questions 20-22).  A telework employee can take intermittent leave under both EPSL and EFMLA in any increment as long as the employer and employee agree (a new concept that we wish applied to regular FMLA intermittent leave!).  

For work at the employee’s usual worksite, the availability of intermittent leave is more limited. EPSL must be taken in full-day increments, and cannot be used intermittently at all if, for example, the employee (or a family member) is under quarantine or is experiencing COVID-19 symptoms and seeking medical diagnosis. Intermittent leave is available, if the employer and employee agree, for both EPSL and EFMLA when the need for leave is due to a child’s school or day care closure.

Once started, the employee must continue using EPSL until the reason no longer exists or the employee exhausts the EPSL allotment. However, if the employee no longer has a qualifying reason for taking EPSL before she exhausts her allotment, she may take any remaining EPSL at a later time, until December 31, 2020, if another qualifying reason occurs.

Closed worksites, furlough, reduced hours, and FFCRA benefits (Questions 23-28).  It appears that the closure of a worksite – for whatever reason – trumps (ahem!) the right to EPSL or enhanced FMLA. That is, even if an employee is experiencing a situation that would entitle her to paid leave and/or FMLA protections, those are not available once the business closes because the employee is no longer missing work due to the covered reason. In other words, there is no work to take leave from. The same applies if an employee is furloughed. The employer must pay for any qualifying leave taken while the business was open or before the furlough, but not more than that. Similarly, if an employer orders reduced hours, the employee cannot claim FFCRA benefits for the missed work hours because the employee is not prevented from working due to a FFCRA-qualifying reason.

Coordination with other paid leave policies, laws, and CBAs (Questions 31-34, 46).  If an employer offers paid leave benefits (such as vacation, PTO, sick leave, etc.) the employee gets to choose which benefit to use – one from the employer’s existing policies or a benefit under the FFCRA. They cannot be used concurrently unless the employer agrees to allow the employee to supplement or top off FFCRA benefits with company paid leave benefits, up to the employee’s normal earnings. Whether to use such benefits, if offered by the employer, is up to the employee.  

EPSL is in addition to other leave mandated by any federal, state, or local law. The employer must comply with both separately. The same goes for leave provided by a collective bargaining agreement.

An employer may elect to pay employees more than the amount required under the FFCRA, whether by allowing the employee to supplement FFCRA payments with existing paid leave or by simply paying more than the FFCRA requires. However, the employer will not receive tax credit for any excess amounts paid.

“Son or daughter” (Question 40).  Both EPSL and EFMLA provide job-protected, paid leave when an employee needs to care for a “son or daughter” due to the closure of the child’s school or the unavailability of child care due to COVID-19. The DOL has clarified that both laws include not only a child under age 18, but also one 18 years or older who (1) has a mental or physical disability, and (2) is incapable of self-care because of that disability. This resolves an inconsistency between the two laws. For additional information on requirements relating to an adult son or daughter, see the DOL’s FMLA Fact Sheet #28K.

Job protection (Question 43).  Both EPSL and EFMLA entitle the employee after leave to be restored to the same or equivalent position. However, as with regular FMLA, an employee is not protected from employment actions that would have affected the worker’s employment regardless of leave. The DOL uses the example of a layoff that would have occurred whether or not the employee took leave. In reality, this also applies if an employee is terminated for cause that has nothing to do with the employee’s covered leave or request for leave. The “key employee” provision of the FMLA is also still applicable.

In addition, there is an exemption to the job restoration requirement for employers with fewer than 25 employees if the position was eliminated for reasons related to COVID-19 and the employer makes reasonable efforts to restore the employee to an equivalent position for the next 12 months. 

Interaction of EPSL and FMLA (Questions 44-47).  The EPSL and FMLA of any type are separate entitlements. If the employee’s reason for taking EPSL coincides with the EFMLA reason, the two run concurrently and the employee is entitled to the benefits of both.  Example:

  • An employee’s child’s school closes due to COVID-19. The employee can take EPSL to
    receive paid time off for the first 80 hours/2 weeks.  If the employee has been working for
    the employer for at least 30 days, the employee is also entitled to EFMLA protections
    during the first 10 days of leave and the EFMLA pay benefits that commence after 10 days.

On the other hand, EPSL used for other covered reasons, such as the employee’s or family member’s quarantine, does not count as FMLA and does not reduce the employee’s FMLA entitlement.  One possible exception is where the employee or a family member is showing symptoms of COVID-19 and is seeking a medical diagnosis. In that case, EPSL would be available and the employee’s or family member’s condition might ultimately satisfy the definition of serious health condition under the FMLA and qualify for coverage by both – but not the 2/3 pay provisions of EFMLA.

The EFMLA provisions do not increase the amount of FMLA leave an employee is entitled to.  The total entitlement for all leave reasons combined remains at 12 weeks in a 12-month period.  And, remember that FMLA for school closures ends on December 31, 2020. 

Part time” and “full time” under FFCRA (Questions 48-49).  Under the EPSL, full-time employees are entitled to up to 80 hours of paid leave and part-time employees are entitled to pay for the number of hours they typically work in a 2-week period. EPSL does not define full time and part time. The DOL now tells us that a full-time employee is normally scheduled to work 40 or more hours per week, and a part-time employee is normally scheduled to work fewer than 40 hours per week. 

In contrast, the Emergency Family and Medical Leave Expansion Act does not distinguish between full- and part-time employees; but the number of hours an employee normally works each week will affect the amount of pay the employee is eligible to receive.

Applicability of FFCRA to public employers/employees (Questions 52-54).  OK, I don’t have much to say here.  My head is spinning from reading 54 questions and answers so far. The answers to whether EPSL and EFMLA apply to public sector workers are different. EPSL?  “Generally, yes.”  EFMLA?  “It depends.”  So I recommend anyone affected by this issue read Questions 52 and 53, which offer a lot of detail. 

Who is a “health care provider”?  (Questions 55-56).  We have two answers to this question. First, a “health care provider” (HCP), as the term is used to determine who can tell an employee to self-quarantine due to COVID-19, means a licensed doctor of medicine, nurse practitioner, or other HCP permitted to issue an FMLA certification.

Second, both EPSL and EFMLA allow an employer to exempt HCPs from coverage. For this purpose, the term includes anyone employed at any doctor’s office, hospital . . . clinic . . . medical school . . . nursing facility . . . pharmacy . . . including any permanent or temporary facility . . .   You get the idea – the list is very extensive and I have left out many examples, so read Question 56 if this is important to you. 

Who is an “emergency responder”?  (Question 57).  Both EPSL and EFMLA allow an employer to exempt emergency responders from coverage. For this purpose, the term includes “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19.”  Examples include national guard, law enforcement officers, various types of emergency personnel, and 911 operators. The DOL provides many more examples in Question 57. 

Small business exemption (Questions 58-59).  An employer with fewer than 50 employees is exempt from providing EPSL and EFMLA when doing so would jeopardize the viability of the small business as a going concern, but ONLY as to school/child care closures or unavailability due to COVID-19.  There is no exemption for the other 5 reasons for EPSL (see our prior blog post here for the list). 

The exemption is available only if:

  • The business has fewer than 50 employees;
  • Leave is requested because of the employee’s son or daughter’s school/child care closure
    or unavailability due to COVID-19; and
  • An authorized officer of the business has determined that at least one of the following
    three conditions exists:
    • The provision of leave would result in the small business’s expenses and financial
      obligations exceeding available business revenues and cause the small business to
      cease operating at a minimal capacity; or 
    • The absence of the employee or employees requesting leave would entail a substantial
      risk to the financial health or operational capabilities of the small business because of
      their specialized skills, knowledge of the business, or responsibilities; or  
    • There are not sufficient workers who are able, willing, and qualified, and who will be
      available at the time and place needed, to perform the labor or services provided by
      the employee or employees requesting leave and these labor or services are needed
      for the small business to operate at a minimal capacity.

WHEW! Is anyone else ready for a cold beverage? We’re done – at least for now – but please remember to check back frequently for updates, as things are changing in this COVID-19 world by the hour.

Matrix Can Help!

At Matrix we don’t just track all this state and federal legislation on a daily (hourly?) basis – we prepare to jump into action!  We are constantly updating our leave administration practices and staff training to apply each new COVID-19-related provision as fast as they come out of the oven, still warm and chewy. So reach out to your account manager with specific questions and check back with us early and often.

JERSEY, SURE: NJ JOINS THE COVID-19 LEGISLATIVE FLURRY

Posted On March 30, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 30, 2020

 

 

On March 25 New Jersey’s governor signed Senate Bill 2304 that increases rights under several leave and benefits laws to address COVID-19 challenges for employees.  These changes were effective immediately.  Here’s a rundown:

Author’s note: Pardon the cumbersome language, but the statutory language is even more complicated!  Be sure to consult the actual wording of SB 2304 as you apply its provisions. 

Family Leave Act and Family Leave Insurance.  The Family Leave Act (FLA) provides up to 12 weeks of leave in a 24-month period to bond with a new child or to care for a family member with a serious health condition.  Family Leave Insurance provides paid leave of absence benefits for substantially similar reasons as the FLA.  SB 2304 amends both acts by adding to the definition of “serious health condition.”  This term now includes, for both laws, leave needed due to the isolation or quarantine of a family member that meets specific criteria:

  • an illness caused by, a known or suspected exposure to, or efforts to prevent the spread of a
    communicable disease that requires in-home care or treatment of a family member of the
    employee due to:

    • the issuance by a healthcare provider or public health authority of a determination
      that the presence in the community of a family member may jeopardize the health
      of others; and
    • the recommendation, direction, or order of the provider or authority that the family
      member be isolated or quarantined because of suspected exposure to the
      communicable disease.

Another addition to the FLA relates to the “key employee” provision of the act.  Normally, a New Jersey employer can deny family leave to a highly-paid employee when the denial is necessary to prevent substantial and grievous economic injury to the employer’s operations. Now, this provision is not applicable when the leave is needed for circumstances such as those described immediately above (in short, the quarantine or isolation of a family member).

Temporary Disability Insurance.  The statute providing temporary disability insurance for an individual’s non work-related accident or sickness has also been amended.  The term “sickness” (whether relating to a family member or the employee) now includes the same criteria as specified above for “serious health condition,” but also includes the need for in-home care or treatment of “the employee or family member of the employee.”

SB 2304 also waives the typical 7-day waiting period, only for temporary disability benefits attributable to the additional definition of “sickness.”  (Family Leave Insurance does not have a waiting period.)

Earned Sick Leave.  The New Jersey Earned Sick Leave Act provides workers with 1 hour of paid sick leave for every 30 hours worked.  Under the original act this paid leave could be used for multiple reasons, including closure of the employee’s workplace or the school or place of care for the employee’s child due to a public health emergency, or because of a determination that the presence in the community of the employee or a family member in need of care by the employee would jeopardize the health of others.

This reason has now been expanded to include time during which the employee is not able to work because of:

  • a closure of the employee’s workplace, or the school or place of care of a child of the
    employee due to a public health emergency;
  • a declaration of a state of emergency by the governor;
  • a determination that the presence in the community of the employee, or a member
    of the employee’s family in need of care by the employee, would jeopardize the
    health of others; or
  • due to a state of emergency or the recommendation or order of a healthcare provider
    or authorized public official, the employee undergoes isolation or quarantine, or
    cares for a family member in quarantine, as a result of suspected exposure to a
    communicable disease and a finding by the provider or authority that the presence
    in the community of the employee or family member would jeopardize the health
    of others. (It’s not just you, this last point does seem confusingly redundant.)

Matrix Can Help!

At Matrix we track COVID-19-related state and federal legislation on a daily basis – or even more often!  We are updating our leave administration practices and training claims examiners to apply the new COVID-19-related provisions of the New Jersey laws.  Keep watching this blog for news as it develops.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT – DETAILS, DOL AND MORE, OH MY!

Posted On March 26, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 26, 2020

 

With record speed for a governmental agency, the U.S. Department of Labor (DOL) has issued a respectable amount of information to help employers understand the brand spankin’ new Families First Coronavirus Response Act (FFCRA) enacted on March 18.  Among other things, the Act:

  • Expands the Family and Medical Leave Act to provide job-protected
    leave when an employee is unable to work (or telework) due to a
    need to care for the employee’s child under age 18 if the child’s
    school or place of care has been closed or the child care provider
    is unavailable due to COVID-19.
  • Provides paid sick leave for 6 qualifying reasons related to COVID-19.

We provided more details on the FFCRA in our blog post hereIn addition, in collaboration with our sister company Reliance Standard, we have prepared an extensive set of Frequently Asked Questions. Thanks to my colleagues Kim Dunn and Nuri Noaz at RSL for their great work on the FAQs.

Here’s a quick look at new materials provided by the DOL as of yesterday, together with some surprise answers to questions.

FFCRA Questions and Answers

The DOL issued a Q&A guidance late on March 24, 2020.  Here’s a summary of what it covers:

Effective April 1.  The FFCRA provides that it will be effective “not later than 15 days after the date of enactment.”  Most of the world counted on the calendar and assumed this would mean April 2, 2020.  April Fool’s!  The DOL has identified April 1, 2020, as the effective date.  Go figure!

Size of Employer.  The FMLA expansion and paid sick leave provisions apply only to private employers with fewer than 500 employees.  In the Q&A the DOL has explained how to count employees to determine coverage:

  • The point of measurement is at the time an employee’s requested leave is to be taken.
    For employers hovering near that 500 threshold, this means that coverage (and whether
    to provide the leave) could change day by day as the employer’s headcount fluctuates
    over and under 500.
  • The count of employees includes full-time and part-time employees, employees on leave,
    temporary employees jointly employed two employers (regardless of whose payroll the
    employee is on), and day laborers supplied by a temp agency. Independent contractors
    do not count (but remember it is very hard to establish a true independent contractor
    arrangement).
  • Typically a corporation will be considered a single employer. However, the rules regarding
    joint employers and integrated employers apply.  You can find these rules explained in
    the FMLA regulations here.

Public sector employers of any size appear to be covered but the Q&A states that additional FAQs on public employers will be forthcoming.

Paid Sick Leave – Hours and Rate of Pay.  This benefit is available for all employees of employers with fewer than 500 employees, but the amount of leave depends on whether the employee is full time or part time (80 hours for full time and the equivalent of 2 weeks’ work for part time).  Neither of these terms is yet defined.  The Q&A addresses how to calculate the employee’s rate of pay and the employee’s hours of work (including for an employee with a variable schedule).

A welcome clarification is that the Act provides a one-time-only allotment of paid sick leave, not 80 hours/2 weeks per covered event.  And, 80 hours means 80 hours.  An employee who typically works 50 hours per week can take 50 hours of paid sick leave in one week but then will have only 30 hours in the next week.  Still not clear is whether the paid sick leave can be used intermittently and/or at separate times for different covered events, up to the total maximum.

Applicability of Both Benefits.  If an employee needs leave due to a school closure or daycare, they may be eligible for both the enhanced FMLA leave and pay (after 30 days of employment) and the paid sick leave (immediately upon employment).  Because the first 10 days of FMLA for this reason is unpaid the employee can use the paid sick leave entitlement for that period, after which time the pay benefits of the enhanced FMLA would kick in.

Not Retroactive.  The Act does not apply retroactively.   The employer must give employees all of the leave and pay benefits required by the Act from April 1 on.  Anything provided by the employer before that date does not satisfy its obligations (and also won’t qualify for the tax benefits).

Required Employer Notices

Each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises. For remote workers, an employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.  The DOL issued the approved notice form on March 25.  Here it is, along with a related FAQ:  Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

More to Come!

The DOL is authorized by the Act to issue certain regulations relating to both the expanded FMLA provisions and the paid sick leave, but no due date or deadline is provided.  Regulations will cover at least the possible exemptions for health care providers and emergency responders, the small business exemption for crew with fewer than 50 employees if compliance would jeopardize the viability of the business as a going concern, and other regulations as necessary to carry out the paid sick leave provisions and ensure consistency between those and the expanded FMLA provisions.

For all things DOL and COVID-19-related, checkout the DOL’s ever-expanding pandemic website here.

Matrix Can Help!  

Is it me, or does this seem to be drifting into something resembling the “new normal?” While it still feels a bit like the first time on a scary roller coaster, we are taking it in, figuring it out and helping each other – the way you’d hope. Keep checking back, and if you have specific questions we have armed our account managers with up to the moment answers that are refreshed daily. Just ask, and we at Matrix and Reliance Standard will do our best to keep you and your employees stay safe and informed.

 

FAMILIES FIRST CORONAVIRUS RESPONSE ACT – IT’S FINAL AND HERE’S WHAT IT REQUIRES

Posted On March 20, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 20, 2020

 

The President has signed the Families First Coronavirus Response Act  (FFCRA), originally introduced in the House as H.R. 6201.  The final version is significantly scaled back from the original. There are still 2 significant sections related to employee absences: expansion of FMLA coverage for school and day care closures, and paid sick leave for a multitude of reasons. Here is a recap of the provisions as passed that will go into effect on April 2, 2020.

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Effective dates.  Effective on April 2, 2020; sunsets on December 31, 2020 (unless extended, of course).

Employee eligibility.  Applies to employees who have worked for 30 calendar days for the employer from whom they request leave. The DOL is authorized to draft regulations excluding certain health care providers and emergency responders from eligibility.

Covered employers.  Applies to employers with fewer than 500 employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.”

  • So, if an employer has 500+ employees and then drops below 500, coverage is not immediate but
    would take a total of 20 weeks at the under-500 level. Those weeks do not need to be consecutive,
    but total within the current calendar year.
  • Likewise, if an employer has under 500 employees now and is covered, then increases to 500 or more
    employees, it will take 20 weeks total at that level in 2020 before the employer moves out from under
    coverage.

There are no limitations regarding number of employees at a work site. 

The Act has a provision authorizing the U.S. Department of Labor to issue regulations to exempt small business (fewer than 50 employees) from the requirements of the FFCRA “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  It remains to be seen whether the DOL will be able to implement such regulations before the April 2 effective date.

Covered leave reason and duration.  The law adds FMLA job-protected time off ONLY to care for a son or daughter under 18 whose school or place of care has been closed or the child care provider for the son or daughter is unavailable due to a public health emergency specifically relating to COVID-19. However, leave is not available unless the employee is “unable to work (or telework) due to a need for leave.”  This additional leave type is included within the existing FMLA 12-week total. The Act is silent regarding intermittent leave usage; most likely, intermittent usage is permissible. 

“Son or daughter” is not specifically defined in the FFCRA so presumably the usual FMLA definition applies (a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis) except, as noted above, coverage is limited to closures for a son or daughter under 18.

“School” is defined as an elementary or secondary school. “Child care provider” means a provider who receives compensation for providing child care services on a regular basis.

Paid FMLA time.  The first 10 days of FMLA leave are unpaid, although the employee can elect to use accrued vacation leave, personal leave, or medical or sick leave.  (And, see the provisions relating to paid sick leave below.)  After that, the FMLA time is paid at 2/3 the employee’s usual rate of pay for each day of leave, but with caps of $200 per day and $10,000 total per employee.  FFCRA contains a provision for calculating pay for an employee with a variable schedule. 

Notice requirements.  Employees must give employers such advance notice of the need for leave as is practicable. There is no specific notice requirement from employers to employees; assume that all the usual FMLA notices (posting, rights and responsibilities, eligibility, etc.) will be fully applicable.

Job protections.  Generally, employees will be entitled to the usual FMLA job protections (reinstatement to same or equivalent position) after COVID-19-related leave. Employers with fewer than 25 employees may be excused from job restoration requirements if the situation meets certain conditions, including that the job has been eliminated due to factors related to COVID-19 and the employer makes efforts to restore the employee to an equivalent position for a period of 12 months following the end of the employee’s leave.

Multi-Employer Bargaining Agreements.  Employers who are part of a multi-employer collective bargaining agreement may satisfy their obligations under the FFCRA by paying amounts employees are entitled to into the multi-employer fund, as long as employees are able to access the fund for appropriate FFCRA payments.

EMERGENCY PAID SICK LEAVE ACT

Effective dates.  Effective on April 2, 2020; sunsets on December 31, 2020 (unless extended).

Eligible employees.  There are no eligibility requirements. Employees can take this paid sick time immediately upon its effective date.

Covered employers.  Again, applies to employers with fewer than 500 employees.  See the discussion above on how this is calculated.

Covered leave reasons. An employee may use paid sick leave to the extent that the employee is unable to work (or telework) due to a need for leave because:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related
    to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns
    related to COVID-19.
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in paragraph (1)
    or has been advised as described in paragraph (2). Note there appears to be no limit on who
    this “individual” may be, and no requirement that it be a family member.
  5. The employee is caring for a son or daughter of such employee if the school or place of care
    of the son or daughter has been closed, or the child care provider of such son or daughter
    is unavailable, due to COVID-19 precautions. “Son or daughter” is not specifically limited to
    those under age 18 but is expected to be interpreted consistently with the FMLA Expansion Act.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary
    of Health and Human Services in consultation with the Secretary of the Treasury and the
    Secretary of Labor.

NOTE:  An employer of an employee who is a health care provider or emergency responder may elect to exclude such employee from the application of this leave requirement.

Amount of time off and pay. The amount of paid time off available is 80 hours for full-time employees; and the average number of hours typically worked over a 2-week period for part-time employees. Leave for reasons (1), (2) and (3) is paid at the greater of the employee’s full pay or federal, state, or local minimum wage, but now capped at $511 per day or $5,110 total. Leave for reasons (4), (5), and (6) is at 2/3 pay, now capped at $200 per day or $2,000 total.

Interaction with employer’s other paid leave policies.  The employee may use paid sick leave provided under FFCRA first, then other employer-provided paid leave as needed. The employer cannot require sequence of usage otherwise.

Notices.  After the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time. Employers must post a notice of employee rights in conspicuous places on the employer’s premises. The DOL must provide a model notice for this purpose within 7 days after enactment, or by March 25. 

Employer Tax Credits for Paid Leave.  I don’t pretend to be a tax expert so please consult your own attorney or accountant on this. Generally, though, it appears the FFCRA includes provisions for 100% tax credits for amounts employers pay under the new law, including both the FMLA paid leave and the paid sick leave requirements. The tax credits go against Social Security taxes owed by the employer. If this does not yield 100% credit for amounts paid, the excess is refundable to the employer.

IS IT FRIDAY YET?

Remember when the days were long, the nights were warm and the government leave programs didn’t come two at a time? That was cool. But here we are, and there are more piling up behind this. Rest assured we will continue working overtime to keep you informed. And our account managers are working overtime, too, so that we can help employers stay safe while they figure out how to keep their employees safe. Have a question? Reach out. Have the weekend off? Take it. Relax, and be thankful; and I will talk to you soon – very soon!

 

CORONAVIRUS UPDATES DU JOUR: SENATE PASSES AND PRESIDENT SIGNS FMLA EXPANSION AND PAID SICK LEAVE; STATE PAID LEAVE LAWS – WHEN & HOW DO THEY APPLY?

Posted On March 19, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 19, 2020

 

The Families First Coronavirus Response Act

In the past two days we have reported on the progress of House of Representatives Bill 6201 proposing expansions of the Family and Medical Leave Act and new paid sick leave requirements here and the House amendments here (or if you widely bookmarked Matrix-Radar, just scroll down!).  On March 18 that bill passed the U.S. Senate and was signed into law by President Trump.  The final version was unchanged from H.R. 6201, so our summary in those two blog posts is still accurate – read them both, and we will follow up soon with more details. In the meantime, remember it goes into effect April 2, 2020; and still impacts only employers with fewer than 500 employees.

Moving on:

State Paid Family and Medical/Disability Laws

Now let’s take a look at how existing or recently-modified state leave laws (paid and unpaid) relate to COVID-19 situations.  NOTE!  This is a very fluid and fast changing situation.  This information is accurate as of press time. We will update this post as needed for new developments.

This overview relates primarily to state paid family and medical or disability benefits and leave laws.  Many states also have paid sick and safe leave laws, and a good number of those cover employee absences due to the closure of schools and day care facilities. In addition, some situations where an employee is ordered by the employer to stay home, or experiences reduced hours or a business closure, may be covered by state unemployment insurance. These are mentioned below only if the state COVID-19 information website specifically addresses the issue. 

A Better Balance is a great resource for state and municipal/county paid sick leave laws.  Check out their website for a comprehensive chart.

California.  The Golden State has taken several steps to provide or clarify state benefits coverage to situations relating to COVID-19:

  • Disability and employee quarantine: An employee may qualify for disability insurance due to their own
    illness and/or quarantine. “Disability” is defined by California statute to include inability to work due to
    a nonwork illness or injury and also “because of a written order from a state or local health officer to an
    individual infected with, or suspected of being infected with, a communicable disease.”
    CA Unemp Ins Code § 2626 (2017).

The Employment Development Department is waiving the one-week elimination period for DI claims for individuals who are unemployed and disabled as a result of COVID-19.  See Governor’s Executive Order. So far this does not appear to apply to voluntary plans. EDD still requires a medical certification signed by a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis has been obtained, a statement of symptoms; the start date of the condition; its probable duration; and the treating physician’s or practitioner’s license number or facility information. This requirement can also be met by a written order from a state or local health officer that is specific to the employee.

  • Paid Family Leave: Employees missing work to care for an ill or quarantined family member with COVID-19
    may qualify for paid family leave (presently up to 6 weeks, increasing to 8 weeks on July 1, 2020).
    “Family member” is defined as a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling,
    spouse, or registered domestic partner. EDD still requires a medical certification for the family member
    from a treating physician or a practitioner that includes a diagnosis and ICD-10 code, or if no diagnosis
    has been obtained, a statement with the same information listed above for disabilities. This requirement
    can also be met by a written order from a state or local health officer that is specific to the family member’s
    situation.
  • School Closures: If an employee has to miss work because their child’s school is closed, they may be eligible
    for Unemployment Insurance benefits. Eligibility considerations include if the employee has no other
    care options and if they are unable to continue working normal hours remotely.
  • Work closures or reduced hours: Again, unemployment benefits may be available to employees if the
    employer closes its business or reduces work hours. In these cases the employee is not required to actively
    look for other employment but must be ready and available to work throughout the period of
    unemployment or reduced schedule.

California EDD COVID-19 website:  https://edd.ca.gov/about_edd/coronavirus-2019.htm

New Jersey:

  • Disability and employee quarantine: The state’s Temporary Disability Insurance will cover an individual who
    has tested positive for COVID-19 or has symptoms and is unable to work.  The employee must first exhaust
    their leave available under New Jersey’s Earned Sick Leave law, which provides up to 40 hours of paid sick time.
    The employee must still provide the usual medical support from a health care provider, including diagnosis
    and duration the employee is expected to be off work. New Jersey TDI does not cover employee quarantine
    situations.
  • Paid Family Leave: New Jersey Family Leave Insurance (FLI) will apply to employee time off needed to care
    for a family member with a serious health condition. There are no provisions relating to caring for a family
    member due to a COVID-19-related quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under New Jersey FLI.
    New Jersey’s Earned Sick Leave law provides paid sick time (up to 40 hours) that employees can use when their
    children’s school or child care facility is closed due to an epidemic or public health emergency.
  • Work closures or reduced hours: Unemployment benefits may be available to employees if the employer
    closes its business or reduces work hours.

New Jersey COVID-19 website:  https://www.nj.gov/labor/worker-protections/earnedsick/covid.shtml

New York

NOTE:  On March 18, 2020, Governor Cuomo signed emergency legislation guaranteeing job protection and pay for New Yorkers who have been quarantined as a result of novel coronavirus, or COVID-19. Here are the specifics: 

  • Employers are required to provide sick leave for absences due to a COVID-19-related quarantine ordered
    by the state or an authorized state or local department or board of health, according to the employer’s
    size and net income:

    • Employers with 10 or fewer employees: unpaid leave for the duration of the quarantine.
    • Employers with 10 or fewer employees and net income greater than $1 million: 5 days of paid leave,
      plus unpaid leave for the duration of the quarantine.
    • Employers with 11-99 employees: 5 days of paid leave, plus unpaid leave for the duration of the
      quarantine.
    • Employers with 100 or more employees: 14 days of paid leave (no reference to unpaid leave for
      the duration of a quarantine).
  • The employee can apply for New York disability and paid family leave (PFL) benefits after using the mandated
    paid leave. The waiting period is waived for employees of employers with 10 or fewer employees and $1 million
    or less in net income.
  • This paid sick leave must be provided without loss of an employee’s other accrued sick leave.
  • The definition of “disability” for purposes of disability benefits is expanded to include the inability of the
    employee to perform the duties of his/her position or other offered position due to an order of quarantine
    relating to COVID-19, after exhaustion of the paid sick leave (PSL) offered by the employer (presumably
    including company-offered PSL and the newly mandated PSL).
  • Paid family leave is expanded to include leave taken by an employee subject to an order of quarantine relating
    to COVID-19 applicable to the employee or to the employee’s minor dependent child.
  • Benefits available under the disability law and paid family leave run concurrently, with the PFL benefits
    being primary.
  • The amount of benefits available for COVID-19-related disability is a maximum of $2,043.92 per week, and
    for COVID-19-related PFL is a maximum of $840.70 per week. After application of PFL benefits, the amount
    of disability benefits is capped so that the employee does not receive in total more than the employee’s
    average weekly wage.
  • If the federal government provides sick leave and/or employee benefits for employees related to COVID-19,
    then the federal benefits apply first and the state benefits described above serve as a top-off up to the
    limits provide by the New York bill.
  • The employee must be restored to his/her position held prior to the quarantine (so, same position, not
    an equivalent position
    ).

Rhode Island:

  • Disability and employee quarantine: Employee COVID-19-related illnesses may be covered by Rhode Island
    Temporary Disability Insurance (TDI).  The Rhode Island Department of Labor and Training (DLT) will waive
    the 7-day minimum claim duration so employees can get coverage from their first day of COVID-19 illness.

By its terms TDI does not to apply to an employee under quarantine but not actually diagnosed with COVID-19 or exhibiting symptoms. However, the Rhode Island COVID-19 Workplace Fact Sheet provides this statement:  “For individuals under quarantine, DLT will waive the required medical certification, and instead will allow them to temporary qualify via self-attestation that they were under quarantine due to COVID-19.”  This appears intended only to waive the medical certification requirement if someone is quarantined, not to create new TDI coverage.

  • Paid Family Leave: Rhode Island Temporary Caregivers Insurance (TCI) provides 4 weeks of time off to care
    for a seriously ill family member (child, parent, spouse, domestic partner, parent-in-law, or grandparent).
    There is no TCI coverage because a family member is in quarantine.
  • School closures: Employee absences due to school or day care closures are not covered under Rhode Island TCI.
  • Work closures or reduced hours: If a workplace closes or an employee is directed by the employer to remain
    home, the employee may be eligible for unemployment insurance.

Rhode Island COVID-19 Workplace Fact Sheet:  www.dlt.ri.gov/pdfs/COVID-19 Workplace Fact Sheet.pdf

Washington:

  • Disability and employee quarantine: Washington’s new Paid Family and Medical Leave law covers an employee’s
    absence from work due to a serious health condition.  Employees must still provide medical certification of the
    employee’s condition, but this can be obtained via email and the Employment Security Department will accept
    an electronic signature.  An employee’s time off from work due for purposes of quarantine is not covered by
    Washington PFML, but the employee may be eligible for unemployment insurance.
  • Paid Family Leave: Paid family leave is available to care for a family member with COVID-19 if a medical provider
    certifies that it qualifies as a serious health condition.
  • School closures: Employee absences due to school or day care closures are not covered under Washington PFML.
    Unemployment insurance may be available.
  • Work closures or reduced hours: If an employee is laid off work temporarily or if receives reduced hours due to
    a business slowdown or a lack of demand as a result of COVID-19, the employee may be able to receive
    unemployment benefits. If placed on “standby” status the employee does not have to look for another job while
    collecting unemployment benefits as long as certain conditions are met (including performing available telework).

Washington COVID-19 websites abound:

https://esd.wa.gov/newsroom/covid-19

https://paidleave.wa.gov/coronavirus/

easy-to-read comparison guide

https://esd.wa.gov/newsroom/covid-19#forms

 

Are we having fun yet?

Look, let’s get real for a moment. None of us have ever lived through something precisely like this moment in time. Scary? Sure. Complicated? You bet. Changing every sec- oh wait, there it goes again. Changing every second? Yup. Here’s the good news, because we all need some. We will get through this, together. From the Matrix-Radar team, you can be assured we will not take our eyes off the ball and continue to try and help make sense of every new rule and nuance (new-ance?). If you are a Matrix or Reliance Standard client with questions about your leave of absence and disability programs, your account manager will absolutely help – he or she is getting up to speed as we all are. Like you, we are social distancing, work-from-home-ing, loving our families and taking care of business like a boss. Stick with us and stay positive, we will come out stronger, together. 

CORONAVIRUS FMLA UPDATE – (1) HOUSE AMENDS H.R. 6201; (2) APPLYING FMLA TO COVID-19 TO THE REST OF THE EMPLOYER WORLD

Posted On March 17, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 17, 2020

 

Yesterday the U.S. House of Representatives passed some amendments to its Families First Coronavirus Response Act, H.R. 6201, originally passed just days ago on March 14.  You can read my original blog post summarizing the leave-related aspects of the bill here.  The amended bill is expected to go to the Senate, where it may be subject to more changes – or even rejection.  We will be watching for a final version (if there is one) and report on that as soon as possible.

In the meantime, here I provide a quick overview of what has changed under the House amendments.  I am not going to dive into much detail for the reasons above.  Then, keep reading for some pointers on applicability of FMLA in a coronavirus world to all covered employers.

PART 1 – FAMILIES FIRST CORONAVIRUS RESPONSE ACT

Emergency Family And Medical Leave Expansion Act

Covered employers and eligible employees.  Nothing has changed here – as drafted, it still applies only to employers with fewer than 500 employees, and employees are eligible for FMLA protection under the bill if they have worked for the current employer for 30 days or more.

Covered leave reasons.  These have been scaled back substantially to include only time off to care for a child under 18 whose school or daycare has been closed due to a public health emergency (now defined as relating to COVID-19 specifically).  And, that leave reason does not apply unless the employee is “unable to work (or telework) due to a need for leave.”

Covered family relationships.   The expansion of covered family relationships has been eliminated.  Back to parent, son or daughter, spouse, as usual.

Paid FMLA time.  The first 10 days of FMLA leave (compared to original 14 days) is unpaid, although the employee can elect to use available paid time off.  After that, the FMLA time is paid at 2/3 the employee’s usual rate of pay but now with caps of $200 per day and $10,000 total.

EMERGENCY PAID SICK LEAVE ACT

Covered employers and eligible employees.  No changes; still applies only to employers with 500 or fewer employees, and no eligibility requirements for employees.

Covered leave reasons. An employee may use paid sick leave to the extent that the employee is unable to work (or telework) due to a need for leave because:

    • The employee is subject to a Federal, State, or local quarantine or isolation order related
      to COVID-19.
    • The employee has been advised by a health care provider to self-quarantine due to concerns
      related to COVID-19.
    • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    • The employee is caring for an individual who is subject to an order as described in
      subparagraph (1) or has been advised as described in paragraph (2).
    • The employee is caring for a son or daughter of such employee if the school or place of care
      of the son or daughter has been closed, or the child care provider of such son or daughter
      is unavailable, due to COVID-19 precautions.
    • The employee is experiencing any other substantially similar condition specified by the Secretary
      of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary
      of Labor.

NOTE:  An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this leave requirement.

Amount of time off and pay. The amount of paid time off available remains at 80 hours for full-time employees and the number of hours typically worked over a 2-week period for part-time employees.  Leave for reasons (1), (2) and (3) is paid at the greater of the employee’s full pay or federal, state, or local minimum wage, but now capped at $511 per day or $5,110 total.  Leave for reasons (4), (5), and (6) is at 2/3 pay, now capped at $200 per day or $2,000 total.

Interaction with employer’s other paid leave policies is unclear. The amendments remove some of the prior language relating to this topic but the overall impact is not clear.

PART 2:  Current State – Applicability of FMLA to COVID-19

Remember, the Families First Coronavirus Response Act only attempts limited expansion of the FMLA.  The rest of the FMLA remains fully in effect.  There are many COVID-19-related leave issues not covered by H.R. 6201, especially due to the likely limitation of coverage to employers with fewer than 500 employees.

We have seen various articles encouraging employers to relax the FMLA rules to cover situations outside of the FMLA box. Think twice before you do that!  Remember, the FMLA is a law and neither the employer nor the employee can waive the applicability or nonapplicability of the law to a given situation. Employers need to consider other solutions for employees, such as flexible leave policies, but don’t call a leave FMLA if it is not.

The U.S. Department of Labor recently released a Question & Answer document (Q&A) relating to FMLA and COVID-19.  Three key things to take away:

  • “Serious health condition” definition still applies. The mere diagnosis of COVID-19 does not, in and
    of itself, invoke FMLA coverage.  The employee’s or family member’s condition must still meet the
    definition of “serious health condition” under the FMLA.  Nothing about the COVID-19 pandemic
    changes this.
As a reminder, a “serious health condition” means an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.   29 C.F.R. §825.113.  Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care.  29 C.F.R. § 825.114.  As is relevant here, continuing treatment includes a period of incapacity that exceeds 3 consecutive days and also involves treatment(s) by a health care provider.  29 C.F.R. § 825.115.
  • Absences due to a quarantine are not covered by the FMLA. The DOL’s Q&A clearly states,
    Leave taken by an employee for the purpose of avoiding exposure to the flu would not be protected
    under the FMLA.” 
  • Absences due to school closures or child care complications related to COVID-19 are not covered
    by the FMLA
    . The DOL Q&A states, “[E]mployers are not required by federal law to provide leave to
    employees caring for dependents who have been dismissed from school or child care.” 

Given the potential for significant illness under some pandemic influenza scenarios, employers are encouraged by the DOL to review their non-FMLA leave policies to consider providing increased flexibility to employees and their families.  The DOL cautions, however, that federal law mandates any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status.

The DOL’s FMLA/COVID-19 Q&A contains a great deal more information, so well worth a read. The DOL has also published a Question & Answer document relating to the Fair Labor Standards Act and wage & hour issues that you can read here.

 

CORONAVIRUS: THE FMLA AMENDMENTS AND PAID LEAVE

Posted On March 16, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 16, 2020

 

Like many employers nationwide, Matrix Absence Management looks and sounds a lot like COVID Central these days. Which is to say, we are watching closely each development as it unfolds, and then – because we’re cool that way – trying to help you make sense of it in the context of employee absence and running your business. The hottest news relates to amendments to the FMLA and proposed paid sick leave flying through Congress.

Early on March 14 the U.S. House of Representatives passed, by a vote of 363-40, a bill relating to coronavirus issues. The text of the Families First Coronavirus Response Act, H.R. 6201, is here. A congressional summary of H.R. 6201 is here.

As it relates to leave of absence, key components of the bill include:

  1. a major amendment to the Family and Medical Leave Act that provides paid and job-protected leave
    for certain coronavirus-related events; and
  2. a provision for paid sick leave, again relating to coronavirus events.

President Trump has tweeted his support for the bill and the Senate is expected to pass it, although perhaps not without changes.  Here are the current details.  Watch this blog for updates, as this is a fast-developing issue!

NOTE:  H.R. 2601 uses the term “coronavirus” and not specifically COVID-19.  “Coronavirus” is defined as “SARS– CoV–2 or another coronavirus with pandemic potential.”

FMLA Amendments – Paid Leave, New Leave Reasons, and More

Effective dates.  Effective not later than 15 days after passage; sunsets on December 31, 2020 (unless extended, of course).

Employee eligibility.  Applies to employees who have worked for 30 calendar days for the employer from whom they request leave. This is quite a cutback from the FMLA’s usual eligibility requirements of 12 months and 1250 hours worked. The DOL is authorized to draft regulations excluding certain health care provider and emergency responders from eligibility.

Covered employers.  Applies to employers with fewer than 500 employees. (What?!) Written this way, the bill burdens small employers and leaves roughly a jillion employees of large employers without the bill’s protections. An earlier version of the bill would have applied to employers with “1 or more employees.” Go figure.

The bill does have a provision authorizing the DOL to issue regulations to exempt small business with fewer than 50 employees from the requirements of the amendments “when the imposition of such requirements would jeopardize the viability of the business as a going concern.”  It’s impossible to say when such regulations will be issued, and what happens to small employers and their employees in the meantime.

New leave reasons.  For covered employers, the bill expands FMLA leave reasons to cover employee absences:

  • To comply with a recommendation or order by a public health official that the employee should stay off work
    due to the employee’s exposure to, or symptoms of, coronavirus (note the word “recommendation” leaves a
    lot of wiggle room)
  • To care for a family member when a public health official or medical provider determines that the family member
    should stay out of the community due to exposure to or symptoms of coronavirus
  • To care for a child under age 18 if the child’s school or day care provider has been closed or is unavailable due
    to coronavirus

Expanded definition of “family member.”  For purposes of the amendment, “family member” includes the usual parent, spouse, and child and:

  • Adds a pregnant woman, a senior citizen, an individual with a disability, or someone with access or functional
    needs who is also

    • The employee’s son or daughter, next of kin, grandparent, or grandchild.
  • Expands the definition of “parent” to include a biological, foster, or adoptive parent, stepparent, parent-in-law,
    parent of the employee’s domestic partner or the in loco parentis

Interestingly, the employee’s domestic partner is not an added relationship.

Duration of leave.  The full 12 weeks of FMLA entitlement is available for these reasons.

Paid leave.

  • The first 14 days of leave is unpaid under the FMLA-related amendment. The employee can elect to
    use other paid leave
    available from the employer. But, read below regarding the paid sick leave
    provisions of H.R. 6201.
  • After 14 days, further FMLA leave under H.R. 6201 is paid by the employer at two-thirds of the
    employee’s usual rate of pay.

Job protections.  Generally, employees will be entitled to the usual FMLA job protections (reinstatement to same or equivalent position) after coronavirus-related leave.  Employers with fewer than 25 employees may be excused from job restoration requirements if the situation meets certain conditions, including that the job has been eliminated due to factors related to the coronavirus and the employer makes efforts to restore the employee to an equivalent position for a period of 12 months following the end of the employee’s leave.

Emergency Paid Sick Leave Act

Another key part of H.R. 6201 creates paid sick leave for absences related to coronavirus.

Effective dates. Effective not later than 15 days after passage; sunsets on December 31, 2020.

Eligible employees.  There are no eligibility requirements.  Employees can take this paid sick time immediately upon its effective date.

Covered employers.  Again, applies to employers with fewer than 500 employees.

Leave reasons.  Allows the employee to take paid sick leave:

  • To self-isolate because the employee has been diagnosed with coronavirus
  • To obtain medical diagnosis or care if the employee is experiencing symptoms of coronavirus
  • To comply with a recommendation or order by a public health official that the employee should stay off
    work due to the employee’s exposure to or symptoms of coronavirus
  • To care for or assist a family member –
    • Who is self-isolating because the family member has been diagnosed with coronavirus
    • Who is experiencing symptoms of coronavirus and needs to obtain medical diagnosis or care
    • When a public health official or medical provider determines that the family member should stay out
      of the community due to exposure to or symptoms of coronavirus
  • To care for a child under age 18 if the child’s school or cay care provider has been closed or is unavailable
    due to coronavirus

Definition of “family member”.  Paid sick time to care for or assist a “family member” includes the following relationships:

  • Parent (biological, foster, or adoptive parent, stepparent, parent-in-law, parent of the employee’s domestic
    partner or in loco parentis)
  • Spouse (including domestic partner, broadly defined to include anyone in a “committed relationship”)
  • Child (no age limit) (biological, foster or adopted child, stepchild, child of domestic partner, legal ward, or child
    of a person standing in loco parentis under age 18)
  • A pregnant woman, a senior citizen, an individual with a disability, or someone with access or functional needs
    who is also

    • The employee’s sibling, next of kin, grandparent, or grandchild

Amount of paid sick leave hours:  Full-time employees are entitled to 80 hours of paid sick leave, and part-time employees get the number of hours they typically work over a 2-week period.  Unused paid sick leave cannot be carried over to a new year. Pay for leave to care for or assist a family member and to care for a child due to a school closure is paid at 2/3 pay; all other leave is paid at the greater of the employee’s full pay or federal, state or localminimum wage. It is not clear from the bill whether an employee can use the paid sick leave in more than one segment, such as for the employee’s own coronavirus diagnosis and then to care for a family member or due to a school closure.

Other paid sick leave provided by the employer.  The paid sick leave required by H.R. 2601 is in addition to other paid sick leave already offered by the employer as of the day before the bill is enacted. The employee can use the coronavirus-related sick leave first and preserve other paid sick leave for subsequent use.

Employer Tax Credits for Paid Leave

H.R. 2601 also includes provisions for tax credits for employers subject to the FMLA paid leave and the paid sick leave requirements. The tax credits go against Social Security taxes paid by the employer. I will not attempt to interpret these provisions (I never wanted to be a tax attorney!) but various resources are available online.

What about “Regular” FMLA?

H.R. 6201 does not make any changes relative to regular FMLA as we know and love it. Shortly we will provide a blog post about how FMLA applies to coronavirus-related situations for all employers, and especially now those with 500 or more employees. Stay tuned!

Matrix Can Help!

If you have questions about your leave of absence and disability services from Matrix please contact your account manager.  We are equipping our teams with the latest information for clients about how we are managing claims, our emergency preparedness, and more.  We’ll pull through this together!

CORONAVIRUS AND THE ADA – THE EEOC HELPS OUT

Posted On March 04, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

March 04, 2020

 

 

While there are countless articles online providing advice to employers about how to deal with the Coronavirus (now called COVID-19), here’s something that’s actually helpful: The Equal Employment Opportunity Commission (EEOC) has directed our attention to a technical assistance document to help understand and cope with pandemics in the context of the ADA. As summarized in the new, coronavirus-specific  intro, the document answers questions such as:

  • How much information may an employer request from an employee
    who calls in sick, in order to protect the rest of its workforce during
    a Coronavirus-like event?
  • When may an ADA-covered employer take the body temperature
    of employees during a Coronavirus-like event?
  • Does the ADA allow employers to require employees to stay home if
    they have symptoms of the Coronavirus?
  • When employees return to work, does the ADA allow employers to
    require doctors’ notes certifying their fitness for duty?

Here is some of the information I found most helpful from the EEOC document. In order to be both expedient and accurate, I’m taking the content fairly directly from the document itself. However, employers should read the entire EEOC document, as there are many details that will assist in a variety of situations.

Why do we care about the ADA now? Is the Coronavirus a disability?

Probably not for most individuals who contract it, but that is always a case-by-case assessment under the usual ADA principles. The EEOC explains how the ADA is relevant to dealing with a pandemic:

  • The ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and
    employees, including those who do not have ADA disabilities.
  • The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for
    health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with
    reasonable accommodation).
  • The ADA still requires reasonable accommodations for individuals with disabilities (absent undue hardship) during
    a pandemic.

What medical inquiries can an employer make?

As a refresher, the ADA prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances. An inquiry is “disability-related” if it is likely to elicit information about a disability.  For example, asking an individual if his immune system is compromised is a disability-related inquiry because it could be closely associated with conditions that are disabilities. On the other hand, asking an individual about symptoms of a cold or the seasonal flu is not a disability-related inquiry.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when the employer has a reasonable belief, based on objective evidence, that:

  • An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • An employee will pose a direct threat due to a medical condition.

With that backdrop, let’s look at some of the helpful guidance.

Does someone diagnosed with or exposed to COVID-19 pose a direct threat?

A “direct threat” under the ADA is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Whether COVID-19 rises to the level of a direct threat depends on the severity of the illness. If the Centers for Disease Control (CDC) or state or local health authorities determine that COVID-19 is significantly severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information. You can check out the latest COVID-19 information from the CDC here.

What questions can an employer ask to assist with pandemic planning and preparedness?

There are ADA-compliant ways for an employer to identify which employees are more likely to be unavailable for work in the event of a pandemic. This may include questions about non-medical reasons that an employee may need to be absent during a pandemic such as curtailed public transportation, closure of children’s schools, or the need to care for other dependents if services become unavailable. The EEOC document has an ADA-compliant, pre-pandemic employee survey employers can use to assess the possible impact on its employees’ ability to attend work.

What steps can an employer take during a pandemic?

Here is some really helpful info from the EEOC (but please read the full document for details and exceptions!):

  • An employer may send employees home from work if they display symptoms of the disease. The
    employer can also encourage or require telework if that is feasible for the position.
  • If an employee reports feeling ill or calls in sick, the employer may ask the employee if they are
    experiencing symptoms common to the pandemic disease.
  • An employer may take an employee’s temperature to determine whether they have a fever IF
    the general nature of the illness becomes severe or the outbreak is widespread. (Otherwise, this
    may be an impermissible medical exam under the ADA, so be careful!)
  • When an employee returns from travel during a pandemic the employer does not need to wait until
    the employee develops symptoms to ask questions about the employee’s possible exposure during
    the trip.
  • During a pandemic, an employer may require its employees to adopt infection-control practices such
    as regular handwashing or wearing protective equipment (e.g., face masks, gloves, or gowns) designed
    to reduce transmission of the disease.
  • An employer may encourage, but may not require, its workforce to obtain a vaccine for the pandemic
    disease or any other condition.
  • During a pandemic, an employer must continue to provide reasonable accommodations to individuals
    with disabilities. This may be a continuation or modification of an existing accommodation, or a new
    accommodation necessary due to the pandemic (e.g., allowing an employee with a compromised immune
    system to work from home).
  • An employer may ask an employee who has been absent from work the reasons for the absence if the
    employer suspects it is for a medical reason.
  • And, an employer may require an employee who has been away from the workplace during the pandemic
    to provide a doctor’s note certifying fitness to return to work.

What is Matrix doing to be prepared?

At Matrix we are continually monitoring the COVID-19 outbreak.

We hope and expect the outbreak will not impact our ability to process claims. However, our Business Continuity team has been put on notice across all service locations and we will continue to monitor any potential threats to our workforce with heightened sensitivity and awareness. We have also issued special instructions to our operations teams regarding how to manage claims related to COVID-19 diagnoses, exposure, and quarantines. If you are a Matrix client, please contact your account manager with any questions or concerns. And please be patient, as the issue, along with measures to respond to it, is fluid and changing rapidly.

IN LOCO PARENTIS AND NON-TRADITIONAL CAREGIVING RELATIONSHIPS

Posted On February 04, 2020  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

February 04, 2020

 

Recently, an Ohio federal district court heard a lawsuit filed by an Apple employee whose sister was terminally ill and claimed FMLA entitlement for his request to care for his nieces and nephews. The case, Brede v. Apple, involved a claim of FMLA interference and retaliation by a former Apple employee who worked in one of its stores at the Genius bar. That employee, Edward Brede, had requested one day of intermittent “FMLA” every 2 weeks to care for his seriously ill sister’s children. Apple granted his request under its Paid Family Care policy. After Brede was fired for violating company policy, he brought this lawsuit.

The district court granted Apple’s motion to dismiss the case.

In granting the motion to dismiss, the court took as true Brede’s claims of an in loco parentis relationship with his nieces and nephews. Even assuming that was the case, however, Brede can only take FMLA if the purpose of him doing so was to care for those children who needed care due to a “serious health condition;” and he did not ever indicate any of them did. Rather, the purpose of his request for time off was to care for them because his sister could not. Moreover, the court reasoned that if Brede had requested FMLA to care for his sister, who did have a “serious health condition,” he could only do so if he stood in loco parentis to her.

The FMLA defines a “parent” to include “an individual who stood in loco parentis to an employee when the employee was a son or daughter,” and similarly, a “son or daughter” is defined to include “a child of a person standing in loco parentis.” Employees who stand in loco parentis to a child can take FMLA to care for that child with a serious health condition and to care for an individual who stood in loco parentis when the employee was a child, when that “parent” has a serious health condition. The regulations go on to define persons who are in loco parentis as “those with day-to-day responsibilities to care for and financially support a child.”

The DOL has two (mostly) helpful Fact Sheets (#28B and #28C) that discuss in loco parentis. However, the DOL takes a broad view of who can take FMLA, stating in the fact sheets that it includes someone who has day to day responsibilities to care for a child OR financially supports a child.  As you can see from the regulations excerpted above, the FMLA actually requires BOTH.

There are not many court cases on record about the in loco parentis relationship. We previously blogged about Coutard v. Municipal Credit Union, in which the 2nd Circuit concluded an employee who sought time off to care for his grandfather provided sufficient notice to his employer of his need for FMLA. In reaching that conclusion, the court reasoned that it was incumbent upon the employer to dig further to determine whether his grandfather stood in loco parentis to him (which he, in fact, did, having raised the employee after his parents’ death).

Pings for employers

  • Be familiar with the two DOL Fact Sheets linked above. Despite that one glitch in expanding the scope, the Fact
    Sheets are otherwise quite helpful.  In particular, they offer these factors for consideration in assessing ILP status:

    • the age of the child;
    • the degree to which the child is dependent on the person;
    • the amount of support, if any, provided; and
    • the extent to which duties commonly associated with parenthood are exercised.
  • When an employee indicates he or she is seeking leave to care for a family member that is not a specific FMLA
    covered relationship (i.e., parent, son or daughter, or spouse), talk to the employee about his or her relationship
    to that individual.
  • If the employee is requesting time off to care for a “parent”, like the Coutard matter, ask:
    • Did the relative care for him or her as a child OR provide financial support?
    • Do they reside together, or did they do so in the past?
  • If the employee is requesting time off to care for a “child” (as in the Brede case), include:
    • Has the employee assumed daily responsibility for care for or financially support the child?
    • Does the employee intend to assume a “parenting” role and if so, is there a permanent intent to do so?

Consider state leave laws also

This discussion is focused on FMLA, but it is important to remember that many of the state FMLA-like leave and paid family and medical leave laws include care for family members beyond the traditional definition in FMLA. Common additions include grandparents, grandchildren, siblings, and – our favorite – the “like a family member” relationship.  For example, New Jersey allows leave for any individual with a close association with the employee equivalent to a family relationship.

In general, because of this expanded focus at the state leave level to recognize the non-traditional nature of evolving families, it is critical for employers to keep an open mind about these requests and ferret out the right facts to ensure they are providing employees with the leaves to which they may be entitled.

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.

 

AND NOW . . . WASHINGTON D.C. PFML

Posted On January 24, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

January 24, 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

 

 

A YEAR IN REVIEW, A YEAR AHEAD: A LOOK AT THE DOL AND EEOC

Posted On January 19, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

January 19, 2020

 

Last month we provided a 2019 review and 2020 look ahead regarding leave law legislation.  You can find that post here.  Now let’s look at what the enforcement agencies accomplished in 2019 and what to expect for 2020.

Part 2:  DOL and EEOC Activities

US DEPARTMENT OF LABOR UPDATE

Opinion Letters

Occasionally the U.S. Department of Labor issues opinion letters as a means of providing interpretive guidance on the FMLA. An opinion letter is an official, written opinion by the DOL of how a particular law applies in specific circumstances.  An opinion letter provides an official, reliable interpretation of the FMLA and its regulations. 

We may not always agree with the DOL’s opinion, but at least we know where the agency stands!

The DOL issued 3 new opinion letters in 2019:

  • Opinion Letter FMLA2019-1-A clarified the question of whether an employee, or employer, can delay
    the designation of a leave of absence taken for an FMLA-qualifying reason, to allow the employee to
    use or exhaust any paid leave benefits prior to doing so. The DOL concluded that the answer is no –
    once the employer is on notice that the employee is seeking leave for a potentially FMLA-qualifying
    reason, it is obligated to provide the required FMLA notices and, if supported, designate the leave as
    FMLA leave.  The opinion letter also reminds us that, while the FMLA allows employers to be more
    generous and grant an employee more leave than FMLA requires, any time the employer gives beyond
    FMLA is not FMLA but, rather, a company policy leave.  To read more about this opinion letter, check
    out our prior blog post.
  • The above opinion was amplified in Opinion Letter FMLA2019-3-A. An employer asked the DOL whether
    it could delay FMLA designation when the terms of a collective bargaining agreement required employees
    to take company paid leave before taking FMLA.  The DOL concluded that the employer cannot delay
    designation as FMLA any leave taken for an FMLA-qualifying reason, even if the terms of a collective
    bargaining agreement appear to require otherwise.
  • Finally, Opinion letter FMLA2019-2-A, addressed the question whether an employee could take FMLA
    to attend meetings to discuss a child’s Individualized Education Plan. The DOL concluded the answer was
    yes.  Attending such meetings constituted “care” for a child with a “serious health condition,” even if the
    meetings did not include a medical provider.  For more details, read our prior blog post on this topic

Coming in 2020:  New DOL FMLA certification forms?

In 2019 the DOL issued proposed new FMLA certification forms for public comment, which we discussed in a prior blog post.  We understand that these proposed certification forms resulted in a deluge of comments to the DOL and Matrix was among that chorus of commentators.  No one knows if or when the DOL will issue new forms but we will certainly be watching will tell you all about them when they do!

Coming in 2020:  DOL request for input on FMLA regulations?

Also in 2019 the DOL announced that it “will solicit comments on ways to improve its regulations under the FMLA to: (a) better protect and suit the needs of workers; and (b) reduce administrative and compliance burdens on employers.”  The notice did not provide a specific timeline for the Request for Information and nothing has happened since the announcement.  There is certainly much to improve in the FMLA regulations – see a discussion in Jeff Nowak’s FMLA Insights blog.  We hope the DOL in fact proceeds with this RFI.  If it does, we will weigh in on changes we feel are needed based our Matrix’s administration of thousands of FMLA claims every year.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION UPDATE

The Commission.

2019 brought the appointment of Janet Dhillon as Chair of the EEOC.  Chair Dhillon comes from a strong business background, which may be good news for employers.  Time will tell.  That leaves 2 openings on the Commission and about a year (or 5) for President Trump to appoint new commissioners.  The other 2 current Commissioners, in addition to Chair Dhillon, include Charlotte Burrows, appointed by President Obama (2nd term ends in 2023) and Victoria Lipnic, also appointed by President Obama (2nd term ends in 2020).

Also in 2019, Sharon Fast Gustafson was appointed as General Counsel for the Commission.

Focus on disability and pregnancy.

A couple of months ago we took a look at the prevalence of disability and pregnancy-related press releases issued by the EEOC in 2019 through October 20.  That post is available here.  We’ve updated the numbers through the end of 2019:

  • The EEOC issued over 300 press releases relating to lawsuits it filed or
    settled in 2019.
  • 134 (approximately 45%) of these were lawsuits alleging disability or
    pregnancy discrimination
    and failure to accommodate (109 disability-related, 20 pregnancy-related,
    and 5 involving both).
  • Settlements ranged from $16,000 to $2,650,000 in damages awarded to
    the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit
    alleging failure to
    accommodate a cart pusher at a Walmart store.
    More on that in the blog post linked above!

Statistics.

In late November 2019, the EEOC published its Agency Financial Report. In the report, the EEOC boasts of reducing its inventory of charges to the lowest number of pending charges – 43,580 – in 13 years.  The EEOC also touts its collection of $159.6 million in connection with its mediation process, and $39.1 million in connection with 177 litigation matters.  In its Fiscal Year 2018 (which ended September 2019), the EEOC filed 144 lawsuits, 17 of which alleged a systemic pattern and practice and 27 which were “non-systemic” but had multiple alleged victims of discriminatory practices.

WASHINGTON PFML EMPLOYER NOTICES NOW AVAILABLE – AND OTHER DEVELOPMENTS

Posted On January 04, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

January 04, 2020

 

PLEASE NOTE we had a few holiday technical difficulties here at Matrix-Radar, and this post was distributed in a timely fashion to Matrix clients through our account managers; but actual posting on the site was delayed. We believe we have resolved the issue and apologize for the delay!

 

Hold on to your egg nog.  Pretty soon we will turn our attention to other topics, including Massachusetts, Connecticut, Oregon, and whatever new states join the PFML bandwagon in 2020.  For now, Washington is sucking up all the oxygen in the room as we sprint for the January 1, 2020, start of benefits.  Stay tuned for other topics another day!

Time is short, so let’s get right to the point.  The Washington Employment Security Department (ESD) has FINALLY released its approved – and required – employer notices to employees.  There are two, and we wrote about them in our WA PFML update post here. At that point the notices were not available, but now, just in time for the start of benefits on January 1, 2020, here they are:

Poster.  Employers must post in conspicuous places on the premises of the employer where notices to employees and applicants for employment are customarily posted, a notice to employees of the pertinent provisions of the WA PFML statute.  RCW 50A.20.020.  The PFML rules explain this can be a common area such as a break room.  WAC 192-540-020.  Electronic posting for remote workers is not addressed.  In the absence of ESD guidance, employers should use some reasonable means to ensure that all employees have easy access to the poster.  You can download the poster here.

Although Matrix does not usually weigh in on workplace posting requirements, we will assist our voluntary plan clients by redesigning the poster to inform their employees how to apply for benefits through Matrix.  We will also make any other changes that are needed due to differences in information relating to the state plan and a voluntary plan.

Notice to an employee taking leave.    One of the (many) odd provisions of the PFML statute requires  employers to give individual notice to employees of their rights, but only after the employer is aware that an employee is taking time off for more than 7 consecutive days of work for a covered leave reason.   In that case, the employer must let the employee know he or she may qualify for Paid Family and Medical Leave by sending the notice created by the state to the employee within five business days.  This seems nonsensical; no individual notice is required for employees who take leave for fewer than 7+ consecutive days and those who are using leave intermittently, and yet they are entitled to paid leave.  Remember, an employee has to be off work only 8 consecutive HOURS in a work week to satisfy the waiting period and be eligible for pay benefits and leave.    

At Matrix we feel a better practice is to give that individual employee notice as soon as the employer knows the employee is taking leave for a PFML-covered reason.  Why wait and count for more than 7 consecutive days of work?  We will include the mandatory state notice in our packets for clients who are using the state plan to provide benefits, and will modify the notice appropriately for the employees of our voluntary plan clients to comply with the law.

Certification of Serious Health Condition form. The ESD also recently released its certification form to support an employee’s leave due to the employee’s own or a family member’s serious health condition.  Oh, my.  Where to start.  The form is woefully inadequate to equip the ESD to manage anything other than the simplest continuous leave claim.  Unlike the federal FMLA Certification of Health Care Provider, the ESD form has no questions about medical facts, what parts of the employee’s job he cannot perform due to incapacity, when or how often the employee will need time off for medical appointments, and – most alarming of all – no place for the employer to provide the estimated frequency and duration of time off for intermittent leave.  There are other flaws as well but these are key.  

Apparently the ESD will simply approve intermittent time submitted by the employee without any means to judge whether the specific time off is medically necessary and fits within the anticipated frequency and duration of intermittent leave for the employee’s or family member’s serious health condition.  Administering intermittent leave under the FMLA even with this type of information is challenging.  Can you say “excessive use”?  That’s the polite term.

There is a bit of good news here.  The ESD will also accept the FMLA certification form, and that is what Matrix will be using for its voluntary plan clients.  An employee applying for benefits under the state plan can also use the FMLA form obtained for that purpose and forego use of the state form – and possibly a second fee by the provider.  

ESD website.  Finally, we want to point out that the ESD has made many changes to its website very recently.  Everything is reorganized, there is a new look and feel, and a lot of new or updated material has been added.  You can start on the ESD paid leave home page https://paidleave.wa.gov/.  We recommend reviewing both the employer- and employee-specific pages, as you will learn not only what you must do as an employer, but what your employees are being informed by the state.

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 adapting the required employer notices for voluntary plan participants.  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.

WASHINGTON PFML – THE NEW MANDATORY NOTICE TO EMPLOYEES: WHAT YOU NEED TO KNOW ABOUT UBI NUMBERS, SUPPLEMENTAL BENEFITS, AND STD BENEFITS

Posted On January 04, 2020  

by Marti Cardi, Esq. - Vice President, Product Compliance

January 04, 2020

 

PLEASE NOTE we had a few holiday technical difficulties here at Matrix-Radar, and this post was distributed in a timely fashion to Matrix clients through our account managers; but actual posting on the site was delayed. We believe we have resolved the issue and apologize for the delay!

 

On about December 20, 2019, the Washington Employment Security Department (ESD) released its form for the mandatory notice to employees using PFML for more than 7 consecutive days.  We wrote about the new notice form (and the new mandatory poster, also just released) here.  

Employers have many questions about the notice to employees and some of its content.  Here’s what we presently know:

Why is this info coming out just now?  There is frustration all around at the timing of this information.  We at Matrix, Washington employers, and other external stakeholders did not know what the state’s mandatory notice form would include until it was released a few days ago.  So, no advance notice for employers to be ready to distribute its UBI number(s) and alert employees to the designation of any specific benefits as “supplemental.”  A better-than-previous explanation of supplemental benefits was added recently to the ESD Paid Leave website.  See below.  

What employers need to do.  Employers have two action items relating to this new notice form, both of which are necessary for the employee to file a claim for leave and benefits under the state plan with the ESD:

  • Provide employees with the employer’s UBI number
  • Determine and tell employees whether any additional company-offered pay benefits
    available during PFML leave are “supplemental benefits.”

Read on for more details. As we explain below, Matrix will include the ESD notice form in our packets as a courtesy, but employers are still ultimately responsible for getting the appropriate information to their employees.  

The UBI number.  The new form has a place to provide employees with their employer’s Unique Business Identifier number (UBI – similar to a federal FEIN).  Why?  Employees of employers using the state plan to provide benefits must file their PFML claims with the ESD on line.  It appears that ESD can locate an employee in their system with the employer’s UBI number, and not by use of the employee’s social security number or other individual identifier.  As a result, the employee will need his employer’s UBI number before he can complete a claim.  

For Matrix clients using the state plan, employees should still call Matrix early in the leave process so that we can assess the employee’s absence and apply any leaves or benefits that may be applicable in addition to WA PFML.  As a courtesy, we will include the ESD’s stock notice form in the employee’s initial packet sent after the intake call but the employer’s UBI number will be blank.  The employee will have to obtain the number from the employer’s HR, intranet, or other means.  Be sure to make all of your Washington UBI number(s) readily available (and designated by entity, if your company has more than one entity with employees in Washington). 

“Supplemental benefits.”  Another surprise on the mandatory notice form is the question, This employer offers supplemental benefits: Y _____ N _____.”   The concept of supplemental benefits has raised a lot of questions and the new form is bringing them to the forefront.  We touched on the issue of benefits and possible stacking in our prior blog post here. 

In a nutshell, here are the three key points – these apply to both Washington paid medical leave and paid family leave:  

  • Forms of remuneration paid to employees during PFML leave that are not
    designated as “Supplemental” will reduce the Washington PFML benefit and
    will be considered “wages” for employer reporting to the ESD.
  • Forms of remuneration that are designated as “Supplemental” will top off
    the Washington PFML but are not considered “wages” for employer reporting
    to the ESD.
  • Employers will need to alert payroll to the differing treatment of additional
    payments to employees treated as supplemental benefits.  

Here are the details.  According to the PFML statute, employers can designate certain company benefits as “supplemental benefits” to enrich the amount an employee receives during PFML usage.  Supplemental benefits may include salary continuation, vacation leave, sick leave, or other paid time off.  WAC 192-500-180.  They do NOT include STD benefits – see explanation below.

The designation of these top-up or enriched payments as “supplemental benefits” makes a big difference to the employee and the employer.  If the employer simply pays the company benefit (for example, allows the employee to use accrued PTO), that payment actually reduces the employee’s PFML benefit, as the ESD will offset that payment against the PFML benefits available.  In the end, the employee still only receives the maximum statutory amount but now the employer is paying part of that total.  

On the other hand, if the employer “designates” that PTO or other company benefit as supplemental, then the employee’s PFML benefits remain intact; the employer payment to the employee truly tops off the PFML benefit.  In that case, however, the employer cannot include the amount of the supplemental payments in its quarterly reporting of wages per employee or to calculate employee premiums. 

What is still not clear is when and how an employer “designates” benefits as supplemental.  There is no explanation in the statute or the rules.  Apparently, it is just a matter of applying that label and notifying the employee so that she knows not to report to ESD such supplemental benefits as “wages” when she files a claim.  Employers may want to consider amending their employment policies to make the designation.  

You can read the ESD’s guidance on supplemental benefits and its explanation of “wages” on pages 16 and 9, respectively, of the Employer toolkit (Dec. 19, 2019 version).

STD benefits are allowed during PFML leave.  On a side note, the ESD has also clarified that an employee can receive STD benefits without those serving as an offset to PFML benefits and, apparently, without having them designated as supplemental benefits.  Here is an excerpt from the ESD Employer Toolkit (page 16, Dec. 19, 2019 version):

Can my employee receive short term disability and Paid Family and Medical Leave at the same time? 

A worker can receive short-term disability at the same time as Paid Family and Medical Leave. A worker can’t receive wages or paid time off at the same time as Paid Family and Medical Leave, and all other compensation is allowed if you offer it to your employees. Paid time off could be used as a supplemental benefit, see that section for details. 

Quick note for Matrix clients with voluntary plans:  Our clients for whom Matrix is administering a voluntary plan do not need to convey the UBI number to employees.  You will still need to make the determination of whether company benefits provided during use of PFML are “supplementary” as that will affect your quarterly reporting to ESD.  Matrix will make any company sponsored STD or Paid Family/Parental benefit payments to your employees as a top-off to the WA PFML payments unless you tell us that they are receiving benefits that are NOT designated as supplemental. 

QUESTIONS?  Contact your Matrix or Reliance Standard account manager if you have questions.

A YEAR IN REVIEW, A YEAR AHEAD: A WHOLE LOTTA STUFF GOING ON!

Posted On December 19, 2019  

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.

 

HELLO AGAIN, WASHINGTON PAID FAMILY AND MEDICAL LEAVE

Posted On December 03, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

December 03, 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.

KEEPING UP WITH CALIFORNIA – 2019 LEGISLATIVE RECAP

Posted On November 22, 2019  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

November 22, 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.

EXCESS FMLA ABSENCES: AN EMPLOYER SUCCESS STORY

Posted On November 13, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

November 13, 2019

 

What can an employer do when an employee takes intermittent FMLA leave in excess of the frequency and duration authorized by the health care provider’s certification?  In a good case for employers, one court has explicitly upheld disciplinary measures taken when an employee exceeded her approved absences, resulting in violations of the employer’s attendance policy.  But it was a multi-step process to get there.  Here’s the story:

Tori’s FMLA certification.  Employee Tori Evans worked as an administrative assistant for Cooperative Response Center, Inc., an alarm monitoring service.  After several years of employment (and a pretty dismal attendance record, by the way) she developed reactive arthritis and needed occasional time off for medical treatments and flare-ups.  There is no question in the case that her condition was real.  Tori requested FMLA leave and returned a certification from her health care provider supporting FMLA leave for up to 2 half days per month for medical appointments, and 2 full days per month for flare-ups.  The provider described her symptoms as “GI illness, oral lesions, and joint pains.”  CRC approved Tori’s FMLA leave in accordance with the provider’s certification.

Then what happened?  Tori began reporting absences in excess of her FMLA certification frequency and duration.  CRC’s progressive attendance policy provided for increasing levels of discipline for unexcused absences, culminating in termination for 10 attendance points over a rolling 12-month period.  CRC warned Tori of the possible consequences of absences beyond the approved certification.  Then CRC followed the FMLA recertification process (29 C.F.R. § 825.308), asking her doctor to verify the appropriate frequency and duration based on her condition.  In the section of the new cert form addressing the frequency and duration Tori needed for appointments and flare-ups, the doctor wrote, “Refer to prior FMLA form.” Based on this and other events, CRC assessed 6 points for absences in excess of her FMLA certification; 2 points for requesting FMLA absences for a medical condition not covered by her certification; 1 point for Tori’s failure to follow CRC’s dual absence reporting procedure; and 1.5 points for another absence due to a medical condition not related to her reactive arthritis. 

Total:  10.5 attendance points.  Result:  termination.  Next step:  lawsuit.

What CRC did right.  CRC’s management of Tori’s FMLA leave and her attendance problems was near picture perfect:

  • CRC warned Tori of the consequences of excessive absences (presumably in addition to having its policyin writing and available to employees).
  • When Tori began to exceed the parameters of her certification, CRC went back to her provider, followingthe recert process, and obtained verification that the original frequency and duration were still correct.
  • CRC carefully analyzed Tori’s reported reasons for absence to verify whether they were covered by herFMLA cert. For example, once she reported an absence of 2 days because her “knee gave out,” which wasnot a symptom of her reactive arthritis as stated by her provider in her original certification.  Other timesshe reported she had “lost her voice” and had a fever and was aching everywhere. On these last twooccurrences Tori did not relate them to her approved FMLA, in violation of 29 C.F.R. § 825.303(b)(until her lawsuit, that is):

When an employee seeks leave due to a qualifying reason, for which the employer has previously provided the employee FMLA-protected leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.

  • CRC enforced its dual absence reporting procedure and assessed an attendance point when Tori reportedan absence to her supervisor for work coverage but not to HR for FMLA purposes. The courts havegenerally accepted that an employer may require an employee to report an FMLA-covered absence to2 sources.  (See our prior blog post on this topic here.)

What’s missing?  It is important to remember that the FMLA regulations indicate a provider’s assessment of frequency and duration for an intermittent leave is an estimate only.  See 29 C.F.R. § 825.306(a)(5)-(8) (e.g., the certificate must contain “an estimate of the frequency and duration of the episodes of incapacity”).   The court did not acknowledge the estimate issue in its opinion.  One suspects that the result would be the same, as Tori had 6 absences in excess of her certification approval.  Nonetheless, employers should not jump to attendance discipline on the basis of just 1 or 2 excess absences. 

Remember, too, that this is just one case – and a district court case at that.  As such, it is not binding on any other courts outside of the federal district of Minnesota.  However, the analysis is sound and provides a good roadmap for handling those excess FMLA absences beyond the estimated frequency and duration.

Pings for employers.   As an employer, you can tightly monitor and assess an employee’s specific absences to ensure they are within the scope of an approved FMLA leave and comply with your absence policies:

  • Enforce company and FMLA reporting procedures
  • Watch the frequency and duration of the employee’s absences
  • Seek recertification when an employee’s absences exceed the certification’s frequency and duration
  • Apply consequences for unexcused/non-FMLA absences

But remember to:

  • Be consistent in applying your policies to FMLA and non-FMLA situations
  • Give a little leeway regarding an employee’s absences – the provider’s certification is an estimate only

The case is Evans v. Cooperative Response Center from the federal court for the District of Minnesota.

Thanks to my fellow blogger Jeff Nowak (and his source!) for bringing this case to my attention.  You can read his take on the case here.

MATRIX CAN HELP!  Are your FMLA procedures up to snuff like CRC’s?  Matrix can help you avoid FMLA pitfalls and follow compliant procedures to manage difficult situations.  We provide 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 through your Matrix or Reliance Standard account manager or at ping@matrixcos.com.

 

ADA ALERT:  THE EEOC IS ALIVE AND KICKING

Posted On October 22, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

October 22, 2019

 

And sadly, so are disability and pregnancy discrimination. 

I receive press releases from the Equal Employment Opportunity Commission several times each week.  Most of them trumpet new lawsuits filed by the agency or settlements reached with employers it previously sued.  Every year there are some whoppers in terms of settlement dollars. There are also lots of smaller-dollar settlements that don’t make the non-EEOC news banners but have a big impact on the employer nonetheless.

So I got to wondering – how do the numbers stack up with regard to EEOC lawsuits relating to disability and pregnancy discrimination?  I took an unscientific count from the EEOC’s Newsroom  (ticking off the numbers on a piece of scratch paper).  Here’s what I found through October 20 of this year: 

  • The EEOC issued over 250 press releases relating to lawsuits it has filed or settled so far in 2019.
  • 113 (approx 45%) of these were lawsuits alleging disability or pregnancy discrimination and failureto accommodate (93 disability-related, 16 pregnancy-related, and 4 involving both).
  • Settlements ranged from $16,000 to $2,250,000 in damages awarded to the employees.
  • The top of the chart was a $5.2 million jury verdict in an EEOC lawsuit alleging failure toaccommodate a cart pusher at a Walmart store. More on that below!

In addition to press releases throughout the year, the EEOC publishes its official tally of charge and litigation statistics annually, which you can review here.

Who is getting sued by the EEOC, and for what? 

Pretty much everyone, and for everything disability-related. 

  • The employers who are subjects of these press releases include hospitals and other medical providers,staffing agencies, retailers, grocery chains, entertainment and hospitality companies, manufacturers, fastfood franchisees, service providers at correctional institutions, telecommunications and trucking companies,and on and on. (Lesson: Don’t assume your segment is “under the radar.”)  
  • These employers are getting the EEOC’s attention due to hiring practices, improper medical inquiries,failure to accommodate in all shapes and sizes, terminations, more terminations, inflexible leave policies, anddisability harassment. Did I mention terminations?
  • The disabilities at issue include both mental and physical, although the physical disabilities seem to dominatethis year: Hearing impairment, bad backs, Tourette syndrome, cancer, and so on.

Now I have to acknowledge that these are EEOC press releases – the agency selects the new or settled cases they want to publicize.  There are also EEOC lawsuits that get dismissed by the court or are adjudicated in favor of the employer.  Still, there are lessons to be learned from the cases the EEOC wants to share with the employer world. 

The ones that speak to me. 

Of the 113 news releases related to disability and/or pregnancy discrimination, here are a few that I found to be noteworthy: 

  • Changing policy. One resort and spa employer settled a lawsuit based on its refusal to allow apregnant employee to wear open-toed shoes (not a safety issue) and to sit while working at thereception desk.  I ask you, was that worth it?
  • Inflexible leave policies continue to trip up employers – much to my surprise, as this has beenan EEOC focus for years. See our blog post on the topic here.   In 2019 so far, at least 4 employerssettled EEOC disability lawsuits based on the employer’s practice of terminating employees whenthe employees exhausted their FMLA or company medical leave rather than considering ADAaccommodations (extended leave or otherwise).  These 4 settlements range from $175,000to $950,000.
  • Several cases involved failure to accommodate hearing impairments.  Employers need to avoidmaking rash decisions based on stereotypes about the hearing-impaired (rememberthe Case of the Deaf Lifeguard?) or any other disability, for that matter. Rather, consider thehearing impaired individual’s capabilities and if necessary, discuss special instructional, training,or communication methods as a reasonable accommodation.
  • Ending an existing accommodation. Finally, we must look at that $5.2 million jury verdict againstWalmart.  This case involved a cart pusher, Paul Reina, whose job consisted primarily of clearingthe parking lot of shopping carts.  Reina is deaf and has developmental, visual, and intellectualimpairments.  Reina had worked for Walmart in this capacity from 1998 to 2015, always with theassistance of a job coach arranged by Reina’s family and paid for through a Medicaid program.In 2015 a new manager was assigned to the store where Reina worked.  A few days later Reinawas put on administrative leave and never allowed to return to work.  To be fair, Walmart gaveseveral reasons it felt Reina should no longer work as a cart pusher, including the argument thatit was actually the job coach, not Reina, who was performing the job duties.  Nonetheless,Walmart discarded an accommodation that had been in place for 17 years. The jury found thatthis violated the ADA and awarded Reina $200,000 in actual damages and $5 million inpunitive damages.

The consequences beyond dollars. 

An EEOC lawsuit imposes a substantial financial burden even if the employer wins the case, such as the costs of attorneys’ fees, document production, depositions, and other defense tasks. But there are also significant consequences beyond just the monetary issues. Consider also the time spent by your employees, management, and Human Resources personnel to prepare for and defend the lawsuit and the ensuing disruption of your business operations.

In addition, when the EEOC settles a case, it demands other non-monetary relief such as years of oversight by the agency, hiring an ADA consultant, revising ADA policies, posting notice of the settlement in the workplace, and agency-mandated layers of training for employees and management.

Pings for Employers. 

What should you do so that your company doesn’t appear in the EEOC’s 2020 press releases? How about:

  • Train your employees on the ADA and accommodations – why wait for the EEOC or acourt to tell you to do it? If training heads off even one ADA misstep and EEOC lawsuit,it will have paid for itself.
  • Review your leave policies to ensure they don’t violate the ADA by imposing an inflexiblelimit to leave durations or requiring employees to be 100% healed before returning to work.
  • Take the interactive process to heart. Don’t make employment decisions based on yourbelief or a stereotype of what someone with a disability can or can’t do – discuss it withthe employee and, if appropriate, get relevant medical support.
  • Be ready to change nonessential company rules and procedures as an accommodation.Arguments like “we’ve always done it that way” or “then everyone will want the same”just don’t win the day.
  • Use available resources to help you understand an employee’s impairment and capabilities.The Job Accommodation Network  has a multitude of articles on various impairments andpossible accommodations, and the staff is available for discussion by telephone.  
  • Consider other resources specific to the employee’s disability. There are multiple websitesfor virtually every type of impairment that will help educate you about the employee’ssituation.  But remember – again – to avoid those stereotypes and make your determinationson the basis of the employee’s specific capabilities and limitations.

 

MATRIX CAN HELP! Matrix’s ADA Advantage® leave management system and our dedicated ADA accommodation specialists help employers maneuver through the accommodation process – including spotting noncompliant leave policies during implementation of our servicesWe will initiate an ADA claim for your employee; conduct the medical intake and analysis if needed; manage the interactive process; assist in identifying reasonable accommodations; document the process; and more.  For assistance please contact your Matrix or Reliance Standard account manager or send an email to ping@matrixcos.com.

CALIFORNIA EXTENDS ITS ORGAN DONOR LEAVE LAW

Posted On October 09, 2019  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

October 09, 2019

 

As our faithful readers know, we at Matrix Radar monitor state leave and accommodation law developments.  We have noticed that, in addition to the proliferation of state paid family leave laws, state legislatures have primarily focused on organ donation, leave for victims of domestic violence, and pregnancy accommodations.

Recently, California Governor Gavin Newsom signed an amendment to the Michelle Maykin Memorial Donation Protection Act to afford California employees who have worked at least 90 days an additional leave of absence for the purpose of organ donation.  Currently, that Act 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.  Employers can require employees to first take up to two weeks of accrued paid leave for organ donation and up to five days of accrued paid leave for bone marrow donation.

Effective January 1, 2020, the amendment (Assembly Bill 1223)  will 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.

The amendment retains the requirement that the employee provide written verification that he or she is an organ donor and that there is a medical necessity for the organ donation.  Time spent by employees on leave under the Act as amended does not constitute a break in service and employers are required to maintain and pay for health insurance coverage on the same terms as prior to the leave.

California organ and bone marrow donation leave runs concurrently with leave under FMLA but NOT under the California Family Rights Act.

We have previously blogged about other states with organ and bone marrow donation leave laws.  To read more about those laws, please see below:

Matrix can help!

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.

 

 

NEW YORK ADDS LEAVE LAW FOR VICTIMS OF DOMESTIC VIOLENCE

Posted On September 30, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

September 30, 2019

 

Effective November 18, 2019, New York employers with 4 or more employees must provide reasonable leave to employees who are victims of domestic violence.  With this law New York joins a growing number of jurisdictions that provide job-protected leave of absence and other accommodations to employees who are victims of domestic violence, sexual assault, and stalking. 

We previously wrote about these laws here.  

Key provisions of the New York law are summarized below:

Covered employees. “Victim of domestic violence” means:

  • any person over the age of sixteen;
  • any married person; or
  • any parent accompanied by his or her minor child or children

. . . in situations in which such person or such person’s child is a victim of an act which would constitute a criminal act including, but not limited to, acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, or strangulation; AND

  • such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical
    or emotional harm to such person or such person’s child;  and
  • such act or acts are or are alleged to have been committed by a family or household member.

View the New York Human Rights Law amendments HERE.

There are no eligibility requirements such as length of employment or hours worked; all employees are covered if they fit the above definition of a victim of domestic violence.

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

  • Seeking medical attention for injuries caused by domestic violence, including for a child who is a victim of
    domestic violence, provided that the employee is not the perpetrator of the domestic violence against
    the child; or
  • Obtaining services from a domestic violence shelter, program, or rape crisis center as a result of domestic
    violence; or
  • Obtaining psychological counseling related to an incident or incidents of domestic violence, including for
    a child who is a victim of domestic violence, provided that the employee is not the perpetrator of the
    domestic violence against the child; or
  • Participating in safety planning and taking other actions to increase safety from future incidents of
    domestic violence, including temporary or permanent relocation; or
  • Obtaining legal services, assisting in the prosecution of the offense, or appearing in court in relation
    to the incident or incidents of domestic violence.

Undue hardship.  An employer may decline a requested leave if the employer can demonstrate that the employee’s absence would impose an undue hardship, based on consideration of factors such as: 

  • The overall size of the business, program or enterprise with respect to the number of employees, number
    and type of facilities, and size of budget; and
  • The type of operation in which the business, program, or enterprise is engaged, including the composition
    and structure of the workforce.

Paid time off and benefits.  The employer can require an employee to use available paid time off during the leave unless otherwise provided for in a collective bargaining agreement or existing employee handbook or policy.  Any absence not covered by such paid time off may be without pay.  The employee is entitled to continuation of any health insurance coverage provided by the employer on the same terms as available during other similar absences. 

Employee notice and documentation.  An employee taking leave pursuant to the law must provide the employer with “reasonable” advance notice unless that is not feasible under the circumstances.  The law does not identify how much advance notice is reasonable, but presumably that is determined by the situation, such as when the employee learned of the need for time off. 

Oddly, the employer can request documentation of the leave reason only if advance notice was not feasible.  In that case, upon request by the employer, such documentation must be provided within a reasonable time after the absence and may include:

  • A police report indicating that the employee or his or her child was a victim of domestic violence;
  • A court order protecting or separating the employee or his or her child from the perpetrator of an act of
    domestic violence;
  • Other evidence from the court or prosecuting attorney that the employee appeared in court; or
  • Documentation from a medical professional, domestic violence advocate, health care provider, or
    counselor that the employee or his or her child was undergoing counseling or treatment for physical
    or mental injuries or abuse resulting in victimization from an act of domestic violence.

Other provisions.

Employers have a duty to maintain confidentiality of information received about an employee’s status as a victim of domestic violence.

If an employee becomes disabled as a result of domestic violence, the employer must treat the employee the same as an employee with any other disability under New York law, including provisions that make discrimination and refusal to provide reasonable accommodation of disability unlawful discriminatory practices. (Of course, the federal Americans with Disabilities Act would also apply.)

The law also prohibits employers from discriminating against an employee or applicant because of the individual’s status as a victim of domestic violence such as by refusing to hire or discharging the individual; and prohibits employers from inquiring about an individual’s status as a victim of domestic violence except in relation to a requested leave. 

MATRIX CAN HELP!   At Matrix we administer these domestic violence and sexual assault laws.  We call them “Personal Protected Leave” to preserve the employee’s (and/or victim’s) privacy.  In addition to those jurisdictions listed in our prior blog post here, another recent addition to these laws is that of Puerto Rico.  We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact your Matrix/Reliance Standard account manager now, or send us a message at ping@matrixcos.com.

FMLA AND EMPLOYEE DUAL-NOTICE PROCEDURES – STAND YOUR GROUND BUT BE CLEAR ABOUT YOUR POLICIES

Posted On September 16, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

& Megan Holstein - Senior Vice President, Absence and Claims Fineos

September 16, 2019

 

 

QUESTION:  Can an employer require an employee taking FMLA leave to report absences to both a supervisor and a leave administrator?

ANSWER:  It depends – but probably yes.  Read on!

 

The Issue

Employers are struggling with the trend in rising  employment time off benefits caused by the numerous new state laws requiring job-protected leave and increasing company leave benefits due to competition for workers.  In response, many employers have strengthened their absence policies. Whether the employer outsources absence management or insources with a centralized administrative or human resources (HR) department, an employee must provide notification that they need time off in order for that leave to be approved and not counted against the employee’s attendance record.

The federal Family and Medical Leave Act (FMLA) regulations address employee notification by requiring an employee to “comply with the employer’s usual and customary notice requirements for requesting leave, absent unusual circumstances.” 29 C.F.R. §825.302(d); §29 C.F.R. 303(c). The FMLA supports employers who have a reporting notice policy by allowing an employer to delay or deny FMLA leave if an employee does not comply with the employer’s policy and no usual circumstances justify the failure to do so. Accordingly, many employers’ absence notice requirements or FMLA policies require an employee to contact both a supervisor and a centralized absence administration office, whether that is an internal HR or Benefits department or outsourced to a third party administrator (TPA); otherwise known as a dual-notice, or two-party call in policy or procedure.

Employees have contested dual-notice policies in court claiming they violate the FMLA by interfering with their right to take FMLA leave. Courts have historically supported employers dual-notice policies. However, a recent Alabama district court decision, LaShondra Moore v. GPS Hospitality Partners IV, LLC,  declined to follow other courts’ support and instead found that an employer’s dual-notice policy that required employees to contact both HR and their manager when reporting absences violated the FMLA. While this decision is an outlier, there are still lessons to learn from the case. Read on to learn more about courts’ approaches to dual-notice policies and whether the DOL might weigh in.

Bad Facts Make Bad Law. LaShondra Moore worked for a Burger King franchise that was one of nearly 200 purchased by GPS.  The new owner required the employees of the purchased locations to complete new paperwork, including reviewing and acknowledging the employee handbook.  The handbook included GPS’s FMLA policy and the requirement to report FMLA absences to store managers and to the centralized HR office.  When Moore’s mother became ill and was hospitalized, she informed her manager multiple times of her need to take time off from work to care for her mother. In spite of awareness that Moore’s absences were the result of her mother’s hospitalization, Moore’s manager issued disciplinary action and ultimately terminated her due to these absences.

Ms. Moore sued for FMLA interference in federal court. GPS based its defense on its employee handbook, which set forth an FMLA policy requiring the employee to notify their supervisor and HR of their need for FMLA leave.

The Court’s Approach to GPS’s Dual-Notice policy. Citing the FMLA notice regulations allowing an employer to require an employee to comply with its notice requirements for requesting leave, the court took great exception to the notion that GPS’s policy required employees to do more – notify both a supervisor and HR – to request FMLA than other types of leave. Essentially, the court found that employers can only maintain a dual notice reporting policy only if the policy applies to all types of leave requests, not just FMLA.

This Case is an Outlier. Several courts that have heard claims by employees who have been disciplined for not following their employer’s dual reporting policies have drawn conclusions opposite to the Moore court. Here is a sampling of those cases:

  • 3rd Circuit – E.D. Pennsylvania- IBW v. PPL Electric Utilities Corp. (December 2017) – Relying on the Acker case
    (discussed below) and concluding no FMLA violation in connection with employer policy requiring employees
    to report absences to their supervisor and “make a three to five minute phone call to a third party administrator.”
  • 5th CircuitAcker v. General Motors, LLC (April 2017) – Judgment in favor of the employer on FMLA interference
    and retaliation claims when employee failed to follow GM call-in procedures, of which he was reminded by
    GM’s TPA. In doing so, the court noted that “[f]ormal notice of absence policies serve an employer’s legitimate
    business interests in keeping apprised of its employees and ensuring that it has an adequate workforce to
    carry out its normal operations.”
  • 6th Circuit Srouder v. Dana Light Axle Mfg. (2013) – Sixth Circuit affirmed judgment in the employer’s favor
    on an interference claim and that the termination of the plaintiff’s employment was appropriate because he
    failed to comply with the employer’s call-in policies.
  • Also in the Sixth Circuit, Alexander v. Kellogg USA Inc., (January 6, 2017), the court again rejected an FMLA
    interference claim challenging the termination of employment on the basis of the plaintiff’s failure to report
    intermittent FMLA absences to both his employer and its TPA.
  • 7th Circuit – N.D. Indiana– Reese v. Zimmer Production, Inc. (September 2018) – The court concluded that the
    employee failed to comply with his employer’s policy, which required him to notify his supervisor and the
    company’s TPA to initiate a request for FMLA.
  • 9th CircuitDuran v. Stock Building Supply West, LLC (January 2017) – The court held that the employee’s
    failure to complete an internal LOA request form and provide certification to the employer’s TPA, both
    mandated by its customary notice policies, doomed his FMLA/CFRA interference and retaliation claims.

Also in the 9th Circuit, the most recent case – Rozairo v. Wells Fargo (D. Oregon, July 17, 2019) in which the court relied on the employer’s policy requiring employees to discuss their request for leave with their manager and call its TPA, finding the employee who failed to comply with that policy for initiating leave could not state claims for violations of FMLA or Oregon’s state equivalent, the Oregon Family Leave Act.

Will the U.S. Department of Labor (DOL) Weigh In?

The DOL announced that it is considering revising the FMLA regulations by announcing its plans to publish a request for information (RFI) next spring to solicit comments to improve the FMLA regulations in two ways:

  1. Better protect workers; and
  2. Reduce employers’ FMLA compliance and administrative burdens.

We think this area of the FMLA regulations governing an employer’s ability to set forth absence notice policies and procedures is ripe for further clarification.

For more information regarding the DOL’s plan to publish a RFI, check out co-author Megan Holstein’s earlier blog here and our friend Jeff Nowak’s blog here.

Pings for Employers:

  • The weight of authority supports that an employer can require employees to report FMLA absences to
    two sources.
  • But, it may not enough to simply place your absence request policy in the employment handbook.
    Employers should broadcast the policy in ways employees can access it, including:

    • highlight the policy on a company intranet and send email reminders;
    • post the policy and FMLA posters in the breakroom and any other venue in which employees may
      congregate;
    • consider holding informational meetings about all of your benefits, including FMLA and other leave
      benefits and how to request the time off; and
    • if using a TPA, engage the TPA as a source and additional reason for further outreach to employees.
      Make sure they understand who your TPA is, what purposes they serve, and how to contact the TPA.
  • Keep your dual-notice policy simple and clear. Do not require employees to be FMLA, state leave, or
    benefits experts to navigate your policy. They don’t need to know when leave is FMLA and therefore
    the TPA must be contacted or, for example, when it’s a common cold and only a manager needs notification.
    Instead, streamline the policy to notice categories such as reasons for leave (e.g., vacation, care of family
    member, employee illness, parental leave, etc.) and/or duration of leave (e.g., absences of fewer or
    more than 3 days).
  • On the other hand, do train your manager to be issue spotters and recognize when an employee’s request
    might be time off for an FMLA-qualifying reason. Managers not only need to spot when a request may be
    covered by the FMLA, but they must know the reporting policy and be able to inform the employee how to
    correctly report an absence under the policy so that the request can be evaluated by the right people, such
    as a TPA or HR.  Then teach them to hand the issue off to those right people and not try to handle it
    themselves – they should be grateful for that!

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.

MASSACHUSETTS PFML UPDATE – NOW WHAT’S GOING ON?

Posted On August 27, 2019  

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.

THE DOL GETS BUSY – NEW OPINION LETTER, NEW DRAFT FMLA CERT FORMS!

Posted On August 13, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 13, 2019

 

The Department of Labor rolled out two new developments last week just in time to leave for August vacations:  First, a new opinion letter addressing whether FMLA covers time taken for specialized child educational meetings; and second, drafts of new (and improved) FMLA certification forms for public comment.

Let’s dig in!

DOL Opinion Letter FMLA2019-2-A – Meetings for Child’s Individualized Educational Program

On August 8, 2019, the DOL released Opinion Letter FMLA2019-2-A relating to whether attending a meeting to discuss a child’s Individualized Education Program (IEP) qualifies as FMLA leave. 

 

A bit of background:  The Individuals with Disabilities Education Act (IDEA) requires public schools to develop an IEP for a child who receives special education and related services with input from the child and the child’s parents, teachers, school administrators, and related services personnel. Under the IDEA, “related services” include such services as audiology services, counseling services, medical services, physical therapy, psychological services, speech-language pathology services, rehabilitation counseling services, among others. 

The individual who requested the opinion letter explained the situation as follows

You explain that your children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and that four times a year their school holds CSE/IEP meetings to review their educational and medical needs, well-being, and progress. You explain that these meetings include participation by “a speech pathologist, school psychologist, occupational therapist and/or physical therapist employed or contracted by the school district to provide services to the … child under the child’s IEP,” as well as teachers and school administrators. These participants provide updates regarding your children’s progress and areas of concern; review recommendations made by your children’s doctors; review any new test results; and may make recommendations for additional therapy. You ask if your wife may use intermittent FMLA leave for the care of a child to attend these meetings.

I include these details here so it is clear that these are not your everyday parent-teacher conferences or disciplinary meetings – which would generally not be covered by FMLA.

The DOL determined that these meetings did in fact qualify for FMLA intermittent leave.  The wife’s (mother’s) attendance at these CSE/IEP meetings is “care for a family member … with a serious health condition” under 29 C.F.R. § 825.100(a).  And, care for a family member can include “mak[ing] arrangements for changes in care.”  Such FMLA coverage does not require the child’s doctor to be present nor require that the child be receiving treatment at the meetings – providing “care” is sufficient.

Pings for Employers.  Be sure to read my friend Jeff Nowak’s more detailed post on his blog, FMLA Insights. Jeff provides some excellent tips for employers that you will want to heed – including, of course, training your supervisors!

But in a nutshell:  When an employee requests leave to attend meetings relating to the care of a family member (here, a child in specialized education, but it could also be an elderly parent receiving detailed medical treatment), take time to analyze the situation carefully.  Think broadly; don’t just deny the FMLA request because the family member’s condition falls outside our usual concept of a “serious health condition” or because the meeting doesn’t seem to fit within FMLA protection. 

At Matrix our claims examiners have been alerted to this new opinion letter and its significance.  If we receive a request for time off for meetings relating to care of a family member, we will analyze the request for FMLA intermittent leave correctly and obtain appropriate documentation even when the meeting seems at first glance not to be an FMLA-qualifying event.   

 

New Draft FMLA Certification Forms – Now That’s Exciting!

Oh boy, oh boy, oh boy!  New cert forms!  And a chance to comment!  What more could an FMLA geek ask for to relieve the summer doldrums?

Seriously, this is a welcome step in FMLA-Land.  The current certification forms tend to be cumbersome and, in our experience, often don’t yield all the information the regulations entitle employers to receive.  On August 7 the DOL issued a press release explaining the goal of the new forms:

The revisions will make the forms easier to understand for employers, leave administrators, healthcare providers, and employees seeking leave. The revisions will increase compliance with the law, improve customer service, and improve the administration of the law. WHD drafted the revisions with input from the public in letters, interviews, and public meetings….

The changes will reduce the time it takes a health care provider to provide information, and help leave administrators review and communicate information to employees more directly and clearly, reducing violations.

What’s the status?  The DOL is soliciting public comments on the proposed forms by 11:59 p.m. on October 4, 2019.  The official notice was published in the Federal Register and includes directions for submitting comments. After that date, the DOL will consider the comments received and – eventually – issue new final forms.  There is no timeline for final action by the DOL and, although unlikely, they could decide not to change the forms from the current versions.  Until new forms are officially adopted, the current forms remain approved by the DOL but still optional.  With an expiration date on the current forms of August 31, 2021, the DOL has lots of time!

What are the changes?  The changes are summarized by the DOL as:

  • Fewer questions requiring written responses; replaced by statements that can be verified by simply
    checking a box [These are the best changes, in our humble opinion.  They should result in fewer
    inconsistencies within the form and less confusion regarding the frequency and duration for intermittent
    leave.]
  • Reorganization of medical certification forms to more quickly determine if a medical condition is a
    serious health condition as defined by the FMLA
  • Clarifications to reduce the demand on health care providers for follow-up information
  • More information on the notification forms to better communicate specific information about leave
    conditions to employees
  • Changes to the qualifying exigency certification form to provide clarity to employees about what
    information is required
  • Changes to the military caregiver leave forms to improve consistency and ease of use
  • Layout and style changes to reduce blank space and improve readability

Here are the revised forms, with links for your viewing pleasure:

  • WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition
  • WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition
  • WH-381 Notice of Eligibility of Rights & Responsibilities
  • WH-382 Designation Notice
  • WH-384 Certification of Qualifying Exigency for Military Family Leave
  • WH-385 Certification for Serious Injury or Illness of Covered Servicemember—for Military Family Leave
  • WH-385-V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

What is Matrix Doing?  Several years ago, we at Matrix designed our own certification forms for FMLA leave necessitated by the employee’s or a family member’s serious health condition.  Like the newly proposed DOL revisions, we adopted a simpler means of identifying the type of serious health condition involved with a check-the-box format and reconfigured the questions about leave parameters, including frequency and duration of episodes for intermittent leave.  As the DOL is now hoping, these resulted in significantly clearer provider responses and much less need for follow-up and clarification.

We will review the DOL’s proposed forms and submit comments by the deadline.  If you would like to share with us your own thoughts on the draft forms, please do so!  Once the forms are finalized we will evaluate whether they have gone far enough to simplify leave management and consider using the DOL forms going forward. 

MATRIX CAN HELP!

At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day.  Our claims examiners are experts in reviewing FMLA certification forms to ensure we have received all the information the employer is entitled to and that it is clear and makes sense.  Want to harness that expertise? Contact us at ping@matrixcos.com or through your Account Manager.

OREGON BECOMES THE 10TH (9TH?) STATE TO ENACT PAID FAMILY AND/OR MEDICAL LEAVE LEGISLATION

Posted On August 07, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

August 07, 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.

 

FMLA 2ND AND 3RD OPINION PROCESS: A POWERFUL TOOL TO MANAGE INTERMITTENT FMLA

Posted On July 29, 2019  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

July 29, 2019

 

Readers of DMEC @Work Magazine know I have been writing a series of articles on recommended best practices using the 2nd and 3rd opinion process to manage intermittent FMLA leave.  Readers of this blog who have not read my articles (tsk tsk…as if!), well you are in luck because today’s blog post will be a Cliff Notes™ version summarizing the key takeaways from each of those articles!

 

January 2019 Issue: When Can an Employer Request a 2nd Opinion and Why Would I Want to Spend Money to Get One?

An employer can only request the employee attend a 2nd opinion before approving FMLA leave for the employee’s or family member’s “serious health condition,” in connection with a new leave request, or initial certification at the start of a leave year.

Strategic use of the 2nd opinion process is a good investment for employers. The advantages we have seen include the “grapevine effect” in the workplace, organically increasing employee awareness that you are managing leave usage. This increased awareness can often result in reduced frequency and duration of employee leaves.

 

March 2019 Issue: What Does it Mean to Have “Reason to Doubt the Validity” of an Employee’s Certification?

The FMLA for an employer “who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense.” (29 C.F.R. §825.307(b)) Like so many things about the FMLA, there is no definition of what would provide employers with that “reason to doubt.”  At Matrix, we spend a lot of time thinking about things like this! Some of the (perhaps obvious?) circumstances we have identified that warrant an employer to consider pursuing a 2nd opinion include:

  • clearly excessive leave parameters in the employee’s certification for the condition;
  • leave certified by a healthcare provider that does not seem appropriate for the condition
    (e.g., an ophthalmologist certifying depression); and
  • a healthcare provider certifying leave for an employee who is a relative or close friend.

 

May 2019 Issue: Use of Onsite Medical Personnel in Evaluating Whether to Pursue a 2nd or 3rd Opinion

Many employers have onsite medical personnel, or doctors with whom they have a relationship, who can be consulted in connection with the decision whether or not to seek a 2nd opinion. These personnel are prohibited by FMLA regulations from actually performing the 2nd opinion exam, but it does not mean they cannot otherwise be helpful. For example, when you read the employee’s certification and you identify that the frequency and/or duration of estimated leave seems excessive, a medical provider can add heft to that decision by reviewing it as well to confirm (or contradict!) your impression.

 

July 2019 Issue: What Does it Mean to Act in Good Faith in the 2nd/3rd Opinion Process?

Once the 2nd opinion results are received, if the results differ from the employee’s certification, the employer has a choice to either:

  1. accept the employee’s certification and manage the leave to those parameters; or
  2. send the employee to a 3rd opinion, again at employer expense.

If the employer elects to require a 3rd opinion, the regulations require the employer and employee to “act in good faith” in the selection of the 3rd opinion provider; but again, they don’t tell you what that means! We think a process that meets this standard includes the employer proposing 2-3 providers whose specialty is appropriate for the employee’s condition and whose offices are located in the employee’s general vicinity.  Like the 2nd opinion provider, the 3rd opinion provider can’t be someone the employer has previously consulted.

The employee is then given the option of selecting one of the employer’s suggested doctors, or identifying one or more of his own choice – with the same criteria that the employee’s doctor be in an appropriate specialty and with whom he has not previously consulted.

 

More to Come!

There are two more articles in my series that will be published in September and December: In the September issue, I will discuss best practices for what an employer should do about any absences the employee reports while the 2nd/3rd opinion process is pending.  My final column will give guidance to employers on other issues unanswered by the regulations, such as how long the employer can rely on 3rd opinion results.

 

Read the Full Articles.  You can read my column articles here at DMEC.org.  If your organization isn’t already a DMEC member, here’s another reason to join!

 

MATRIX CAN HELP!

At Matrix Absence Management, we administer FMLA leaves for employers day in, day out, every day and have seen firsthand how thoughtful, strategic use of the 2nd/3rd opinion process can lead to beneficial results.  Want to harness that expertise? Contact us at ping@matrix.com or through your Account Manager.

 

ACCOMMODATION DELAYED IS NOT (NECESSARILY) ACCOMMODATION DENIED

Posted On July 25, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Robb McDonald - Vice President, Learning and Development

July 25, 2019

 

 “This is a case about a civil servant’s dissatisfaction with the government’s sluggishness in accommodating her disability. While delay is no doubt frustrating, it is not, in this case, unlawful.”

So starts the opinion in Weatherspoon v. Price, a case decided recently by the federal court in the District of Columbia.

What Happened?

Monique Weatherspoon was (and, as far as we know, still is!) employed by the U.S. Department of Health and Human Services.  She suffers from uveitis, a sensitivity to light which makes it difficult for her to travel to her office and to read her computer screen.  Over time the Department granted a multitude of accommodations.  Try these on for size:

  • Starting in 2011 and for the next few years, the Department permitted Weatherspoon to work from home
    1-2 days per week and also to work from home as needed due to her condition.
  • In 2015, Weatherspoon’s condition deteriorated and she requested a laptop with an oversize screen. Instead,
    the Department offered to provide a docking station and large monitor for home set up.
  • Weatherspoon took medical leave in November and December 2015.
  • In early 2016, the Department advised Weatherspoon that the docking station and monitor were available
    for pickup. Weatherspoon cancelled several appointments with IT to test and pick up the equipment.
    Once she picked up the equipment, Weatherspoon indicated that she had trouble using it.
  • The Department’s Computer/Electronic Accommodations Program (CAP) suggested that a software
    program, ZoomText, might be helpful and provided Weatherspoon with a trial version. Weatherspoon
    advised the Department that the software was not helping.
  • In May 2016, Weatherspoon requested 100% telework as an accommodation. The Department denied
    the request, but did permit telework for 2 days per week, and episodic telework as necessitated by her
    condition. The Department never denied a request by Weatherspoon for episodic telecommuting.
  • After further in-person assessment, the CAP provided Weatherspoon different ZoomText software and
    a larger laptop. Weatherspoon picked up the equipment in December 2016 when she went to the office
    for the holiday party.

Apparently, this equipment and the telecommuting arrangement were successful in enabling Weatherspoon to perform her job.  Nonetheless, these efforts were not satisfactory to Weatherspoon.  She sued the Department for “failing to reasonably and effectively accommodate” her disability.

Side note.  OK, a little detail here.  Weatherspoon sued the Department under the federal Rehabilitation Act, not the ADA.  The Rehab Act is substantially similar to the ADA but applies to federal employers and employees, while the ADA applies to pretty much all other employers and employees.  The principles, the employer’s obligations, and the employee’s rights are the same.  So in general, a lesson learned in a Rehab Act case also applies to employers covered by the ADA.

The Tortoise, Not the Hare

Weatherspoon alleged that lengthy delays (she claimed 17 months) in providing accommodations were tantamount to a denial of her request.  The court acknowledged that in some cases, a long-delayed accommodation could be considered unreasonable and hence a violation of the ADA/Rehab Act but here, no single accommodation request took more than 3-4 months to resolve – and always ended with the Department providing Weatherspoon with an accommodation.  Moreover, many factors contributing to the delays were beyond the control of the Department.  For example, Weatherspoon took an extended period of medical leave during the request period, cancelled multiple meetings, and delayed in picking up the offered equipment.  The court also noted that it can take weeks or months to analyze and procure proper technology such as specialized software and computer equipment.  And, when dealing with a government entity, movement is “more tortoise-like than hare-like . . . But that’s just business as usual, not evidence of discrimination.”

The Interactive Process – Keep it Going!

As we know, it is important to engage in the interactive process when evaluating an accommodation request, and this requires “flexible give-and-take” between the employer and employee. In this case, Weatherspoon’s supervisor was in regular communication and dialogue with her.  There was also a great deal of communication among Weatherspoon, her supervisor, and 5 additional persons or entities within the Department to assess and meet her needs.  In light of this and the number of attempted and suggested accommodations, the court held that the Department participated in the interactive process in good faith and did not violate the Rehab Act due to the delays in reaching final accommodations.

Pings for Employers

  1. Engage in the interactive process with regular communication and dialogue. Don’t be responsible for
    a breakdown in the process.  According to the Court, “To determine whether the employer held up its end
    of the bargain, courts look to factors such as whether the employer obstructs or delays the interactive process
    or fails to communicate, by way of initiation or response.”  In this case, the Department kept the process
    going to conclusion with some effective accommodations.
  2. So don’t be responsible for unreasonable delays. Weatherspoon did indeed experience delays in obtaining
    effective accommodations.  One wonders whether a private employer would have received the leniency this
    court showed to the Department as a government entity!  You don’t want to be the test case!
  3. Offer alternative accommodations in appropriate circumstances. You do not have to approve an employee’s
    preferred accommodation when there is another effective accommodation that better suits your business needs.
    In this case the Department offered Weatherspoon different specialized equipment than what she requested and
    also pushed back on her request for full-time telecommuting by offering 2 days per week plus other days as
    needed. Just be sure that the alternative offered is effective to enable the employee to perform her essential
    functions.
  4. If you can’t find a reasonable, effective accommodation, a robust interactive process will still serve you well.
    If you engage in dialog with the employee and consider various options, but none enable the employee to
    perform her essential functions without undue hardship, you have fulfilled your ADA obligations.  (But don’t
    forget your duty to consider reassignment, the accommodation of last resort! See our prior blog posts on
    reassignment
    here and here.)
  5. Document the interactions meticulously. Especially in an extended situation like this one, it would be difficult
    after the fact to recreate accurately all the interactions that support your position.

MATRIX CAN HELP!  Through our ADA Advantage, Matrix offers administration and management of employee requests for accommodations.  We manage it all, from intake and medical documentation through the final accommodation decision and follow-up.  We manage and document the interactive  process so you don’t have to worry about those Pings above.  You retain control over the final decision but we help you get there effectively and in compliance with the ADA.  If you want to learn more about our ADA services, contact your Matrix/Reliance Standard account manager or send us a message at ping@matrixcos.com.

With this blog post we welcome a new contributor, Robert McDonald, J.D., Ph.D. Robb has been with Matrix Absence Management since 2017 and serves as Vice President of Learning & Development. In this capacity Robb is responsible for course development and instruction to all Matrix employees nationwide.

CONNECTICUT JOINS THE PAID FAMILY AND MEDICAL LEAVE CLUB!

Posted On June 28, 2019  

by Marti Cardi, Esq. - 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.

 

 

OREGON JUMPS ON THE BANDWAGON – NEW PROTECTIONS FOR PREGNANT EMPLOYEES

Posted On June 27, 2019  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

June 27, 2019

 

Oregon has passed a law requiring employers with 6 or more employees to grant reasonable accommodations, absent undue hardship, to employees and applicants with known limitations related to pregnancy, childbirth or related medical conditions. The law is effective January 1, 2020.

Here is a summary of its salient provisions:

Reasonable Accommodations: Like many of the pregnancy accommodation laws passed by other states, the Oregon statute identifies specific examples (though not an exhaustive list) of possible reasonable accommodations, including acquisition or modification of equipment; more frequent or longer breaks or rest periods; assistance with manual labor; and modification of job assignments.

Definition of Undue Hardship: The Oregon law defines undue hardship as “significant difficulty or expense,” but also provides several factors that can be weighed by employers to help them establish an undue hardship, such as the overall financial resources of the employer, including the size of its operations and number, type and location of its facilities; the cost and nature of accommodation the employee has sought; and the effect on expenses, resources or other impacts to the facility of the accommodation.

Unfair Employment Practices Related to Accommodation Obligations: The Oregon law also defines as an “unfair employment practice” as denying employment opportunities on the basis of an employee’s or applicant’s need for reasonable accommodations for known limitations; failing or refusing to make reasonable accommodations for known limitations, absent undue hardship; and requiring an employee to take leave under OFLA if the employer can make reasonable accommodations to known limitations.

Notice to Employees: Oregon employers are required to provide notice to employees of their rights, including to reasonable accommodation(s) in the form of posting in the workplace, as well as providing a written copy of the notice to new employees at the time of hire, to existing employees within 180 days of the Act’s effective date (that is, no later than July 1, 2020) and within 10 days of an employee informing the employer of her pregnancy.

Existing Oregon Law Regarding Pregnancy Protections:  Of course Oregon, like virtually all other states and federal law, already prohibits discrimination or retaliation on the basis of sex, which is defined to include pregnancy.

Matrix 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.

STOP THE PRESSES (AGAIN): MASSACHUSETTS PFML FINAL REGULATIONS AND BOND FORM HAVE ARRIVED

Posted On June 25, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 25, 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

 

MASSACHUSETTS PASSES LIGHTNING BILL TO DELAY SOME PFML DATES--AND, THE FINAL REGULATIONS ARE HERE!

Posted On June 19, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 19, 2019

 

In a coordinated move so fast it makes your head spin, the Massachusetts governor and legislature have passed the promised bill to delay by 3 months the start of employer and employee contributions to the paid family and medical leave program, to October 1. The bill, MA S 2255, brings about some other modifications to the PFML law as well. What hasn’t changed is the date for commencement of benefits – still January 1, 2021.

In addition, the final Massachusetts PFML regulations have been posted on the Massachusetts Department of Family and Medical Leave (DFML) website here. The regulations are key to fully understanding and administering the Massachusetts PFML law. The DFML received many comments and suggestions for final revisions, and we will be studying the changes made from the 03-29-2019 draft.

In the interest of getting this article about the statutory delays posted timely, we are not including an analysis of the final regulations yet. Watch this blog for another article shortly.

 

THE CHANGES

Here is the content of the announcement sent by the DFML to Massachusetts employers on June 14, 2019, regarding the delays of prior PFML compliance dates, with Matrix’s observations in italics:

 

Required Withholding Now Starts October 1

“The start date for required PFML contributions is now October 1, 2019. On that date, employers must begin withholding PFML contributions from employee qualifying earnings.  Employers will be responsible for remitting employee and (if applicable) employer contributions for the October 1 to December 31 quarter through MassTaxConnect by January 31, 2020.”

Matrix observations: Remember that (1) employers can elect to cover the employee share of contributions, regardless of whether they choose to use the public plan or a private plan to comply with the law; and (2) employers with a private plan approved by December 20, 2019, don’t have to remit any payments to the DFML. So to say the start date for “required PFML contributions” is now October 1 is a little misleading.

This delay in the start date for contributions may be less of a blessing for some employers than for others, if you have already programmed your payroll system to start the employee paycheck deductions on July 1. Now, any such deductions are not required by the law until October 1 (f at all) and so might be a violation of state or federal wage laws if initiated on July 1. Consult your employment counsel if this is an issue for you.

 

Contribution Rate Change

“The PFML law requires that the Department adjust the contribution rate to offset the shorter period for collections that will result from the three month delay. As a result, the total contribution rate has been adjusted from 0.63% to 0.75% of employee qualifying earnings. This adjustment will ensure that full funding will be in place for the commencement of benefit payments in January 2021.”

Matrix observations: The amendments do not specify how long this adjusted rate will remain in effect, but the law requires the Department of Family and Medical Leave (DFML) to review and adjust the rate effective each October 1, if needed.

The PFML statute requires the employee to pay 100% of the contribution attributable to family leave and the employee and employer to share the contribution attributable to medical leave on a 40% employee/60% employer split. This has not changed. The DFML advises that the 0.75% will be apportioned as follows:

  • 0.13% to family leave, of which the employee pays all; and
  • 0.62% to medical leave, of which the employee pays not more than 40%

 

You can see a graphic illustration of the new contribution rates on the DFML website.

 

Timeline Extended for Required Employee Notices

“Employers now have until September 30, 2019, to notify all covered individuals of their rights and obligations under PFML. Check the Department website at mass.gov/pfml in the coming days for updated notices to provide to your workforce.”

Matrix observations: What if you have already sent the notices that were previously required by May 31 June 30? The DFML has this guidance on its website:

“If you provided written notices to your workforce prior to the June 14 delay announcement, you will need to provide them with an addendum sheet explaining the updated program dates and contribution rates. This addendum will be provided by DFML during the week of June 17.”

If you haven’t sent the notices yet, just use the new DFML notice forms. You can find the updated notice requirements and templates (and the addendum once available) here.

As an aside, in my communications with the DFML I have confirmed that the poster and the individual notice templates available on the DFML website are examples and can be modified as needed to reflect accurately your own situation, as long as all the notice elements are covered. This will be particularly significant for employers with a private plan or those electing not to withhold contributions from employee paychecks.

 

Timeline Extended for Exemption Applications

“Employers that offer paid leave benefits that are at least as generous as those required under the PFML law may apply to the Department for an exemption from making contributions. Employers will now have until December 20, 2019, to apply for an exemption that will excuse them from the obligation to remit contributions for the full period commencing with the October 1 start date.”

Matrix observations: The exemption referred to here is obtained adopting an approved private plan – one administered by the employer or a by third party such as Matrix or an insurance company rather than the state. See the end of this post for information about private plan assistance Matrix is ready to provide.

If the private plan application is filed by December 20, 2019 (and ultimately approved by the DFML) the employer can avoid paying employee and employer contributions to the state for the period October 1- December 31, 2019. The advantage is retaining those contributions to fund an employer’s own private plan and payment of benefits. Matrix recommends filing in advance of December 20 to ensure plenty of time for approval. Guidance from the DFML about the private plan exemption can be found on the DFML exemption page.

Note that there is no “deadline” to file an application for private plan approval. The DFML will accept filings on a continuous rolling basis, but a plan won’t be in effect until the first day of the quarter following approval, so the employer will have to pay to the state any employee and employer contributions accruing prior to that date. As a result, there is a financial incentive as described above to get your plan filed by December 20, 2019.

 

PFML Regulations Will Be Final and Effective on July 1, 2019

“The final regulations will be posted on the Department website at mass.gov/pfml on Monday, June 17, 2019. The regulations will be formally published under the title 458 CMR 2.00 DEPARTMENT OF FAMILY AND MEDICAL LEAVE.”

 

Matrix observations: And, they’re here! The regulations are key to fully understanding and administering the Massachusetts PFML law. The DFML received many comments and suggestions for final revisions, and we will be studying the changes made from the 03-29-2019 draft. In the interest of getting this article posted timely, we are not including an analysis of the final regulations yet. Watch this blog for another article shortly.

 

Other Provisions of the Amendments to the PFML Law

In addition to the above changes, the newly-passed amendments address some of the concerns expressed by employers and other stakeholders. The effect is to better align the PFML law with the federal Family and Medical Leave Act:

  • Unable to perform: The definition of a serious health condition for which an employee may take medical
    leave has been expanded to require that the condition “makes the covered individual unable to perform the
    functions of the covered individual’s position.” The amendment further explains: “This provision shall be
    construed consistent with the equivalent provision of the federal Family and Medical Leave Act of 1993,
    codified at 29 U.S.C. 2612(a)(1)(D).”
  • Former employees: The amendment also explains: “A covered individual who is a former employee shall
    be considered unable to perform the functions of the covered individual’s position if the covered individual
    is unable to perform the functions of the covered individual’s most recent position or other suitable
    employment as that term is defined under [the PFML law].”
  • Medical certification: The required contents of a medical certification to support leave are expanded to
    include:

    • A statement by the health care provider that the covered individual is unable to perform the functions
      of the covered individual’s position;
    • A statement of the medical necessity, if any, for intermittent leave or leave on a reduced leave schedule; and
    • If applicable, the expected duration of the intermittent leave or reduced leave schedule.

Unfortunately, still missing is a requirement to provide an estimate of the frequency and duration of each episode of a condition’s flare-up requiring intermittent leave – an important bit of information to manage intermittent leave effectively.

Similar requirements relating to medical necessity and the duration of intermittent or reduced schedule leave have been added to the certification in support of leave to care for a family member with a serious health condition or covered servicemember.

MATRIX CAN HELP! 

In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the Massachusetts and Washington private plan options.  These include developing state-specific sample private plans for use by our clients and a guide for our account managers to assist you with the private plan decision and application process.

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

MASSACHUSETTS ANNOUNCES LIKELY 3-MONTH DELAY IN COLLECTING PFML PREMIUM CONTRIBUTIONS

Posted On June 12, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

June 12, 2019

 

Vast amounts of uncertainty and unanswered questions surround the Massachusetts Paid Family and Medical Leave program.  The law currently provides that employers participating in the plan administered by the Massachusetts Department of Family and Medical Leave (DFML) must start withholding contributions from employee paychecks as of July 1, 2019.

On June 11, Massachusetts Governor Baker and leaders of the Massachusetts house and senate announced an agreement to postpone the start of PFML contributions for 3 months, until October 1, 2019.  The change must be accomplished via an amendment to the PFML statute but all parties are on board to get this done.   This is welcome news for employers as they will have more time to get payroll arrangements perfected, decide whether to apply for an exemption from state coverage with a private plan, and otherwise implement.

The anticipated amendment to the PFML statute may also include technical changes to clarify program design.  Clarifications are expected to include amendments relating to intermittent leave, the definition of “serious health condition,” and closer alignment of the Massachusetts PFML law with the federal Family and Medical Leave Act.  (See aimblog published by the Associated Industries of Massachusetts, which was instrumental in advocating for the delay.)

In order to maintain the level of funding for the program that would be achieved if contributions commenced July 1, the combined employer/employee contribution of 0.63% of an employee’s wages will be increased to 0.75%, or from $872 to $1038 per year for an employee earning the state average weekly wage.  It is not yet known how long this increase will stay in effect.  At present, the law requires the DFML to adjust the contribution rate annually, depending on various economic factors, starting October 1, 2021, effective the next January 1.

Massachusetts PFML Reminders

Massachusetts employees and other covered workers can start receiving paid leave benefits January 1, 2021.  The law provides for annual paid leave up to 20 weeks due to an employee’s serious health condition, 12 weeks for family leave purposes (bonding, caring for a family member with a serious health condition, and military exigencies), and 26 weeks to care for a family member with a service-related illness or injury.  There is a 26-week cap on total annual leave benefits.

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.

Other Massachusetts PFML News

If an employer chooses to comply with the PFML through a private plan, the law requires the employer to either post a bond or provide benefits through an approved insurance company.  The DFML expects to publish an approved bond rom and instructions any day now.  Watch this blog and the DFML website for that development.

Also, the DFML is constantly updating its website with new information, so a periodic check-in just to see what’s new is worthwhile.  Of course, we will report any major developments here.

MATRIX CAN HELP! 

In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the Massachusetts and Washington private plan options.  These include developing a sample private plan for use by our clients and a guide for our account managers to assist you with the private plan decision and application process.

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

 

KENTUCKY PASSES LAW REQUIRING REASONABLE ACCOMMODATIONS FOR PREGNANT EMPLOYEES

Posted On May 14, 2019  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

May 14, 2019

 

On April 9, 2019, the Governor of Kentucky signed Senate Bill 18, making it the latest state to pass legislation requiring employers, absent undue hardship, to grant reasonable accommodation(s) to employees with “limitations” as a result of pregnancy, childbirth or related medical conditions. The Kentucky Pregnant Worker’s Accommodations Act (“KPWA”), takes effect June 27, 2019, and applies to employers with fifteen or more employees in the state.

Let’s break it down:

What is a “Limitation” as a Result of Pregnancy, Childbirth or Related Condition? The KPWA does not use the term disability or disabled by pregnancy, etc. as do many state laws in effect. For that matter, normal pregnancy is not a disability under the ADA. The term “limitation” is not defined by the Act but appears to indicate broader coverage than the ADA. Therefore, Kentucky employers should engage in the interactive discussion with regard to the KPWA, even if the nature and duration of the employee’s “limitations” and condition would not otherwise require doing so under the ADA.

What Are Reasonable Accommodation(s)? The act provides a nonexclusive list of potential reasonable accommodations, including:

  • frequent or longer break times;
  • time off to recover from childbirth;
  • acquiring or modifying equipment;
  • seating;
  • temporary transfer to a less strenuous or less hazardous job;
  • job restructuring, light duty, and/or modified work schedule;
  • and a private space (that is not a bathroom) in which to express breast milk.

What about Undue Hardship? The KPWA provides for an employer to decline to provide accommodation if doing so poses an “undue hardship” and includes the traditional types of factors we have seen with similar statutes, i.e. significant difficulty or expense given the size and financial resources of the organization. In addition to those traditional factors, the KPWA provides for additional factors when an employee requests accommodation for her pregnancy, childbirth, etc. For example, the duration of the requested accommodation, and whether similar accommodations are required by policy to be made (or have been made) for other employees for any reason. The latter factor, of course, should look familiar to any employer who knows and complies with the federal Pregnancy Discrimination Act.

Unlawful Employment Practices. Absent undue hardship, the KPWA rules failing to make reasonable accommodation(s) as unlawful employment practices. Like many other state pregnancy accommodation laws, Kentucky’s prohibits requiring an employee to take a leave of absence if another reasonable accommodation can be provided and requires the employer and employee to engage in a timely, good faith and interactive process to determine effective, reasonable accommodations.

Employer Posting and Notice Requirements. Employers are required to conspicuously post notice of an employee’s right to, among other things, reasonable accommodations for pregnancy, childbirth or related medical conditions. Employers are also required to provide written notice to new employees when they begin employment and to existing employees within thirty days of the Act’s effective date, June 27, 2019.

Want to learn more?

Join Matrix Radar authors Marti Cardi and Gail Cohen for a practical discussion of the various state laws providing protections for pregnant employees and new parents, and a review of the EEOC’s focus on employers who get it wrong. The webinar, sponsored by the DMEC, will take place June 18, 2019 at 12 noon Eastern (9 AM Pacific). Click here for more information and to register.

 

Matrix 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.

GOOD NEWS FOR MASSACHUSETTS EMPLOYERS – A DELAY OF PENDING DEADLINES (AND A WORD ON TAXES)

Posted On May 02, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

May 02, 2019

 

That’s right, yet another Massachusetts paid family and medical leave update! Today’s news will be welcomed by Massachusetts employers, especially those considering whether to adopt a private plan rather than use the state program.  Let’s be honest, though – it’s only good news because it backs off from some of the imminent deadlines that were going to be extremely difficult for employers to meet.

Here are the updates, quoted directly (in italics below) from the DFML announcements available on its website. See our comments and analysis below each DFML update.

Exemption Deadline Extended for Quarter 1
The Department’s current guidance requires that exemptions for private plans must be approved in the quarter prior to the quarter in which they will go into effect. For Quarter 1 only [July-September 2019], however, the deadline to file for a private plan exemption that will be in effect for first quarter contributions for paid family and medical leave has been moved from June 30th to September 20th, 2019. This will allow employers additional time to contemplate private plan options. Going forward, the Department will continue to accept applications on a rolling basis but applications must be approved in the quarter prior to the quarter in which they go into effect.

Please note that contributions to PFML begin on July 1, 2019 and the September 20, 2019 extension of the exemption application deadline only impacts the contribution requirements if the exemption request is approved. If the exemption request is denied the impacted business will be responsible for remitting the full contribution amount from July 1, 2019 forward. Therefore, DFML recommends that businesses in the Commonwealth consult with their tax advisors as to the implications associated with applying for a private plan exemption that may or may not be approved.

Employer Notice to Employees
The deadline for employer notice to employees has been extended from May 31 to June 30, 2019. The notice, which may be provided electronically, must include the opportunity for an employee or self-employed individual to acknowledge receipt or decline to acknowledge receipt of the information.

Please Note: The Department of Family and Medical Leave is continuing to accept comment on draft regulations regarding paid family and medical leave and is planning to host two additional listening sessions in May which will be announced shortly.

What does this mean for employers?

Under the prior rule, if a plan was not approved by June 30, the employer would owe the employer and employee contributions to the Commonwealth for all of the quarter (July-September 2019); and this amount could not be recovered even if a private plan was later approved. Now if your private plan is approved by September 20, 2019, you will not have to pay over the July-September 2019 premium contributions to the Commonwealth but rather can keep those for funding your own private plan benefits payments.

Here is a quick rundown of upcoming dates and obligations:

  • All employers will continue to have reporting obligations for every quarter, including Q1 of the program
    (July-September 2019). The DFML has stated it will issue more reporting guidelines prior to July 1
    so that employers know what data they need to be ready to provide after the close of Q1, probably
    in October 2019.
  • All employers will need to post the required notice for workers in the workplace.  See our prior post
    here for more details
  • Individual notices. All employers will need to send individual notices to every employee and
    contractor and receive an acknowledgement or refusal to acknowledge signed by the worker, but the
    deadline has been moved to June 30, 2019.  More details are available
    here and here.
  • Applications for private plan approval can be filed at any time after April 29, 2019. However, the
    application will need to include a copy of the private plan, a copy of the required bond (see our
    blog post
    here), and if Matrix is applying for your company, a signed authorization for Matrix to
    act on your company’s behalf.

A Word on Taxation Issues

On May 1 the DFML also issued a notice that addresses the taxation question – sort of.  We have received several questions about tax treatment of premiums paid by employees and benefits.  Matrix cannot answer those questions, as we are not tax advisors.  Apparently, the Commonwealth of Massachusetts isn’t either.  Here is their notice:

Tax Information
The tax treatment of PFML contributions for both state and federal purposes is governed by federal tax law. The Commonwealth has requested guidance from the Internal Revenue Service on this question and others related to the tax implications of PFML contributions and benefits. Until IRS guidance is issued, individuals and businesses are urged to consult with their own tax advisors on these questions. Based on its own review of federal rules and following consultation with the Massachusetts Department of Revenue, the Department of Family and Medical Leave anticipates that the IRS will conclude that employee contributions should be withheld from after-tax wages. A definitive rule for proper tax treatment of contributions will be available once IRS guidance is issued.


MATRIX CAN HELP!  In addition to keeping you abreast of developments through these blog posts, Matrix is taking other steps to assist employers interested in the private plan option.  These include developing a sample private plan for use by our clients, and an employer guide to the private plan decision and application process.  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.comAnd stay tuned here for more information about Massachusetts PFML as it develops – we’ll bring it to you daily, if necessary!

 

MASSACHUSETTS ANNOUNCES PFML PRIVATE PLAN BOND REQUIREMENTS

Posted On April 30, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 30, 2019

 

It seems like just yesterday (it was!) that we reported on significant new information and resources from the Massachusetts Department of Family and Medical Leave that were released on Friday.  No sooner was our article posted when more news came from DFML:  Details on the private plan bond requirement.

The new information is quoted below in full, and can be found on the DFML website here.

Bond requirements

In addition to the leave benefits explained below, self-insured plans must include the following bond amounts to be eligible for exemptions.

For every 25 employees covered by a business, DFML requires a bond value of:

    • $19,000 for qualifying family leave plans
    • $51,000 for qualifying medical leave plans
    • $70,000 for qualifying plans for both family and medical

Examples

Family leave plans

    • You have 12 employees and you’re applying for an exemption from family leave.
      Your required bond value is $19,000.
    • You have 85 employees and you’re applying for an exemption from family leave.
      Your required bond value is $57,000.

Medical leave plans

    • You have 12 employees and you’re applying for an exemption from medical leave.
      Your required bond value is $51,000.
    • You have 85 employees and you’re applying for an exemption from medical leave.
      Your required bond value is $153,000.

Both family and medical leave plans

    • You have 12 employees and you’re applying for an exemption from both family and
      medical leave. Your required bond value is $70,000.
    • You have 85 employees and you’re applying for an exemption from both family and
      medical leave. Your required bond value is $210,000.

 

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.comAnd stay tuned here for more information about Massachusetts PFML as it develops – we’ll bring it to you daily, if necessary!

HOT OFF THE PRESSES: YET ANOTHER MASS-IVE UPDATE!

Posted On April 29, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 29, 2019

 

I had just exhaled after presenting our Massachusetts Paid Family and Medical Leave (PFML) webinars on April 23-24when the Massachusetts Department of Family and Medical Leave unleashed a barrage of new information, guidance, and resources.  You may have heard my plaintive cry, “Make it stop!”

But it hasn’t stopped and so here we are with more updates for you.  If you
missed our webinars, you can get up to speed from our prior blog post,
which includes a link to our webinar deck.

CLICK ON MR. RADAR TO VIEW APRIL 24, 2019 BLOG

Counting workers for the under-25 exemption from employer premiums

Employers using the public plan to provide PFML benefits and with fewer than 25 Massachusetts covered workers are exempt from
paying the employer share of medical leave premiums to the Commonwealth’s trust fund.  If your workforce is near this number,
it is important to know how to count your workers for this exemption. The draft regulations (section xx.05) direct you to count the number of employees on the payroll “during each pay period and dividing by the number of pay periods” but do not state over what period of time to do this averaging.

New materials released by the Department of Family and Medical Leave (DFML) on Friday now clarify that you consider your number of workers per pay period to get an annual average, based on the prior calendar year for the current calendar year.  And remember, covered workers for this count includes both regular employees and 1099-MISC workers if those contractors constitute more than 50% of your total workforce.

The new posting from the DFML can be found at https://www.mass.gov/info-details/counting-the-covered-individuals-in-your-workforce-under-the-pfml-law.

Private plan exemptions

Also in the new materials released by DFML is an entire page with ancillary materials devoted to the private plan exemption, whereby employers can apply for approval of their own paid medical and/or family leave plan rather than having employee leaves administered by DFML. The new resources include a walk-through of the application process complete with a video demonstration of an online application.  Important points to note:

  • You will need to log on to MassTaxConnect to start the application process. If you don’t already have an account,
    there is a link for registering.
  • After providing basic company and contact information, you will answer a series of yes/no questions.  The
    questions are designed to determine whether your plan is compliant with the PFML requirements.
  • Next is an opportunity to upload any supporting documents.  Interestingly, the tutorial and the online application
    (to the extent I could read it!) does not specifically require a copy of your plan but certainly the plan itself would
    constitute supporting materials.  The application website allows you to upload more than one document so
    if your plan is contained in multiple documents you have the ability to include all. If you are having a TPA
    such as Matrix submit the application for you, a signed statement providing the necessary authority would
    be important to include.
  • After completing your application, you will be notified within 1-2 business days of the status of your plan.  If
    the plan is not approved, you will have a chance to request further review by the DFML.

The new materials can be accessed here:  https://www.mass.gov/info-details/exemptions-from-paid-family-and-medical-leave-for-private-plans

Employer Notices to Employees

With the upcoming employer notice requirements (posters and individual worker notices) came a lot of questions.
To recap:

  • Employers must post a general notice of employee and contractor rights and responsibilities under the PFML
    law in the workplace, meeting certain language requirements.  This posting should be done immediately.
  • Employers must provide individual notices to employees and contract workers in their primary language and
    receive an acknowledgment from each worker by May 31, 2019.  That last part is a new clarification – see
    the discussion below.
  • We provided more detail on these notices in our blog post here, including a link to our webinar deck.

Here’s what we have now learned from the DFML, via a response from the Director to my email questions:

  • The May 31 deadline applies both to giving the notice AND receiving the acknowledgements.  The PFML statute
    doesn’t address employers’ notice obligations to current individual employees, but the DFML has now set the
    May 31 deadline for employers to both provide the notice and receive the acknowledgments (or refusals) from
    existing employees.  This is 30 days in advance of when withholding from worker paychecks will begin on
    July 1 (if the employer is not covering the employee share of PFML premium contributions).
  • That acknowledgement form and the odd refusal to acknowledge. The statute requires employers to provide
    individual notices and an opportunity for workers to either acknowledge receipt of the notice or decline
    to acknowledge receipt in writing.  The DFML does not plan to provide a form for use if the employee refuses
    to acknowledge receipt of the notice.   Here is what came out of my brain to fill this requirement.
    (Note this is my best guess and I cannot promise whether the DFML would find it sufficient):


EMPLOYEE STATEMENT DECLINING TO ACKNOWLEDGE RECEIPT OF NOTICE
I decline to acknowledge receipt of the Employer Notice to Employee relating to my Rights and
Obligations under the Massachusetts Paid Family and Medical Leave Law, M.G.L. c.175M.
I understand my employer will retain a copy of this statement.

__________________________________________________________________________________________

Signature

__________________________________________________________________________________________

Print Name

__________________________________________________________________________________________

Date


  • Evidence of Employer Compliance.  The DFML declined to provide any guidance regarding what will constitute
    sufficient evidence that you provided the correct notice and opportunity to acknowledge or decline if the
    employee refuses to do either.  My suggestion is to use a reasonable means that is designed to get actual
    notice to each employee individually.   Consider:

    • Regular mail to the employee’s current home address with a log to substantiate the mailings (as we know,
      recipients often refuse to accept certified delivery)
    • Electronic delivery to the employee’s known functioning email with a means to produce a copy of the email
      sent (again, employees may decline to provide a read receipt)
    • Hand delivery to the employee by someone who keeps a log of date, time, and other facts of each delivery

Don’t just leave a stack of the forms in the lunchroom or tell all employees generally to check it out on your intranet.

  • Individual notice in employee’s primary language.  The DFML says this is a requirement even if it has not yet
    provided a translation in the language you need for an employee.  At the time of our webinars, the notices to
    W-2 employees and 1099-MISC workers were available in 5 languages plus English.  However, as of Friday the
    notices are now available in 13 languages on the DFML website here.
  • Compliance with posting notification for teleworkers.  There is no provision in the PFML statute for electronic
    “posting” as there is for electronic individual notices.  I asked the DFML, could the employer put the poster on its
    intranet accessible to employees, or email it to remote workers?  The DFML agreed these are reasonable
    options. Consistency with your process for other electronic employee notifications would be a good thing as
    long as it is an effective means of giving notice.
  • Changing your decision whether to withhold employee premium contributions from paychecks.  If an
    employer states on the notice form that it will not withhold contributions from employee paychecks, the
    DFML says the employer can change this decision later.  But, plan to provide a new individual notice to
    employees and contractors, including obtaining those acknowledgements or refusals.  Thirty days’ advance
    notice of the change sounds like a good plan to me, although nothing in the law requires that.  And the
    same applies if you initially withhold employee contributions and then decide you will no longer do so.

Matrix is on it!  Stay tuned to this blog for all the news on Massachusetts paid family and medical leave developments other in other states. And when time permits, we’ll cover some non-PFML issues, too!

MORE MASS-IVE DEVELOPMENTS THAT YOU NEED TO KNOW (AND DO) NOW

Posted On April 24, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

April 24, 2019

 

As you well know, employees and employers are responsible for contributions to the Massachusetts Family and Employment Security Trust Fund starting July 1, 2019.  On April 23 and 24, Yours Truly presented webinars on the current status of Massachusetts paid family and medical leave and what you need to know, and do, now to get ready. Short on time? Access the webinar PowerPoint deck by clicking Mr. Radar; it is chock full of timely information and important links to the Department of Family and Medical Leave (DFML) website resources.  An audio recording of the webinar will be available soon – just watch this blog for a link when it is ready.

 

CLICK MR. RADAR FOR THE WEBINAR CONTENT!

 

 

In the meantime, here are a couple of crucial pointers for your immediate action:

  • The DFML has released forms for the required general notice to workers about the PFML and their rights.
    Post these notices now, in English and in each language which is the primary language for 5 or more
    individuals in your workplace.  DFML has made the poster available in 13 languages.  Access the posters
    on the DFML website
    here.
  • Individual notices. You must send specific notices to employees and contract workers by May 31, 2019,
    in workers’ primary language.  The notices require you to advise your workers of various information,
    including whether you will be withholding the employee share of the premium contributions from their
    paychecks and, if so, in what percentage amounts; and whether you presently have a private plan
    approved by the Commonwealth for the medical leave, family leave, or both.  Then, you must get a
    signed statement from each employee and contract worker either acknowledging receipt of the notice
    or declining to acknowledge receipt.  If the employee refuses to sign either, you must be able to show
    that you actually gave the notice and an opportunity to sign either statement to the employee.
    The DFML has provided the notices in 5 languages so far, that can be downloaded here. 

Check out our webinar deck at the link above for a lot more MA PFML information, including things to consider when deciding whether to adopt a private plan rather than provide the required benefits through the Commonwealth’s program, and a list of action items. 

For more background info on MA PFML you can type “Massachusetts” in the search box of this blog to find all of our previous MA PFML blog posts. 

WASHINGTON PFML DEVELOPMENTS KEEP US HOPPING

Posted On April 08, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

April 08, 2019

 

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.

 

FALSIFIED FMLA CERTIFICATIONS? EMPLOYER DOESN’T HAVE TO BE INSPECTOR CLOUSEAU TO SUPPORT HONEST BELIEF DEFENSE!

Posted On April 02, 2019  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

April 02, 2019

 

Marion Egler was employed as a Reservations Agent for American Airlines.  From 2006 through 2013, she applied and was approved for, FMLA on thirty-four separate occasions.  In November and December 2014, Egler submitted four certification forms for continuous blocks of time that appeared to have been “whited out and/or written over.”  The FMLA regulations allow an employer to authenticate a certification form, by providing a copy to the provider and asking for verification that the information supplied was completed or authorized by the provider who signed it.  As a result of the apparent alteration of those forms, American sought authentication of the certifications and was advised by the doctor that it was not completed or signed by that provider or anyone else in his office.

Egler was confronted with these discrepancies and denied knowing anything about the forms being altered. Egler wrote a statement (she later claimed under duress) in which she indicated she understood her leave was being questioned and that while she understood the forms appeared to have been altered, she indicated she’d be following up with her doctor’s office because “she [couldn’t] speculate.” She was placed on a paid suspension and invited to submit any additional information to clarify the discrepancies.  When she did not do so, American fired her for altering FMLA forms, a violation of the company’s Code of Conduct.

Egler appealed her termination using the company’s process to do so, claiming she was “not guilty,” and had not been given the resources and time to defend herself. She submitted two additional letters purporting to come from the provider’s office. He reiterated that neither he nor anyone else in his office completed this documentation. As a result, the company upheld the decision to terminate her employment on appeal.  Egler sued American alleging, among other things, FMLA interference and retaliation.

The court quickly disposed of her FMLA interference claim because American granted her all the leave she had requested and moved on to the retaliation claim.  In evaluating that claim, the court elaborated that it is Egler’s burden to undermine American’s “honest belief,” meaning, presenting evidence that American did not honestly believe she had broken its conduct rules by submitting altered FMLA certifications.  While Egler herself “emphatically denied [she] alter[ed] the forms,” and challenged whether American had shown that she had done so, that is not the standard.  It is not the role of the court to decide that the reason given for the employer’s decision was “wise, fair or even correct;” it is Egler’s burden, as the plaintiff, to demonstrate that the reason for American’s decision was false, dishonest or more likely the result of retaliation. Her own self-assessment was not enough.

American went to her doctor, just as the FMLA allowed it to do, and had substantiated that the forms were not authentic. Armed with this information, and a good faith investigation that allowed Egler to be heard, American acted on its honest belief she violated its rules and prevailed on summary judgment.

You can read more here: Egler v American Airlines, E.D. North Carolina (February 21, 2019)  

 

PINGS FOR EMPLOYERS – What American Did Right

  • They had a written policy addressing falsification or fraud in the FMLA process
  • They allowed employee to take the leave, then reinstated her and dealt with
    the fraud issue separately.
  • They didn’t deal with the fraud issue until their investigation was complete. In
    connection with their investigation, they used the tools the FMLA affords employers
    like seeking authentication of medical information and/or certification forms that
    appear to be altered.

 

If you just can’t get enough of FMLA certifications (and let’s face it, at least it’s not Paid Family Leave!) you might want to check out the 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR. On May 8 our very own Gail Cohen and fellow legal eagle and blogger extraordinaire  Jeff Nowak will present Medical Certifications: How to Maximize one of the FMLA’s Most Important Tools. Don’t miss it!


Matrix 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.

MASS-IVE DEVELOPMENTS IN PAID FAMILY MEDICAL LEAVE LAW

Posted On March 21, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And 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.

DOL TO EMPLOYERS: IF IT’S FMLA, IT’S FMLA. IF IT’S NOT, IT’S NOT.

Posted On March 18, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

March 18, 2019

 

There is joy in my blessed li’l FMLA heart.  The US Department of Labor has issued a much-needed Opinion Letter addressing whether an employer or employee can elect not to apply the FMLA to a leave for an FMLA-qualifying event.  Spoiler alert:  The answer is NO.

This has never seemed like a gray area to me.  We blogged about this over 3 years ago.  (See prior blog posts here  and here.) As I said back then, “No, no, no!  The employee does NOT get to choose!”  The regulations are clear, and the DOL FMLA Branch Chief has spoken publicly on this issue. Yet many employers still think employees have the right to choose whether to use FMLA for a qualifying absence.

In the new Opinion Letter FMLA2019-1-A, the DOL addressed this specific question:  Can an employer delay application of FMLA to a leave that is clearly FMLA-qualifying and allow the employee to first use paid sick leave or other leave?

But the DOL went further. As stated in the Opinion Letter:

  • Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason,
    neither the employee nor the employer may decline FMLA protection for that leave.
  • Accordingly, when an employer determines that leave is for an FMLA-qualifying reason, the qualifying
    leave is FMLA-protected and counts toward the employee’s FMLA leave entitlement.
  • Once the employer has enough information to make this determination, the employer must,
    absent extenuating circumstances, provide notice of the designation within five business days.
  • And so, the employer may not delay designating the leave as FMLA-qualifying even if the
    employee would prefer that the employer delay the designation.

When does this arise? Take a look at my friend Jeff Nowak’s blog FMLA Insights for a humorous example (and some additional guidance).  Here is another scenario. Your employee announces she is pregnant.  She also tells you that her husband needs surgery and she wants to take a week off to care for him during the operation and recovery.  But, she doesn’t want to use her FMLA time for that, preferring to reserve it for bonding following the birth of the child.  She’ll use her accrued sick leave and PTO instead:

EMPLOYEE: I am pregnant and want to take FMLA for bonding time after my baby is born.  I also need a week off to care for my husband following his surgery next month.  I want to use my sick leave for the time to care for my husband and save all of my FMLA for bonding.   Remember, care of my husband is an allowed use for sick leave under our policy.

YOU (the employer):  OK.

YOU (6 weeks later): Hey, you said you only needed a week off and you’ve been gone 2 weeks.  You are out of sick leave and PTO.  You’re fired.

EMPLOYEE: But you can’t fire me! My husband needed more time for recovery and care.  The time off was for an FMLA reason and I have job protection.

YOU: You said you didn’t want to use FMLA.

EMPLOYEE: Yes, but I wouldn’t have chosen that if I had known I wouldn’t have job protection during my leave!

What a mess.  I wonder who wins in front of a jury?

It’s OK to allow employees more time through company policies.  The Opinion Letter makes clear that an employer cannot designate time as FMLA in excess of the 12 (or 26) weeks, whether before OR after FMLA leave. If you want to be more generous, provide it through a company policy but don’t call it FMLA.  In fact, the FMLA regulations state that “[a]n employer must observe any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established by the FMLA.”  29 C.F.R § 825.700.

But what about “substitution?”  Sometimes there is confusion due to the provision in the FMLA regulations that an employee may “substitute” other leave for FMLA leave.  But the regulations – and now the Opinion Letter – make it clear that paid leave provided by the employer will run concurrently with the unpaid FMLA leave.  29 C.F.R § 825.207(a).  As the DOL says in the Opinion Letter:

[P]roviding such additional leave outside the FMLA cannot expand the FMLA’s 12-week (or 26-week) entitlement under the FMLA. . . . Therefore, if an employee substitutes paid leave for unpaid FMLA leave the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

So here’s the deal, in my words:

  • The FMLA is a law that provides 12 (or 26) weeks of job-protected leave of absence for 5 qualifying leave
    reasons (key word: law).
  • Neither the employer nor the employee can change the law or choose not to follow it.
  • It’s the law.

Pings for Employers

  • Don’t allow an employee to decline FMLA coverage and protections for a leave you know, or have reason
    to believe, is for an FMLA-qualifying event.
  • Always provide the employee with the FMLA Notice of Rights and Responsibilities and Eligibility Notice
    within 5 days of the employee’s leave request. If you are not clear whether the leave is requested for an FMLA
    reason, be safe and provide the employee with the notices and the certification form.
    Failure to do so
    could be considered interference with the employee’s FMLA rights.
  • Don’t chafe about this rule if it is news to you: It’s actually to your benefit!  The rule gives you, the employer,
    some control over how much time your employees can take off and when. You get to choose whether and
    under what circumstances employees can take more company leave following FMLA leave by designing your
    policies accordingly
    .
  • If you live in states covered by the federal Ninth Circuit Court of Appeals, you may already be aware of the
    opinion in Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236 (9th Cir. 2014). In that case the court held that
    an employee may use non-FMLA leave for an FMLA-qualifying reason and decline to use FMLA leave in order
    to preserve FMLA leave for future use.  A few lower courts in other states have followed the Escriba decision.
    In the Opinion Letter the DOL explicitly rejects the Ninth Circuit’s holding.  This causes a conundrum for
    employers within those states – whether to follow the court’s ruling or the FMLA regulations and now this
    Opinion Letter.

I strongly support the DOL’s interpretation as the only logical result from the FMLA statute and regulations, and have always maintained that the Escriba decision is flat out wrong. (But then, they didn’t ask me!) For more discussion see our prior blog posts linked above. But, you should check with your own employment counsel for advice regarding the specific fact situation you are dealing with.

 

Matrix 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  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

March 14, 2019

 

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.

SPICE UP YOUR COMPLIANCE WITH 50 SHADES OF FMLA!

Posted On March 04, 2019  

March 04, 2019

 

Are you struggling to manage FMLA gray areas such as intermittent leave or suspicious leave requests from employees?

The 2019 DMEC FMLA/ADA Employer Compliance Conference, May 6-9, in Portland, OR, is the place to find answers and solutions that help you minimize risk in your organization and ensure you’re on the path towards ongoing compliance.

Our very own Marti Cardi, together with Jeff Nowak, will help you “color in” those gray areas of FMLA compliance. Read their recent blog post to get a peek under the covers of their general session, 50 Shades of FMLA: Dealing with Those Gray Areas.

This session is just one of many that will prepare you to confidently tackle your organization’s FMLA/ADA challenges. Check out the list of sessions and speakers online.

Early registration ends on Mar. 7. Don’t miss the chance to save $200! Secure your spot today.

 

 

NEW JERSEY FORGES AHEAD WITH INCREASED PAID FAMILY LEAVE BENEFITS AND JOB PROTECTIONS

Posted On February 27, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

February 27, 2019

 

As the first state to enact a mandated paid family leave law in 2009, New Jersey was the leader in this now-burgeoning field.   Currently, there are 4 states with PFL laws (CA, NJ, NY, RI), 3 more jurisdictions with new laws in the process of being implemented (DC, MA, WA), and 22 states (and counting) that have introduced PFL bills in 2019.

Not resting on its early accomplishments, New Jersey has now enacted a bill (AB 3975, the “Act”) that brings substantial changes and increased coverage to the state’s existing Family Leave Act (NJ FLA), the Security and Financial Empowerment Act (SAFE Act), and the paid family leave insurance program (NJ FLI).  Signed by Governor Murphy on February 19, 2019, some of the changes were effective immediately and others phase in later in 2019 and 2020.

Changes Galore.  The Act is lengthy and makes many changes to New Jersey’s FLA, SAFE Act, and FLI – far more than we can cover in this post. To make it easier to view the changes in context, here  is a link to a chart that provides a comparison of the basic provisions of each law.  Changes are shown in red, bold italics. Removed provisions are shown as such: as strike-through text.  All changes are effective immediately unless otherwise noted.

 

  • Covered relationships. The Act effects a 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.  This includes
    not only added relationships, but also removal of the age limit for care of a covered child with a serious
    health condition under NJ FLA and NJ FLI.  One good result is that covered relationships for whom an
    employee can take leave or receive benefits are now uniform across all 3 laws.   (Effective immediately.)
  • Lower threshold for covered employers. More employers will be required to provide job-protected leave
    under the NJ FLA, as the coverage threshold decreases from employers with 50 or more employees to those
    with 30 or more employees. (Effective June 30 or July 1, 2019 – the Act has conflicting provisions regarding
    effective date.)
  • SAFE Act leave now eligible for benefits. Employees who are, or whose family member is, a victim of
    domestic or sexual violence can now receive FLI benefits for leaves taken for reasons relating to such events.
    (Effective immediately.)
  • Increase in weeks of FLI benefits. Employees will be able to take more paid leave, as the FLI benefits period
    increases 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 waiting period. There will no longer be a 7-day waiting period before an employee can receive
    paid leave; rather, benefits will start on the first day of a covered leave. (Effective for leaves commencing on or
    after July 1, 2019.)
  • Increase in benefits payments. Currently, employee benefits under FLI are paid at 2/3 of an employee’s average
    weekly remuneration (AWR), subject to a cap at 53% of the statewide AWR. In 2020 benefits will increase to
    85% of the employee’s AWR, capped at 70% of the statewide AWR.  (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, an employee’s
    “wages” for purposes of contributions to the NJ temporary disability and paid family leave programs will increase
    from 52 times to 107 times the NJ statewide AWR, rounded up to the next higher multiple of $100.
    This rate will be determined as of September 1 each year, to be effective the following January 1.
  • Private plans. A private plan no longer requires approval by a majority of the employees to be covered by the plan
    unless the employees are subject to a collective bargaining agreement that does not expressly waive the
    employees’ 
    right to a majority election as a condition of the plan.  (Effective immediately.)

Employers can obtain more information and state assistance at the New Jersey Division of Temporary Disability and Family Leave Insurance website. The site is not yet up to date with the changes brought by the Act but nonetheless has helpful resources.

Matrix is ready!  Matrix is up to date and is managing leaves and benefits under the New Jersey Family Leave Act, SAFE Act, and Family Leave Insurance program in accordance with the new changes.  If we are administering state leaves of absence and/or the NJ paid family leave for your company the transition will be seamless and your employees will receive the leaves they are entitled to.  For those employers using the NJ state paid leave program, our initial information packets to employees will continue to instruct them to file for FLI with the state.

MASSACHUSETTS PFML AGAIN – BUT NOT YET

Posted On February 14, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

February 14, 2019

 

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  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

January 25, 2019

 

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.

LADIES AND GENTLEMEN, START YOUR ENGINES! STATE PAID FAMILY AND MEDICAL LEAVE LEGISLATION FOR 2019 IS HERE

Posted On January 03, 2019  

by Marti Cardi, Esq. - Vice President, Product Compliance

& Gail Cohen, Esq. - Director, Employment Law And Compliance

January 03, 2019

 

Even before Baby New Year needs a diaper change, New Hampshire is first out of the gate with a redux of its 2018 paid family and medical leave (PFML) bill.  A copy of the 2019 version text is not yet available but it is believed to be exactly the same as the 2018 version. 

In 2018 no fewer than 20 state legislatures introduced bills for some form of paid family and medical leave program.  The bills take many forms, from some fairly tepid proposals that would give employers who voluntarily provide paid family and/or medical leave a state tax credit, to full, mandated paid leave programs.  And among these, there are many variations as well:  programs completely run by the state; programs that allow an employer to adopt a private plan to comply with the state law; and programs that contemplate private insurance to fund and administer the paid leave program.

Every state put its own signature on its bill, but there were some common trends:

  • Putting the funding responsibility on employees, either entirely or together with a smaller employer contribution
  • Leave reasons that track FMLA, but often with more family relationships for whom an employee can take leave
    to provide care (common additions include siblings, grandparents, grandchildren, and domestic partners)
  • Requiring minimum leave increments of one work day or 8 hours

At Matrix we watch all the state legislatures through 2 daily tracking services. We also look at other factors such as the political makeup of the state legislature and the governorship. Based on 2018 activity and a strong Democratic presence in state elected positions for 2019, here is our list of states most likely to pass PFML legislation in 2019:

Colorado

Connecticut

Hawaii

Illinois

Maine

New Mexico

New Hampshire

Oregon

Vermont

 

 

Of course, it is unlikely that all of these states will pass something this year.  If they do, I’ll have to clone my team!  But we will track the introduction of bills and their movement through the legislatures, and we’ll let you know of any major developments through Matrix’s blog www.Matrix-Radar.com and our On Your Radar monthly updates.

 

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.

MATRIX COMPLIANCE EXPERTS TAKE THE STAGE!

Posted On December 11, 2018  

December 11, 2018

 

Matrix’s Gail Cohen Co-Presents with EEOC Counsel at DMEC Webinar

By Gail Cohen, Director, Employment Law/Compliance

I had the privilege of presenting last week with Chris Kuczynski, Assistant Legal Counsel of the EEOC in Washington D.C. on “EEOC Insights into What Employers Still Get Wrong about the ADA.” The presentation was a webinar through the Disability Management Employer Coalition (“DMEC”).

In putting our materials together, Chris and I identified four ADA issues
that seem to be particularly challenging to employers. For those who
were unable to attend, here are the four topics we covered and key
best practice pointers we discussed:

  • Telework as a Reasonable Accommodation: Courts have often
    sided with employers who deny telework as an accommodation on
    the basis that the job requires teamwork and/or face-to-face
    collaboration with clients and/or colleagues. But beware! The
    EEOC will challenge employers who cannot demonstrate that
    this is truly an essential job function.  As a result, it is critical
    for employers to conduct a job analysis and confirm that the
    job description accurately captures the essential job functions as performed by employees. And, this job description
    should accompany any ADA-compliant medical inquiry the employer makes to the employee’s healthcare provider
    to understand whether telecommuting will assist the employee in performing his or her job functions, why it is
    necessitated by the employee’s condition, and whether the provider can suggest alternative accommodations the
    employer can offer.
  • Qualification Standards v. Essential Job Functions: Chris explained a distinction employers often get wrong –
    confusing qualification standards (requirements intended to predict whether someone can perform the job,
    such as having a college degree or a commercial driver’s license) with essential functions (what the person actually
    does on the job – lifting packages, selling things). The EEOC will challenge employers if a particular
    qualification standard has the effect of screening out prospective employees in a discriminatory fashion.
    Employers must be able to demonstrate that a particular qualification is both job-related and consistent with
    business necessity. This is sometimes unsuccessful, as borne out by a case the EEOC brought on
    behalf of a postal worker whose condition limited her to lifting 10 pounds and who challenged a 70-pound
    lifting standard that the employer was unable to demonstrate was job-related and consistent with business
    necessity. Indeed, the EEOC was able to demonstrate by talking to employees who performed the job that
    they never lifted more than 35 pounds.
  • Leave as Accommodation: The EEOC and courts agree that, in general, leave of absence is a reasonable
    accommodation. But employers: Don’t just grant leave because the employee asks for it. The EEOC agrees that
    it is entirely appropriate for an employer to conduct ADA-compliant medical inquiries when an employee
    requests leave as an ADA accommodation. Such inquiries will assist the employer to ascertain why the
    employee’s condition requires leave (continuous or intermittent), how much leave is necessitated,
    whether such leave will enable the employee to return to work and perform the essential functions of his
    or her job, with or without accommodation(s), and to explore alternatives to leave that may be effective
    for the employee to report to work.
  • Reassignment: Following an ADA leave of absence an employer must try to reinstate the employee. But, if the
    employee cannot be accommodated in his or her current role, the accommodation of last resort must be
    considered – reassignment. To the EEOC, this means the employer and employee working together to
    identify positions open now or in the foreseeable future for which the employee is qualified and which are
    substantially equivalent to his or her current role. The employer cannot simply sit back and let the employee
    search and apply for open positions.
  • BONUS OBSERVATION: During the Q & A following our presentation, an employer asked what can be done
    if an employee refuses to participate in the interactive process. Chris explained that an employer who has
    told the employee about the ADA process upfront, including the need for both parties to engage in good
    faith in an interactive discussion, and who has documented its good faith efforts to do so will likely
    prevail in an EEOC charge or other proceeding alleging failure to accommodate. The burden of proof
    in such matters is on the party who is responsible for a breakdown in the interactive process and,
    if an employee is that party, the employer is excused from any obligation to provide accommodation(s)
    to that employee.

DMEC members can listen to a recording of the presentation and obtain a copy of our presentation materials through these links:

  • Webinar recording: (Name and email are required to be directed into the recording)

 

Meanwhile, Marti is presenting too!

By Marti Cardi, Vice President, Product Compliance

While Gail was putting the finishing touches on her DMEC presentation with the EEOC, I had the opportunity to present a session at the National Workers’ Compensation and Disability Conference on December 5. The topic was “Return to Work without Violating FMLA, ADA and Workers’ Compensation Laws.” I don’t claim to be a workers’ comp expert so I partnered with Rich Montarbo, a great workers’ comp attorney from that challenging state of California. We discussed the many employer options as alternatives to leave of absence, or to shorten a leave and get employees back to work safely and legally. Our sister company Safety National posted a blog about the presentation so rather than rewrite the material, I will link you to that story here.

 

MATRIX CAN HELP!  Matrix’s start-to-finish ADA Advantage management services can help you wrangle with tough issues like accommodation requests and making the medical inquiries to which you are entitled to understand what an employee needs and how you can help. You always retain the final decision whether and how to accommodate, but Matrix manages the intake, medical assessment, interactive process, recordkeeping, follow-up, and more.  Our expert team of ADA Specialists is at the ready with practical advice and expert guidance.  To learn more, ping us at ping@matrixcos.com.

WASHINGTON STATE PAID FAMILY AND MEDICAL LEAVE MOVES FORWARD STEP BY STEP

Posted On November 13, 2018  

November 13, 2018

 

Employer Action Items and Resources

Washington paid family and medical leave is coming (PFML). Although leaves and benefits aren’t available until January 1, 2020, employers have decisions to make before employer and employee premium contributions start in January 2019.

You can read our prior blog posts for a summary of this up-coming law and significant developments at this link or enter “Washington” in the blog’s search box.

Employer Action Items. Time is ticking, and as a Washington employer you have things to do! At Matrix we are working with our clients and business partners to help them get ready for Washington PFML. Below is a list of key action items that all Washington employers, even those with a single employee, must address soon (and there will be more in 2019!):

  • Decide whether to use the state program or a voluntary plan. Unless and until you have an approved voluntary
    plan,
    you and your employees will be covered by the state program.
  • If you decide upon a voluntary plan:
    • Develop the plan and file for approval with state – allow 30 days for approval.
    • Make employer choices that are available with a voluntary plan, such as whether to use the accelerated
      payment option and whether to offer greater benefits (duration, amount, leave reasons, covered
      relationships) than required by state.
  • Determine whether you will deduct from employee wages or pay the employee premiums yourself (for state plan)
    or bear all costs by the company (for voluntary plan). If you choose to deduct employee premiums from paychecks:

    • Communicate with your payroll service about employee deductions.
    • Communicate to employees about deductions starting 1/1/2019 (we recommend including a brief overview
      of benefits coming 1/1/2020).
    • For a voluntary plan, set up a separate bank account to hold premiums deducted from employee wages.
    • For the state program, be ready to pay employee and employer premiums to the state quarterly, starting
      April 2019.
  • Post notices in your workplaces by the date required (to be announced by the state; we expect a state-issued
    form notice for employers’ use).
  • By 1/1/2020, review and revise existing STD policies/plans and other company leave policies to coordinate with
    the required Washington PFML benefits and ensure no duplication of benefits.

Matrix Resources. Matrix has developed a variety of resources to assist employers in preparing for Washington PFML, making the necessary choices, and developing a compliant voluntary plan:

  • Webinar on Washington PFML generally (recording available)
  • Webinar on voluntary plans specifically (recording available)
  • Washington PFML Comparison – State Program vs. Voluntary Plan
  • Washington PFML – State Program or Voluntary Plan? Employer Considerations
  • Sample voluntary plan

We can help you make the decision – state or voluntary – and file and administer your voluntary plan if that is your election. If you would like to receive any of these resources or discuss your options, the process, and more, contact your Matrix account manager or practice leader, or send your questions to us at ping@matrixcos.com. We are constantly updating and adding to our materials, so stay in touch!

Washington Resources. The Washington Employment Security Department (EDS) administers the PFML program. Its website has many resources for employers and employees. One of the latest additions is the Employer’s Toolkit, which provides an overview of the PFML program, employer responsibilities, premium calculations, and sample communications to employees about PFML, including a handbook insert, an email or blog notice to employees, and a paystub insert. Another helpful resource is the Voluntary Plan Guide which provides an overview of voluntary plan requirements.

The state is drafting and implementing rules that provide details on the PFML program, benefits, voluntary plans, the claims process, and more. The rules are divided by topic into 6 phases. All draft and final rules can be accessed on the ESD’s Rulemaking Page. Here is the status so far:

Keep watching this blog. We will provide updates as rules are drafted and finalized.

Matrix can help! Washington paid family and medical leave imposes many new employer obligations and challenges. We can help you through the morass. Call on your account manager or practice leader, or contact us at ping@matrixcos.com.

NEW YORK ADDS ORGAN DONATION TO STATE PAID FAMILY LEAVE REASONS

Posted On November 12, 2018  

November 12, 2018

 

Last month we addressed some leave of absence bills pending in various state legislatures.  New York’s governor has signed one of these bills into law, adding organ and tissue donation to the definition of “serious health condition” under the New York Paid Family Leave law (NY PFL).

Specifically, a serious health condition will now include “transplantation preparation and recovery from surgery related to organ or tissue donation.”  NY PFL only applies to leave to care for a family member with a serious health condition and other family leave reasons, so this will not affect employees’ own disability leaves. The law does not make any additional changes to the NY PFL, but it does include a prohibition against discrimination in the provision of life, accident, health, and long term care insurance based on the status of an insured as a living organ or tissue donor.

Definitions of “organ” and “tissue” are incorporated from the NY Public Health Law as follows:

4. “Organ” means a human kidney, heart, heart valve, lung, pancreas, liver or any other organ designated by the commissioner in regulation in consultation with the transplant council.

10. “Tissue” means a human eye, skin, bone, bone marrow, heart valve, spermatozoon, ova, artery, vein, tendon, ligament, pituitary gland or a fluid other than blood or a blood derivative.

What impact will this law have on family care leaves under NY PFL? Perhaps very little. Under NY PFL an employee is already entitled to take paid time off to care for certain family members with a serious health condition. This term is defined to include an illness, injury, impairment, or physical or mental condition that involves:

(1) inpatient care in a hospital, hospice, or residential health care facility; or

(2) three days of incapacity due to a medical condition and continuing treatment or supervision by a health care provider

It is hard to imagine a situation where an employee’s family member is an organ or tissue donor that doesn’t already satisfy one or both of these definitions of serious health condition.   As a result, there is not likely to be much, if any, increase in use of NY PFL to care for a family member due to this new law.

The text of the law can be accessed through a link on this page.   The new law goes into effect on February 3, 2019.

 

Matrix Can Help!

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 other 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.

MATRIX AND EEOC TO PRESENT AT DMEC ADA WEBINAR: THE EEOC WEIGHS IN ON WHAT EMPLOYERS STILL GET WRONG ABOUT THE ADA

Posted On November 09, 2018  

by Gail Cohen, Esq. - Director, Employment Law And Compliance

November 09, 2018

 

I am pleased to announce that Matrix will be presenting at an upcoming DMEC webinar on December 6, 2018.  Our co-presenter will be Chris Kuczynski, Assistant Legal Counsel and Director of the ADA/GINA Policy Division of the EEOC.  The webinar, “The EEOC Weighs in on What Employers Still Get Wrong About the ADA,” will provide EEOC guidance and practical advice on the following tricky ADA issues often confronting employers:

 

 

  • Telework as a reasonable accommodation: What should an employer do when an employee asks for
    telework for reasons related to a disability?  Can the job be done from home?  What if the employee
    has performance problems?
  • Qualification Standards v. Essential Functions: What is a qualification standard, how does it differ from
    essential functions, and why does it matter?
  • Managing leaves of absence under the ADA: Inflexible leave policies may violate the ADA and an indefinite
    leave of absence is not a reasonable accommodation, but what can an employer do in the vast majority of
    leaves that fall in between?  How do you assess a leave request for reasonableness?  How do you manage
    multiple requests for extensions? What medical inquiries can you make?
  • Reinstatement and reassignment following leave: When, why, and for how long do you have to hold the
    employee’s specific job open? What are your obligations for reassignment?  When can you call it quits?

DMEC member groups may register for the webinar here: December 6th Webinar. Non-members may register for a $29.95 fee. Contact your Reliance Standard/Matrix account manager for information/assistance!

Matrix can help!

Matrix’s ADA Advantage accommodations management system and our dedicated ADA team help employers maneuver through the accommodation process.  We will initiate an ADA claim for your employee, conduct the medical intake and analysis if needed, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at ping@matrixcos.com to learn more about these services.

STATE LEAVE LAW UPDATES – WHAT’S HAPPENING IN YOUR NECK OF THE WOODS?

Posted On October 22, 2018  

October 22, 2018

 

California – New leave reason under paid family leave

California’s paid family leave law (CA PFL) provides up to 6 weeks of paid (but not job protected) leave of absence for family reasons. Current bases for which an employee can receive paid benefits include caring for a family member with a serious health condition and bonding with a new child.  Recently the California legislature passed, and the Governor signed, a bill adding military exigencies as a leave reason for which an employee can receive paid leave.  The events for which military exigency leave can be taken are the same as under FMLA, when the need is related to the military member’s active duty or call to active duty: 

  • Matters related to short-notice deployment
  • Military events and related activities
  • Childcare and school activities
  • Financial and legal arrangements
  • Counseling (other than from a health care provider)
  • Rest and recuperation
  • Post-deployment activities
  • Care for the parent of the military member
  • Additional activities agreed to by the employer and employee

The new law will be effective January 1, 2021; not clear why the big delay! The law does not expand the total paid leave time available to employees under CA PFL, nor does it provide job protection for this leave. Eligible employees will continue to have job-protected military exigency leave for up to 12 weeks under FMLA, which will run concurrently if the leave is taken for a reason covered by both laws.  However, military exigency leave is not provided by the California Family Rights Act (CFRA).

 

Pennsylvania – Expanding FMLA-like leave rights to care for more family members

The Pennsylvania legislature has revived a bill first introduced in 2017 that, if enacted, would provide FMLA-like leave based on additional family relationships and leave reasons.  Senate Bill 479  seeks to add siblings, grandparents, and grandchildren as family members for whom an employee can take job-protected leave, but only in very limited circumstances. The state bill incorporates some of the federal Family and Medical Leave Act’s provisions, such as employee eligibility rules and the definitions of employee and employer.

The additional family relationships for which leave would be provided are:

  • Grandparent: a biological or adoptive grandfather or grandmother or step-grandfather or step-grandmother
  • Grandchild: a biological or adoptive grandson or granddaughter or step-grandson or step-granddaughter
  • Sibling: a biological or adoptive brother or sister or stepbrother or stepsister

But, leave can be taken for these family members ONLY if the grandparent, grandchild, or sibling:

  • Has a certified terminal illness AND
  • Does not have a living spouse, child over 17 years of age or parent under 65 years of age

The bill, if passed, will provide 6 weeks of leave in a 12-month period that must be taken in minimum increments of one week. The leave will not run concurrently with FMLA because the new family relationships are not covered by FMLA. Conversely, however, FMLA leave taken will reduce an employee’s leave entitlement under the state statute.  How that provision will work is not entirely clear, but presumably the state is trying to provide leave for additional reasons without increasing an employee’s total leave entitlement in a 12-month period to more than the 12 weeks provided by the FMLA.

The bill also contains employee notice and certification provisions.

 

New York – Lingering attempts to expand leave reasons under the Paid Family Leave Act

New York’s Paid Family Leave Act (NY PFL), which went into effect on January 1, 2018, currently provides paid leave for bonding, caring for a family member with a serious health condition, and military exigencies related to a family member’s active duty deployment.  Benefits in 2018 are 8 weeks of leave paid at 50% of the employee’s average weekly wage (subject to a cap).  Those will increase to 10 weeks at 55% in 2019.  We provided a summary of the changes in this prior post.  For a refresher on NY PFL and other recent developments, check out our earlier posts on this blog by searching “New York.”  For more information, the official state website is here.

Several bills are currently pending in the New York legislative process for possible expansion of available leave reasons.  Here is a summary of the most pertinent.

Bereavement.   New York Senate Bill 8380A has passed both houses of the New York legislature and is awaiting (since June!) the governor’s signature or veto.  If passed, the bill adds bereavement due to the death of a family member as a leave reason for NY PFL.  Opponents of the bill point out that there is no time limit on usage of bereavement leave in relation to the date of the family member’s death, no limit on how much time can be used, and no limit on usage increments – so the employee can use bereavement leave in one-day increments as with other leaves under NY PFL.

Organ & tissue donation.  New York Senate Bill 2496 is also awaiting the governor’s signature. If signed, this bill will amend NY PFL to add “transplantation preparation and recovery from surgery related to organ or tissue donation” to the definition of serious health condition.  The bill does not make any additional changes to the NY PFL, but it does include a prohibition against discrimination in the provision of life, accident, health, and long term care insurance based on the status of an insured as a living organ or tissue donor.

Domestic violence.  Also pending, but farther back in the legislative process, is Senate Bill No 7723 that would add matters related to domestic violence as reasons for which an employee can take NY PFL.  Types of activities covered include getting medical attention, attending counseling sessions, seeking legal assistance, attendance in court proceedings, communicating with an attorney, relocating to a permanent or temporary residence.  The bill limits the amount of paid leave available for these reasons to 2 weeks, plus an additional 2 weeks of unpaid leave.  This bill has not made any headway in the legislature since early this year, but is still alive.  We previously provided details about this problematic bill here.

Matrix Can Help!

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 other 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.

FEDS ISSUE GUIDANCE ON TAX CREDIT FOR PAID FAMILY AND MEDICAL LEAVE BENEFITS – AND A POSSIBLE EXTENSION?

Posted On September 25, 2018  

by Marti Cardi, Esq. - Vice President, Product Compliance

September 25, 2018

 

On September 24, 2018, the federal Office of Associate Chief Counsel (Tax Exempt and Government Entities) issued a Notice providing guidance on the employer tax credit for paid family and medical leave under §45S of the Internal Revenue CodeNotice 2018-71 does not have the force of regulations which are yet to come, but it does offer employers with much-needed interpretive direction on how the tax credit works and what an employer must do to claim the credit.

We previously blogged about the tax credit when it was passed, and I am happy to say that nothing in the Notice contradicts our interpretations back then.  You can read our summary of the tax credit hereI suggest you go back and read our prior blog post before proceeding here – it will all make more sense!

Possible extension of tax credit.  The tax credit is set to expire on December 31, 2019 – and so is in effect for only 2 years! However, on September 6 the US Senate introduced a bill (S. 3412) that would extend the tax credit by 3 years, through December 31, 2022.  This bill also would require a study to examine the effectiveness of the tax credit for paid family and medical leave.  We’ll be watching and will report any significant movement on that bill.

Highlights of Notice 2018-71.  The Notice has questions and answers on the following topics:

  1. Eligible Employers
  2. Family and Medical Leave
  3. Minimum Paid Leave Requirements
  4. Calculating and Claiming the Credit
  5. Effective Date

Here are some of the more helpful bits of guidance.  All of these answers and examples depend, of course, upon the employer’s policy otherwise meeting all the requirements for the paid leave tax credit.

  • Required policy provision – non-interference. Employers may voluntarily provide paid family leave to employees
    who are not eligible for FMLA leave (called “added employees” in the Act) and receive the tax credit for such
    payments as long as the employer has a policy that complies with the Act. One of the policy requirements is a
    provision against interference with the employee’s policy rights to paid leave, and a provision against termination
    of an employee for complaining about a violation of the policy.  The Notice provides some sample language for
    a policy provision that will satisfy this requirement.  Q&A 3
  • Effective date of tax credit for your policy. An employer’s written policy demonstrating compliance with the tax
    credit law must be effective before the paid leave is taken; but for 2018, this can include a policy with a retroactive
    effective date if the employer pays the leave benefit to any employees who took leave after the retroactive
    effective date. Q&A 5 and 6
  • Purposes for use of paid leave. The employer’s paid leave must be available only for FMLA leave reasons to
    qualify for the tax credit.

    • So, for example, a paid leave policy that allows an employee to use the paid leave for vacation as well as
      FMLA leave reasons would not qualify for the tax credit. Q&A 9
    • On the other hand, a policy that limits the pay benefit to FMLA-covered reasons but includes family
      relationships not covered by the FMLA (g., siblings or grandparents) will get partial coverage by the tax
      credit. Any leave time taken to care for a spouse, for example, will qualify for the tax credit, while other
      time taken to care for a sibling will not, even it the employee provides a pay benefit for both.    Q&A 10
    • The employer’s policy does not need to provide paid leave for all FMLA leave reasons. The Notice
      provides the example of an employer who offers 6 weeks of paid leave only for parental/bonding leave.
      Any paid leave provided pursuant to that policy will qualify for the tax credit even though other FMLA
      leave reasons are not covered.  Q&A 9
  • Existing short term disability plans can count! Paid leave provided under an employer’s short-term disability
    program, whether self-insured by an employer or provided through a short-term disability insurance policy,
    may be characterized as family and medical leave under § 45S if it otherwise meets the requirements for the
    tax credit. Q&A 11

The Notice provides much more information and examples regarding calculation of wages, the tax credit, and many other issues.  If your company is considering taking advantage of this tax credit, do yourself a favor and read the full Notice.

PINGS FOR EMPLOYERS

Our recommendations at this time remain the same as when we first blogged about the federal PFML tax credit.  Remember, Matrix is not a tax or financial advisor, so you need to:

  • Consult your tax advisor. As with all things tax-related, you should consult with your tax advisor to determine
    whether your existing plan is covered by the new paid leave tax credit or what changes you need to make to
    qualify.
  • Consult your financial advisor. If you don’t have a paid leave plan for your employees, consult with your financial
    (and tax) advisor to determine whether the incentive provided by the tax credits is enough to justify offering a paid
    leave benefit to your employees.
  • Consider benefits beyond monetary. In this day of strong competition for good employees, remember that a
    superior benefits package can be a lure.  But, with the tax credit scheduled to last only two years, also consider
    whether your company can continue the benefit if the tax credit expires on December 31, 2019. Even if the law
    is extended by 3 years as proposed by Senate bill 3412, taking away the benefit might not be a good employee
    relations move at a later date.

 MATRIX CAN HELP!

As state and federal programs proliferate, 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.

If you have questions, contact your Account Manager or ping@matrixcos.com.

WASHINGTON STATE PFML: OPEN FOR BUSINESS ON VOLUNTARY PLANS; PROPOSED PHASE THREE RULES RELEASED

Posted On September 17, 2018  

by Marti Cardi, Esq. - Vice President, Product Compliance

September 17, 2018

 

I wish I could receive Frequent Flyer miles for all the “trips” I am making back and forth between the East and West Coasts, covering developments in state paid family and medical leave programs. The most recent news is 2 tidbits from Washington State.

Voluntary Plans Now Being Accepted.  All employers must provide paid family and medical leave benefits to their employees, but the state provides the option of using the state plan or a “voluntary plan” administered by the employer or a third party administrator or insurer.  A voluntary plan must be approved by the state before it is effective.  As of September 17, the state is accepting applications for approval of voluntary plans.   Employers can apply and file their plans for approval here.  That site also provides lots of helpful information for employers considering a voluntary plan.  An employer must complete the application, submit a copy of its voluntary plan, and pay a $250 fee before the application will be considered complete.  Because the process is brand spankin’ new, the ESD is not yet providing information regarding how long it will take to get plan approval (or rejection). 

Matrix will offer administration of voluntary plans for our clients.  We’re developing a sample voluntary plan that our clients may choose to use, with appropriate employer-specific provisions.  We anticipate this will be ready for client review by approximately October 1 – but it is a detailed process so bear with us as we work to develop a top-notch plan.

Proposed Phase Three Rules Released

The state has released the draft rules for Phase 3 of the state’s PFML rulemaking process.  Sounds dry – and it is – but these rules, once finalized, give employers and TPAs like Matrix more detailed information regarding how to comply with the Washington paid family and medical leave law.

The Employment Security Department (ESD) is charged with developing the rules and, ultimately, administering and enforcing the law.  We wrote about the rules in a prior blog post.  At that time ESD was only planning on 4 rulemaking phases.  This has now been expanded to 6 phases.  The details change periodically as circumstances necessitate.  You can keep an eye on the timeline – if you care to! – on the state’s PFML Rulemaking site, or you can watch this blog for updates.  All proposed and final rules are also available on that page.

The Phase Three Proposed Rules cover benefit applications and benefit eligibility.  Here are some highlights:

  • Definitions:
    • Under the WA PFML statute, parents who are entitled to take paid leave include “de facto” parents and
      those in loco parentis to the child. A “de facto parent” is someone who has fully committed to the parental
      role with the consent of the legal parent.  Someone in loco parentis to a child has intentionally taken over
      parental duties and is responsible for the child’s well being.
    • A “claim year” is the 52-week period starting on the date of birth or placement of a child, for bonding leave,
      and on the date a completed leave application is filed for all other types of family and medical leave.
      NOTE:  This appears to create a situation where, for foreseeable leave other than bonding, the employee only
      has 11 months in which to take the leave, since the claim year includes the 30-day advance notice period. 
  • Employee notice to employer:
    • An employee must give notice of the need for leave at least 30 days in advance for foreseeable leave, and
      as soon as practicable when the employee becomes aware of the need for leave less than 30 days in advance.
      Generally this means notice the same or next business day once the employee is aware of the need for leave,
      but the employer should take into account the particular facts of the employee’s situation.
    • The employee’s notice to the employer must be in writing (hallelujah!) and must include the anticipated timing
      and duration of the leave. Under the proposed rule, written notice includes “handwritten, typed, and all forms
      of written electronic communications, such as test messages and email.”
    • If an employee provides late notice (presumably without extenuating circumstances) the employee’s benefits
      can be denied for the period of time the notice was late. NOTE:  The proposed rule does not specify exactly
      what this denial of benefits means:  Does the time off still count toward the employee’s paid leave entitlement
      to shorten the remaining time and benefits available, or is it more of a delay of benefits, with the employee still
      able to take the full 12 weeks of leave (or 16 or 18 weeks, depending on circumstances)?  Does the employee
      have job protection but not benefits, or no protections or benefits under the law at all during the period
      of late notice?
       
  • Initial application for benefits:
    • Employees must make application through the procedures the state will make available, or as defined in
      a voluntary plan if the employer elects this route.
    • An employee must support each claim for benefits with documentation as specified in the rules: For the
      employee’s own serious health condition or to care for a family member, the employee must provide a
      certification from a